FAZAL-UR-RAHMAN, J.--- This Civil Revision Petition under Section 115, CPC has been preferred against the order dated 1.5.2000 passed by the learned Additional District Judge-V, Quetta, whereby the application for review was dismissed and the application under Section 152, CPC was disposed off without any decision and the petitioners were let at liberty to initiate proceedings before the Trial Court regarding amendment of decree about additional compensation.
2. Briefly stated the facts of the case are that proceedings for acquisition of land situated in Mohal Mouza Karez Mubarak Shah, Tappa Bilili, Mouza Khazi, Teh.{{TABLE}} District Quetta bearing Khasra Nos. 315, 316, 317, 541/319, 309/32 I, 322, 314, 318, 308, 320, 889/1/555/335, to 23/336, belonging to the petitioners for defence purposes of respondent No. 2 commenced with issuance of a notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter called as Act) by the Collector Quetta (respondent No. 1) on 28.2.90. By award dated 14.5.1990, the Collector Quetta Sub-Division, fixed the compensation @ Rs.11/- per sq.Ft. And 15% compensatory acquisition charges, as per provisions contained under sub-section (2) of Section 23 of the Act. The petitioners were dissatisfied with the determination of compensation as aforesaid arid a reference to the Court under. Section 18 of the Act was made. It is stated that the learned District Judge, Quetta transferred the reference to the Court of learned Additional District Judge-I, Quetta. The referee Court after recording the evidence, the compensation which was fixed by the collector was found to be not proper as the same was not in accordance with the market rate and it also declined to accept the rate of compensation claimed by the owners of the land @ Rs.30/- per sq.Ft. And instead fixed the compensation @ Rs.12/- per sq.Ft. With 15% compensatory acquisition charges. From the judgment of referee Court, both the petitioners as well as the respondent No. 2 filed appeals before this Court to challenge the order of the referee Court. It is stated that the appeals were dismissed by this Court on 11.4.1996. Where after, the parties approached the Honourable Supreme Court of. Pakistan against the same for special leave to appeal, but the Honourable Supreme Court of Pakistan on 10.8.98 dismissed the petitions and, leave was refused. It is stated that the petitioners thereafter, filed an execution application for recovery of the amount of compensation alongwith compensatory acquisition charges as well as additional compensation as per provisions contained under Section 28 of Act in ,the Court of learned Additional District Judge-I, Quetta. The execution application was however, transferred from the file of learned Additional District Judge-I Quetta to the Court of learned Additional District Judge-V, Quetta by the learned District Judge Quetta for the reason that the Presiding Officer of the Court of Additional District Judge-I, Quetta remained the counsel of the petitioners. It is maintained that during the course of execution application the petitioners requested the Court regarding grant of additional compensation as contemplated under Section 28-A of the Land Acquisition (Baluchistan Amendment) Ordinance, 1985. The learned Additional District Judge-V, Quetta, however, not granted the claim of additional compensation in terms of Section 28-A of the Act as the decree did not provide for it vide order dated 10.12.99. The learned Additional District Judge-V, Quetta, refused to grant the additional compensation for the reason that the decree did not provide for the additional compensation to be paid to Decree Holders did not request the Trial Court or Appellate Court to amend or correct decree for the payment of compensation and the Executing Court has no power to amend the decree and to give the relief which was not given by the Trial Court. The execution application was however, allowed to the extent of Rs.12/- per sq.Ft. Plus 15% compensatory charges and directed the respondents to make payment to the Decree Holders (petitioners). The learned Judge also directed the Decree Holders regarding collection of the decretal amount from respondent No. 1. After disposing off the execution application, the matter was however, fixed for report on 27.12.99.
3. The petitioners filed two applications, one for review of order dated 10.12.99 and the second application under section 152, CPC praying that the judgment dated 22.8.98 and decree be amended by incorporating 15% additional compensation as required under Section 28 of the Land Acquisition (Baluchistan Amendment) Ordinance, 1985. Both of the above applications were resisted by the respondents by filing rejoinders. .The learned Additional District Judge-V, Quetta after hearing the learned counsel for the parties and perusing the record dismissed the review application for the reason that the Court of learned Additional District Judge-V, Quetta being executing. Court was not empowered to alter or vary the decree granted by the learned Additional District Judge-1, Quetta. The learned Additional District Judge-V, Quetta also disposed off application which was filed under Section. 152, CPC without any finding, and the petitioners were however, let at liberty to initiate proceedings before the Trial Court regarding amendment of decree about additional compensation. This order is the subject-matter of present petition which has been filed under Section 115, CPC.
4. I have heard Mr. Qahir Shah, Advocate, learned counsel for the petitioners and K.N. Kohli learned Deputy Attorney General of Pakistan for respondent No. 2, while Mrs. Shabnam Allah Din, Advocate represented the State (respondent No. 1).
5. The main contentions put forth on behalf of the petitioners are that; the impugned order is contrary to facts and law, the learned Additional District Judge-V, Quetta failed to exercise jurisdiction as per provisions contained under Section 152, CPC, as after transfer of application from the Court of learned Additional District Judge-I, the learned Additional District Judge-V, became the Trial Court as well as the executing Court failed to take notice of the observations earlier made in the order date 10.12.99, the Trial Court did not visualize regarding long delay for the payment of the amount of compensation, the additional compensation under Section 28 of the Act is a mandatory requirement and had to be granted when the payment of the balance amount of compensation was maliciously delayed on one pretext or the other, grant of additional compensation in the decree was an omission on the part of Court for which the petitioners are entitled being mandatory in nature when the payment of balance amount is delayed. Learned counsel, therefore, suggested that in the circumstances the matter may be remanded to the learned Additional District Judge-V, Quetta for adjudication in accordance with law, which is a proper forum. He also stated that the same Presiding Officer is still working as learned Additional District Judge-I, Quetta. Learned counsel in support of his contentions relied upon the authorities reported in PLD 1997 SC 472 and 1997 SCM R 1670.
6. When faced with this, learned State counsel did not dispute the legal proposition' of law regarding mandatory nature of the provisions of Section 28-A of the Act, but submitted that being law officers they are not permitted to concede.
7. After having given anxious consideration to the arguments advanced on behalf of the parties, it can safely be stated that the provisions of Section 28-A is mandatory in nature which relates to additional compensation from the date of publication of notification under Section 4 to the date of payment of compensation. Where the Court is bound to grant relief which the party seeks, or where the Court is bound to grant relief even without it being sought by a party and if unintentionally or inadvertently the Court does not grant such relief, it would be justified at any time to correct such accidental omission or error by exercising power under Section 152, CPC.
8. There appears force in the contention of learned counsel for the petitioners, that the power under Section 152, CPC can be exercised at any time and the learned Additional District Judge-V who was seized with the matter was not justified by observing that the petitioners should initiate proceedings before learned Additional District Judge-I, from whom the case was transferred to him. There is also force in the contention, that such powers can be exercised even at the time of execution of the decree by the Executing Court. The refusal to exercise the power being Executing Court where the matter was transferred on the part of learned Additional District Judge-V was not justified.
9. The authority relied upon and reported in PLD 1992 SC 472 is fully application to the case in hand.
It was a case regarding grant of additional compensation @ 15% per annum of the compensation allowed from the date of notification under Section 4 to the date of payment of compensation in view of Section 28-A of the Land Acquisition (Sindh Amendment) Ordinance, 1984, promulgated on 30th September, 1984. The provisions of the aforesaid section are para matria with that contained under Section 28-A of the Land Acquisition (Baluchistan Amendment) Ordinance, 1985. The observations made by the Honourable Supreme Court in the authority relied upon by the learned counsel for the petitioners are note worthy, the relevant paras of which are reproduced below for the sakeof facility:- "There can be no dispute that an order has to be made for grant of additional compensation under Section 28-A which order was not made. The appellant had applied for correction of the judgment and decree as his entitlement was not disputed and it was merely an unintentional omission on the part of the Court not to have granted additional compensation while passing judgment on reference under Section 18 of the Act.
A perusal of section 28-A will show that it 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. 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. It is the duty of the Collector that on making an award under Section 11 he should tender payment of the 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 a 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 the Court.
Having analyzed the nature and purpose of Section 28-A of the Act it is to be considered whether in the facts and circumstances of the case relief could be granted to the appellant under Section 152, C.P.C. Which reads as follows:- "152. Amendment of judgments, decrees or orders--Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.
Section 152 enables a Court to correct the mistake, omission or error in the judgment, decree or order which has crept into it inadvertently and unintentionally. Such mistakes are mostly caused due to inadvertent mistake of the Court. The rules or procedure as provided by C.P.C. Are intended to foster justice, therefore, no one should be allowed to suffer due to the mistake of the Court.
The Court has jurisdiction to correct the clerical or arithmetical mistakes or errors caused due to accidental slip or omission in a judgment, decree or order. Depending on facts, it confers a wide discretion on the Court to correct, (i) clerical or arithmetical mistake, - (ii) errors caused due to accidental slip or omission in the judgment, decree or order. Such power can be exercised at any time. Where the Court is bound to grant a relief which the party seeks, or where the Court is bound to grant relief even without it being sought by a party and if unintentionally or inadvertently the Court does not grant such relief, it would be justified at any time to correct such accidental omission or error by exercising power under Section 152. have also observed:- "The dispute is in respect of the additional compensation which is allowed on the basis of the amount of compensation which stands determined according to law. In the present state of law it is the duty of the Collector and/or the District Judge to add additional compensation as provided by Section 28-A to the Amount of compensation determined by them. The impugned judgment is set aside and the order of the learned District Judge for payment of additional compensation as provided by Section 28-A is restored."
10. Having regard to the above-mentioned factors and principles laid down in the cited authority, I am persuaded to allow this revision petition and the impugned order is accordingly set aside.
Resultantly, the matter is remanded to learned Additional District Judge-V, Quetta for adjudication in accordance with law, after providing opportunity to the parties.
The Revision Petition accordingly stands disposed off in the above terms. No orders as to costs. .