IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE MAQBOOL BAQAR Civil Appeal Nos. 939/2004, 144-K-145-K of 2009, HRC Nos.20691-S of 2013 & 48247-S of 2013 (On appeal from the judgment dated 29.10.2002 & 04.10.2006, respectively passed by High Court of Sindh, Karachi & High Court of Sindh, Hyderabad Circuit passed in HCA No.114/1993, Const. P.D-219 & 337 of 2004) Dilawar Hussain, etc. (In CA 939/2004) DDO (Revenue), etc. (In CA 144-K/2009) DDO (Revenue), etc. (In CA 145-K/2009) Applications by Dilawar Hussain Rajabali (In HRC 20691-S/2013 & HRC 48247-S/2013) … Appellants VERSUS The Province of Sindh & others (In CA 939/2004) Shahabuddin Shah (In CA 144-K/2009) Balocho (In CA 145-K/2009) … Respondent(s) For the Appellant(s): Syed Shahenshah Hussain, ASC (In CA 939/04) Mr. Adnan Karim, Addl. AG Sindh Mr. Khair Muhammad, AC Sanghar (In CA 144-K&145-K/09) For the Respondent(s): Mr. Ghulam Mohiuddin Qureshi, ASC Mr. Mazhar Ali B.Chohan, AOR. (In CA 144-K & 145-K/09) Mr. Adnan Karim, Addl.AG Sindh Mr. Abdul Ghaffar Sheikh, AC Korangi Muhammad Ibrahim Junejo, Mukhtiarkar (In CA 939/04) Date of Hearing: 14.01.2016 * * * * * * * * * *
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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE MAQBOOL BAQAR
Civil Appeal Nos. 939/2004, 144-K-145-K of 2009, HRC Nos.20691-S of 2013 & 48247-S of 2013 (On appeal from the judgment dated 29.10.2002 & 04.10.2006, respectively passed by High Court of Sindh, Karachi & High Court of Sindh, Hyderabad Circuit passed in HCA No.114/1993, Const. P.D-219 & 337 of 2004) Dilawar Hussain, etc. (In CA 939/2004) DDO (Revenue), etc. (In CA 144-K/2009) DDO (Revenue), etc. (In CA 145-K/2009) Applications by Dilawar Hussain Rajabali (In HRC 20691-S/2013
& HRC 48247-S/2013) … Appellants
VERSUS The Province of Sindh & others (In CA 939/2004) Shahabuddin Shah (In CA 144-K/2009) Balocho (In CA 145-K/2009)
… Respondent(s) For the Appellant(s): Syed Shahenshah Hussain, ASC
(In CA 939/04) Mr. Adnan Karim, Addl. AG Sindh Mr. Khair Muhammad, AC Sanghar (In CA 144-K&145-K/09)
For the Respondent(s): Mr. Ghulam Mohiuddin Qureshi, ASC Mr. Mazhar Ali B.Chohan, AOR. (In CA 144-K & 145-K/09)
Mr. Adnan Karim, Addl.AG Sindh Mr. Abdul Ghaffar Sheikh, AC Korangi Muhammad Ibrahim Junejo, Mukhtiarkar (In CA 939/04)
Date of Hearing: 14.01.2016
* * * * * * * * * *
Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 2 :-
JUDGMENT
MIAN SAQIB NISAR, J.- These appeals, by leave of the
Court, are being disposed of together as the same legal points are
involved therein.
Civil Appeal No.939 of 2004:
2. The facts in relation to the instant appeal are that the land
owned by the appellants was acquired under the Land Acquisition Act,
1894 (the Act) through notifications under Section 4 thereof dated
2.2.1960 and 5.3.1960 respectively. The Land Acquisition Collector
(LAC) announced the award on 17.12.1960 which was assailed by the
respondents through a reference. The Referee Court enhanced the
compensation vide judgment dated 27.8.1970. Being dissatisfied with
the increase in compensation, the appellants approached the learned
High Court in appeal and further enhancement was accorded to them
through judgment dated 26.9.1977; and on their appeal before this
Court compensation was yet further increased vide judgment dated
18.2.1987. The appellants then filed an execution petition for recovery
of their dues (enhanced compensation) before the learned High Court (which was
the executing court) and also for the first time sought additional
compensation under Section 28-A of the Act, which reads 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 percent 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.”
The Executing Court vide order dated 31.5.1993 while interpreting the
provisions of Section 28-A held that it (section) would not apply to past
Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 3 :-
and closed transactions. In this context the relevant portion of the order
reads as:-
“It is, therefore, clear that Section 28-A in the Act,
introduced through the amendment of 1984 is
applicable to pending proceedings so long as it does
not inter-act on past and closed transactions. Still,
what may, in the present context, be such
transaction? It would seems to be just and fair and in
line with the spirit of the amendatory law as regards
awards, rendered prior to the amendment but pending
examination at subsequent levels, to say that to the
extent a land-owner had already received
compensation antecedent to the amendment, even
though under protest, the question of permitting
solatium on the amount or amounts already so paid,
before the amendment, be treated as a transaction
past and no additional payment may accrue following
upon the amendment on such disbursement of
compensation, duly paid and received. However,
where compensation is enhanced and enhanced
compensation is not received or paid and, during the
time intervening, the amendatory law has appeared
on the statutes book any subsequent payment
including that already due before the amendment but
not paid would carry a further solatium at the rate of
15% per annum from the date of notification upto the
date of actual payment of compensation.”
Aggrieved of the above, the appellants filed an appeal before the High
Court and the learned Division Bench of the Court held:-
“………………………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
Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 4 :-
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 land owner.
…………………………By incorporating Section 28-A,
the legislature apparently intended to compensate
such land owners 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 payments of different
amounts falling short of the payments to be made
upon final determination.
…………………………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.”
Leave in this case was granted vide order dated 28.7.2004 primarily to
consider whether:-
“…………………………the petitioners would be
entitled, in view of the above said provision of law,
to claim benefit of additional compensation under
the ibid Act on the entire amount of compensation
from the date of notification issued under Section 4
Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 5 :-
of the Land Acquisition Act till final payment of
compensation is made to the petitioners or only on
the amount of compensation which was not paid
upto the time of promulgation of Ordinance
No.XXIII of 1984?”.
3. Learned counsel for the appellants has argued that the
language of Section 28-A leaves no room for doubt that the additional
compensation is payable from the date of notification under Section 4 of
the Act till the date of the payment of compensation. He states that to
interpret the section in a manner whereby the compensation shall only
be payable on the unpaid amount is not a valid construction of the said
section; this is tantamount to reading into the provision which cannot
be done as the provision is clear and the rule of literal interpretation of
statutes should be resorted to rather than looking into the intent of the
legislature. He states that the person whose land is acquired is ipso jure
entitled to compensation as per the provisions of Section 34 of the Act
with regard to interest and thus the additional amount of compensation
under Section 28-A is also available to him as a matter of right. He
relies on the Construction of Statutes (1940) by Crawford, Government
of Sindh and 2 others Vs. Syed Shakir Ali Jafri and 6 others (1996
SCMR 1361), Province of Sindh through Collector of District Dadu
and others Vs. Ramzan and others (PLD 2004 SC 512), and Land
Acquisition Officer and Assistant Commissioner, Hyderabad Vs. Gul
Muhammad through Legal Heirs (PLD 2005 SC 311).
4. Learned Additional Advocate General, Sindh has submitted
that the provisions of Section 28-A do not have any retrospective effect.
As the award was announced on 17.12.1960 and the appellant had
already received a substantial amount of compensation before the
enforcement of the said section, therefore, he could not ask for a
Civil Appeal Nos.939/04, 144-K-145-K/09 etc. -: 6 :-
premium over the amount so received. He submitted that Section 28-A
was challenged before the learned Federal Shariat Court and was
declared repugnant to the injunctions of Islam vide judgment reported
as In re: The Land Acquisition Act (I of 1894) (PLD 1992 FSC 398)
and pursuant thereto the law was repealed by virtue of the Land
Acquisition (Sindh Amendment) Act, 2009 (Act XVI of 2010)1 (the
“repealing Act”).
5. Heard. Before considering the plea(s) raised by the learned
counsel for the appellants, we deem it proper to dilate upon the
submission of the learned Additional Advocate General about the
declaration of Section 28-A as against the injunctions of Islam, its
repeal and effect thereof. The provisions of the Act came under scrutiny
before the Federal Shariat Court, in its suo moto jurisdiction, to
consider whether those were in accordance with the injunctions of
Islam and the Court vide judgment dated 27.3.1984 made some
declarations and recommendations with regard to bringing the said law
in conformity with Islamic principles and one of the recommendations
stated:-
“In addition to the compensation fixed on the basis
of market value as prevailing on the date of
notification under section 4, an amount of 15% per
annum shall be paid as additional compensation to
the person found entitled to compensation from the
date of notification under section 4 to the date of
payment of compensation.”
It is pursuant to the above that Section 28-A was inserted in the Act
vide Land Acquisition (Sind Amendment) Ordinance XXIII of 1984
notified in the Gazette of Sindh on 30.9.1984. However, the aforesaid