SYED HASAN AZHAR RIZVI, I have heard the Mr. Mushtaq A. Memon, learned counsel for the decree- holder, Mr. Qaiser Jamil Malik, learned counsel for the judgment-debtor and Ms. Farkhanda Mangi learned State counsel on 22-1-2011.
2. Mr. Mushtaq A. Memon, Advocate for the Decree Holders submits that the Lands inter-alia were acquired for the establishment of Korangi Township by the then Government of West Pakistan under the Land Acquisition Act, 1894 through notifications issued under section 4 of the said Act on 2-2-1960 and 5-3-1960. The Collector pronounced award dated 17-12-1960 and awarded compensation to the Decree Holders separately for the trees but at rates much lower than those claimed by the owners/decree holders.
3. The decree holders being dissatisfied with the Collector's award applied to the Deputy Collector and Land Acquisition Officer under Section 18 of the Land Acquisition Act, 1894 to refer their case to the Civil Court for determining the appropriate compensation for their "property, which was acquired. Vide Reference No,5 of 1969 learned Single Judge of this Court by his judgment dated 27- 8-1970 disposed of the Civil Reference No,5 of 1969 and modified the rate of compensation for the lands. Two Appeals were filed against that judgment dated 27-8-1970 of the learned Single Judge of this Court. Both Appeals bearing L.P.A. Nos.164 and 165 of 1970 were disposed off by a common judgment passed by the Divisional Bench of this Court on 26-9-1977 and thereby allowed the Appeals to a slight extent.
4. The judgment passed by the Divisional Bench in Appeals Nos.164 and 165 of 1970 were challenged before the honourable Supreme Court of Pakistan vide Civil Appeals Nos.K-143 and K- 144 of 1980. Both the Appeals were allowed by the honourable Supreme Court of Pakistan on 18-2- 1987 .
5. Mr. Mushtaq A. Memon learned counsel for the Decree Holders has drawn the attention of this Court towards the upto-date proceedings in the present Execution Application and has referred that on 26-5-1988 the decree holders have filed the present Execution Application in this Court. On 6-12-1990 while hearing the present Execution Application Mr. K. M. Nadeem learned Advocate for Judgment Debtors submitted that decree is for a sum of Rs,108,72,386 and after depositing Rs,28,00,000 on 27-11-1990 entire amount has been cleared. Mr.Mushtaq A. Memon learned counsel for the decree holders submitted that the decretal amount is Rs,7,77,45,920. On 13-8-2002 this Court directed the Nazir to check and verify whether the statement dated 23-1-2002 filed by the decree holder in accordance with the decree passed by this Court. The Nazir of this Court submitted his report dated 21-9-2004 which is available at page 701 of the Court file, Paragraphs Nos.4, 5 and 6 are relevant, which are being reproduced as under:-- "(4) As such amount of Rs,7,77,46,190.00 had to be deposited by the Judgment Debtors against the decretal amount as mentioned in writ of warrants but the J.D. Deposited Rs,1,08,72,386.00 (Rupees one crore eight lacs seventy two thousand three hundred eighty six only) and, the same have been paid to the Decree-Holders at that time.
(5) Decree Holder has filed the statement, which was verified with assistance of Mr. Liaquat Ali, representative of Revenue Department and Decree Holder counsel and found correct as per judgment dated 18-2-1987 passed by full bench of the Hon'ble Supreme Court in para. 32 which is reproduced as under:- "The result is that both the appeals are allowed and compensation shall be awarded to the applicants for lands, at the rates mentioned in para.24 above and for fruit trees at the rates mentioned in para.31 above. In addition, the appellants will get the usual 15% allowance towards compulsory acquisition plus interest at the rate of 6% per annum from the date when the possession which has become payable to them as a result of this order."
(6) Therefore amount Rs,6,38,20,552.80 (Rupees six crore thirty eight lacs twenty thousand five hundred fifty two paisa eighty only) mentioned in statement of Decree Holder is correct as per verification done with the assistance of both the parties.
6. Vide order dated 17-12-2004 this Court directed the. Advocate General Sindh to appear in Court in person and informed this Court as to when payment in the present Execution Application would be paid to the Decree Holder and in case the Advocate General failed to appear writ of attachment would be issued for recovery of decretal amount.
7. By the order dated 22-12-2004 this Court passed order for issuance of writ of attachment. On 17- 2-2005 the attachment order issued on 22-12-2004 by this Court was suspended and it was directed to fix the matter before the same bench. On 2-6-2005 this Court has held that there is no order for extension of interim order, therefore, order was no more operative, issue writ of attachment. On 26-4-2007 this Court observed that the Execution was already allowed on 2-2- 2006 and writ of attachment along with police aid was ordered to be issued. However, except of some initial payment, no further payment had been made by the judgment-debtor and Nazir of this Court was appointed to calculate the amount in accordance with the decree. On 25-5-2007 the Nazir of this Court in compliance of the order dated 26-4-2007 submitted compliance report wherein it is stated that Mr. Abdul Aziz one of the decree holders and Mr. Qaiser Jamil, Advocate for the Judgment Debtor along with Abdul Rehman, DDO appeared on 3-5-2007 and even thereafter several sittings had been made to resolve the dispute regarding the outstanding amount. After great efforts made by both the parties, they have resolved the main dispute regarding principal amount which is in the sum of Rs,74,43,413, which has been paid and agreed by both the parties. As regards to the dispute regarding 15% additional compensation under section 28-A of the Land Acquisition Act it is to be resolved as to whether the said amount to be paid with effect from 1960 or 1984 as well as 6% interest on the 15% additional compensation. In paragraph No,5 of the compliance report of the Nazir dated 25-5-2007 it is stated that the DDO contended that the decree holder is only entitled for 15% additional compensation on the principal amount from the year 1984 when the amendment came into being. He further contended that no interest is permissible under the law on 15% additional compensation amount. According to the Nazir report referred to above the main dispute regarding the principal amount has been resolved by both the parties amicably and only dispute regarding period and interest on the additional compensation amount is remained. On 11-12-2007 this Court passed very comprehensive order and had appointed the Nazir of this Court to attach the amount of Rs,23,176,029 from the Accounts Nos.0368003 and 0540014 at Habib Bank Limited, Civic Centre Branch, Gulshan-e-Iqbal, Block-14, Karachi and Account No,04564-9 at United Bank Limited, Civic Centre Branch, Karachi directed two banks to remit the said amount to the Nazir of this Court. Vide order dated 30-1-2008. From the report of the Nazir dated 15-1-2008 it reveals that amount of Rs,23,176,029 was attached with two banks by the Nazir.
8. Mr. Qaiser Jamil learned counsel for CDGK contended before this Court that before disbursement of aforesaid amount to the decree holder controversy of section 28-A of the Land Acquisition Act may be resolved, which is pending since long. On 5-3-2010 this Court has passed order that the CDGK filed a statement worked out the amount payable in terms of section 28-A of the Land Acquisition Act to be Rs,26,809,317.25. The Nazir report also shows worked out payable amount under section 28-A of the Land Acquisition Act is being Rs,2,60,41,445.5. The Nazir was directed to submit his review report enquiring_that his calculation is appropriate or otherwise. On compliance of that order the Nazir submitted his report on 26-5-2010 which was taken on record on 4-6-2010, according to the Nazir report the statement filed earlier by the decree holder in which they claimed principal amount of Rs,74,43,413 has been shown vide page 833 in the case file as such the judgment debtor has shown the principal claimed amount Rs,74,40,413 vide page No,839 in the case file, in which Rs,3,000 difference is in excess of Decree Holder's statement, the claimed amount of Rs,2,35,090 of Suleman vide 2nd line of page 831, actually there is an error in calculation and correct figure of amount is Rs,2,32,090. According to the principal claimed amount which should be Rs,74,40413.
9. In view of Court's order dated 5-3-2010, the 15% compensation under Section 28-A of the Land Acquisition Act has been calculated, the details whereof has been mentioned in the Nazir's Report.
The 15% compensation from 1-1-1984 to 31-7-2008 comes to Rs,2,74,36,522.94. It was further pointed out that amount of Rs,2,31,76,000 (Two Crore Thirty One Lacs Seventy Six Thousand only) is lying invested in profitable Government Scheme.
10. Mr. Qaiser Jamil learned counsel for the Judgment debtor has referred the compliance report of the Nazir dated 21-9-2004 and the statement enclosed with it. In Column-8 of the statement, the grand total of the additional compensation under section 28-A of the Land Acquisition Act, 1894 was calculated as Rs,2,53,25,616.16 and in Column-9 of that statement interest was payable at the rate of 6% per annum for the period from 2-2-1960 to 1-2-2002 was calculated as Rs,6,38,20,552.80.
According to the learned counsel for Judgment-Debtor interest is not applicable under the law. He further contended that section 28-A of the Land Acquisition Act is only applicable when the judgment debtor had not paid the amount on award passed by Land Acquisition Officer and further amount in view of enhancement of award by this Court. According to learned Counsel for the Judgment-Debtor no interest is payable on the amount payable under section 28-A. Section 28-A has been added in the light of the decision of the Federal Sharaiah Court, therefore, allowing of interest cannot be imagined. Provisions of Article 2-A, being in the nature of Paramount clauses and, supra. Constitutional instrument, cover Article 189 also. Even if any Law declared by the Supreme Court of Pakistan either prior to insertion of Article 2-A or without considering the said Article is also subservient to the provision of Article 2-A. So law declared by the Hon'ble Supreme Court if any without considering the said article can be disregarded by a court of law. He has placed reliance upon PLD 1987 Karachi 466. He further submits that according to the own statement of the Advocate for the decree holder filed before this Court on 13-8-2008 the additional compensation amount calculated at the rate of 15% of money which had become payable in terms of Supreme Court judgment dated 18-24987 comes to Rs,26,809,317.25.
11. Learned counsel for the Judgment Debtor referred to the annexure along with statement referred to above wherein total amount comes to Rs,104,824,430.03 and according to the learned counsel for Judgment Debtor there is contradiction between the amount calculated by the decree holder and the amount calculated by the Nazir.
12. Mr. Mushtaq A. Memon learned Counsel for the decree holder has relied upon the following reported cases:--
(i) 1991 MLD 1258 (Majeed Shaikh v. Syed Shakir Alia Jafri and 6 others) wherein it is held that:- "Section 28-A of the Land Acquisition Act, 1894 is a beneficial legislation and will apply to all pending matters. In the case of .Province of East Pakistan v. Muhammad Hussain Mia reported in PLD 1965 SC 1, it was held that on the filing of an appeal the entire matter re-opens and has to be decided in accordance with the prevailing law. It was again held in the case of Muhammad Ayub and others v. Muhammad Yaqoob and another reported in PLD 1975 Lah. 445 that subsequent events including amendment in legislation which occur during pendency of action can be taken into consideration."
(ii) PLD 1992 Supreme Court 472 (Syed Saadi Jafri Zainabi v. Land Acquisition Collector and Assistant Commissioner), the Hon'ble Supreme Court held that:- "Section 28-A of the Land Acquisition Act, 1894 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 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. In case the party is not available or does not consent to receive, the Collector shall deposit the amount of compensation in the Court to which a reference under section 18 would be submitted. Therefore, after the award has been made there should be no delay in making payment or depositing the compensation in the Court."
(iii) PLD 1993 Karachi 578 (Dilawar Hussain and 6 others v. The Province of Sindh through Secretary Revenue Department, Karachi and 2 others), the Hon'ble Judge held that:-- "Grant of interest in terms of section 28 of the Land Acquisition Act, 1984 is patently a matter within the discretion of the Court. The Court may, or may not grant it. If it chooses to say nothing on the subject the interest claimable under section 28 would be lost for there is no absolute right of the land-holder in it. Such is to be granted consciously and upon express exercise of power. Like result should follow when section 23(2) of the Act is compared with section 28-A. The former makes it incumbent for the Court to allow an additional 15% on the market value arrived at under section 23(1) of the Act. Yet, if the Court omits in making the grant or, for any reason, refuses such succor (though that does not appear to be permissible) the land-holder cannot obtain relief except upon review, or on appeal or in revision but certainly not in execution, for such is the power of the referee Court and not of one which is merely entrusted with execution, the latter Court not being allowed to go behind the decree except in a very limited sphere. This emerges from the pointed mention of the expression 'the court' in condition precedent for the grant. Section 28-A, as seen, postulates 15% solatium per annum on the compensation as an addition and mandatorily.
"Section 28-A of the Land Acquisition Act where applicable, is a mandatory is addition to compensation and payable without a formal order leaving it for the Acquisition Authorities to make compliance with the requisites on their own, either at the time of rendering the award or, where relevant, even following thereupon irrespective of adjudication in the Court (many a matter not being referred to the Court at all), failing which the relevant Court, may it be even the executing Court itself, would be within its powers to redress the wrong, if any, attracted in a given case."
(iv) PLD 2003 Karachi 174 (Dilawar Hussain and 6 others v. Province of Sindh through Secretary, Revenue Department, Karachi and 2 others) authored by Mr. Justice Sabihuddin Ahmed and Mr. Justice Amir Hani Muslim, wherein it is held that:-- "Nevertheless, in view of the reasons stated above and the pronouncement of the honourable Supreme Court in Saadi Jafri Zainabi's Case, we are of the view that upon a proper construction of section 28-A additional compensation is to be calculated only on the basis of the unpaid amount.
Respectfully following the law so declared by the apex Court we would also agree with the learned Single Judge that section 28-A is a self-executing provision and the mere fact that it was not considered in the judgment of the honourable Supreme Court does not disentitle the executing Court from allowing the decree-holder to avail of its benefits.
' For the foregoing reasons, we dismiss the Appeal directing the parties that the appellants were entitled to receive the additional compensation under section 28-A for the unpaid amount of the compensation from the date of notification under section 4 of the Act till the final payment of the compensation is made to the appellants. There will be no orders as to costs.
(v) 1994 CLC 160 (Land Acquisition Officer, Badin District v. Pir Altaf Hussain Shah and 2 others), wherein it is held that :- "Land owners would be entitled to additional compensation at 15% per annum foot from the date of notification under section 4 of the Act till payment as provided under section 28-A of the Act".
(iv) PLD 1998 Karachi 50 (Abdul Hamid Ali and 5 others v. Land Acquisition Officer, Badin), it was observed that:-- "Entitlement to claim additional compensation during pendency of execution application in which prayer was made for grant of additional amount by way of decretal amount where decree was passed prior in time to date of insertion of S.28-A in Land Acquisition Act, 1894---Where claimants had not been paid amount of compensation awarded by competent Court of law notwithstanding the circumstances that judgment and decree was passed at that time when S.28-A was not operative, he would be entitled to such additional compensation with effect from the date of notification under S.4, Land Acquisition Act, 1894 till deposit of amount in the account of District Court-Executing Court, generally, would not go beyond decree but in appropriate cases Executing Court could take into consideration change in law which pertained not only to state of facts where law was enacted subsequent to passage of decree but also at a point of time when decree had not attained finality and for some reason intervening law either escaped examination or was otherwise omitted---Provision of S.28-A, Land Acquisition Act, 1894 was self executory which would not envisage any intervention by referee Court or Appellate Court---Amount in question deposited in District Court by respondent and same having been invested in Defence Saving Certificates, claimants would be entitled to interest thereon."
(vii) PLD 2004 Supreme Court 512 (Province of Sindh through Collector of District Dadu and others v.
Ramzan and others), wherein the Hon'ble Supreme Court has held that:- "Notification under section 4 of the Act was issued in the year 1981, the awards were made somewhere in the year 1985 and the objection petitions of the landowners were referred by the Collector to the Court more than seven years thereafter. Having, no regard for the rights of the people and having dealt with them in such a careless and ruthless manner, they were bound to be checked under section 28-A of the Land Acquisition Act. It is exactly for these eventualities and circumstances that the section was enacted."
(viii) PLD 2005 Supreme Court 311 (Land Acquisition Officer and Assistant Commissioner, Hyderabad v. Gul Muhammad through legal heirs), wherein it has been held that:- "Awarding of additional compensation @ 15% per annum of compensation fixed from date of notification till payment of entire amount of compensation---Validity---Such additional compensation could be awarded in view of S.28-A Land Acquisition Act, 1894."
(ix) 2006 CLC 1042 (Deputy Commissioner, 'Malir v. Jan Muhammad and others), this Court has held that:-- "Allowance provided under said S.28-A of Land Acquisition Act, 1894 was mandatory in nature and being beneficial in nature, would apply to all. Pending proceedings Applicants/claimants, in circumstances were entitled to said additional compensation, so fixed from the date of Notification under S.4 of Land Acquisition Act, 1894 to the date of payment of compensation---Omission to grant additional compensation as was admissible under S.28-A of Land Acquisition Act, 1894, however was not intentional, but appeared to be an accidental slip or omission which could be corrected at any time by the Court, either on its own motion or on application of any party, in exercise of powers under 5.152, C.P.C. And said omission could be rectified."
(x) 2010 YLR 1736 (Ahmed Ali v. Land Acquisition Officer L.B.O.D. WAPDA and another), wherein it was observed that:-- "Additional compensation under section 28-A of the Land Acquisition Act, 1894 at the rate of 15% per annum would be paid from the date of notification till payment of compensation."
13. I have given due consideration to the arguments advanced by the learned counsel for the parties, perused the relevant documents with their able assistance and has also perused the case- law cited by the learned Counsel for the Decree Holder and Judgment-debtor.
14. The honourable Supreme Court of Pakistan by its judgment dated 2-2-1987 in Civil Appeals No,K-143 and K-144 of 1980 allowed both the Appeals and awarded compensation to the decree holder for land and for fruits trees at the rate mentioned in Paragraph Nos.24 and 34 of the judgment respectively. In addition, the decree holders were allowed usual 15% allowance towards compulsory acquisition plus interest at the rate of 6% per annum from the date when the possession was taken from them for the part of the compensation which has become payable to them as a result of order of the honoruable Apex Court.
15. The Nazir of this Court in compliance of the Court order dated 5-3-2010 has filed a report dated 26-5-2010 stated therein that the Judgment Debtor filed objections to the said Nazir report, thereafter, a statement has been filed by the Advocate for the decree holder dated 21-10-2010 and the judgment debtor filed objections to the said statement of the decree holder on 25-11-2010.
16. Execution Application has already been allowed by the orders dated 2-10-2006, writ of attachment along with police aid was ordered to be issued, Judgment Debtors in order to circumvent warrant of attachment had filed C.M.A. No,377 of 2007 sought payment of decretal amount mentioned in the warrant of attachment in instalment of Rs,1.00 Million per month and by the orders dated 26-4-2007, this Court directed attachment of Rs,23,176,029 which amount was admitted as outstanding and due. The Nazir submitted his report in compliance of the order of this Court dated 5-3-2010 and has submitted that 15% compensation under section 28-A of the Land Acquisition Act and has calculated the details as under:-- S.No,Claimed Period MonthsRate per month Total
1. 2-2-1960 to 30-12-1983 (23 years 10 months) 286 x 93,005.1625 Rs.2,65,99.476.47
2. 1-1-1984 to 30-4-2004 (23 years 4 months) 280 x 93,005.1625 Rs.2,60,41,445.50
3. 1-5-2007 to 31-7-2008 (1 years 3 months) 15 x 93,005.1625 Rs.13,95,077.44 Rs.5,40,35,999.41
17. The Nazir has submitted that the 'principal claimed amount should be Rs,74,40,413. Nazir further submitted that 15% compensation from 1-1-1984 to 31-7-2008 comes to Rs,2,74,36,522.94 and further submitted that an amount of Rs,2,31,76,000 is lying invested in profitable Government Scheme.
18. In the case law cited by the learned counsel for the Decree Holders, referred to above, apex Court as well as this Court have held that additional compensation under section 28-A of the Land Acquisition Act is payable despite non-reference to such provision by Court in the original judgment and decree. However, in the appellate order dated 28-5-200R, paragraph 10 of the- judgment reported in Dilawar Hussain and 6 others v. Province of Sindh and 2 others (PLD 2003 Karachi 174), it has been held that according to section 28-A additional compensation is to be paid only on the unpaid amount. The principle laid down by this Court in the case reported in 2006 CLC 1042 about payment of additional compensation under section 28-A has not been disapproved but a clarification is made to the effect that such compensation would be payable on the unpaid amount.
19. I am fully in agreement with the contention of Mr. Mushtaq A. Memon learned counsel for the decree holders that in the present case, additional compensation under section 28-A is sought only on the enhancement of compensation (unpaid amount) by the honourable Supreme Court of Pakistan in terms of paragraphs 31 and 32 of the judgment dated 2-2-1987, which has been calculated by the Nazir in the reports dated 21-9-2004, 25-5-2007 and 26-5-2010. I also inclined to agree with the submissions made by Mr. Mushtaq A. Menton learned counsel for the decree holder that the question of amount of compensation payable from the date of notification under section 4 till entire amount of the compensation is to be determined in the single transaction and additional compensation under section 28-A would have to be calculated by bifurcating unpaid amount from that which has already been received by the land owners. Section 28-A is self executing provision and mere fact that it was not considered in the judgment of the honoruable Supreme Court does not disentitle this Court from allowing the decree holders to avail all its benefit. I, therefore, hold that the decree holders are entitled to receive the additional compensation under section 28-A on the unpaid amount of the compensation from the date of notification under section 4 of the Act till final payment of the compensation is made to the decree holders.
20. According to the judgment of the honourable Supreme Court of Pakistan dated 18-2-1987 in Civil Appeals Nos.K-143 and K-144 of 1980 the decree holder was allowed beside 15% allowance towards compulsory acquisition plus interest at the rate of 6% per annum from the date when the possession was taken from them has become payable and that amount was calculated from 2-2- 1960 to 1-2-2002 as Rs,6,38,20,552.80 and for said sum writ of attachment was issued by this Court on the basis of Nazir Report dated 21-9-2004. The Judgment Debtor in order to circumvent writ of attachment filed C.M.A. No,377 of 2007 sought payment of that amount in instalment of Rs,1 Million per month. However, said application of the judgment debtor was dismissed by this Court on 11-12- 2007. According to the Nazir report dated 26-5-2010 amount of Rs,2,31,76,000 (Rupees Two Crore Thirty One lacs seventy Six Thousand only) is lying with the Nazir in profitable Government Scheme.
21. In view of the dicta laid down by the honourable Supreme Court of Pakistan, Divisional Bench and Single Bench of this. Court in the cases referred to above, I have no hesitation to hold that the Decree Holders are entitled to receive the additional compensation under section 28-A of the Land Acquisition Act at the rate of 15% per annum on the unpaid amount of the compensation from the date of notification under section 4 of the Act till final payment of the compensation is made to the Decree Holders. The Nazir is directed to calculate up to-date compensation at the rate of 15% per annum from 1-1-1984 by bifurcating the unpaid amount which has already been received by the land owners, add amount of Rs,6,38,20,552.80 in the 15% compensation under section 28-A of the Land Acquisition Act referred to above and after deduction of Rs,2,31,76,000 plus profit accrued thereon lying with the Nazir of this Court. Issue writ of attachment to the Judgment Debtor. This exercise be completed within a period of two weeks time from the date of this order.