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Petitioner: DILAWAR HUSSAIN and 6 others/DecreeHolders VS Respondent: THE PROVINCE OF SINDH through Secretary Revenue Department, Karachi and 2 others/Judgment Debtors
Court Name: Sindh High Court Judge(s): Wajihuddin Ahmed Title:DILAWAR HUSSAIN and 6 others/DecreeHolders vs THE PROVINCE OF SINDH
through Secretary Revenue Department, Karachi and 2 others/Judgment Debtors Case No.: Execution Application No, 27 of 1988 Date of Judgment:1993-05-31 Reported As: PLD 1993 Karachi 578 Result: Order accordingly Judgment ORDER ' 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. 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. 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. ' 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
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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. ' 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. ' 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) Act III of 1969, which itself was repealed by virtue of the Land Acquisition (W.P. Amendment) (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. ' 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." ' 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
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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. ' 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
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process for recovery can be issued. That is to say. If all disbursals in consonance are not or have not been made. ' 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. 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? ' 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)." ' 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
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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." ' 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." ' 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. 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." ' 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. 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. ' 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
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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. However, if and when, a dispute arises due adjudication, at the appropriate level, is to be made. ' 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
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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.…
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