' MUNIB AKHTAR, J.---By means of a short order dated 17-5-2011, I had dismissed the three connected applications, being C.M.As. 110 of 2011, 138 of 2011 and 139 of 2011, all of which had been moved by the Judgment Debtors. The following are my reasons for having done so.
2. The present Execution Application arises out of Suit No,523 of 1999 which was decreed on 5-3- 2003 in the following terms:- "That the plaintiff shall be allowed to construct. The construction shall be strictly based on the approved plan and according to the Rules of the KBCA. Any violation of the plan or rules by the plaintiff then the defendant shall be well within their rights to take action provided under the law."
3. It appears that the subject plot, which at the relevant time was owned by the plaintiff (who is now the Decree Holder) was either adjacent to, or near, the location of the British High Commission.
Since a high-rise building was proposed to be constructed on the subject plot, it appears that the British High Commission raised certain concerns with regard to such a building being constructed on the subject plot, which could pose a security threat to the High Commission. This concern was brought to the attention of the concerned quarters, and it appears that ultimately the via media adopted was for the subject plot to be acquired by the Provincial Government, and compensation paid to the Decree Holder for the same. It appears that proceedings under the Land Acquisition Act, 1894 were thereafter initiated and the property was acquired on the basis of an award, and compensation for the acquisition was payable to the Decree Holder. According to the award dated 30-3-2010, the Decree Holder was entitled to compensation computed in the following manner:-- 1.Commercial land compensation of 405.2 Square Yards comes in front of British High Commission at Rs.2,00,000 per square Yards.Rs.8,10,40,000 2.15% Urgency Clause Charges Rs.1,21,56,000 3.6% Interest per annum over Land Compensation only. Rs.48,62,400 Total Amount of Rs.9,80,58,400 ' It appears that out of the foregoing award, a sum of Rs,8,10,40,000 has been paid to the Decree Holder, but the balance compensation, totalling Rs,1,70,18,400 on account of 15% urgency clause charges and 6% interest, has not been paid and the grievance of the Decree Holder is that although a considerable amount of time has passed, this balance amount has not been released.
Learned counsel for the Decree Holder has categorically reaffirmed, on instructions, that payment of the balance outstanding amount shall constitute full, final and complete discharge and satisfaction of the decree.
4. C.M.A. 110 of 2011 has been moved by the Judgment Debtors. It is an application under section 151, C.P.C. Read with section 21 of the General Clauses Act, and seeks a modification of the award to the extent of the unpaid outstanding amount referred to above for the reason that, according to the Judgment Debtors, the Land Acquisition Officer could not have awarded any sum by way of 15% urgency charges and 6% interest. C.M.A.
138. Of 2011 is an application under section 5 of the Limitation Act seeking condonation of the delay in filing of C.M.A. 110 of 2011. Finally, C.M.A. 139 of 2011 is an application seeking recall of the order dated 3-2-2011 whereby, it appears that certain official respondents, being the DDO Saddar, and a Deputy Secretary, Board of Revenue had made a statement before the Court that the balance outstanding amount would be paid to the Decree Holder within a period of two weeks.
5. Learned counsel for Judgment Debtors, in support of aforesaid applications referred to section 47, C,P.C. And submitted that that section conferred ample powers on the executing court to decide all matters and issues between the parties and that on the basis thereof, this Court, as the executing court, had the jurisdiction to modify the award in terms as prayed by the Judgment Debtors. Learned counsel placed reliance on Dilawar Hussain v. Province of Sindh PLD 1993 Karachi 587 in this regard. Learned counsel also referred to section 21 of the General Clauses Act, 1897. He submitted that that section, on a bare reading thereof, conferred sufficient power on the concerned authority, in the present case the Land Acquisition Officer, to recall or modify his order if the circumstances so warranted, and the present case fell within the scope thereof. Learned counsel drew attention to section 23(2) of the Land Acquisition Act to submit that the power to confer a sum by way of urgency clause vested in the court alone and not in the officer exercising powers or discharging functions under the Land Acquisition Act. He also referred to section 28 of the said Act to submit that the payment of interest made in the award was also contrary to the provisions of the Land Acquisition Act and therefore, to that extent the award needed to be modified.
6. Learned counsel for Decree Holder opposed all the three applications. He referred to C.M.A. 962 of 2010 which had been moved by the Decree Holder seeking payment of the balance outstanding amount noted above, and to the letter dated 14-6-2010 appended thereto, which had been written by the EDO (Revenue), CDGK to the concerned authorities seeking release of the balance amount.
Learned counsel contended that the case of the Decree Holder was clear. His property had been acquired under the Land Acquisition Act and he was satisfied with the award of compensation that had been made. He was therefore entitled to the same. Learned counsel contended that any modification of the award could only be done pursuant to, and in terms of, the remedies provided by the Land Acquisition Act itself and not in any other manner. He pointed out that, in fact, under the Land Acquisition Act it was now possible, on account of an amendment of the law that had been made some time ago, for the Government itself, if aggrieved by the award, to seek appropriate statutory remedy. He submitted on the basis thereof that if the Judgment Debtors were aggrieved by the decision of the Land Acquisition Officer, then their proper remedy lay under the Act itself and not otherwise. Learned counsel submitted further that C.M.A. 110 of 2011 was, inter alia, hopelessly time barred and the application seeking condonation of delay was itself not maintainable and belated and liable to be dismissed for this reason alone.
7. In so far as the merits of the case as claimed by learned counsel for Judgment Debtors, learned counsel for the Decree Holder submitted that the land acquisition officer had more than ample power under the applicable provisions to have awarded the amount now being contested by the Judgment Debtors. He referred to section 28-A, which had been inserted in the Act as applicable in Sindh by means of an Ordinance of 1984. This section permitted the payment of additional compensation by way of 15% by the acquiring authority and learned counsel submitted that the 15% awarded to the Decree Holder came squarely within the ambit of this provision. He also referred to section 34 of the Act which, according to him, enabled the acquiring authority to pay interest at the rate of 6% per annum and according to learned counsel the second amount being objected to by the Judgment Debtors was nothing other than the amount covered by this section.
Thus, according to him, the land acquisition officer had full power and authority to award the sums that remained unpaid. Learned counsel also submitted that a reference under section 18 of the Land Acquisition Act could be moved by a person aggrieved by the award, and since the Decree Holder was not, in fact, aggrieved by the award, no occasion arose for the latter to make any application under that section, and initiate proceedings thereunder. Learned counsel also, by way of illustration, referred to certain reported cases in which the interest and urgency charges had been awarded by the acquiring authority and no objection had been taken to the same.
8. After hearing learned counsel for the parties and considering the record and the case-law relied upon by them, I had come to the conclusion that the applications under consideration were without merit and had to be dismissed. Firstly, it is to be noted that the Land Acquisition Act is a law that falls within the provincial domain and not the Federal domain (insofar as the Provinces are concerned). This is testified, inter alia, by the fact that each Province has made may amendments to the Act as applicable to the said Province. Since the Land Acquisition Act, being an "existing law" within the meaning of Article 263 of the Constitution, falls within the provincial domain, the General Clauses Act, 1897 does not apply to the same since that is a federal law which applies to other federal laws. What is applicable, if at all, in the present case is the (West Pakistan) General Clauses Act, 1956. The latter Act contains, in section 20, a provision similar to section 21 of the General Clauses Act and it is, therefore, this provision that requires consideration. In my view, the interpretation sought to be put thereon by learned counsel for Judgment Debtors cannot be sustained. If accepted, then the result would be that regardless of the statutory remedies that may be available under the relevant legislation in respect of or against an order made by an authority, that authority would have the power at any time to change, vary or recall the order made by it. The nature of the power that learned counsel for the Judgment Debtors contends vests in the land acquisition officer is, in effect, the power of review and it is well settled that such a power must be expressly conferred by the statute, and is not available otherwise. In my view, it would be incorrect to read and interpret section 20 in such a manner that it, in effect, is deemed to confer a power of review on all authorities since that would be flatly contrary to well settled principles of interpretation. It is also to be noted that in the present case, the subject plot stands acquired. The award stands acted upon. The Judgment Debtors cannot, on the one hand, take the benefit of the award, and acquire the subject plot, and at the same time, raise objections to the same by placing reliance on section 20. Reference may also be made to a full Bench decision of the Lahore High Court reported as Muhammad Aslam Mirza v. Mst. Khurshid Begum PLD 1972 Lah. 603, where it has been observed as follows:-- "There is the overwhelming authority by the highest Court in the realm, for the proposition that there is no inherent power in a Court or tribunal to review, recall modify and rescind their orders, unless such a power is conferred by the statute. This is particularly true about the judicial orders passed by them. Whatever the true scope and interpretation of section 21 of the General Clauses Act (corresponding to section 20 of the West Pakistan General Clauses Act (VI of 1956) (that section has no application to an order which is judicial or quasi-judicial in nature passed after ex post facto investigation into facts. In their very nature such orders are final and are not liable to be reviewed in general." (pg 635)
' Section 20, therefore, does not aid the Judgment Debtors in any way.
9. In so far as the reference to section 47, C.P.C. Is concerned, in my view, that also is of no avail to the Judgment-Debtors. The scope of section 47 certainly relates to the questions that may arise between the parties with regard to the execution of the decree or its discharge or satisfaction, and it is provided therein that such questions shall be determined by the executing court and not by way of a separate suit. Thus, a proper test for determining whether a question falls within the scope of section 47 would be whether, but for the provisions thereof, a suit could be filed to resolve the issue raised before the executing court. In the present case, of course, the question that is raised by the Judgment Debtors is a question that arises under and within the scope of the Land Acquisition Act and, in my view, can only be determined in terms of the remedies that have been made available thereunder (or possibly, by way of a petition under Article 199 of the Constitution in order to rectify any error that may have been made). Certainly, if the Government is aggrieved by the award made by the acquiring authority, it has a remedy under the Land Revenue Act itself.
Therefore, in my view, an executing court, cannot take up a matter under section 47 in respect of which the Land Acquisition Act provides a statutory remedy. The decision in the Dilawar Hussain's case, relied upon by learned counsel for Judgment Debtors, does not apply in the facts and circumstances of the present case. The reason is that in that case the decree sought to be executed itself arose under and out of proceedings under the Land Acquisition Act and the issue before the Court was whether, as the executing court, it could take into account a change in circumstances. In particular, the change in circumstances that was contended in the cited case was a change in the law and it was held that an executing court could, in appropriate circumstances, apply the change in the law to the relevant facts, but only if the decree had not attained finality. As is clear, the facts and circumstances of the present case are quite different from those that were before the Court in the cited case and, therefore, that decision is not applicable in the circumstances of the present Execution Application.
10. In view of the foregoing, I am satisfied that in the facts and circumstances of the case, it is not open to me as the executing court to allow a challenge to the award made under the Land Acquisition Act on the grounds taken by the Judgment Debtors. If at all they have any grievance against the award and wish to avail any remedy, that remedy lies under the Land Acquisition Act itself and it is for the Judgment Debtors to make an appropriate application thereunder. Although the foregoing finding is sufficient for the purposes of the present applications, I am satisfied that even if I did have the jurisdiction to consider the objections taken by the Judgment Debtors to the award, those objections would ultimately fail. The reason is that the grievance raised by the Judgment Debtors is that the land acquisition officer did not have the jurisdiction either to award 15% by way of urgency clause or 6% by way of interest. Sections 28-A and 34, relied on by learned counsel for the Decree Holder, are a complete answer to these objections and, in my view, confer ample power and jurisdiction on the acquiring authority to make an award of 15% and also to award 6% interest to the person whose land is being acquired. Thus, on any view of the matter, the objections taken by the Judgment Debtors must fail and it is for this reason that I had dismissed C.M.A. No,110 of 2011. Since this application stands dismissed, the other two applications have either become infructuous and/or must also necessarily fail. Thus, all three of the applications moved by the Judgment Debtors were, in my view, without merit.