UMAR ATA BANDIAL, J. The only question agitated by the parties before us is: How is a Referee court to determine the amount to be desposited by the Collector, under the amended provisions of Section 28 of the Khyber Pakhtunkhwa Land Acquisition Act, 1894 ("Act")? Whether the amount is only that sum which, in the opinion of the Referee Court, the Collector ought to have awarded as compensation or it includes some other sum also, such as interest or rent etc.
2. The learned Additional Advocate-General of Khyber Pakhtunkhwa, appearing for the appellants, has contended that the phrase in the original text of Section 28 that authorized the Referee Court to add 6% per annum interest on the enhanced sum of compensation was omitted in the Province of Khyber Pakhtunkhwa by the. Land Acquisition (Amendment) Ordinance, 2001; that the said Ordinance was promulgated in pursuance of the judgment of the Shariat Appellate Bench of this Court reported as Aslam Khaki v. Muhammad Hashim (PLD 2000 SC 225), which had declared the provisions of section 28, to the extent of awarding interest, against the injunctions of Islam; and that in view of the omission of the interest clause, the award of 6% per annum interest on the enhanced sum of compensation by the Referee Court and maintained by the High Courts in the present cases is not legally sustainable.
3. On the other hand, the learned counsel for the respondents have supported the grant of 6% per annum interest on the enhanced sum of compensation by the Courts below, and have referred to a judgment dated 15.12.2018 of three member bench of this Court passed in Ehsan Ullah, v.
Military. Estate Officer, Peshawar (CAs No. 128-P of 2015 etc.) and a judgment dated 14.10.2021 of a two member Bench of this Court passed in Govt. of Khyber Pakhtunkhwa v. Misal Khan (CRPs No 758 of 2019 etc.), wherein the grant of 6% interest has been maintained by this Court.
4. We have heard the submissions of the learned counsel for the parties, perused the record of the case with their assistance and gone through the cases cited by them.
5. The grant of 6% per annum interest on the enhanced sum of compensation was though maintained by this. Court in the Ehsan Ullah case, but the question agitated in the present case was neither raised nor decided in that case. The question, however, was argued, deliberated and decided in the Misal Khan case. This Court, after nothing in that case all the amendments in Section 28 of the Land Acquisition Act, 1894 made from time to time by different Provincess of Pakistan including the 2001 amendment of the Province of Khyber Pakhtunkhwa, held:- [S]ection 28 of the Act, as it exists in the Province of KPK, authorise the Court to determine the amount of compensation to be paid to a land owner, which is over and above the enhanced sum of compensation awarded by the Court this determination of the amount includes the period When the possession of the land was taken till the payment of the enhanced sum of the compensation to the land owner. Under the amended section 28, the court is no more bound by any fixed rate of interest and can grant interest at any just; proper and reasonable rate as it determines, which could also be the rate determined by the State Bank of Pakistan. Therefore, the award of 6% interest is well within the scope of the powers of the Referee Court under section 28 of the Act (as amended) and is in line with the interest to be granted under section 34 of the Act.
In reaching that conclusion, the Court reasoned:--- [T]he amended section 28 which reads that once the "sum" of compensation granted by the Collector is enhanced by the court, the Court shall direct the Collector-to deposit such "amount"
(as opposed to the enhanced "sum") as determined by it. The amendment has retained the power of the Referee Court to determine the "amount" payable by the Collector to the landowner over and above the enhanced sum of compensation after considering the factum of possession and the date of actual payment. If it were just the enhanced sum of the award which had to be paid to the landowner, the phrase "amount as determined by it" would have no significance. Section 28 envisages that after the enhanced sum of the award has been worked out, the Court then embarks upon determining the "amount" to be paid to the landowner after considering the sum and the delay in payment. This determination has to be of the period that has was taken over and of the interest over and above the enhanced sum of the compensation to be paid to the landowner who has been deprived of this amount of compensation since then. Our reading of the amended section 28 in KPK shows that the court is now free to award any rate of interest on the enhanced sum, of compensation and is not bound by the limit of 6%. It does not mean that the court is not to grant any interest on the sum enhanced ... the distinction between the terms sum and amount to be determined is that while the "sum" is simply the enhanced compensation. The "amount" is the interest over and above the enhanced compensation to provide for the loss caused to the landowner due to the delay in making payment of the adequate compensation since the taking over of the possession of the land. This construction of section 28 (KPK amendment) blends with the prevalent law in other provinces in Pakistan and is true to the spirit of the original law and is also constitutionally compliant with Article 24 of, the Constitution of Pakistan, 1973.
We agree with what has been decided in the Misal Khan case as to different meaning of the two terms, sum and amount, used in amended section 28 of the Act, but with a minor modification; what and why are explained next.
6. The 2001 amendment in Section 28 of the Act; as it is evident from the recital in the preamble to the amending Ordinance, was made by the legislature of the Province of Khyber Pakhtunkhwa in pursuance of the judgment of the Shariat Appellate Bench of this Court delivered in the Aslam Khaki case. Even though the said judgment has been set aside by this Court in review but it does not affect the powers of a competent Legislature to make any amendment in the relevant law(s) on its own, either in the light of what was observed in that judgment or for any other reason. The Legislature of the Province of Khyber Pakhtunkhwa has exercised this power by making amendment in Section 28 of the Act in pursuance of the said judgment of this court. As the amendment has been made in pursuance of a judgment of this Court, no source other than that judgment can better shed light and explain the scope of the discretion of the Referee Court in determining the amount under the amended Section 28 of the Act.
7. Reading of the Aslam Khaki case shows that this Court recognized the injustice done to and the hardships suffered by a landowner whose land is acquired and the possession thereof taken over, without paying him its fair price/compensation. The Court endorsed the findings of the Federal Shariat Court with regard to the language used and the manner specified for imposing an additional amount over the original awarded amount, but emphasized it also that landowner deprived of the possession of his land without payment of fair price/compensation should be compensated in some way or the other. In the judgment one of the modes proposed was that a landowner, the possession of whose land is taken over without paying him its fair price/compensation, is entitled to receive a rent of its land for the period commencing from the date of possession to the date. of the payment of the price/compensation. The Court in Aslam Khaki case further observed that the Said rent should not be less than the fair market rent in the relevant period or an amount equal to 8% per annum of the awarded amount, whichever is higher, from the date of taking possession to the date of actual payment' of the price/compensation to him. We may clarify here that an amount equal to 8% per annum of the awarded amount was mentioned in the Aslam Khaki case according to the percentage mentioned in Section 34 as it was then in force in some of the Province of Pakistan.
8. The preamble to the amending Ordinance 2001 which refers to the judgment of this Court delivered in the Aslam Khaki case and the above-quoted observations made in that case were not brought to the notice of this Court at, the hearing of the Misal Khan case, and thus the Court decided that under the amended Section 28, a Referee Court is no more bound by any fixed rate of interest and can grant interest at any reasonable rate. It should have been "rent" instead of "interest". We, therefore, modify the interpretation put to the amended Section 28 of the Act in the Misal Khan case to that extent by holding that under Section 28 of the Act, a Referee Court can, and should, add, the sum of actual fair market rental value of the land found acquired unpaid (or deficiently paid) if it is proved by evidence on record or, in absence of such evidence, a sum equal to 6% per annum of the enhanced sum of a compensation as the minimum rental value of that land, from the date of taking possession of the acquired land to the date of actual payment of the enhanced price/compensation to the landowner.
9. In the present case, as there is no evidence on record regarding the actual fair market rental value of the land found acquired unpaid (or deficiently paid), an additional sum equal to 6% per annum of the enhanced sum of compensation, payable from the date of taking possession of the acquired land to the date of actual payment of the enhanced price/compensation to the landowner, awarded by the Referee Court and maintained by the High Court shall be taken to be the "rent" of that acquired land, instead of "interest" on the enhanced sum of compensation as mentioned in the aforementioned judgments of this Court, and the enhanced sum of compensation plus the rent are to be taken as the "amount" determined under section 28 of the Act, with this change of expression, we find nothing wrong in the impugned judgments. The appeals are found meritless, and therefore dismissed.