P L D 2003 Karachi 174 (PLP)

Khalil‑ur‑Rehman for Respondent No.3. Dates of hearing: 17th and 18th October, 2002. AMIR HANI MUSLIM, J.‑‑‑Through this High Court Appeal, the appellants have impugned the judgment passed by the learned Single Judge in Execution Application No.27 of 1988 (Civil Reference No.5 of 1969) whereby the solarium/additional compensation was denied to the appellants under section 28‑A of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act"), on the payments which were made to the appellants during the intervening period of litigation, however, they were allowed the additional compensation on the retraining unpaid amount of compensation, from the date of Notification under section 4 of the Act till the remaining unpaid amount was paid to the appellants.

2. The facts leading to the filing of this High Court Appeal appears to be that on 2‑2‑1960 by a Notification issued under section 4 of the Act, garden/agricultural lands of the appellants comprising of 47 acres, 1 Ghunta and 40 acres 28 Ghuntas were acquired. On 17‑12‑1960 the Collector gave his award. The appellants, being dissatisfied with the quantum of compensation awarded by the Collector, preferred Civil Reference No.5 of 1969 in this Court which was decided on 27‑8‑1970 whereby the amount of compensation was enhanced. The appellants then sought revision of compensation by filing a Letter Patent Appeal No.165 of 1970 in this Court On 26‑9‑1977 the Appeal No. 165 of 1970 was allowed and the compensation awarded by the referee Court was further enhanced. Thereafter, the appellants preferred Civil Petition for Leave to Appeal before the Honourable Supreme Court, which petition was converted into Civil Appeal No.K‑144 of 1980. On 18‑2‑1987 the Honourable Supreme Court allowed the appeal by further enhancing the quantum of compensation. The Execution Application No‑27 of 1988 followed the said final determination of the Supreme Court judgment.

3. The issue raised in these proceedings is the outcome of Ordinance No. XXIII of 1984, promulgated on 30‑9‑1984, introducing section 28‑A in the Land Acquisition (Sindh Amendment) Ordinance, 1984, whereby additional compensation was introduced, which amendment appears to have not been taken note of by the Honourable Supreme Court while finally determining the issue of compensation of the appellants in its judgment of 18‑2‑1987.

4. Mr. Muhammad Sharif the learned counsel for the appellants contended that by impugned judgment the appellants have been allowed the benefit of the amending section 28‑A of the Act to the extent of the unpaid amount of compensation. He urged that the appellants were also entitled to the solatium/additional compensation on the interim payments, which the appellants had received at times during litigation. According to him, the solatium and/or additional compensation under section 28‑A of the amending Ordinance in regard to the interim payments made to the appellants was held as past and closed transaction and, therefore, they were erroneously denied the additional compensation on such payments, which were made to them by the acquiring agency. Mr. Sharif in support of his submission has relied on the case of Abul A'la Maudoodi v. Government of West Pakistan, reported in PLD 1964 SC

673. He submitted that the "interim payments" would not fall within the four corners of past and closed transaction. He relied upon the case of Bhrigunandas Prasad and others v. Appellate Officer and others reported in AIR 1966 SC 1683, where in observation in regard to calculation of rate of interest were made by the Indian Supreme Court. Mr. Sharif further contended that the payment of compensation was a continuing process and such transaction cannot be bifurcated under the category of paid and/or unpaid amount by introducing the term past and closed transaction. He while arguing has also relied upon the case of Customs and Excise Commissioners v. Thorn Electrical Industries Ltd, reported in (1975) 1 AER 439, Mr. Shatif lastly relied upon the judgment in the case of Azam v. The State, reported in 1990 SCMR 1360 at 1363 by submitting that periodical payment of compensation is a single transaction and, therefore, question of past and closed transaction would not cotter into play as far as the case of the appellants in the present proceedings was concerned.

5. On the other hand, Mr. Khalil‑ur‑Rehman, the learned counsel for the respondent No.3, has submitted that the Ordinance XXIII of 1984, was Prospective in nature and did not cover the cases in which the amounts have already been paid and/or the cases which were off shoot of the original decree. He submits that retrospective effect cannot be given to the provisions of section 28‑A to cover the case of the appellants. He urged that the Honourable Supreme Court has not taken note of the amendment under section 28‑A, therefore the appellants cannot get the benefit of any additional compensation under the said provisions. According to him, section 28‑A, does not confer any right on the appellants to receive additional compensation. He submitted that the payments having been made to the appellants under the original decree, which was modified by enhancing. the compensation up to apex Court, the appellants were not entitled to the benefit of section 28‑A of the Act and cannot claim ‑additional compensation on any amount either paid or unpaid.

6. The substantial issue in these proceedings is as to whether the payments made during the pendency of litigation to the owners would be included while calculating the additional compensation under section 28‑A or the additional compensation was payable on the remaining unpaid amount of the compensation. In the present proceedings, the appellants were paid certain amounts at times during the intervening period commencing from the dale of reference and the execution proceedings. The argument of the learned counsel for the appellants was that the additional compensation is to be paid by calculating the entire amount of compensation inclusive of the payments made. Whereas, on the other hand, the learned counsel for respondent No‑3 has argued that since the appellants have received certain payments during the intervening period, therefore, they were not entitled to claim any additional amount of compensation under section 28‑A of the Act; which according to him is prospective in nature and excludes the transaction of the nature being "past and closed".

7. We have heard the learned counsel at length and perused the relevant case‑law cited by them in support. of their contentions. For the sake of convenience, section 28‑A of the Act (Sindh Ordinance No.XXIII of 1984), is reproduced 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 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."

8. With profoundest respects to the learned Single Judge, we are not persuaded to accept the contention of Mr. Khalil‑ur‑Rahman to the effect that whenever the landowner received part of the compensation payable or even the entire amount due at a particular point of time, the matter became past and closed transaction and section 28‑A became inapplicable. In our humbly view, it is not a case of alive or dead issue. 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 landowner.

9. On close examination of the language of this newly‑added statutory provision, it is evident that it requires payment of additional compensation by way of an additional amount of fifteen per cent. per annum from the date of notification under section 4 till the date of payment. Though the words "additional compensation" have been used, it is clear that such compensation is not payable by way of consideration for acquisition of land itself. It is payable at a particular rate "per annum" between two dates. In Saadi Jafri Zainabi v. Land Acquisition Collector (PLD 1992 SC 472) their Lordships of the Supreme Court observed that the main purpose of section 28‑A was to discourage tendency of delay payment of compensation in time and to ensure that the party whose property has been acquired was duly compensated without unnecessary loss of time. Their lordships further observed that it was a duty of a Collector that he should tender payment of compensation awarded by him to persons entitled to it according to the award unless he is prevented by any reason provided in section 31 .of the Act. In case the party is not available or does not consent to receive compensation, the Collector is required to deposit the amount in the Court to which a reference under section 18 could be submitted. It is common knowledge that the Government or other acquiring agencies often avoid or delay payment of compensation to landowners who keep on litigating for decades. By incorporating section 28‑A, the legislature apparently intended to compensate such landowners 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 payment of different amounts falling short of the payments to be made upon final determination.

10. Nevertheless, in view of the reasons stated above and the pronouncement of the Honourable Supreme Court in Saadi Jafri Zainabi's case, we are of the view that upon a proper construction of section 28‑A additional compensation is to be calculated only on the basis of the unpaid amount. Respectfully following the law so declared by the‑apex Court we would also agree with the learned Single Judge that section 28‑A is a self executing provision and the mere fact that it was not considered in the D judgment of the Honourable Supreme Court does not disentitle the executing Court from allowing the decree‑holder to avail of its benefits.

11. 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. Q.M.H./D‑41/K Appeal dismissed.