1996 PLP 1361 (SCMR)

FAZAL KARIM, J.

The litigation leading to this appeal has a long and tortuous history harking back to the year 1975 when the respondents' land was compulsorily acquired under the Land Acquisition Act, 1894 (the Act). And it has, indeed, been at great public and private expense--the parties have been before the High Court a number of times and this is the third time that they have been before this Court. Unfortunately for the respondents, whose land, as stated above, was compulsorily, acquired, that is acquired against their will, in 1975, the parties are still involved in arithmetical calculations, with the consequence that the respondents have not received, or have at least not received in full, the compensation for their land.

2. The Land Acquisition Collector (the Collector) gave his award on 25-6-1978 fixing the amount of compensation of the land in question at the rate of Re. 1.00 per sq. ft. and though the respondents had applied for the matter to be referred to the Court under section 18 of the Act, yet the Collector did not do so and the respondents had to invoke the High Court's extraordinary jurisdiction under Article 199 of the Constitution. In the consequent reference under section 18 of the Act, a learned Additional District Judge held by his order dated 14-7-1987 that the respondents were entitled to compensation of the land at the rate of Rs.7 per sq. ft.; compulsory acquisition charges at the rate of 15 % per annum, interest at the rate of Rs.6 per centum per annum from the date of possession and a sum of Rs.7,23,000 for various installations on the land.

3. The first time that the matter came to this Court was against the judgment of the High Court dated 3-4-1991, whereby the High Court had affirmed in appeal the compensation comprising the above items and had also allowed additional compensation under section 28-A of the Act. By this Court's order dated 27-11-1991, leave to appeal was refused against that judgment. The appellants, the Government of Sindh, the Collector and the Water and Power Development Authority (for whose benefit the land in question had been acquired) sought a review of this Court's order dated 27-11-1991 but were unsuccessful; their review petition was dismissed on 27-1-1992. The second time that the appellants approached this Court was against a judgment of the High Court dated 8-7-1992. It is sufficient to say that judgment of the High Court was upheld by this Court's judgment dated 3-11-1992 in Civil Petition No.247-K of 1992 with this modification that the amount under section 23, subsection (2) of the Act was held to be "15% of the market value of the land" and "not per annum". Accordingly the executing Court was directed to proceed with the execution application and to recalculate the decretal amount "in terms of the above modification". In this Court's judgment dated 3-11-1992, it was held that "there is a marked distinction between drawing of a decree and calculation of the amount in terms of the decree. The Court's duty is to draw a decree in terms of the judgment, whereas it is for the decree-holder to calculate the amount in terms of such a decree and it is for the judgment-debtor to point out calculation mistake, if any, but the judgment-debtor cannot challenge the merits of the decretal items while challenging the calculation of the decretal amount".

4. This is now the third time that the appellants have come to this Court. This appeal is directed against the High Court's judgment dated 3-2-1994 which again arose out of the execution proceedings. Leave to appeal was granted to consider the following questions:

(i) Whether 15 % additional compensation payable under section 28-A (incorporated by Sindh Ordinance XXIII of 1984) of the Act is to be computed on Rs.28,62,948 (i.e. Rs.21,03,948 being the compensation for land and Rs.7,23,000 being compensation for brick-kiln etc.) or the same is to be calculated after adding 15 % payable under section 23(2) of the Act. (ii) On what amount 6% interest is to be calculated in terms of the final judgment.

5. At the hearing before us, learned counsel for the appellants raised a preliminary objection. It was that the questions raised in the leave granting order all stood decided by this Court's judgment dated 3-11-1992 in Civil Petition No.247-K of 1992 and they cannot be allowed to be raised again. We are unable to agree. The questions that were raised and decided before this Court in Civil Petition No.247-K of 1992 are noted in para.5 of this Court's judgment. We should be content to say that none of the questions now being raised was sought to be raised before this Court or decided by its judgment dated 3-11-1992.

6. The first question requiring determination turns upon the provisions of section 28-A of the Act. That section was inserted by Sindh Ordinance XXIII of 1984 and reads:-- "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 of the date of payment of the compensation. " Learned counsel for the appellants referred to section 23 of the Act and maintained that the market value of the land is one of the factors to be taken into consideration for determining the amount of compensation to be awarded for the acquired land under the Act. His contention further was that the sum of 15 % per centum awardable under subsection (2) of section 23 of the Act is "in addition to the market-value of the land as above provided" and the sum to be awarded is 15 % on such market-value. In other words, the contention is that the sum of 15% awardable under section 23, subsection (2) of the Act in consideration of the compulsory nature of the acquisition is to be calculated on one of the items namely the market value of the land and not on the total amount of the compensation arrived at after taking into consideration all the factors mentioned in clauses firstly to sixthly of subsection (1) of section

23. The consequence should be, so went the argument, that the 15 % awardable under subsection (2). section 23 of the Act will be on Rs.21,03,948 which was determined to be the market value of the land at the date of publication of the notification under section 4, subsection (1) of the Act and not Rs.21,03,948 plus Rs.7,23,000.

7. Section 23 of the Act provides that in determining the amount of compensation to be awarded for the land acquired this Act, the Court shall take into consideration first; the market value of the land at the date of the publication of the notification under section 4, subsection (1); secondly, the damage sustained by the persons interested, by reason of the taking of any standing crops or trees which maybe on the land at the time of the Collector's taking possession thereof: thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land; fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly, if, in consequence of the acquisition of .the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any).bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land. Subsection (2) of section 23 reads: (2) In addition to the market-value of the land as above provided, the Court shall in every case award a sum of fifteen per centum on such market value, in consideration of the compulsory nature of the acquisition. A plain reading of the provisions of subsection (1) of section 23 shows, and learned counsel for the respondents was fair enough to concede, that the sum of 15% per annum to be awarded under subsection (2) of section 23 is awardable on the market value of the land, that is the amount come to under clause first of subsection (1) of section

23. But the contention of the appellants' counsel proceeds on an assumption, and if we may say so with great respect a wrong assumption of fact, that the sum of Rs.7.23.000 was not awarded under clause first of subsection (1) of section

23. The expression 'land' as defined in section 3, clause (a) of the Act "includes benefits to arise out of land, and things attached to the earth or permanently fastened". In arriving at the sum of Rs.7,23,000, the learned Additional District Judge in his judgment dated 14-7-1987 and the learned Judge in the High Court in his judgment dated 3-4-1991 relied upon the valuation certificate, Exh.46. That certificate shows that the "present value" of the 'property' was assessed as follows:-- 5 Nos. Chimney for bricks kiln constructed @ Rs.12,000 each Rs. 60,000 Brick kiln constructed rounded area 2.15 acres 10' - 0" deep with pacca ends. Rs. 1,50,000.00 Ground floor katcha pucca huts 85 Nos. @ Rs.3,000 each. Rs. 2,55,000.00 Ground floor office constructed covered area 600 sft. @ Rs.40 per sft.: Rs. 24,000.00 Ground floor manager's residence constructed covered area 600 sft: @ Rs. 24,000.00 Rs.40 per sft. 2 Nos. tube well constructed @ Rs.70,000 each Rs. 140,000.00 Trees 12 Nos.@ Rs.5,000 each. Rs. 60,000.00 Undoubtedly all these items fell within the definition of 'land' as defined in section 3, clause (a) of the Act. There can, therefore, be no question that the sum of Rs.7,23,000 was awarded as the value of the land, which is the same thing as the market-value of the land and not as 'damage' sustained by the respondents on account of any of the factors mentioned in clauses secondly to sixthly of section 23, subsection (1).

8. It was settled in the Province of West Pakistan v. M. Salim Ullah (PLD 1966 SC 547) that the sum of 15 % awardable under section 23, subsection (2) of the Act is part of compensation. So is the sum awardable under section 28-A of the Act as that section itself plainly provides. We hold, therefore, that the entire sum of Rs.28,62,948 was awarded as compensation on the basis of the market value of the land at the date of the publication of the notification under section 4, subsection (1) of the Act. It must follow that the additional amount of 15 % per annum awarded under section 28-A is on that sum, that is 28,62,948, and not on Rs.21,03,948 only. We hold accordingly.

9. That brings us to the second question namely on what amount 6 interest is to be calculated in terms of the final judgment. The matter was argued before us on the basis that it was governed by the provisions of section 34 of the Act. However as this was a case in which the compensation awarded by the Court was in excess of the sum which the Collector had awarded, the case more properly fell to be dealt with under section 28 of the Act. In practical terms, however, the result remains unaffected. Section 34 applies when the amount of compensation "is not paid or deposited on or before taking possession of the land". In that case the Collector "shall pay the amount awarded with interest thereon at the rate of six per centum per annum from the time of so taking possession until it shall have been so paid or deposited". Section 28 enacts that "if the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which 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 six per centum per annum from the date on which he took possession of the land to the date of payment of such excess into Court". Here, by the judgment of the learned Additional District Judge, interest at the rate of 6 % per annum in terms of section 28 of the Act was allowed on the amount of compensation determined by the Court under section 23, read with section 28-A of the Act and in view of what has been held above, the interest at the rate of 6% per annum has to be paid on the total amount of compensation, that is, the compensation determined under section 23, subsection (1), plus the compensation payable under section 23, subsection (2), plus the amount payable under section 28-A of the Act.

10. The appeal is disposed of in the above terms. The' appellants shall pay the costs throughout. M.B.A./G-554/S Order accordingly.