' ANWAR ZAHEER JAMALI, J.--- Above titled two constitutional petitions, involving similar controversy, were heard together and allowed vide our short order, dated 4-10-2006, common reasons thereof with concise statement of facts, read as under.
2. In Constitutional Petition No,D-249 of 2004, petitioners Shahabuddin Shah son of Salam Shah has stated that his land measuring 19.07 acres in Deh Sareja Taluka and District Sanghar, was acquired for public purpose vide notification, under section 4 of the Land Acquisition Act, dated 28-10-1992, possession was taken over from him on 14-11-1992 and Award was accordingly passed on 5-12- 1992. On the basis of such Award petitioner was found entitled for payment of Rs,8,82,050 in terms of sections 23(1) and 23(2) of the Land Acquisition Act which sum was finally received by him on 23-11-1998, but the payment of other mandatory benefits available under sections 28-A and 34 of the Land Acquisition Act was not provided/granted to him for which he has to file the instant petition, claiming therein a sum of Rs,6,32,324.35 being the remaining sum due as per sections 28- A and 34 of the Land Acquisition Act.
3. In Constitutional Petition No,D-337 of 2004, petitioner Balocho son of Muhammad Hassan has stated that his land bearing Survey No,215/1 to 4 measuring 9.01 acres in Deh Sareja Taluka and District Sanghar, was acquired for public purpose vide notification under section 4 of the Land Acquisition Act dated 28-10-1992 and notification under section 6, dated 29-10-1992, possession of land was taken over from him on 14-11-1992, and award was passed on 5-12-1992. As per award a sum of Rs,4,32,400 was determined as compensation of his land in terms of sections 23(1) and 23(2) of the Land Acquisition Act which was paid to him finally on 10-4-1999, but the other mandatory benefits provided under sections 28-A and 34 of the Land Acquisition Act were not given to him for grant of which he has preferred instant petition, claiming therein a sum of Rs,3,46,952.67 from the respondents.
4. Since none of the parties had made reference under section 18 of the Land' Acquisition Act, against such award, thus, it attained finality. The petitioners were paid compensation as per the award, but due to the non-payment of benefits provided under sections 28-A and 34 of the Land Acquisition Act, upto the date of payment made to them, they have filed these petitions in the year 2004.
5. On service of notice parawise comments have been submitted by the respondents in both the petitions, wherein they have not disputed factual assertions made in the two petitions. However, claim of the petitioners as regard the benefits of sections 28-A and 34 of the Land Acquisition Act, is disputed mainly that due to non-availing of remedy of Reference under section 18 of the Land.
Acquisition Act, and laches.
6. Mr. Ghulam Rasool Qureshi, learned counsel for the petitioner in support of his arguments that benefit of section 28-A and section 34 of the Land Acquisition Act is mandatory in nature thus, the petitioners, despite delay on their part in approaching this Court, are entitled for such benefits, has placed reliance on the following judgments of this Court and the Honourable Supreme Court of Pakistan:-- ' (1) Mir Ghulam Abid v. Land Acquisition Officer, Khairpur 2004 YLR 77, (2) Syed Saadi Jafri Zainabi v.
Land Acquisition Controller and Assistant Commissioner PLD 1992 SC 472, (3) Province of Sindh v.
Ramzan and others PLD 2004 SC 512, (4) Government of Balochistan v. Haji Muhammad Akber Kansi PLD 2004 SC 855, (5) The Deputy District Officer (Revenue and Land Acquisition Collector, Sanghar and another v. Shoukat Ali and others (unreported judgment dated 21-6-2005 in C.P.L.A.
No,767-K of 2004), (6) Deputy District Officer (Revenue) and Land Acquisition Collector, Sanghar and another v. Imamuddin Shah (unreported judgment, dated 16-6-2005) in C.P.L.A. No,7'19-K of 2004.,
7. Relevant observations, from these cases, read as under:-
(a) In the case of Mir Ghulam Abid, while dealing with the issue of grant of additional compensation under section 28-A of the Land Acquisition Act, 1894, it was held that intervention of Court and adjudication was not required for payment of additional compensation under the said provision of law, even omission on the part of decree-holders/landowners to claim additional compensation to which they were entitled under mandate of law itself or omission of Court to grant the same, was totally immaterial and of no consequence.
(b) In the case of Syed Saadi Jafri Zainabi, it was observed that language of section 28-A will show that it is mandatory in nature and provides for additional compensation from the date of publication Of notification under section 4 to the date of payment of compensation. The main purpose of making this provision is to discourage the tendency to delay the payment of compensation in time and to ensure that the party whose property has been acquired, is duly compensated without unnecessary loss of time. It was further observed that it is the duty of the Collector that on making an award under section 11, he should tender payment of the compensation awarded by him to person entitled to it according to the award unless he is prevented by any 'reason provided in section 31.
(c) In the case of Province of Sindh through Collector of District Dadu, while taking note of earlier judgment in the case of Syed Saadi Jafri Zainabi PLD 1992 SC 472, it was held that the provision of section 28-A was inserted in the Act of 1894, through Sindh Government Ordinance, XXIII of 1984 with a view to check, the high-handedness of the acquiring department as well as acquiring agency, who sometimes sleep over the matter after once issuing a notification under section 4 of the Act and avoid making payment even after the announcement of award. It was further held that benefit of 15% compensation provided under section 28-A was of mandatory nature.
(d) In the case of Government of Balochistan through Assistant Commissioner Quetta again the celebrated judgment in the case of Syed, Saadi Jafri Zainabi PLD. 1992 SC 472, was taken into consideration and it was observed that payment of additional compensation of 15% in accordance with section 28-A of the Act of 1894 was mandatory and it was payable from the date of notification under section 4 of the Act upto the date of payment of compensation.
(e) In the case of Deputy District Officer (Revenue) and Land Acquisition Collector, Sanghar, and another the Honourable Supreme Court, while dismissing an application for leave to defend, completely agreed and endorsed the view of the High Court that amount of solatium under the above provisions of law (section 28-A and section 34 of the Land Acquisition Act, 1894) was mandatory. It was payable, in addition to compensation and it could not be withheld by the Government for any reason whatsoever. It was further observed that the High Court was perfectly justified in observing that delay in payment of such, solatium had exposed- the Sindh Government to huge financial losses, as such amount continued multiplying till final disbursement. It was also observed that it was the solemn duty of the agency, for whose benefit private land was compulsorily acquired, to deposit the entire amount with the Land Acquisition Officer for disbursement so that unnecessary amount of interest and additional compensation could be saved.
(f) In the case of Deputy District Officer (Revenue) and. Land Acquisition Collector, Sanghar and another v. Imamuddin Shah while dealing with C.P.L.A. Arising out of the order of this Court in C.P.
No,D-220 of 2004, relating to same award, which is subject-matter of present petitions, it was held that on plain reading of sections 28-A and 34 of the Land Acquisition Act, 1894, mandate of law is clear, unambiguous and self-executory. It was further observed that delay in payment of such compensation only adds to the agony of the litigant public and results in wastage of valuable time of this Court and burden on the public exchequer.
8. Mr. Anwar Mansoor Khan, learned Advocate-General Sindh on behalf of respondents, in his arguments, at the outset, did not dispute the mandatory nature of the benefits available under sections 28-A and 34 of the Land Acquisition Act, which are to be allowed without discrimination in every Land Acquisition award. He, however, contended that the peculiarity of these two cases is that no notification under section 4 of the Land Acquisition Act was ever issued or published in the Government Gazette, therefore, the benefit of section 28-A of the Act was not available to the petitioners. He next contended that due to non-issue of notification under section 4 of the Land Acquisition Act, the award in dispute dated 5-12-1992 was in the nature of private negotiation between the parties, therefore, the petitioners were not entitled to claim the benefit of above referred two beneficial provisions of Land Acquisition Act, through these constitutional petitions. He also made reference to the provisions of section 18 of the Land Acquisition Act and contended that in case petitioners were aggrieved from the terms of the award in any manner whatsoever then proper remedy available for them was under the said provision of law, which remedy was admittedly not availed by them. Thus, on the principles of acquiescence and estoppel they are barred from agitating such plea now. Dilating upon the scope of acquiescence in such cases, learned counsel placed reliance upon the cases reported as Indus Pencil Industries (Private) Ltd. v.
Vikar Industries (Private) Limited PLD 1999 Kar. 281, Ghulam Mustafa v. Azad Government of the State of Jammu and Kashmir and 2 others 1996 MLD 355, Khushi Muhammad and 9 others v. Murad Ali and 13 others 1998 MLD 1793, Syed Nazar Abbas v. Commissioner, Sargodha Division Sargodha PLD 1983 Lah. 482 and Ahmed and 25 others v. Ghama and 5 others 2003 SCMR 119. He further contended that due to the non-availing of remedy under section 18 of the Land Acquisition Act, the petitioners have no locus standi to maintain these petitions for grant of such reliefs for which proper remedy was earlier available to them but not availed. To fortify this view he placed reliance upon the case of Mirza Maqbool Elahi and others v. Capital Development Authority, Islamabad and 3 others 1998 SCMR 1074. Lastly the learned Advocate-General also raised the plea of laches and contended that acceptance of full payment by the petitioners in terms of the award as back as in the year 1998/1999, and thereafter, filing of these petitions in the year 2004, patently suffer from laches and thus petitions are liable to be dismissed on this short ground. In support of his argument he placed reliance upon the cases of Ghulam Muhammad v. Government of West Pakistan PLD 1967 SC 191, Mst. Sardar Begum v. Lahore Improvement Trust, Lahore and 3 others PLD 1972 Lah. 458, Allandino v. Fakir Muhammad and another PLD 1969 SC 582 and Mst. Bibi Rahmania and 14 others v. Government through Director, North Regional Research Laboratories and Collector, Peshawar and 13 others PLD 1971 Pesh.
191. In the context of availability of relief under section 28-A (ibid), learned Advocate-General also made specific reference to its language to show that the payment of additional compensation in terms of this provision of law was entirely dependent upon the issuance of notification under section 4 of the Land Acquisition Act and since in the instant case no such notification was published in the official Gazette, the petitioners were not entitled for its benefit. To amplify the concept of publication of notification in the official Gazette, he placed reliance upon the judgment in the case of Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190.
9. In his reply arguments Mr. Ghulam Rasool Qureshi, firstly, disputed the assertions of respondents regarding non-issuance/publication of notification under section 4 of the Land Acquisition Act. In the same context he further contended that after lapse of more than 14 years to the passing of award, the respondents are now estopped from taking such plea, which is purely a question of fact and cannot be looked into or investigated by this Court at this belated stage. In this regard he made reference to a judgment of apex Court in the case of Mirza Maqbool Elahi v. Capital Development Authority, Islamabad and 3 others 1998 SCMR 1074 and unreported judgment of this Court dated 21-2-2006 in C.P. No,D-274 of 2004. He further contended that by way of same award dated 5-12-1992 already claims of 125 other claimants have been settled, decided and paid of by the Land Acquisition Officer, out of which more than 95% land owners have also been subsequently extended benefit of sections 28-A and 34 of the Land Acquisition Act, by way of various orders passed by this Court, which have been, without exception, maintained by Honourable Supreme Court of Pakistan, but in none of these cases the plea of non-issuance of notification under section 4 or 6 of the Land Acquisition Act, before passing of award, dated 5-12-1992 was raised by the respondents. According to learned counsel this plea has been now falsely raised by the respondents with some ulterior motives.
10. We have carefully considered the arguments advanced by the learned counsel for the parties and perused the material placed on record which goes to show that in their parawise comments filed by the respondents in these two petitions, no where any plea of non-issuance or non- publication of notification under section 4 or section 6 of the Land Acquisition Act was ever raised by them, which in other words means that such plea has been now raised by the respondents only as an afterthought, that too without any material to substantiate. In our view, reference in the opening part of the award under section.11 of the Land Acquisition Act that notifications, under sections 4 and 6 of the Land Acquisition Act, were sent to the Sindh Government Printing Press for publication, respectively on 28-10-1992 and.29-10-1992 will not justify any such conclusion that same were not published in the official Gazette. Rather it will give an impression that in due course same were published in the official Gazette. Moreover, this point also stands decided by another Division Bench of this Court through its order, dated 21-2-2006. In the unreported case of Ghulam Hussain and others v. Province of Sindh C.P. No,D-274 of 2005), relating to same award. Relevant observations read as under:-- ' "Prima facie presumption of correctness is attached to the official document and a presumption would also be attracted that such award has been passed after complying with all the codal formalities as required under the law. Thus, at this belated stage of over a decade. Such disputed questions of fact cannot be enquired into in exercise of writ jurisdiction."
11. The submission of Mr. Ghulam Rasool Qureshi that in several other constitutional petitions of similar nature arising out of the award dated 5-12-1992, filed by other land owners, no such plea was raised by the respondents, also finds support from the material placed on record. Thus, at this belated stage, agreeing with the above view, we are not inclined to examine such plea of fact raised on behalf of the respondents for the first time at this belated stage of arguments.
12. No doubt in the instant case after passing of award dated 5-12-1992 none of the landowners including the two petitioners made any reference application under section 18 of the Land Acquisition Act for claiming the benefit of sections 28-A and 34 of the Land Acquisition Act, but this fact alone will not justify a conclusion that the award, dated 5-12-1992, to which otherwise there is no dispute in the present petitions, was not an award under section 11 of the Land Acquisition Act, but only a settlement between the parties, through private negotiations. Similarly, in view of the plethora of case-law cited by Mr. Ghulam Rasool Qureshi, Advocate in this context, neither the principles of acquiescence or estoppel will come into play against the petitioners to disentitle them from claiming the benefit of sections 28-A and 34 of the Land Acquisition Act through these constitutional petitions nor would the question of laches will be a hurdle in their way for claiming such relief. To fortify this view again reference can be made to the case of Imamuddin Shah (supra), which had also emanated from the same award dated 5-12-1992; wherein payment of compensation in terms of award was received by the landowner before the year 2000, while petition was preferred in the High Court in the year 2004, having the delay of almost same period as in the instant case, and it was allowed.
13. There is no cavil to the proposition of law propounded in various judgments cited at the bar by learned Advocate-General Sindh, on the point of laches, but in the peculiar facts and circumstances of the case, these judgments are distinguishable. Moreso, as various judgments cited by the learned counsel for petitioners, relate to the litigation, which had emanated from the same award dated 5-12-1992 and in these cases, particularly in these cases of Imamuddin Shah, who is stated to be the brother of petitioner Shahabuddin, the question of laches was answered in favour of the petitioner by the High Court with the following observations:-- "Admittedly, the award does not include the solatium under sections 28-A and 34 of the Land Acquisition Act. The law requires the Collector to deposit the amount of compensation in Court, which has not been done. As long as the amount is unpaid by the Acquiring Agency to the party required to be compensated the question of limitation or laches will not come in their way."
' The above observations of the Division Bench of this Court were maintained by the Honourable Supreme Court of Pakistan in the case of Deputy District Officer (Revenue) and Land Acquisition Collector, Sanghar and another v. Imamuddin Shah, C.P.L.A. 719-K of 2004), which has made such view binding on us on the point of laches in relation to the claim of the petitioners having arisen out of the same award, dated 5-12-1992.
14. In order to examine the contention of learned Advocate-General Sindh about the consequences of non-availing of remedy under section 18 of the Act, by the petitioners particularly with reference to certain observations of the Honourable Supreme Court in the case of Syed Saadi Jafri Zainabi (supra), from another angle, it will be useful to reproduce hereunder part of section 18 (ibid) and also the relevant observation from the above referred judgment relied by the learned counsel which read thus:-- "18. Reference to Court.---(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested or the amount of costs allowed.
(2) .......................................................................
(3) ........................................
' Observations from the case of Syed Saadi Jafri Zainabi (supra):- "In the judgment and decree granted by the learned, District Judge this amount of additional compensation under section 28-A was not included. The appellant made this claim at the time of execution of the decree but the Executing Court refused to go beyond the decree. In consequence thereof, the appellant filed application under sections 151 and 152, C.P.C. Which was allowed but in appeal it was set aside observing that on the commencement of the action section 28-A was not in the field, the judgment of the learned District Judge is silent about it and did not extend the benefit of section 28-A to the respondent (appellant) either intentionally or unintentionally. It was further observed:-- "the application of section 28-A of the said Act is not automatic but the Court deciding reference under section 18 of the said Act has to pass a specific order in terms of section 28-A and unless such an order has been passed the claimant cannot seek benefit of the section."
15. A plain reading of section 18 vis-a-vis sections 28-A and 34 of the Act reveals that remedy under this provision of law is available to any interested person who has not accepted the award of the arbitrator delivered under section 11 of the Act, as regards determination of the amount of compensation, having objection with the measurement of the land, the person to whom it is payable, the apportionment of the compensation or the amount of costs allowed, while additional benefits envisaged under sections 28-A and 34 of the Act are rider in nature to the compensation determined under the award. Thus, wherever applicable, same are to be allowed invariably, being mandatory in nature. It is in this view of the matter that in the case of Syed Saadi Jafri Zainabi (supra) the Honourable Supreme Court had observed that non-mentioning of the fact of awarding of such additional benefits in the judgment and decree was a mere unintentional omission and consequently such benefits was allowed at the stage of execution proceedings. As regards the observations of passing of an order to seek the benefit of section 28-A, suffice it is say that this Court in exercise of its jurisdiction under Article 199 of the Constitution has ample power to do so to foster the cause of justice and to avoid the technicalities of law to F prevail upon and defeat the ends of justice, as mere availability of alternate remedy is no bar for invoking such jurisdiction, depending upon the facts and circumstances of each case. Moreso, as availing of remedy under section 18, only for claiming the mandatory benefits of sections 28-A and 34 of the Arbitration Act, also appears to be cumbersome and un-efficacious. Such view of the matter also finds support from the other five judgments of the Honourable Supreme Court of Pakistan referred by Mr. Ghulam Rasool Qureshi, wherein invariably claim of benefit of sections 28-A and 34 of the Act made by the landowners was upheld in their favour, precisely on the sole ground, being mandatory in nature.
16. To say it more explicitly the language of section 18 read with sections 11, 23 and 24 of the Act clearly go to show that remedy under section 18 is meant for those persons who have not accepted the award; (a) in the context of measurement of the land acquired, (b) the amount of compensation determined, keeping in view the parameters laid down in sedtions 23 and 24 of the Act for this purpose, (c) with reference to the persons to whom it was payable, (d) apportionment of such compensation amongst the persons interested and (e) amount of costs allowed. Thus, in our view the arguments of the learned Advocate-General Sindh on this point are nothing but a futile exercise to dislodge the claim of the petitioners for non-valid reason.
17. As earlier observed by us, since the respondents in their parawise comments have not questioned the non-publication of the notifications under sections 4 and 6 of the Land Acquisition Act in the official Gazette, before passing of award under section 11 of the Land Acquisition Act, 1894, all other arguments advanced by the learned counsel for the respondents on such premises have lost their force.
' Foregoing are the reasons for our short order passed by us on 4-10-2006.