' This judgment shall dispose of the aforesaid two causes arising out of almost identical orders dated 25-7-1989 passed by learned First Additional District Judge, Badin, in execution proceedings of Land Acquisition Suit No,3/1978.
2. 34-25 acres of lands situated in Deh Patar, District Badin were acquired by the Sindh Government for construction of Police Lines at Badin. Notification under section 4 of the Land Acquisition Act was issued on 8-4-1976 whereas notification as required by sections 6 and 17 of the Act was issued on 12-7-1976. Appellants/applicants were issued notice under section 9 of the Act on 28-6-1978 to which they submitted their objections on 15-7-1978. Land Acquisition Officer, Badin after taking into consideration all the circumstances of the case determined the compensation at the rate of Rs,6,000 per acre by his award dated 23-8-1978. As the appellants/applicants were not satisfied with the quantum of compensation at their instance a reference under section 18 of the Act was made to District Court, Badin which was heard by learned District Judge, Badin who awarded the compensation in respect of the land at the rate of Rs,20,000 per acre, Rs,6,000 as compensation for thirty Babul trees along with 15% compulsory acquisition charges and 6% interest by his judgment dated 21-2-1984 and decree dated 31-3-1984.
3. Amount of compensation, however, was not disbursed to the appellants, who moved Execution Application No,1 of 1985 before District Judge, Badin which was transferred to the First Additional District Judge, Badin for disposal according to law. In the execution proceedings applicants moved an application for amendment of the amount claimed in the execution application seeking to substitute a sum of Rs,38,17,851 instead .Of Rs,10,93,428.81 initially claimed in columns Nos. 8 and 11 of the application. According to the applicants previous figure was written due to miscalculation and the revised amount was calculated in consequence of a legal notice dated 11-2-1989 issued to Commissioner, Hyderabad Division, Inspector-General of Police, Sindh and Land Acquisition Officer, Badin claiming additional compensation as admissible under section 28-A inserted in the Land Acquisition Act with effect from 30-9-1984. In view of service of legal notice as well as the amendment application filed by the applicants/decree-holders a sum of Rs,38,17,851 was deposited by the Government in the account of the District Court, Badin but learned Additional District Judge disallowed the prayer for amendment with the observation that the executing Court could not go beyond the decree although it was empowered to entertain objections relating to execution, satisfaction and discharge of the decree.
4. On another application for payment of decretal amount of Rs,10,93,428.81 by the appellants/applicants instead of disbursing the amount credited by Government towards the compensation for land acquisition learned Additional District Judge directed that the balance amount of Rs,27,24,422.19 be returned to the concerned department through Executive Engineer, Provincial Buildings Division (Police Works), Hyderabad, which has been assailed in Miscellaenous Appeal No,11/1989.
5. The sole point for determination in these proceedings is whether the appellants/applicants are entitled to claim the additional compensation at the rate of 15 % on the amount of compensation from the date of notification under section 4 of the Act till payment in view of newly-inserted section 28-A in the Act.
6. I have heard learned counsel for the parties and given my careful consideration to the points raised at the Bar.
7. Section 28-A was inserted in the Act by Land Acquisition (Sindh Amendment) Ordinance (XXIII of 1984) by the province of Sindh with effect from 30th September, 1984. In order to appreciate the contention advanced at the Bar it would be appropriate to reproduce the same which reads as under:-- "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 dated of the notification under section 4 to the date of payment of the compensation."
8. As the judgment and decree passed by learned District Judge, Badin in the present proceedings was prior in point of time than the date of insertion of the new provision in law I called upon Mr.Jhamat Jethanand to satisfy me whether the appellants/applicants would be entitled to claim the additional compensation during the pendency of execution application in which a prayer was made for the grant of additional amount by way of decretal amount. Learned counsel referred the following cases in support of his submission that the appellants/applicants are entitled to the additional compensation made payable from the date of notification under section 4 to the date of payment of the compensation:
(i) Syed Saadi Jafri Zainabi v. Land Acquisition Collector and Assistant Commissioner (PLD 1992 SC 472).
(ii) Dilawar Hussain v. Province of Sindh (PLD 1993 Karachi 578).
(iii) Land Acquisition Officer, Badin v. Pir Altaf Hussain Shah (1994 CLC 160).
9. With the assistance of learned counsel for the parties I have had the privilege of going through the aforesaid judgments. In the case at Serial No, (i) it was ruled by the Supreme Court that section 28-A 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. Saleem Akhtar, J. (as his lordship then was) emphasised that 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.
His Lordship further held that it is the duty of The Collector that on making an award under section 11 he should tender payment of 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 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 Court.
' In the case at Serial No,(iii) main discussion is directed against the amount of compensation determined by the Land Acquisition Collector as well as District Judge, Badin. However, Abdul Rahim Kazi, J. (as he then was) besides upholding the award of compensation at specified rate, 15% compulsory charges and 6% interest also directed the award of additional compensation at the rate of 15% per annum in spite of opposition by the State counsel that the land was acquired prior to the above said amendment. It may be observed that even in the Supreme Court case the land was acquired prior to the aforesaid amendment but the judgment and decree was passed at a time when the amendment had become operative.
10. From the point of view raised by me in these proceedings the point under consideration has been exhaustively dealt in the case of 'Dilawar Hussain' authored by Wajihuddin Ahmed, J. Learned Judge dealt with the application of law in paragraph sidelined N at page 600 of the report as under:-- "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.
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 landowner 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 transaction past and no additional payment may accrue following upon 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 appeared on the statute book, any subsequent payment 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."
After a resume and analysis of the decided cases on the point I am clear in my mind that since the appellants had not been paid the amount of compensation awarded by a competent Court of law notwithstanding the circumstance that the judgment and decree was passed at a time when the amendment was not operative would be entitled to this additional compensation with effect from the date of notification under section 4 of the Act till the deposit of the amount in the account of the District Court. Generally it is settled that an executing Court would not go beyond the decree but in appropriate cases an executing Court can take into consideration a change in law which pertains not only to an state of facts where the law has followed subsequent to the passage of the decree but also at 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. Suffice to say the provision of section 28-A of the Act is self-executory which does not envisage any intervention by the court namely the referee Court or the Appellate Court. The fact that even the Supreme Court of Pakistan upheld the award of additional compensation in a case maturing long after the passing of the amendment ordinance is a pointer to the fact that such compensation is payable in all cases which are not finally closed i,e, in which payment has not yet been made to the decree- holders. In this view of the matter I am of the definite view that learned executing Court acted illegally and in complete disregard of the settled principles of law by disallowing the amendment asked for and by directing the return of additional amount to the concerned department. Needless to observe such order was suspended pending the hearing of the aforesaid appeal and on the application of the appellants it was ordered by this Court that amount of Rs,27,24,422.19 lying in District Court, Badin may be invested in Defence Saving Certificates. Hopefully the amount has been invested in the aforesaid certificates. As the appellants may not be entitled to further interest on this amount after the date of deposit in the District Court it is quite natural that they shall be entitled to the profit accruing on such investment. It is ordered accordingly.
12. For the foregoing reasons miscellaneous appeal as well as revision application are allowed with costs and impugned orders passed by the executing Court set aside.