2004 PLP 77 (YLR)

Date of hearing: 30th April, 2003. This appeal is directed against the Order dated 28‑2‑2003 passed by the learned District Judge, Khairpur as Executing Court in Execution Application No.5 of 1996‑(New No.2 of 1999) whereby prayer for granting the additional compensation under section. 28‑A of the Land Acquisition Act has been refused for the reason that this amount was not claimed by the appellants/decree‑holders in their original claim and the said additional compensation has not been awarded in the Decree. With the consent of the learned Advocates for the parties the entire appeal is heard at the Katcha Peshi stage and is finally disposed of. Mr. Ghulam Rasool Qureshi, learned counsel for the appellants has submitted that notwithstanding the fact that additional compensation under section 28‑A of the Land Acquisition Act 1894 (as applicable to the Province of Sindh by virtue of Land Acquisition Sindh Amendment Ordinance, 1984) was neither claimed nor granted in the decree still, the appellants were entitled to the grant of additional compensation for the reason that the payment of this additional compensation is mandatory requirement of law. He has submitted that it is not a discretionary provision and therefore; even if a party fails to claim the additional compensation at the time of submitting the claim for compensation or the Land Acquisition Court fails to grant the additional compensation it is yet to be allowed by the force of law itself because the provision contained in section 28‑A is mandatory in nature. In support of his contention, he has placed reliance on a Single Bench Judgment of this Court in the case of Dilawar Hussain v. Province of Sindh and 2 others PLD 1993 Karachi 578, wherein Wajihuddin Ahmed, J. (as his lordship then was) while considering the various provisions contained in the Land Acquisition Act including section 28‑A, formulated a proposition of law whether the enacted provision in section 28‑A is self‑executory or requires that the 15 % solatium would be payable only upon an express grant by the Court. His lordship held that 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 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 Tit accordance with Sharia entitlements, declared by the Federal Shariat Court, on whose recommendation the statutory compliance was, at the time, made. It was further held that in cases where section 28‑A can lawfully be applied it should be not necessary to enter upon a formal adjudication of the question, unless a challenge is directed to that end. His lordship compared the provision contained in section 28‑A of the Land Acquisition Act with section 28 and thereby held that the provisions contained in section 28 are discretionary in nature while the provisions contained in section 28‑A are mandatory in nature. The interest under section 28 is to be consciously and expressly allowed by the Court failing which the claim to interest shall be lost as the landowner has no absolute right in this regard. However, the provision contained in section 28‑A formulates the payment of additional compensation at 15% mandatorily for the reason that this mandatory direction does not name any agency such as Court but is directed generally to all concerned. His lordship while dealing with the powers of Executing Court in this behalf further held as follows:‑‑ "Section 28‑A altogether omits any mention of the Court. It is difficult to overlook this omission. Ignorance cannot be imputed to the Legislature. It is inconceivable that the law‑maker, in the same statute, while addressing itself on the same topic, would introduce necessary treatment of the subject .by the Court in some contexts and refrain from doing so in, another of the same genus, without reason and otherwise than deliberately. The omission of intervention by the Court in section 28‑A of the Act cannot be without meaning and without purpose. It, therefore, calls for reiteration that the solatium under section 28‑A aforesaid, where applicable, is a mandatory Addition to compensation and payable without a formal order leaving it for the Acquisition Authorities to make compliance with the requisites on their own, either at the time of rendering the award or, where relevant, even following thereupon irrespective of adjudication in the Court (many a matter not being referred to the Court at all), failing which the relevant Court, may it be even the Executing Court itself, would be within its powers to redress the wrong, if any, attracted in a given case." In support of the above proposition, reliance was placed on the judgment in the case of Province of West Pakistan v. Mehboob Ali PLD 1976 SC

483. Mr. Ghulam Rasool Qureshi has next placed reliance on the judgment in the case of Syed Saadi Jafri Zainabi v. Land Acquisition Collector and Assistant Commissioner PLD 1992 SC

472. The Honourable Supreme Court has held in this case that the provision contained in section 28‑A is mandatory in nature and that if it is not allowed at the time of passing of award the relief can be allowed under section 152, C.P.C. which deals with the correction of accidental slip, or omissions made by the Court. The Honourable Supreme Court has further held that such powers can be exercised at any time, 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. Mr. Ghulam Rasool Qureshi has further placed reliance on a recent unreported judgment of the Honourable Supreme Court in the case of Government of Sindh v. Messrs Blund Akhtar. In the judgment dated 22‑11‑2001 the Honourable Supreme Court has reiterated the law as laid down in the case of Syed Saadi Jaffri Zainabi (ibid) and has held that the land owner may recover the additional compensation under section 28‑A through execution if not paid by the Authorities. The learned State Counsel after going through the provisions contained in section 28‑A and the judgments refereed to above has candidly conceded that the additional compensation under section 28‑A of the Land Acquisition Act does not require any adjudication by the Court and is to be allowed under the mandate of law itself. I have considered the contentions raised by Mr. Ghulam Rasool Qureshi learned counsel for the appellants and the judgments on which he has placed reliance as well section 28‑A of the Land Acquisition Act, 1894. Respectively, following the dicta laid down by the Honourable. Supreme Court and a learned Single Judge of this Court, I am of the view that the learned District Judge, Khairpur has misdirected in holding that a landowner can claim compensation under section 28‑A in accordance with section 28 (Land Acquisition Act) only. The learned District Judge, Khairpur has further fallen in error in refusing additional compensation under section 28‑A for the reason that it was not claimed in the original, proceeding as well as before the Appellate Court. Since the Honourable Supreme Court has held that the intervention of the Court and adjudication is not required for payment of additional compensation under section 28‑A of the Land Acquisition Act, therefore, the B omission on the part of the landowner to claim the compensation to which he is entitled under mandate of law itself or omission of the Court to grant the same is totally immaterial and of no consequence. It is held that the appellant decree‑holder is entitled to additional compensation under section 28‑A, which can be granted by the Executing Court while executing the decree. Consequent to above findings, the impugned order of the learned District Judge, Khairpur is hereby set aside. It is held that the statement filed by the appellant before the Executing Court during the course of execution proceeding containing the claim for the additional compensation at 15 % per annum under section 28‑A was correct and payable in law. It is further held that the appellants are entitled to claim the said amount and the respondents are bound to pay the same. A period of three months is allowed to the respondents to deposit the claim of additional compensation under section 28‑A in the Court of learned District Judge, Khairpur as suggested by Mr. Ghulam Shabbir Shar learned counsel for the respondent. The appeal is allowed as, above. H.B.T./M-547/K Appeal allowed.