2003 PLP 199 (YLR)

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, C.P.C. as after transfer of application from the Court of learned Additional District Judge‑1, 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, dated 10‑12‑1999, 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 1992 SC 472 and 1997 SCMR 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, C.P.C.

8. There appears force in the contention of learned counsel for the petitioners, that the power under section 152, C.P.C. can be exercised at any time and the learned Additional District Jude‑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 when 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 applicable 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, pomulgated on 30th September, 1984. The provisions of the aforesaid section are para materia with that contained under section 28‑A of the Land Acquisition (Balochistan Amendment) Ordinance, 1985. The observations made by the Honourable Supreme Court in the authority relied upon by the learned counsel for the petitioners are noteworthy, the relevant paras. of which are reproduced below for the sake of 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 of 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. In the case at hand the learned District Judge while awarding compensation omitted to grant additional compensation as provided by section 28‑A. This was a clear omission caused due to accidental slip as in the normal course such compensation should have been granted to the appellant at the time the learned District Judge passed the judgment. " In the same judgment the Honourable Supreme Court 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 of in the above terms. No orders as to costs. Case remanded. Q.M.H./M.A.K./132/Q