2004 PLP 523 (MLD)

Muhammad Munir Paracha and Malik Qamar Afzal for Appellants. Qazi Ahmad Naeem Qureshi, Federal Counsel for Respondent. Date of hearing: 24th November, 2003. MAULVI ANWARUL HAQ, J.‑‑‑This judgment shall decide First Appeals from Orders Nns.19 of 2002 to 25 of 2002 and First Appeals from Orders Nos.36 of 2002 to 38 of 2002, as these proceed against a common judgment of learned Executing Court and further common questions are involved.

2. In the first instance, some land belonging to Engineer Jamil Malik and others, appellants in First Appeals from Orders 19 of 2002 was acquired. The land Acquisition Collector assessed the compensation for "Maira" land at Rs.9124.08.per Kanal and for "chair Mumkin" at Rs.2281.02 per Kanal. 15% compulsory acquisition charges were also granted. Feeling aggrieved the said appellants filed a reference petition which was allowed by learned Senior Civil Judge, Attock, on 21‑3‑1993. The compensation for "Maira" land was enhanced to Rs.6'1179 per Kanal and that for "chair Mumkin" land to Rs. 15295 per Kanal. 150% compulsory acquisition charges and 8% compound interest was awarded. Thereafter the land of all the appellants in all these 9 First Appeals from Orders was acquired. This time the Land Acquisition Collector assessed the compensation for "Maira" land at Rs.15959/‑ per Kanal and for "chair Mumkin" at Rs. 3989.80 per Kanal with 15% compulsory charges. Nine reference petitions were filed. These were allowed by learned Senior Civil Judge, Attock vide judgment and award dated 9‑5‑1993. Compensation for "Maira" was enhanced to Rs.61,179 and for "chair Mumkin" to Rs.15295/‑ per Kanal. Learned Court granted 15% compulsory charges and 8% compound interest. Both these judgments were upheld by 'this Court as also by the Hon'ble Supreme Court of Pakistan.

3. Execution proceedings were commenced Acquittance role was prepared and filed in the learned Executing Court. Thereafter applications were filed stating that there has been an error in the calculation. These applications were hotly contested by the appellants. Ultimately the learned Executing Court decided the objections, filed in all the execution petitions, by means of a consolidated order dated 2‑10‑2001 in the following manner:‑‑ "In view of above, it is held that the decree‑holders are entitled to recover the price of land less already paid to them and on this difference they are entitled to 15% compulsory acquisition charges and 8% compound interest. The applications are disposed of accordingly. The judgment‑debtor No.1/L.A.C. has filed application for re‑calculation of Goshwaras, hence he is directed to submit the correct Goshwars in this Court on 11‑10‑2001."

4. Learned counsel for the appellants contends that notwithstanding the wording of section 28 of Land Acquisition Act, 1894, 8% compound interest is payable on the entire amount of compensation i.e. one granted by the Referee Court inclusive of the one granted by the Collector. In support of this contention, learned counsel relies on the head‑note reported as 1989 ALD 334(2) of the case titled "WAPDA v. Malik Muhammad Suleman", decided by Hon'ble Mr. Justice Munir A. Sheikh, as his Lordship then was. It is also objected that the learned Executing Court while passing the impugned order has travelled beyond its limits while going behind the order and the award which was being executed. Reference is also made by Mr. Qamar Afzal, Advocate to judgment in a case titled as Government of Sindh and 6 others v. Syed Shakir Ali Jafri and six others 1996 SCMR 1361. Now so far as the said head‑note is concerned, going by the wording of the same it does go to support the said contention of the appellants neither the main body of the judgment nor the facts arc in the said report. We also find that the head‑note runs absolutely contrary to the words of the statute enforceable in this country having been enacted by the Legislature.

5. Now we have already stated in some detail the material facts of this case pertaining to the quantum of compensation as assessed by the Land Acquisition Collector and then as assessed by the Referee Court. We have examined the memo. of these appeals and heard the learned counsel at bar and we have not found any objection that the amount assessed by the Land Acquisition Collector with 15% compulsory acquisition charges as also interest in terms of section 34 of Land Acquisition Act; 1894 for a period of time stands paid. What is more important is that there is no dispute regarding the fixing of said amount (as a fact):

6. Now notwithstanding placement of the two sections i.e. 28 and 34 in the scheme of Land Acquisition Act, 1894, section 34 becomes invocable at a point of time earlier than the one at which section 28 is attracted. Section 34 mandates the Land Acquisition Collector to pay interest at the rate of 8% compound on such amount of compensation which has riot‑been paid or deposited on or before taking possession of the land. This interest is payable from the date of taking of possession till the deposit of the amount. Now so far as matters governed by section 34 of the said Act are concerned, there is no dispute, at least one is not apparent on the face of record. Dispute has arisen in the matter or calculation of the interest payable to the appellants under section 28 of the Land Acquisition Act, 1894. We deem it proper to reproduce the said section 28 here, as amended: "If the sum which, in the opinion of the Court, the Collector to have awarded as compensation is in excess of the sum 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 8% from the date on which he took possession of the land to the date of payment of such excess into the Court".

7. Now it will be seen that section 28 would come into play at a point of time when the Referee Court had made its award upon the matter being referred to it by the Land Acquisition Collector under section 18 of the Land Acquisition Act, 1894. Further the interest would be payable only in case the Court comes to the conclusion that the compensation payable to the landowner is in excess of the amount of compensation awarded to him by the Land Acquisition Collector. Once the Court comes to this conclusion, the Collector upon direction of the Court has to pay the compound interest on the excess amount at the rate of 8%. Upon plain reading of the said provisions of law, the compound interest payable thereunder is to be paid on the excess amount and this excess reefers to the difference between the amount determined by the Court and the amount assessed by the Collector provided the amount determined by the Court is in excess of the amount assessed by the Land Acquisition Collector. Further this interest is to be paid retrospectively with effect from the date the possession was taken over and till such time that the excess amount is deposited in Court.

8. Now section 23 of the Land Acquisition Act, 1894 provides for the matters to be considered in determining the compensation. This provision of law in fact provides guideline to the Court (in juxta position to the Collector) in the matter of determination of compensation. Section 23 (2) of the said Act mandates a Court to award in every case a sum of 15% on market value so determined. This amount is consideration for the compulsory nature of the acquisition Now upon reading of section 23(1) and section 23(2), it stands clearly spelt out that the amount to be awarded by the Court is to be the market value determined under section 23(1) and the said 15% of the market value under section 23(2) of the said Act. Thus the said 8% compound interest will be payable on the amount so arrived at i.e. charges from the amount determined by the Court alongwith compulsory charges and on this excess 8% interest is to be calculated with effect from the date on which the Land Acquisition Collector took the possession. The amount will be payable till such date when the respondent deposits the amount in Court.

11. With these observations all these First Appeals from Orders are accordingly disposed of and the learned Executing Court is directed to proceed further in the matter accordingly. W.A.M./J‑111/L Order accordingly.