By a consolidated order four review applications under Order 47, rule 1, C.P.C. Read with sections 151 and 152, C.P.C. Shall be disposed of.
Briefly the case is that the respondent owned land in Deh Jamshoro Taluka and the land was acquired for the public purpose to construct water logoons. This acquisition of land was done under the Land Acquisition Act. The Notification was published on 20th of October 1979, another notification was also issued under sections 6 and 17 of the Land Acquisition Act on 2-5-1980. Award was given under section 11 on the 19th of June, 1980. Notices were issued under section 9 on 24-5- 1980 to the owners of the property. The award was given for Rs,30,000 per acre however, the respondent was not satisfied with the sum and a reference was made to the District Judge under section 18 wherein a demand was made that the amount of compensation should be Rs,40,000.
Issues were framed before the learned Additional District Judge whereafter evidence was produced and the learned Additional District Judge awarded the compensation of Rs,40,000 per acre by judgment dated 30-11-1986. The appeal under section 54 was filed by the Land Acquisition Officer/Collector Government of Sindh before this Court where cross-objections were also filed under Order 41, Rule 22, C.P.C. By the respondent. Through these cross-objections the respondents demanded that compensation should be given to them at the rate of Rs,1,50,000. The judgment by this Court was given by Mr. Justice Khursheed A. Rizvi (as his Lordship then was) on 21-2-1993. By this judgment the appeal was dismissed and the cross-objections filed by the respondents were allowed to the extent of what was stated in detail in the said judgment. The appellant in the case filed review application on 7-9-1993. In this application they asked for certain change in the operative part of the judgment. The grounds for review as stated in the application I reproduce as follows:--
1. That this Honourable Court in the operative part of the judgment dated 21-2-1993 has been pleased to observe as under:-- "I, therefore, fix the rate of compensation for the above land at the rate of Rs,70,000 per acre. I also direct that compulsory acquisition charges at the rate of Rs,15% under section 23(2) of the Land Acquisition Act on the above compensation be also paid. Interest at the rate of 6% per annum is also granted from the date of possession of the land i,e, 18-6-1980 till the amount is finally paid to the respondents by the appellants. The additional compensation at the rate of 15% per annum be also paid on the above amounts from the date of notification under section 4 of the Land Acquisition Act till 20-10-1979 till the entire amount is paid to the respondents".
2. That while dismissing the appeals of the appellant and allowing cross-objections of the respondent this Honourable Court had made the above observations.
3. That the additional compensation under section 28-A of L.A. Act 1894 has been allowed by amendment in the L.A. Act vide Ordinance XXIII of 1984, L.A. (Sindh Amendment) Ordinance, 1984, Gazette of Sindh, Extraordinary dated 30-9-1984 which has been reproduced below: "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".
4. That while allowing additional compensation at the rate of 15% per annum, this Honourable Court inadvertantly, through oversight has used the words "additional compensation at the rate of 15% per annum be also paid on the above amounts", while, as provided under section 28-A of L.A. Act 1894, the additional compensation is not to be paid on all the amounts which includes 15% compulsory nature of the acquisition under section 23(2) of L.A. Act and 6% interest payable on excess compensation under section 28 of L.A. Act, but only on the amount of compensation fixed on the basis of market value, hence this review is warranted by law.
5. That the appellant, under the law, is not liable to pay additional compensation at the rate of 15% per annum on all the above amounts hence the judgment dated 21-2-1993 passed by this Honourable Court calls for a review.
6. That in view of the above submissions, it is earnestly prayed that this Honourable Court be graciously pleased to review the judgment dated 21-2-1993 by clarifying that the additional compensation at the rate of 15% per annum is payable by appellant to the respondents only on the amount of compensation fixed on the basis of market value as prevailing on the date of notification under section 4 of L.A. Act.
7. That an affidavit in support of this application is filed herewith.
Heard the learned counsel for the appellant/applicant who has dwelt at length on the factual aspect which led to the filing of the appeal and according to him he has raised certain objections which according to him touches the very of the appeal. He has very vehemently argued that the appeal was filed by a person who was not competent to file the same under the law. According to him it has to be the Advocate-General or anybody authorised by the Advocate-General.
According to him if the appeal was not filed properly then whether the cross-objections could be maintained or not. He has also gone on the state that the appeal was time-barred by twenty days and even the stamps were not paid in time. The third point that he has taken is that even if the review was considered as time-barred then it can be entertained under section 151, C.P.C. He has then gone on to deal exhaustively with the various sections of the Land Acquisition Act and whether the cross-objections could also be entertained. Thereafter in support of his various contentions the learned counsel has relied on lot of case-laws which are reproduced hereunder:--
(1) PLD 1992 Kar. 150(a).
(2) Unreported case of Civil Appeal No,39 of 1994 Government of Sindh v. Haji Abdul Rehman.
(3) AIR 1924 Lah. 43;
(4) PLD 1973 SC 295(b);
(5) 1985 SCMR 45(b)(c);
(6) PLD 1978 Pesh. 138 overruled in 1983 CLC 685;
(7) 1983 CLC Kar.
685.
(8) PLD 1975 Lah. 942;
(9) PLD 1984 SC 253;
(10) PLD 1955 Sindh 349;
(11) NLR 1979 Service Lah. 179(a);
(12) PLD 1959 (W.P.) Lah. 31(0;
(13) PLD 1968 Azad J&K 26(b);
(14) AIR 1941 Sindh 158(a);
(15) PLD 1993 Kar.
578.
Furthermore he has also contended that compensation under section 28-A could not be awarded for the reasons that section 28-A was brought into existence in 1984 and there could be no retrospectivity of its application. He has also pointed out that even if the High Court could come to the conclusion that compensation under section 28-A would be applicable then it should be on the net value and not on the gross value.
The learned counsel for the respondent while arguing the matter has brought forward some very relevant dates. According to him the following dates are worth considering:
(1) Judgment in appeal dated 21-2-1993.
(2) Review filed on 29-8-1993 i,e, after six months and eight days.
(3) Review did not have court-fees and no application under section 149, C.P.C. Was filed.
(4) No application under section 5 of the Limitation Act was filed.
(5) Office objections was raised on 7-9-1993.
(6) Counter-affidavit was filed on 27-2-1994.
(7) Application under section 5 of the Limitation Act was filed on 17-7-1994 which is. C.M.A. 458 of 1994. This application was presented on 19-7-1994.
(8) Court-fees were paid through a statement on 18-6-1996.
The another objection taken by the respondent was that there was no provision for review under the Land Acquisition Act. He has then gone on to give various case-laws on the following points..
The learned counsel for the respondent has also raised certain points in reply to the arguments led by the counsel for the appellant.
(A) Right of review is a substantive right and is always a creation of relevant statues on the subject.PLD 1981 SC 94(b)
Plus 1986 SCMR 965 Plus PLD 1970 SC 1
(B) Review/Appeal--Filed without court-fee stamps/deficit court-fee is a mere piece of paper and subsequent payment beyond time would not render it as properly filed.(i) PLD 1978 BJ 7
(ii) AIR 1955 Raj. 165
(iii) 1996 MLD 1074(a)
(iv) 1998 MLD 589(a)
(v) 1997 SCMR 919 (a)
(vi) 1996 CLC 2002(c)
(C) Condonation of delay under section 5 of Limitation Act. Question of limitation not be lightly interfered since it create valuable right in favour of other party.(i) PLD 1993 Quetta 88(d)(e)
(ii) PLD 1995 SC 396(a)
(iii) 1996 SCMR 727(b)/730 Condonation of delay, delay of each day is to be explained and Government. Cannot be treated differently.
(D) Prayer 15% Additional compensation is to be awarded on compensation allowed under section 23(1) and under section 23(2) of Land Acquisition Act
1. Whole appeal cannot be argued at Review stage. However points raised are replied as under:-- Penal provision of section 25(1)(2) cannot be availed until service of notice under section 9 of L.4. Act is strictly complied failure to do so case falls under section 25(3) of L.A. Act.(i) 1985 SCMR 45
(ii) 1983 CLC 1879(a)
2. Appeal signed by unauthorised person Even if the appeal is not signed by authorized person, the Court should give chance to appellant to get it signed by authorized person and appellant cannot be non-suited.(i) 1992 SCMR 2379
(ii) PLD 1969 Kar, 566 to appreciate the manner in which the matter has been argued. I have gone through the case- laws submitted by both the sides and would like to make an observation that the arguments of the applicant and the case-laws relied on by him cannot be urged or taken up in a review application.
The jurisdiction of the Court in review is restricted and limited as can be seen and appreciated after reading the provisions of review under the Civil Procedure Code while the grounds urged could have been taken into consideration under the appellate jurisdiction but regretfully I cannot go beyond the scope of section 114 and Order 47, Rule 1, C.P.C. Even this application cannot be taken into consideration as it is hopelessly barred by limitation. In parting it would be fair to observe that by staying the proceedings of execution the respondents have been at a distinctive advantage since ends matter has been pending in the High Court alone for the last ten years. I, therefore have no hesitancy in dismissed the review application.