' CH. IJAZ AHMAD, J.---The brief facts out of which the present appeal arises are that land of the appellant measuring 19 Kanals, 5 Marlas situated in Square Nos.7 and 8 in Chak No,451/J.B., Thesil and District Jhang was acquired by the respondent under Land Acquisition Act for construction of Khairwala Main Drain. The notification under section 4 of the Land Acquisition Act was published in this regard in the Government Gazette on 30-6-1981. Corrigendum was also published on 31-12- 1981. The Land Acquisition Collector issued the award on 20-12-1986 and awarded compensation in following terms:--
(1) Rs,25,000 per acre for Nehri and Null Chahi land;
(2) Rs,12,500 per acre for Banjar Qadeem; and
(3) Rs,6,250 per acre for Ghair Mumkin land.
' It is pertinent to mention here that appellant was awarded compensation of the land in question considering the land of the appellant as Banjar Qadeem. The appellant being aggrieved submitted an application under section 18 of the Land Acquisition Act before the Collector on 27-1-1987 who forwarded the reference to the Referee Judge vide order dated 21-2-1987. The respondents filed written statement and controverted the allegations levelled in the reference. Out of the pleadings of the parties following issues were framed:--
(1) Whether compensation fixed by the Land Acquisition Collector is inadequate and what was the market value of the land'at the time of publication in Government Gazette on 3-12-1986? OPP
(2) Whether the petitioner sustained damage by reason of separating his land from his other land?
If so, what is that damage and its value? OPP
(3) Relief.
' Learned Referee Judge modified the award and awarded compensation to the appellant for the land in question considering the land in question as `Nehri Chahi' and enhanced the compensation for the same from Rs,25,000 to Rs,27,000 per acre alongwith Rs,10,000 in lumpsum on account of damage caused to the appellant due to severance of his land. The appellant being aggrieved filed this appeal.
2. Learned counsel of the appellant submits that land of the appellant was separated due to construction of the `Naala' in question as is evident from site-plan Exh.P.1 which is at page 21 of the paper book. He further submits that appellant produced Umar Din P.W.1 and Maqbool Hussain P.W.2 to show that appellant sustained loss amounting to Rs,15,000 per acre qua his land situated in Square No,7 and Rs,5,000 per acre qua the land situated in Square No,8. The statement of J.Jmar Din P.W.1 and Maqbool Hussain were not rebutted by the respondents by producing evidence before the learned Referee Judge. Therefore, learned Referee Judge erred in law to award Rs,10,000 as damage with regard to the separation of the land. He further submits that appellant has brought sufficient evidence on record that one square of land of the appellant was ruined on account of construction of `Naala' in question as the watercourse did not reach to one square of the land of the appellant due to separation. He further submits that appellant produced documentary evidence to the following effect:-- Sr. No.No. of ExhibitNo. of Mutation
1. Exh.P.11 560
2. Exh.P.12 564
3. Exh.P.13 575
4. Exh.P.14 589
5. Exh.P.15 239 "Date of Total land Price decision of sold mutation 30-1-19844K, 9MRs.22,000 29-3-19844K, 6MRs.22,500 28-3-19853K, 2MRs.18,000 12-8-19862K, 4MRs.9,000 5-6-19888K Rs.40,000 ' The aforesaid documentary evidence was not rebutted by the respondents by producing any independent evidence as the respondents/defendants produced following documentary evidence: (1)Exh.D.1Notification dated 3-12-1986 (2)Exh.D.2Copy of ---Naqsha Jeem--- (3)Exh.D.3Award dated 20-12-1986 ' He further urges that respondents have produced only R. W.1 Shafiq Nasir, Senior Clerk Colony Branch, D.C. Office, Jhang who admitted in cross-examination that in their record the land was shown in the schedule of Nehri land. He further submits that Referee Judge did not consider the aforesaid documentary evidence as well as oral evidence produced by the appellant. Therefore., judgment of the Referee Judge is result of misreading and non-reading of record.
3. Learned counsel of the respondents submits that the appellant filed appeal within time but the office raised objection on 21-9-1989 with a direction to remove the objection within three days. The appellant refiled the same after compliance. The office again raised certain objections on 24-6- 1992. The appellant refiled the same after depositing the amount as directed by the office. By that time the appeal field by the appellant had become time-barred. The appellant has not filed any application for condonation of delay. In support of his contention he-relied upon Naveed Ahmad v.
Asif Riaz PLD 1996 Lahore 702. He further submits that respondents also filed Regular First Appeal No,148 of 1989 against the impugned judgment. The same was dismissed by the Division Bench of this Court. Therefore, this appeal may also be dismissed. He further submits that learned Referee Judge was justified to ignore the documentary evidence of the appellant as the notification under section 4 of the Land Acquisition Act was issued on 3-6-1981 whereas the documentary ' evidence produced by the appellant pertains to the years 1984, 1985, 1986 and 1988. He further submits that appellant filed application for producing additional evidence before the learned trial Court which was dismissed on 21-5-1989.
4. Learned counsel of the appellant in rebuttal submits that Regular First' Appeal No,148 of 1989 was dismissed in limine by the Division Bench of this Court and upheld the judgment of the trial Court.
The Government of Punjab filed said appeal for decreasing the compensation awarded by the trial Court/Referee Judge whereas the appellant has filed this appeal . For enhancement of the compensation awarded to the appellant by the Referee Judge. Therefore, this appeal be decided on its own merits. He further submits that appellant filed appeal well within time and the same has become time-barred by the inaction of the office of this Court and therefore, the appeal should not be dismissed as time-barred. In support of his contention he relied upon Mst. Sabiran Bi v. Ahmad Khan 2000 SCMR 847. He further submits that there is no court-fee prescribed under the law to be affixed by the appellant on memorandum of appeal as the appeal was filed under section 54 of the Land Acquisition Act and not under section 96 of Code of Civil Procedure.
5. We have considered the contentions of the learned counsel of the parties and perused the record ourselves.
6. It is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties:--
(i) Notification under section 4 was published in the Government Gazette on 3-6-1981.
(ii) Corrigendum was also issued on 31-12-1981.
(iii) Notification under section 6 was published in Government_ Gazette on 3-12-1986 which is at pages 87 to 89 of the paper-book.
'The appellant produced Exh.P.11 to Exh.P.15 which relate to the years 1984, 1985, 1986 and 1988 respectively qua small pieces of land measuring 4 Kanals, 9 Marlas, 4 Kanals, 6 Marlas, 3 Kanals, 2 Maths, 2 Kanals, 4 Marlas, 8 Kanals, 4 Marlas, for consideration of Rs,22,000, Rs,22,500, Rs,18,000, Rs,9,000 and Rs,40,000 respectively. It is settled proposition of law that the market value of the land be determined at the date of publication of notification under section 4 in view of section 23(1), clause first of Land Acquisition Act, 1894. In arriving to this conclusion we are fortified by the following judgments:-- ' Market Committee, Kanganpur v. Rayyat Ali 1991 SCMR 572.
' Secretary of Government of N.-W.F.P. v. Haji Fateh Khan 2001 SCMR 974.
' Karachi Electric Supply Corporation v. Mst. Khalida Latif 1997 CLC 848.
' Project Director Darya Khan v. Collector Land Acquisition PLD 1998 Peshawar 21.
' Land Acquisition Collector v. Muhammad Iqbal 1992 SCMR 1245.
' It is pertinent to mention here that Collector sent the reference to the Referee Judge vide letter dated 21-2-1987 on the basis of notification issued under section 6 of the Land Acquisition Act published on 3-12-1986 as is evident from page 1 of the paper-book. The said notification is at page 87 of the paper-book. The question for determination before us is whether the market value of the land in question was determined from the date of notification under section 4 or under section 6 of the Land Acquisition Act. The Honourable Supreme Court in Secretary of Government of N.-W.F.P. v.
Haji Fateh Khan 2001 SCMR 974 laid down the following principle:-- "The relevant date for assessm ent according to the statute is therefore, that of notification under section 4 and not declaration under section 6."
' In view of what has been discussed above, we do not find any infirmity or illegality in the impugned judgment of the learned trial Court/Referee Judge to the extent of determination of price of the. Land in question. However, learned Referee Judge awarded only Rs,10,000 to the appellant as damages for separation of the remaining land of the appellant. The appellant has produced site-plan Exh.P.1 which is at page 21 of the paper-book which clearly shows that land situated in Squares Nos.7 and 8 are separated by the construction of `Naala' in question through the land of the appellant on the land measuring 19 Kanals, 5 Marlas acquired by the respondent for the said purposes. The total land of the appellant in the said Chak is measuring 402 Kanals, 18 Marlas as is evident from Exh.P.3 attached at page 23 of the paper-book. The appellant has brought on record material to show that the appellant sustained loss/damage qua the remaining land of the appellant. The learned Referee Judge did not award proper compensation to the appellant in view of section 23(1), clause fourth. The Referee Judge had enhanced the compensation of the land of the appellant acquired by the respondents from Rs,25,000 to Rs,27,000. Keeping in view this proportionate we also enhance the compensation qua damage sustained by the appellant qua the remaining immovable property amounting to Rs,2,000 per acre instead of Rs,10,000 in lumpsum. The preliminary objections raised by the learned counsel of the respondents have no force in view of the contentions raised by the learned counsel of the appellant.
'In view of what has been discussed above, the judgment/decree of the Referee Judge/trial Court is modified in the aforesaid terms.