1. ' These execution proceedings pertain to an acquisition dating back to 1960 when some 1200 acres of land were sought to be acquired for the establishment of the now thriving Korangi Township in the city of Karachi. Through Notifications issued under section 4 of the Land Acquisition Act, 1894 (hereinafter also referred to as the "Act"), dated 2-2-1960 and 5-3-1960, 87-29 acres, comprising 47-1 and 40-28 acres of garden and agricultural lands respectively, were notified for acquisition.
2. Such lands were further categorised as held under restricted and unrestricted tenures. Part of the resultantly acquired lands are relevant to this Execution. The Collector, in due course, made his award on 17-12-1960. The land-holders, not satisfied with the award, obtained a reference under section 18 of the Act, which was filed and numbered in this Court as Civil Reference No, 5 of 1969.
3. Such reference was decided on 27-8-1970, resulting in enhancement of compensation. Not content with the revised compensation, LPA No,165 of 1970 was preferred, which was decided on 26-9-1977, increasing the compensation still further. Not satisfied yet the land-holders moved the Supreme Court, their appeal being numbered as CA. K-144 of 1980. As per ultimate judgment in the Supreme Court, announced on 18-2-1987, extended relief and additional compensation were allowed. The present Execution Application follows the final determination in the Supreme Court.
4. ' Little difficulty would have been encountered if all that was sought to be enforced in execution directly, unambiguously and unequivocably arose upon the findings recorded in the Supreme Court of Pakistan. Controversy is occasioned because, following every stage of the decree-holders' success in the proceedings, the compensation awarded stood enhanced, which enhancements and corresponding pendency of the proceedings are claimed to attract the intervening amendments in law and the benefits accruing thereunder. The judgment-debtors, on their part, have ex facie complied with the applicable directives and, purportedly, made good the additional or revised compensation(s) granted. This notwithstanding, due to the time lags between the grants of compensation at successive stages of the proceedings and actual payments affected as also The matter having been thrown in the orbit of supervening amended law, it has been contended that whatever is the final adjudication as regards the market value of the lands acquired such was payable notionally and upon the fiction of law that the final adjudication is itself a substitution of the original award and is to be implemented, as such.
5. ' Manifold ancillary arguments have been evolved on this premises: firstly, compensation, pursuant to section 23(2) of the Act, in addition to the market value, as in section 23(1), includes a sum of 15% on such market value "in consideration of the compulsory nature of the acquisition" and the Court shall in every case award" it. Indeed the Supreme Court is shown to have allowed this. Secondly, because the amount of compensation enhanced over the Collector's award in Court was not paid and indeed could not be paid on the date possession of the acquired lands was taken, interest at the rate of 6% per annum, from the date of possession till payment in Court, on the balance due, in terms of section 28 of the Land Acquisition Act becomes chargeable. This too was granted in the Supreme Court. Thirdly, and it here that the controversy really begins, a solatium at the rate of 15% from the date of notification under section 4 of the Act up to the date of payment of the compensation, as envisaged in the newly inserted section 28-A of the Act, also falls within the land-owners' entitlement, payable by the judgment-debtors. The compensation itself, it is urged, is made up of the market value of the lands together with 15% added on the market value pursuant to the mandate in section 23(2) of the Act. For this solatium, it is pointed out, no formal order of the Court is required since section 28-A aforementioned embraces a mandatory provision. On judgment-debtors' alleged failure to pay, the matter avowedly falls to be properly reckoned even in execution. Cumulative examination of all the foregoing, in turn, gives rise to a complex situation because it is here that several legislative amendments come into play, effect and applicability whereof have to be adjudicated upon, on the one hand, and process of minute calculations, if necessary, is to be streamlined, on the other.
6. ' As to the legislative changes, notice may first be taken of section 23(2) of the Act, which, initially, was repealed and re-enacted with modifications under the Land Acquisition (W.P. Amendment)
7. Act III of 1969, which itself was repealed by virtue of the Land Acquisition (W.P. Amendment)
8. (Repeal) Ordinance, 1971 (Sindh Ordinance VI of 1971), deeming the former Ordinance "never to have been enacted." Nothing, however, turns on these promulgations as the claim has been found to be based on the unamended section 23(2) and is not in dispute, having also been allowed at the level of the Supreme Court.
9. ' The second legislative intervention also pertains to the W.P. Act of 1969 but the amendment was germane to section 28 of the Land Acquisition Act, 1894. Such provision, unamended at the time of the notification under section 4 ibid. Stood as under:--- "28. Collector may be directed to pay interest on excess compensation.---If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of six percentum per annum from the date on which he took possession of the land to the date of payment of such excess into Court."
10. ' However, in that section, through the aforesaid West Pakistan Act III of 1969, in substitution of 6% per annum simple, 8% per annum compound interest was introduced. But, in the Province of Sindh, such amendment, as seen, was repealed vide Sindh Ordinance VI of 1971, promulgated on 12-6-1971, consequently the original provision aforequoted, in effect, being resurrected, the amendment through a deeming clause treated not to have been enacted at all. The repeal was thus manifestly retroactive and has to be viewed accordingly. In the result, no claim at the rate of such 8% per annum, for any intervening period, while the proceedings were pending, can be allowed and if already disbursed is to be adjusted in the final settlement. What is also to be noted here is that grant of interest, in furtherance of section 28 of the Act, has always been within the discretion of the Court and such is to be calculated at the prescribed rate, not on the compensation allowed as a whole, but only on the excess of the sum, if any, which the Court awards as against that awarded by the Collector. Correspondingly, in case the discretion is invoked, the calculations at 6% per annum aforesaid shall proceed on the difference to be worked out between the award of the Collector and the award of the Court, exercising the discretion. This discretion the Supreme Court of Pakistan has already exercised in favour of the award-holders. On principle, it is impermissible to go behind such a decree, though one cannot help noting that the whole of the Land Acquisition Act came up for scrutiny before the Federal Shariat Court in S.S.M. No,14/P of 1989 (decided on 27-3- 1984) yet the element of interest in section 28 of the Act was bypassed, apparently, because the then operative part of the Constitution precluded interference by the Federal Shariat Court (FSC) in fiscal matters. With respect, section 28 had few fiscal attributes. Be that as it may, the fact remains that the erosion in the intrinisic value of Pak. Rupee, during the period intervening, may have been far more than a mere 6% per annum, in contemplation of section 28 of the Act and would, in an inflation-ridden economy, qualify as anything but interest. However, the matter stands at an altogether different footing now. Since several questions were decided by the FSC on 27-3-1984 with reference to the Land Acquisition Act that resulted in specific amendments in the Provinces of Sindh and Balochistan but the Governments of the Punjab and N.-W.F.P. Appealed and the Shariat Appellate Bench remanded the matter for being brought in conformity with Article 203-D of the Constitution. The FSC has disposed it of on 30-4-1992: refer Land Acquisition Act, in re: PLD 1992 FSC
398. In doing so, it has also followed its judgment in Mahmoodur Rehman Faisal v. Secretary, Ministry of Law, PLD 1992 FSC 1, finding and declaring that sections 28, 28-A, 32, 33 and 34 of the Land Acquisition Act, 1894, are repugnant to the Injunctions of Islam. However, learned counsel state that these decisions, being under appeal, in accordance with Article 203-D(2) in the Constitution, have not taken effect. Even otherwise, the applicable statutory provisions of law, as those stood at the time the proceedings were pending or came to be disposed of, shall continue to apply whatever may be the determination of the FSC or the Shariat Appellate Bench, since, the date on which their decision(s) are to take effect is required by the Constitution to be specified: Articles 203-D (2) and 203-F (2) of the Constitution. Discussion, as would occur below, thus does not take into account the impact of the aforequoted FSC decisions, encompassing the referred declaration.
11. ' Reverting, the calculation itself in section 28, as said, is to be made on the excess, from the date possession was taken over up to the date of payment in Court. Since, however, there have been several dates of payment. Incidental to continuous proceedings, each will have to be taken into consideration.. Hence, separate workings shall have to be made including, as relevant, on the final amount determined at the level of the Supreme Court. Here it may bear mention that an argument was made to, the effect that since the calcluations already made and amounts already claimed on this and other scores by the decree-holders have not been specifically questioned, the relevant claims are not open to scrutiny. This may have had some force, if substantial questions of law and incidental calculations, coming up for adjudication were not involved. Besides, another distinguishing feature would be that mere arithmetical errors of calculation, bona fide remaining unchallenged, can always be sought to be rectified and even reimbursements can be claimed. At any event, in this execution the whole exercise being open to scrutiny all or any of the reckonings, which do no conform to the issues determined, should require to be properly addressed before any process for recovery can be issued. That is to say. If all disbursals in consonance are not or have not been made.
12. ' The remaining question invoked in this execution is more involved; it flows from an amendment through the Land Acquisition (Sindh Amendment) Ordinance XVIII of 1984, in furtherance whereof, inter alias, section 28-A, was inserted in the Act in relation to the Province of Sindh. This amendment has been struck down by the FSC In re: Land Acquisition Act, PLD 1992 FSC 398, but that for reasons already detailed need not concern us. It is, corresponding to such amendment, made out that, in addition to the compensation fixed on the basis of market value, as prevailing on the date of notification under section 4 ibid, a further amount of 15% per annum of the compensation so fixed shall be paid from the date of notification under section 4 to the date of payment of compensation. By the way, the. FSC in the same judgment whereunder section 28-A ibid is found repugnant has also found that value of the acquired property should be assessed as on the date of the notification under section 6 of the Act and section 4 thereof is irrelevant for that purpose. This may be equitable in an inflationary market but, for the same reasons as above, need not detain us.
13. Reverting, it is urged that such 15% per annum solatium in section 28-A is mandatorily to be added to the compensation allowed and for that purpose an express order of the Court is neither necessary nor was actually made by the Supreme Court of Pakistan. For the present, two things are obvious: one, the Supreme Court did not advert to this aspect of the matter and it is nobody's case that the claim was raised and consciously disallowed there; two, the inserted provisions came on the statute book while the case was pending in the Supreme Court and decided there. It would, therefore, fall to be examined as to what was the background in which the newly-added section 28-A came to be enacted, whether it is self-executory in nature and, more importantly, if it applies also to pending proceedings, either on account of any retroactive operation or otherwise. If it is attracted, the effect of the Supreme Court not adverting to it?
14. ' The 1984 Sindh Amendment owes its existence to a suo motu examination of the Land Acquisition Act I of 1894, by the Federal Shariat Court in S.S.M. No,14/P of 1989 (since set aside, supra). In that context the Federal Shariat Court had, at length, dilated upon the concept of compulsory acquisition of land for value under the Islamic Fiqh and conceptually approved it, inter alia, upon rendering the following opinion:-- "It will be clear from precedents from Islamic history as cited above that the compensation awarded for acquisition was paid immediately on acquisition and according to the market value of the area on the date of taking possession. There are precedents of Hazrat Umar acquiring land for the extension of mosque and acquisition with the same end in view of Hazrat Usman. It is also clear from the traditions of the Holy Prophet (p.b.u.h.) that though the Ansar were willing to give the land for Masjid-e-Nabvi without compensation but the Holy Prophet (p.b.u.h.) paid the price of the land before the construction of the mosque to the minors who owned the same. (Al-Bidaya-walNihaya, Vol. III, page 215)."
15. ' As to the desirability of immediate payment of compensation according to the market value of the land acquired, the FSC emphasised the tilt of Islamic jurisprudence. At the same time, the Hon'ble Court also took note of the present day compulsions for according of expeditious compensation. In doing so, reference was inevitably made to the inflationary trends, which could erode substantially, if not wholly, the element of compensation qua the State acquisition, if any undue time lag was allowed to overtake the exercise. The Court opined as under: "On the other hand on account of inflationary tendency in the market the compensation paid ultimately after the passage of considerable time had no relation to the value as prevailing on the date of payment. Another reason of considerable delay is the litigation before a Court of law in proceedings under section 18 for settlement of disputes about assessment. This provision is wholesome. But the delay may reduce the payment of compensation to be a mere farce and obviously such a payment cannot synchronise with Shariah Injunctions referred to above."
16. ' To make the point clearer and to cater to the prospect of increase in the market value, of the acquired land up to the date of payment of compensation, amendment in the Land Acquisition Act was proposed by the FSC in words, which also are reproduced below: "As stated above, it is also necessary to provide for additional compensation to reimburse the interested persons for the increase in the market value up to the date of payment of compensation. In our view, an addition of 15% per year for increase in value will meet the ends of justice, reasonablenesS and fair play. It should, therefore, be provided in section 23 that in addition to the compensation fixed on the basis of the market value as prevailing on the date of notification under section 4, the amount of 15% per annum of the compensation assessed shall be payable to the persons interested up to the date of payment of compensation. The provision about the payment of 15% for compulsory acquisition and 25% for acquisition for a company as provided in subsection (2) of section 23 shall be maintained."
17. ' However, when it came to legislating, in the Province of Sindh, instead of amending section 23 in the Land Acquisition Act, the law-maker made compliance by introducing and inserting section 28-A through the aforementioned Land Acquisition (Sindh Amendment) Ordinance XVIII of 1984.
18. Such section runs thus: "28-A. Additional compensation.--In addition to the compensation fixed on the basis of market value as prevailing on the date of notification under section 4 an additional amount of fifteen per cent, per annum of the compensation so fixed shall be paid from the date of the notification under section 4 to the date of payment of the compensation."
19. ' As adverted to the FSC decision upon which the amendment issued has since been set aside and remanded. Not only that, upon remand the opinion earlier expressed in the FSC has been retracted.
20. The amendment, being a legislative exercise, however, stays and would continue in that state till the current FSC judgment either takes effect by its own force or is acted upon through legislative compliance. Even then, unless repealed retroactively, the amendment would continue to apply to proceedings covered by it. Further, as noted, the matter is again in appeal before the Supreme Court and the subsequent decision in virtue of Article 203-D(2) in the Constitution has not yet taken effect. Accordingly for our purposes the impact of section 28-A, as added in the Act, remains a live controversy. The earlier decision of the FSC has been quoted extensively for the simple reason that even when a decision is overruled or has no binding force, being no more than a minority opinion, its raison d'etre may yet have same persuasive, if not compelling, effect. For all that one may know, such reason or purpose may ultimately find favour in a later pronouncement and thus resurrect with all force.
21. ' Now, it is to be seen whether the enacted provision in section 28-A ibid is self-executory or requires that the 15% solatium would be payable only upon an express grant by the Court. The language employed in the section, in consonance with the intent of the then Federal Shariat Court, as translated by the legislator, leaves no manner of doubt that payment of the contemplated solatium is not within the discretion of the Court. It is an absolute right of the land-holder, who has been deprived of property and is to be dispensed specific satisfaction in accordance with Sharia entitlements, declared by the Federal Shariat Court, on whose recommendation the statutory compliance was, at the time, made. In cases where section 28-A ibid can lawfully be applied it should not be necessary to enter upon a formal adjudication of the question, unless a challenge is directed to that end. Indeed, in cases of the genus, where the Court, short of express repudiation, consciously or unconsciously, omits to spell out the entitlement for the solatium, the relief would automatically follow. That this is so, is strengthened when a comparison is made between section 28-A, aforesaid and the immediately preceding section 28 in the Land Acquisition Act, which has always been on the statute book, with inconsequential amendments, not relevant to this controversy. The so-called interest to be c granted under section 28 in question 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 succour (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 section 23(2) of the Act, making the intervention of the referee Court as condition precedent for the grant. Section 28-A, as seen, postulates 15% solatium per annum on the compensation as an addition and mandatorily so, yet that is directed not to any named agency such as the Court but, generally, to all concerned. It is a direction which the Acquisition Authorities have to comply with even on their own. Sections 23(2) and 28 of the Act, thus require interventions of the Court, section 23(2), in spite of its peremptory character and section 28 because it contemplates relief only on discretion, in contradistinction the language of section 28-A not admitting of any similar limitations. The right is absolute and springs up, though variably with the amount of compensation allowed, on a fixed basis of 15% ad valorem per annum from the date of manifestation of intent, through notification, to the date of actual payment.
22. However, if and when, a dispute arises due adjudication, at the appropriate level, is to be made.
23. ' Here an objection from the side of the judgment-debtors, represented by Mr. K.M. Nadeem, A.A.-G., may be taken up. Learned counsel has contended that the powers of an executing Court are inherently limited. Such Court, on principle, cannot go behind the decree and has to execute the decree as it is. The argument is directed to the applicability of the referred section 28-A in the Land Acquisition Act of 1894. It is pointed out that the cognate amendment was introduced in 1984, the Supreme Court judgment being recorded in 1987, implying that the benefit under the amendment was not available to the award-holders for if that was so the Supreme Court would have itself granted the relief. Reserving the matter of availability of benefit under section 28-A aforesaid, for later examination, for the present only the powers of the executing Court need be dilated upon. In terms of section 26(2) of the Land Acquisition Act an award and the grounds therefor are deemed a decree and judgment respectively falling within sections 2(2) and 2(9) of the Code of Civil Procedure. Cognate provisions of the Code pertaining to execution of decrees and construing judgments thereunder are therefore, mutatis mutandis applicable in such matters. Thus, as a rule, there can be no cavil with the proposition that an executing Court cannot go behind the decree (award here). It cannot pry into the realm of what the decree ought to be. It has to execute the decree as it finds it. However, and at the same time, all questions arising between the parties or their representatives and relating to the execution, discharge or satisfaction of the decree are required to be determined by the Court executing the decree and such is the effect of section 47(1) of the Code of Civil Procedure. A priori it follows that it being the bounden duty of all Courts of law to mould relief according to changed circumstances, if any, and to do, as far as permissible, complete justice between the contestants all Courts lawfully seized of a matter, including those of original and appellate jurisdiction and, where relevant and necessary even executing Courts are competent to examine cases in their totality and administer relief guided by the principles of justice and equity, unless positively precluded by law. Within the element of changed circumstances and moulding of relief to meet the ends of justice in a case may also fall an amendment, which on its tenor applies to pending matters. It has already been noted that a visible distinction is to be found in the phraseology of sections 23(2), 28 and 28-A of the Land Acquisition Act and whereas the former two provisions clearly involve grant of relief upon a positive act of the Court, section 28-A altogether omits any mention of the Court. It is difficult to overlook .This omission. Ignorance cannot be imputed to the legislature. It is inconceivable that the law-maker, in the same statute, while addressing itself on the same E topic, would introduce necessary treatment of the subject by the Court in some contexts and refrain from doing so in another of the same genus, without reason and otherwise than deliberately. The omission of intervention by the Court in section 28-A of the Act cannot be without meaning and without purpose. It, therefore, calls for reiteration that the solatium under section 28-A aforesaid, where applicable, is a mandatory 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 F 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. A very relevant discussion as to such statutory omissions as abovenoted is to be found in the Province of West Pakistan v. Mehboob Ali PLD 1976 SC 483:--- "It is true that even in such cases, what is an obvious omission cannot be supplied by invoking the rule of liberal interpretation. In such cases rule of cassus omissus is generally applied. But when faced with a choice between a wide meaning, which carries out what appears to be the object of the legislature more fully and a narrow meaning which carries it out less fully or not at all, the choice of the Court is often the former."
24. ' On the foregoing analysis, it would seem that if the benefit of section 28-4 above is available in a case and dispute arises touching non-compliance of the requirements in the section, an executing Court, unless precluded by a positive finding of the Court in the main case, can legitimately address the question. More of this is left for the summing up.
25. ' This takes us to the further question whether section 28-A in the Land Acquisition Act applies to pending proceedings and whether the legislature, generally or otherwise, intends retrospective operation of such provision. A great deal of controversy has been occasioned on the concept of retoractivity itself and elaborate dicta has been cited from either side to urge, for and against, the applicability of the amendatory law to pending proceedings.
26. ' Taking first things first, it is, at the outset, to be explored as to what are the implications in and incidents of prospective and retrospective legislations. Thus Crawford in "The Construction of Statutes" (section 77, 1940 Edition) observes as under:--- "A statute which operates upon acts and transactions which have not occurred when the statute takes effect, that is, which regulates the future, is a prospective statute. On the other hand, a retrospective or retroactive law is one which takes away or impairs vested rights acquired under existing laws, or creates new obligations and imposes new duties, or attaches new disabilities in respect of transactions already past."
27. (Emphasis added)
28. ' Similarly, in "Craies on Statute Law" (at page 387, VIIth Edition) retrospective legislation is adverted to in these words:- "A statute is to be deemed to be retrospective, which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a .New duty, or attaches a new disability in respect to transactions or considerations already past. But a statute is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing."
29. (Underlining added)
30. "Maxwell on Interpretation of Statutes" (12th Edition, page 216) reproduces the above-cited rule from "Craies on Statute Law". Noorul Arlin, J., in Yousuf Abbas v. Ismat Mustafa PLD 1968 Kar. 480, on a reference to Craies,' Sutherland's Statutory Construction and Halsbury's Laws of England has spelled out the doctrine of retrospective operation thus:--- "A law cannot be said to be retrospective unless it takes away or impairs a vested right acquired under existing laws, or creates some obligation or disability with regard to closed and past transactions."
31. The conclusion which, accordingly, emerges is this: the concepts defy any precise definition though, as a workable formula, it may be stated that a prospective legislation is one which embraces and operates upon acts or transactions ensuing upon its promulgation as distinguished from those antecedent thereto. It, essentially interacts and functions in the future, though, as regards acts or transactions of a continuing nature or series of acts and transactions still occurring, parts whereof may be located also in the past, operation of a given statute may yet be prospective, while encompassing events of the past along with those occurring in the future. On the other hand, a statute is generally, viewed to be retroactive if it takes away, impairs or impinges upon vested rights, existing before its introduction or creates new obligations or imposes fresh duties or introduces new disabilities in respect of closed transactions or considerations already past. Retrospective legislation thus, characteristically, operates upon facts, events or causes involving past and closed transactions. Even on, this premises, a statute may not be termed retrospective solely because it, in some measure, affects existing rights or because a part of the requisites for its action is drawn from a time antecedent to its passing.
32. ' There is a very strong leaning in favour of prospective operation of enactments and indeed presumption, to start with, always is in favour of prospective application and against retrospectivity. What is true of statutes generally is also true of Amendatory Laws. (Crawford's Interpretation of Laws, 1940 Edn., section 295). That the foregoing is a salutary principle there can be no doubt about for if it were otherwise no sanctity would vest in and all certainty would be denuded from day to day dealings and the normal course of human practices, based on definitiveness of laws governing society at any given time.
33. In consonance, penal and fiscal measures are strictly construed and retrospectively is denied unless there be a manifest legislative tilt in that direction. However, there are well-known exceptions to all this. Laws of procedure, explanatory and declaratory enactments, statutes calculated to protect the public and legislative measures dispensing pardons are to .Be liberally construed, beneficial construction being the rule in such matters. Likewise, if not clearly precluded upon manifestation of legislative objective, such may also be accorded a degree of retrospective applicability, usually and often enough interacting on pending disputes.
34. Thus laws of procedure are not controlled by any presumption as to prospective operation. It has been held on times innumerable that no one has a vested right in procedure nor in having a particular LIS tried in a particular forum. Procedural laws, as distinct from those of a substantive character, therefore, unless a contrary intention appears, affect pending proceedings. So also, as said above, though in a varying measure and always subject to context, may be claimed to be the position of statutes of oblivion or of pardon (Craies on Statute Law, 1971 Edn. Page 389) or of statutes passed to protect the public, based as they are on considerations of public policy or public good and qualify as they do as curative statutes and statutes of peace (Crawford's Construction of Statutes, 1940 Edn., section 283; Craies ibid, page 396). Like, to a degree, may be the effect, unless precluded expressly or by necessary implication, of explanatory or declaratory legislations, the rule being that where a statute is enacted either to explain a previous Act or to supply an omission in existing law, the later statute is taken to relate back to the time when the earlier was passed (Craies ibid, page 395); The Construction of Deeds and Instruments by Orders, Third Edn., page 211). In all such matters, once a Court, on due examination, arrives at a conclusion that the legislative intent was to cure or provide redress prevailing in specific circumstances, incidental upon existing laws, the curative legislative device, barring when plausibly excluded upon the terms of the statute, applies to pending disputes. Remedial statutes as a genus, however, are not retrospective. While statutes conferring powers are only sometimes broadly construed (Maxwell supra, page 93) remedial enactments are always liberally interpreted since such usually are looked upon with favour by the Courts. However, even where the rule of liberal construction is applied, any doubt in favour of restropective operation is resolved only if such operation. Does not destroy or disturb vested rights, create new liabilities, violate due process of law or contravene a Constitutional provision. (Crawford, supra, section 282). This emerges, as put by Blackstone, where a statute is designed to "supply such defects and abridge such superfluities in the common law as arise, either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned (and even learned) judges, or from any other cause whatsoever" or where, as according to later commentators, a statute is similarly directed to remedy prior enactments (see Craies ibid, page 60). Even so, the curative measure is not always retroactive and true meanings to allow retroactivity may have to be discovered by employing intrinsic aids such as reference to the title of the later Act: Ex. P.
35. Steavenson (1823) 2 B & C 34 and Craies supra, page 192.
36. ' All this follows, cardinally, on an inference of absence of finality of determination, so long as a lis is pending, element of a person not being amenable to being vexed twice for the same act of commission or omission not being attracted in a continuing and uninterrupted state of proceedings. These recognised exceptions should be invocable equally, if otherwise permissible, to pending actions not only in the original and appellate Courts but even, although sparingly, in an execution forum. The concept is based in a deeply-rooted inclination of Courts to fashion relief in the altered circumstances of the case, to do complete justice between the patties and an equally pronounced aversion on their part to allow or countenance injustice, in any of its manifestations.
37. ' The rule is well expressed by Lord Hatherley in Pardo v. Bingham (1870) L.R. 4 Ch. App. 735, where he observes, "Baron Parke did not consider it an invariable rule that a statute could not be restrospective unless so expressed in the very terms of the section which had to be ,,construed, and said that the question in each case was whether the legislature has sufficiently expressed that intention. In fact, we must look to the general scope and purview of the statute, and at the remedy sought to be applied and consider what was the former state of the law, and what it was that the legislature, contemplated".
38. ' Though not precisely on the foregoing premises yet generally on the assumption that section 28- A of the Act introduces a cure, as prescribed by the Federal Shariat Court, Mr. Muhammad Sharif has urged that the section shall be accorded retrospective operation. Lindley M.R. In Thomson v.
39. Lord Clanmorris, (1900) 1 Ch. 718, as regards the history and reasons behind an enactment opines, "You must look to the mischief which had to be cured as well as the cure to be provided." However, unless there be something manifest in the legislative background or in the device which the legislature has employed to suggest that past and closed transactions were calculated to be reopened, no principle of beneficial or liberal construction can accord retroactivity in any absolute terms. The guiding principle has been and remains that words and context which do not admit of retroactive operation cannot but be prospectively construed.
40. ' There is a string of authorities supporting the aforementioned propositions. Thus in Municipal Council of Sydney v. Troy, AIR 1928 PC 128, on June 6, 1924, a piece of land was acquired and became vested in the Municipal Council of Sydney. On September 17, in the same year, through an amendment, the rate of interest payable upon compensation of acquired land was enhanced from 4% to 6% per annum. The precise question before the Privy Council was whether the new rate applied only to acquisitions subsequent to the passing of the Act or it applied as well to prior acquisitions "the compensation for which was still unpaid when it came into force". The Privy Council concurred with the learned Judges of the Supreme Court of New South Wales in holding that the legislation had made no distinction between the land acquired before the Act and that acquired after and allowed the enhanced rate. Lachmeshwar v. Keshwar Lal AIR 1941 FC 5, lays down that hearing of an appeal is in the nature of a rehearing and, in moulding relief, the appellate Court is entitled to take into account even facts and events which had come into existence after the decree appealed against. Consequently the Federal Court was found competent to take into consideration legislative changes, since the decision in the High Court was given, and its powers were held not to be confined only to see whether the lower appellate Court's decision was correct according to law, as it stood at the time when its decision was rendered. In Sultan Ahmad Sharif v.
41. Mathura Mohan Chaudhry PLD 1958 Dacca 36, followed in Mohan Singh v. Tani Mai PLD 1971 Dacca 75, it was declared to be a settled principle of law that not only the Courts of original and appellate jurisdiction but even the executing Courts could take the changed circumstances into consideration while adjudicating upon a matter in issue at a subsequent stage. Kalipada Shaha v.
42. State PLD 1959 SC 322, was a case pertaining to an offence, which was committed prior to the amendment introduced by the Foreign Exchange Regulation (Amendment) Act, 1957, and the contention of Mr. H.S. Suhrawardy, inter alia, was that, in substitution of the Court of Session, trial by the tribunal, and at that for enhanced punishment, constituted under the amended law, was bad.
43. The contention was repelled, observing that the case did not amount to a retrospective enhancement of punishment imposed under the amended legislation. At the High Court level in Saeedur Rehman v. Chief Election Commissioner PLD 1965 SC 157 the decision of the Supreme Court in Badrul Haque Khan v. The Election Tribunal PLD 1963 SC 704 was correctly followed. On appeal in the Supreme Court and during its pendency, the Representation of the People Act, 1957 was repealed providing in the repealing enactment that no person was deemed to have been disqualified from being elected under or by reason of any provision of the repealed Act and no election of any such person shall be called in question on the ground of being disqualified under the repealed Act at the time when he was so elected. The Supreme Court in its 1965 enunciation allowed recourse to the repealing Act even though such statute was nonexistent, when the High Court decision was recorded and also had nullified the effect of Badrul Haque Khan's case. In Alifdin v. Shaukat Ali PLD 1969 Pesh. 62, MA. Zullah, J., as he then was, applied the provisions of the Muslim Family Laws Ordinance, 1961, to pending proceedings under section 488, Cr.P.C. Holding that change of forum by law was always retrospective, being a matter of procedure. In the Supreme Court case of I.T.O. v. Suleman Bhoy Jiwa PLD 1970 SC 80, the Court, upon spelling out the rules as to prospective and retrospective operation of statutes, observed that the legislative use of the words "shall" or "hereinafter" indicates an intention of prospective operation whereas employment of expressions such as "has been" or "heretobefore" involves retroactivity. The statute interpreted was a fiscal legislation viz. The Income Tax Act, 1922, requiring strict construction and yet, on the language employed in the amendatory law, the Court allowed retroactive operation. In Hasan v.
44. Fancy Foundation, PLD 1975 SC 1, followed in Hindustan Sanitary and Drainage Works v. Hakimuddin 1975 SCMR 285 and Abdul Mannan v. Karam Elahi 1981 SCMR 257, the Supreme Court construed 1965 amendment in the West Pakistan Urban Rent Restriction Ordinance, 1959, whereby section 13(2)(vi) of the principal enactment was amended, making landlord's requirement to reconstruct subject to reasonableness and good faith and in the section subsection (5-B) was inserted, enabling the evicted tenant to apply for reinduction in the new building upon reconstruction. It was opined that the elements of reasonableness and good faith could not reflect on pending actions but because the right to apply for reinduction was to follow upon eviction such could be invoked even though the amendment had intervened during pending proceedings since in spite of that being connected with the past was an incident to follow upon eviction, cause of action where for was yet to arise. In either situation the amendment was termed prospective. K.G. Old v. Presiding Officer, Punjab Labour Court PLD 1976 Lah. 1097, is a case decided by Shafiur Rahman, J., then in the High Court, laying down the principles, which govern amendatory statutes, the first being that through such legislation the legislature must be taken to have intended a change in law and to that extent an amending statute partakes of the characteristics of a curative Act; second, an amended provision is ordinarily not interpreted so as to alter completely the character of the principal and third, the previous judicial construction becomes a part of the amending statute, where the terms construed are retained in the amended version. In Ismail Dossa v. Monopoly Control Authority PLD 1984 Kar. 315, Saleem Akhtar, J., then in this Court, examined the effect of certain amendments in the Monopolies and Restrictive Trade Practices (Control and Prevention)
45. Ordinance, 1970, brought about during the course of time the relevant appeal was pending in the High Court, the original figure for an undertaking to attract the mischief of undue Concentration of Economic Power, being enhanced from Rs,10 Million to Rs,30 Million and Rs,50 Million successively. It was found that the amendments were attracted in the pending appeal, legislative intent being to benefit the public and undertakings.
46. ' Looking at the newly-inserted section 28-A in the Land Acquisition Act, can it be said that the provision is retroactive? In the first place, it seems clear that the amendment is remedial in character, creating as it does a new remedy or even enlarging an existing one. Even so, if concomitant to its operation vested rights are claimed to be impaired or destroyed, the rule against retroactive construction would get attracted (Crawford supra, section 287). More specific to amendments the view seems to prevail that if an amendment provides a remedy for the redress of a wrong or for the enforcement of a right where none before existed, the amendment may be regarded as prospective but if a right to recover existed before, and the amendment relates to procedure and merely prescribes a remedy, the amendment is retroactive" (Crawford ibid, section 295). In the sense that the new statutory arrival because it provides remedy for a wrong and enforces a right that did not exist before, such may not revive past and closed transactions, there does not seem any manner of doubt. Now, the language used in the amendment and the amended law is neither express as to retroactivity nor any such implication seems otherwise to arise. At any event, if the legislative intent was to accord retroactive operation there could have been added a deeming clause making the insertion operative from a backdate, either generally or specifically. In Hassan v. Fancy Foundation ibid an argument was raised that the amended section 13 of the Rent statute, as on the date of adjudication, should be given effect to as such but that was repelled holding that the section should be read as it stood originally. It is thus plain that past and closed transactions, as on the date of amendment under examination here, cannot revive or resurrect following upon the amendment.
47. ' Having considered the implications in prospective and retrospective legislations and as to how it is to be determined whether a legislation is prospecitve or retrospective in its impact, we may now turn to ascertain as to what is the precise field which the Land Acquisition Act of 1894 occupies and how the various amendments in such statute, from time to time, have been judicially interpreted.
48. The Land Acquisition Act, 1894, is a Code in itself for acquisition of land needed for public purposes and for determining the amount of compensation to be paid in lieu thereof. It is, therefore, clear that in terms of such statute while requirements for public purposes are to be enforced on the one hand, corresponding compensation to those affected upon acquisition is equally important on the other. As to compensation it has rightly been observed that there is a manifest anxiety on the part of the legislature to compensate those who have been deprived of property adequately enough in the sense that they are to be accorded gold for gold and not copper for gold: Bashir Hussain v.
49. Land Acquisition Collector, Lahore PLD 1970 Lah.
50. 321.
51. ' The case of the Government of N.-W.F.P. v. Muhammad Sharif PLD 1975 Pesh. 161, involved facts where the property was acquired in 1963 but before the making of the award in 1970 section 34 of the Act was amended in 1969 through Act III of 1969, whereupon the rate of interest under such provision was enhanced from 6% to 8%. The Peshawar High Court ruled that this was hardly a case of retrospective connotations and allowed the revised rate.
52. ' There are several decisions from Indian Jurisdiction which may have relevenee here. These are Collector, Varansai v. Ratan Shanker Prasad AIR 1984 All. 330, Kamalajammanni-Avaru v. Special Land Acquisition Officer AIR 1985 SC 576, Bhag Singh v. Union Territory of Chandigarh AIR 1985 SC 1576, Rameshwar Dayal v. State AIR 1986 All. 81, State of Punjab v. Mohinder Singh AIR 1987 SC 758, Union of India v. Raghubir Singh AIR 1989 SC 1933 etc. Such decisions relate to section 23(2) of the Land Acquisition Act. However, in so far as the restricted view in the rase of Raghubir Singh is concerned that has reference to section 30(2) of the relevant amending Act and does not reflect on the generalised propositions discussed here.
53. ' Deputy Commissioner v. Mahrab 1988 CLC 1119, is a decision of this Court where the newly-added section 28-A was itself considered in the background that the relevant award was made on July 24, 1975, and the reference was occasioned in 1977, resulting in enhancement of compensation following adjudication upon the reference on August 11, 1987. It was urged that the amount awarded by the Land Acquisition Officer was accepted under protest. On these facts, it was found that section 28-A, introduced in 1984, applied and the claimants were entitled to additional compensation at 15% per annum of the amount of difference under the awards of the Collector and the Court from the date of notification under section 4 of the Act to the date of payment of compensation. What is. However, to be noted is that the solatium was allowed not on the basis f compensation as such but on the difference between the Land Acquisition Officer and that allowed by the Court. The initial award amount having already been recovered.
54. It is, therefore, clear that section 28-A in the Act, introduced through the amendment of 1984 is applicable to pending proceedings so long as it does not interact on past and closed transactions.
55. Still what may, in the present context, be such transactions? It would seem to be just and fair and in line with the spirit of the amendatory law as regards awards rendered prior to the amendment but pending examination at subsequent levels, to say that to the extent a land owner had already received compensation antecedent to the amendment, even though under protest, the question of permitting solatium on the amount or amounts already so paid before the amendment, be treated as a tomaetioniast and no additional a erpgajgnaccrue following u on the amendment on such disbursement of compensation, duly paid and received. However, where compensation is enhanced and enhanced compensation is not received or paid and during the time intervening, the mandatory law has a eared on the statute book an subsequent .a ment including that already due before the amendment but not paid would carry a further solatium at the rate of 15% per annum from the date of notification up to the date of actual payment of compensation.
56. ' Even so, the amendment would still be prospective, notwithstanding that for its operation certain events in the past may yet be invoked. The amendment is mandatory, as already seen, and has to be given effect to, as regards all rights upon which it reflects. At the same time, because there is nothing in the legislation to enable invocation as respects the payments already made before the promulgation such payments remain past and closed transactions and cannot be reopened, as an incident of the amendment. Accordingly, it would be for the decree-holders to submit a proper statement of the claim in consonance with the foregoing underlined portions in this order.
57. Having said as such, we may now revert to the powers of this Court in execution. It has already been shown that an executing Court, subject to well-documented rules, may take into consideration altered circumstances coming to be confronted in execution proceedings. Thus in Narsingh v. Rao Nihalkarn, AIR 1962 M.P. 318, a decree for ejectment and arrears of rent was obtained on 23-9-1953 in a suit filed in 1951, which was affirmed in appeal in 1957. Upon execution, it was pointed out that on 7-12-1951, the Madhia Bharat Abolition of Jagirs Act, 1951, was passed whereby the Jagir, in which was comprised the land in dispute, had ceased to exist. The decree was resisted as inexecutable but the contention was repelled on the ground that the suit having been instituted earlier to the promulgation of the said Act and the objection, not having been raised either in the suit or appeal, was not available in execution. On appeal, the finding was upheld. Second appeal in the High Court was allowed on a finding that such questions could be gone into in execution proceedings. Mullick Brothers v. Haji Muhammad and Brothers PLD 1955 Sindh 297, is a case from this jurisdiction and Inamullah, J., as he then was, opined that an executing Court can go behind a decree, based on award, to examine whether the award was a nullity. Similarly, Haji Sk. Subhan v. Madhorao AIR 1962 SC 1230 pertained to a suit for possession of certain fields and decree passed in favour of the respondent was upheld in appeal before the High Court. However, between the closure of arguments in the appeal and delivery of judgment, the Madhya Pardesh Abolition of Proprietary Rights (Estates, Mahals and Alienated Lands) Act, 1950, came into force but, the fact was not brought to the notice of the High Court. On execution, delivery of possession was resisted on the ground that the respondent decree-holder had no right to dispossess the appellant judgment-debtor as the former had lost his proprietary rights in the fields and the latter had acquired rights to occupy them under the Act of 1951. The Supreme Court of India found that the principle that the executing Court could not question the decree and had to execute it as it stood had no operation in the facts of the case since the objection neither pertained to the invalidity of the decree nor to its being wrong. The objection was raised in the face of provisions of an Act upon the effect of which the executing Court could refuse to execute the decree, holding that such had become inexecutable on account of the change in law. In Rawalpindi Cooperative Bank Limited v. Muhammad Riaz Khan PLD 1966 Lah. 912, a Division Bench of the erstwhile High Court of West Pakistan observed that section 47 of the Code of Civil Procedure, relating to execution, discharge or satisfaction of the decree had to be liberally construed in view of bar of a fresh suit envisaged in that provision and all objections, which could justly arise and fairly be dealt with could be considered in execution proceedings. In Qadeer Ahmed Siddiqui v. Ramzari Ali PLD 1977 Kar. 273, Zafar Hussain Mirza, J., in this Court, expressed similar views and further observed that non-executability of the decree also related to the execution of the decree.
58. On the foregoing analysis, it would seem to emerge that an executing Court can also, in appropriate cases, take into consideration a change in law and such may pertain not only to a state of facts where the law has followed subsequent to the passage of the decree but also to a point of time when the decree had not attained finality and for some reason the intervening law either escaped examination or was otherwise omitted, for example, such law contemplating an effect too obvious to be dilated upon.
59. ' It can safely be said thus that at least in so far as enhanced payment was allowed in the Supreme Court of Pakistan or such payment has remained to be disbursed upon preceding adjudications, the amending version in section 28-A applied. It has also been seen that the provision of section 28-A of the Act is self-executory and does not envisage any intervention by the Court, meaning thereby the referee Court or the Courts sitting in appeal(s), as regards the finding of such Court.
60. Taking note of the amended law, therefore, could have been considered, at the Supreme Court level, to be unnecessary and recourse thereto, upon dispute between the parties, becomes an obligation of the executing Court. The amended provision accordingly, can also be duly implemented even at this level.
61. Lastly, it comes up for reiteration that in allowing solatium to the extent, as above, this Court at the execution stage is only giving effect to the law and, merely, interpreting the decree of the Supreme Court which, perhaps, is advisedly silent on the computations under section 28-A ibid. Since the solatium under the section is imperative but its working out, is somewhat complicated, best approachable either at the level of the Collector at the time of disbursement or the Court at the time execution is claimed.
62. ' In the result, the decree-holders would be entitled to compensation and solatium in terms spelled out above but within the limitation expressly detailed and even underlined for facility of reference.
63. A fresh statement, as said, in consonance would be submitted by the decree-holders in Court with advance copy to the judgment-debtors, who may submit objections thereto whereupon, if the parties be at variance, the matter would be laid up in Court for orders.