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Petitioner: DILAWAR HUSSAIN and others VS Respondent: PROVINCE OF SINDH and others
Court Name: Supreme Court of Pakistan Judge(s): Mian Saqib Nisar, Umar Ata Bandial, Maqbool Baqar Title: DILAWAR HUSSAIN and others vs PROVINCE OF SINDH and others Case No.:Civil Appeals Nos. 939/2004, 144-K, 145-K of 2009, HRC Nos. 20691S of 2013
JUDGMENT
Reported As: PLD 2016 Supreme Court 514 Result: Appeals allowed Judgment JUDGMENT MIAN SAQIB NISAR, J.--These appeals, by leave of the Court, are being disposed of together as the same legal points are involved therein. Civil Appeal No,939 of 2004: 2. The facts in relation to the instant appeal are that the land owned by the appellants was acquired under the Land Acquisition Act, 1894 (the Act) through notifications under Section 4 thereof dated 2.2.1960 and 5.3.1960 respectively. The Land Acquisition Collector (LAC) announced the award on 17.12.1960 which was assailed by the respondents through a reference. The Referee Court enhanced the compensation vide judgment dated 27.8.1970. Being dissatisfied with the increase in compensation, the appellants approached the learned High Court in appeal and further enhancement was accorded to them through judgment dated 26.9.1977; and on their appeal before this Court compensation was yet further increased vide judgment dated 18.2.1987. The appellants then filed an execution petition for recovery of their dues (enhanced compensation) before the learned High Court (which was the executing court) and also for the first time sought additional compensation under Section 28-A of the Act, 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 percent 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." The Executing Court vide order dated 31.5.1993 while interpreting the provisions of Section 28-A held that it (section) would not apply to past and closed transactions. In this context the relevant
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portion of the order reads as:- "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 inter-act on past and closed transactions. Still, what may, in the present context, be such transaction? It would seems 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 solatiam 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 amendatory law has appeared on the statutes 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." Aggrieved of the above, the appellants filed an appeal before the High Court and the learned Division Bench of the Court held:- "We are inclined to agree with Mr. Sharif that the question of amount of compensation payable from the date of Notification under Section 4 till the entire amount of compensation is determined is a single transaction and additional compensation under section 28-A would have to be calculated by bifurcating the unpaid amount from that which has already been received by the land owner. By incorporating Section 28-A, the legislature apparently intended to compensate such land owners by providing additional compensation and at the same time deter acquiring from delaying payment. However, it cannot be assumed that it permitted a owner to take a premium on the basis of the entire amount of compensation inclusive to amounts already pocketed by him. It may also be noticed that the legislature has not used the expression "final payments" and in a given case there could be several dates of payments of different amounts falling short of the payments to be made upon final determination. For the foregoing reasons, we dismiss the Appeal directing the parties that the Appellants were entitled to receive the additional compensation under Section 28-A for the unpaid amount of the compensation from the date of notification under Section 4 of the Act till the final payment of the compensation is made to the Appellants. There will be no orders as to costs." Leave in this case was granted vide order dated 28.7.2004 primarily to consider whether:- the petitioners would be entitled, in view of above said provision of law, to claim benefit of additional compensation under the ibid Act on the entire amount of compensation from the date of notification issued under Section 4 of the Land Acquisition Act till final payment of compensation is made to the petitioners or only on the amount of compensation which was not paid up to the time of promulgation of Ordinance No, XXIII of 1984?". 3. Learned counsel for the appellants has argued that the language of Section 28-A leaves no room for doubt that the additional compensation is payable from the date of notification under Section 4 of the Act till the date of the payment of compensation. He states that to interpret the section in a manner whereby the compensation shall only be payable on the unpaid amount is not a valid construction of the said section; this is tantamount to reading into the provision which cannot be done as the provision is clear and the rule of literal interpretation of statutes should be resorted to rather than looking into the intent of the legislature. He states that the person whose land is acquired is ipso jure entitled to compensation as per the provisions of Section 34 of the Act with regard to interest and thus the additional amount of compensation under Section 28-A is also
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available to him as a matter of right. He relies on the Construction of Statutes (1940) by Crawford, Government of Sindh and 2 others v. Syed Shakir Ali Jafri and 6 others (1996 SCM R 1361), Province of Sindh through Collector of District Dadu and others v. Ramzan and others (PLD 2004 SC 512), and Land Acquisition Officer and Assistant Commissioner, Hyderabad v. Gul Muhammad through Legal Heirs (PLD 2005 Sc 311). 4. Learned Additional Advocate General, Sindh has submitted that the provisions of Section 28-A do not have any retrospective effect. As the award was announced on 17.12.1960 and the appellant had already received a substantial amount of compensation before the enforcement of the said section, therefore, he could not ask for a premium over the amount so received. He submitted that Section 28-A was challenged before the learned Federal Shariat Court and was declared repugnant to the injunctions of Islam vide judgment reported as In re: The Land Acquisition Act (I of 1894) (PLD 1992 FSC 398) and pursuant thereto the law was repealed by virtue of the Land Acquisition (Sindh Amendment) Act, 2009 (Act XVI of 2010) (the "repealing Act"). 5. Heard. Before considering the plea(s) raised by the learned counsel for the appellants, we deem it proper to dilate upon the submission of the learned Additional Advocate General about the declaration of Section 28-A as against the injunctions of Islam, its repeal and effect thereof. The provisions of the Act came under scrutiny before the Federal Shariat Court, in its suo motu jurisdiction, to consider whether those were in accordance with the injunctions of Islam and the Court vide judgment dated 27.3.1984 made some declarations and recommendations with regard to bringing the said law in conformity with Islamic principles and one of the recommendations stated:- "In addition to the compensation fixed on the basis of market value as prevailing on the date of notification under section 4, an amount of 15% per annum shall be paid as additional compensation to the person found entitled to compensation from the date of notification under section 4 to the date of payment of compensation." It is pursuant to the above that Section 28-A was inserted in the Act vide Land Acquisition (Sindh Amendment) Ordinance XXIII of 1984 notified in the Gazette of Sindh on 30.9.1984. However, the aforesaid judgment of the Federal Shariat Court was assailed before the Shariat Appellate Bench of this Court and the judgment was set aside. Thereafter, the Federal Shariat Court took up the matter for reconsideration and vide its judgment dated 30.4.1992 specifically declared Section 28-A as violative of Islamic injunctions. The relevant portion of the said judgment reads as under:- "34. In this respect, it is also noticeable that the Government of Balochistan as well as the Government of Sindh by Act XIII of 1985 amended on 9-10-1985 and Sindh Ordinance XXIII of 1984 as amended on 30-9-1984 respectively, the Land Acquisition Act, 1894, in pursuance of the decision dated 27-3-1984 of this Court, a new section 28-A was added which provided for additional compensation in the following words:-- "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." We are afraid, the above provision in the Balochistan Act XIII of 1985, and Sindh Ordinance XXIII of 1984 is not sustainable in the light of the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) as discussed in the judgment on Riba, referred to above. Even otherwise, in view of the setting aside of this Court's judgment dated 27-3-1984 by the Shariat Appellate Bench of the Supreme Court the earlier judgment of this Court does not hold the field and the view having not been adopted by us in our present judgment, Sindh Ordinance XXIII of 1984 and Balochistan Act XIII of 1985 call for their repeal, which also stand nullified by the judgment of the Supreme Court, referred to above."1
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Pursuant to the above, Section 28-A was repealed by the repealing Act, mentioned above, which reads as under:- "4. Omission of Section 28-A of Act No,I of 1894.--- In the said Act, section 28-A shall be omitted and shall be deemed to have been so omitted as if it had never been enacted." (Emphasis supplied) It is evident that repeal of Section 28-A ibid is a departure from the normal words employed to repeal the provisions of law. Why is this so? Perhaps because the amendment was not brought about by the Provincial Assembly on its own, but rather on the recommendation of the Federal Shariat Court, which judgment as mentioned above was set aside by the Shariat Appellate Bench of this Court and thereafter the Federal Shariat Court itself declared that amendment a nullity. Besides, there is the use of 'deeming' terminology whereby a legal fiction is created and secondly there is a retrospectivity given to the repeal of said section in that it is to be treated as it had never been enacted i.e, we are required to go back to a point of time viz 1984 and imagine that Section 28-A had never been brought into effect. As opposed to this unique repeal of said section we must consider the effects of Article 264 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) which is couched in identical terms as Section 6 of the General Clauses Act, 1897. Article 264 of the Constitution is reproduced herein below:- "264. Effect of repeal of laws. - Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the constitution,- (a) revive anything not in force or existing at the time at which the repeal takes effect; (6) affect the previous operation of the law or anything duly done or suffered under the law; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or (e) affect any investigation legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; (f) and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed." In the normal course of our jurisprudence when a provision of law is repealed protection is accorded to the previous operation of the repealed enactment and to those rights which may have accrued under the enactment so repealed. However, in these unique circumstances the question arises whether the appellants will be entitled to any compensation under the repealed Section 28-A given that the said section was repealed in terms of the repealing Act with effect from 29.10.2009 on which date the appellants were still in the process of agitating their rights/claims under Section 28-A and therefore they cannot even claim the benefit of a past and closed transaction. In this regard we may rely on the case cited as Mehreen Zaibun Nisa v. Land Commissioner, Multan and others (PLD 1975 SC 397), wherein this Court (at page 433) interpreted a deeming clause as under:- "When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist. The classic statement as to the effect of a deeming clause is to be found in the observations of Lord Asquith in East End Dwelling Company Ltd v. Finsbury Borough Council (I) namely: "Where the statute says that you must imagine the state of affairs, it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable
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corollaries of that state of affairs." In the remarkable 17 member judgment of this Court reported as Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Dr. Mubashir Hassan and others (PLD 2012 SC 106) the following question was formulated (at pep 126):- "Issue No, (iv) Whether the effect of repeal of an Ordinance or law in terms of Article 264 of the Constitution and section 6 of the General Clauses Act is the same as that of an Ordinance or law being declared non est and null and void." The earlier judgment of this Court reported as Jannat-ul-Haq and 2 others v. Abbas Khan and 8 others (2001 SCM R 1073) was quoted with approval wherein, inter alia, it was held (at page 108 1):- Similarly operation of a law declared to be repugnant to the Injunctions of Qur'an and Sunnah or anything done or suffered thereunder before a specified date or continuation of suits pending on the specified date also does not amount to the repeal of law The judgment of the Peshawar High Court reported as Muhammad lqbal and 17 others v. Ghaunsullah Khan and 17 others (2002 CLC 1533) was also reproduced with approval, wherein it was held (at page 1537):-- "7. A perusal of the above quoted provisions of the Constitution and the General Clauses Act would reveal that the expression "ceased to have effect" cannot be held synonymous with repeal as is envisioned by Article 264 of the Constitution and section 6 of the General Clauses Act. In the former eventuality even pending cases cannot be dealt with in accordance with the law which has been so held repugnant to the Injunctions of Islam and ceases to have effect after the date mentioned in the decision while in the latter eventuality a proceeding pending in a Court or any such right, privilege, obligation or liability, acquired, accrued or incurred under any enactment so repealed are fully protected unless a different intention appears from repealing enactment." (Emphasis supplied) In the present circumstances, the Federal Shariat Court found the provisions of the Section 28-A to be repugnant to the Injunctions of Islam. The preamble of the repealing Act states that the Federal Shariat Court has directed that certain amendments be made to the Act in its application to the Province of Sindh. The plain words of section 4 of the repealing Act indicate the intention of the legislature that this Section 28-A is non est and therefore as per the ratio of the Dr.Mubashir Hassan case (supra) the appellants cannot be granted the benefit of Section 28-A as claimed in the instant appeal. It is settled law that appeal is a continuation of the original lis and therefore there is no past and closed transaction which may have afforded them protection in the event of the Section 28-A being declared to have "never been enacted". But as this point has not been taken into consideration by the forums below, and this too is not a point on which leave was granted, therefore, we do not intend to refuse this appeal on the above score alone. 6. As the case has been argued at length before us we are minded to give our opinion as to the scope of Section 28-A had it been applicable to the appellants. The object of Section 28-A has been explained in the judgment reported as Syed Saadi Jafri Zainabi v. Land Acquisition Collector and Assistant Commissioner (PLD 1992 SC 472) in the following terms:- "7. 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
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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." 7. Now, attending to the arguments of the learned counsel for the appellants that by applying the rule of literal interpretation due effect to Section 28-A be given and the appellants be allowed additional compensation on the enhanced amount assessed by the Courts (Referee/Appellate Courts), suffice it to say that the plain wording of said section does not stipulate that the additional compensation is to be paid even in cases where the enhancement has been made by the Courts. Obviously in such a situation where a section cannot be given its due effect while reading its plain word(s); the cardinal principle of interpretation is to be resorted to which has two intertwined aspects: one, the wording of the statute itself; and second, the purpose of the enactment. Thus the question before us is whether the object and purpose of the amendment (insertion of Section 28-A ibid) in the Act and the intention of the legislature in respect of the amendment should be given precedence or whether the provision should be given effect through a literal construction. Where the language of the section is ambiguous, is the Court barred from examining it in order to discover its true purpose and intent (especially where the provision has been brought into the statute through an amendment)? Construction of Statutes (1940) by Crawford, relied upon by the learned counsel for the appellants in support of a literal interpretation, actually encourages a discernment of the purpose of the statute and the intention of the legislature; the relevant extract reads as follows:- "Since the purpose of construction is to ascertain the legislative intent, this constitutes the major step in the process of interpreting statutes... Ascertaining the intention of the legislature forms the very heart of the interpretative process... ... ...The first source from which the legislative intent is to be sought is the words of the statute. Then an examination should be made of the context, and the subject matter and purpose of the enactment." (Emphasis supplied) In the case reported as Union of India v. Sankalchand Himatlal Sheth and another (AIR 1977 SC 2328) (5 member bench) at paragraphs 11 and 55 it has been held as under:- "11. The normal rule of interpretetion is that the words used by the legislature are generally a safe guide to its intention... ... ... ...But if the words of an instrument are ambiguous in the sense that they can reasonably bear more than one meaning, that is to say, if the words are semantically ambiguous, or if a provision, if read literally, is patently incompatible with the other provisions of that instrument, the court would be justified in construing the words in a manner which will make the particular provision purposeful. That, in essence is the rule of harmonious construction. In M. Pentiah v. Veeramallappa, AIR 1961 SC 1107 at p. 1115 this Court observed: "Where the language of a statute, in its ordinary meaning and grammatical construction leads to, a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence... ....-.. In the view which I am disposed to take, it is unnecessary to dwell upon Lord Denning 's edict in Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 155 at p. 164 that when a defect appears in a statute, a Judge cannot simply fold his hands and blame the draftsman, that he must supplement the written word so as to give force and life to the intention of the legislature and that he should ask himself the question how, if the makers of the Act had themselves come across the particular ruck in the texture of it, they would have straightened it out. I may only add, though even that does not apply, that Lord Denning wound up by saying, may be not by way of recanting, that "a Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
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language at best is an imperfect medium of expression and a variety of significations may often lie in a word of expression It was said by Mr. Justice Holmes in felicitous language in Towne v. Eisner (1917) 245 US 418 that "a word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used". The words used in a statute cannot be read in isolation: their colour and content are derived from their context and, therefore, every word in a statute must be examined in its context. And when I use word 'context', I mean it in its widest sense "as including not only other enacting provisions of the same statute but its preamble, the existing state of the law, other statutes in pari materia and the mischief which-the statute was intended to remedy". The context is of the greatest importance in the interpretation of the words used in a statute. "It is quite true" pointed out by Judge Learned Hand in Helvering v. Gregory, 69 F 2d 809 "that as the articulation of a statute increases, the room for interpretation must contract; but the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create." Again, it must be remembered that though the words used are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing, be it a statute, a contract, or anything else, it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary, but to remember that a statute always has some purpose or object to accomplish, whose sympathetic and imaginative discovery, is the surest guide to its meaning. The literal construction should not obsess the Court, because it has only prima facie preference, the real object of interpretation being to find out the true intent of he law…
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