ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

C. P. No.232/2007.

DATE

OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

1. For orders on office objection ‘A’.

2. For Katcha Peshi.

16.03.2010

Mr Gulab Rai C. Jesrani advocate for petitioners.

Mr. Abdul Hamid Bhurgari, Addl. A. G.

-.-.-.-.-.-.-

Land of the petitioner was acquired under the Land Acquisition Act. Notification under section 4 followed award under section 11 of the Land Acquisition Act. One award was passed on 28.7.2003 and in respect of other piece of land, other award was passed on 24.9.2003. Under the first award, total compensation of Rs.212,179/- was ordered. Out of which Rs.70,000/- had already been paid and balance amount was determined to be Rs.142,179. This amount included solatium at the rate of 15% for one year of the Land Acquisition Act and market value of land was determined as in February 1984. Under the second award total compensation payable was calculated at the rate of Rs.69,925. Although the land was acquired in 1984 ultimately compensation was paid on 16.3.2007. Since no interest as required by section 28-A and section 34, it is contended by the petitioner was paid to him, the petitioner filed Constitutional Petition No.30/2004. This petition was decided by this Court vide order dated 10.2.2005. Operative part of the order reads as under :

“From the above assertion, it is clear that the compensation amount awarded to the petitioners through the award passed by Land Acquisition Officer has not been accepted by them on the above mentioned ground. Whatever, the grounds may be, it is for the competent forum to decide the question under section 18 of the Land Acquisition Act. The petitioners had remedy available to them under section 18 of the Land Acquisition Act which they were required to adopt but they have not adopted the same. As such the Constitutional Petition in the present form is not maintainable. The same is dismissed.”

After the order was passed by this Court, the petitioner approached Provincial Ombudsman with complaint and the Provincial Ombudsman passed order thereon in May 28, 2006. Operative part of the order reads as under :

“Accordingly the instant complaint stands disposed of with remarks that the complainant may approach the proper/competent forum for the redressal of his grievance in the light of the decision of the Honourable High Court of Sindh, if he so desires.”

After the order was passed by Provincial Ombudsman, the petitioner approached Chief Secretary, Government of Sindh and vide letter dated December 23, 2006, the Office of the Chief Secretary communicated the following order :

“In suppression of this office letter of even number dated 19.12.2006 addressed to Additional Secretary (Revenue), Board of Revenue, Sindh Hyderabad, I am directed to request you to pleas direct Land Acquisition Officer (B&R), Hyderabad to make payment of land compensation immediately after due verification to Mr. Gian Chand Pinjani as per Awards passed by office order vide No.LAO(B&R)/83, dated 28.7.2003 and LAO(B&R)/86 dated 24.9.2003 along with Additional Compensation and Interest Charges as per Section 28-A & 34 of the Land Acquisition Act in the light of Order dated 23^rd September 2004 passed by the Honourable High Court of Sindh and letter No.OP.8(65)/2005/608, dated 11^th October 2005 of Secretary, Law Department, Government of Sindh.

2. Mr. Nazar Muhammad Laghari, Special Secretary (LU), BoR is appointed as enquiry officer to identify the officers/officials who are responsible for delay in making payment to applicant which has caused additional financial burden on Government of Sindh and submit report within 30 days to the Chief Secretary Sindh for taking disciplinary action against the responsible Government officers/officials.

3. However, the enquiry may not delay the payment of due land compensation amount to be paid to the applicant which may e cleared by concerned departments immediately, after due verification.”

Thereafter, Special Secretary Land Utilization Department considered the matter and passed an order observing that land was acquired in 1984 and in the award the Land Acquisition Officer had made observation that in view of directions given by the law Department no Additional compensation or interest as per Section 28-A and 34 of the Land Acquisition Act was allowed and this order has attained finality as it has not been challenged in accordance with the provisions provided in Section 18 of the Land Acquisition Act. Thereafter, on 07.3.2007. the petitioner filed an application under section 18 to the Land Acquisition Officer praying therein that the matter may be referred to District Judge for deciding question of solatium and interest as provided under section 18 of the Land Acquisition Act. This application was disposed of by the Land Acquisition Officer vide his order dated 21.4.2007. The Land Acquisition Officer referred to section 18 of the Land Acquisition Act wherein period of six weeks is provided for appealing against the awards (Awards in this case were respectively passed on 28.2.2003 and on 24.9.2003) and since the present petitioner had approached the Land Acquisition Officer in 2007 in spite of clear direction by Sindh High Court in its order dated 10.2.2005. The draft references submitted by the petitioner were returned. This petition was thereafter filed with the following prayers :

a) “Direct the respondent no.2 to add / include the solatium provided under section 28-A and 34 of Land Acquisition Act in awards annexure “C” & “D”.

b) Direct the respondent No.2 to calculate solatium under section 28-A and 34 of Land Acquisition Act from the date of taking over possession of Land till the last payment is made.

c) Direct the respondent no.3 to deposit the outstanding amount of solatium under section 28-A and 34 of the Land Acquisition Act with the respondent No.2 as per calculation to be made by respondent No.2.

d) Award any other equitable relief (s) to the petitioner, which this Hon’ble Court deems fit and proper in the circumstances of the petition.”

During the arguments, it was pointed out that Ordinance No.15/2007 was promulgated by Governor of Sindh on 03.8.2007 and was published in Gazzette on 04.8.2007. The relevant provision provided as under :

4. In the said Act, section 28-A shall be omitted and shall be deemed to have been so omitted as if it had never been enacted.

During arguments it was stated by the petitioner that according to his information this Ordinance has been passed as a bill by the Provincial Assembly on 01.2.2010 but so far he has no information whether assent has been given by the Governor Sindh or not. Learned counsel for the petitioner made the following submissions:

(i) That the petitioner has been running from pillar to post and his grievance has not been redressed. Land was acquired in 1984 and value of the property by the Land Acquisition Officer in terms of the market value as in February 1984. However, compensation was paid to him on 16.3.2007.

(ii) Land Acquisition Officer has merely stated that as per instructions of law Department 15% Additional compensation and 6% interest charges as per section 28-A and 34 of the Land Acquisition Act have not been allowed. This order passed by the Land Acquisition Officer is firstly not a speaking order and secondly instructions of law Department do not have force of law and it was duty of Land Acquisition Officer to consider provision of law and thereafter decide compensation and interest.

(iii) That firstly Ordinance XV of 2007 lapse on 01.11.2007. Bill was passed on 01.2.2010 and there is no report whether the bill has been assented to by the President. After lapse of the Ordinance, the Ordinance ceased to have any legal force.

(iv) Even if the Ordinance has received assent of the Governor of Sindh, the petitioner has been deprived of his right to property because market value was determined as in February 1984 and payment was made in 2007 and therefore this is in violation of Article 24 of the Constitution R/w Article 2A and 4 of the Constitution of the Islamic Republic of Pakistan.

Mr. Abdul Hamid Bhurgari learned Addl. A. G made the following submissions :

(i) That this Constitution is bared by the principles of res judicata because the same subject matter was decided by this Court vide its order dated 10.2.2005.

(ii) Petitioner had remedy under section 18 of the Land Acquisition Act and period of Limitation is provided in section 18(2) of the Land Acquisition Act as six weeks. As the petitioner had not made such application within the period prescribed by law and has not even made it within six weeks of the order passed by this Court in Constitutional Petition No.D-30/2004 which order was passed on 10.2.2005, he being an indigent person does not deserve relief claimed by him.

(iii) Section 28-A has been deleted by the Ordinance No. XV of 2007 and since the bill has been passed by the Provincial Assembly, therefore, the petitioner in any case is not entitled to compensation.

We have considered the submissions made by the learned counsel and have also gone through the record. The petitioner after the award was passed firstly approached this High Court and this High Court vide its order dated 10.2.2005 observed that the petitioner has remedy available to him under section 18 of the Land Acquisition Act and therefore, he was required to adopt that course but he had not adopted the same. It was consequently held that the Constitutional Petition was not maintainable and the same was dismissed. Thereafter, petitioner approached Provincial Ombudsman and Ombudsman made similar order on 20^th May 2006. Matter should have rested there. But when the petitioner approached Chief Secretary, on December 23, 2006, Section Officer of Services and General Administration and Co-ordination Department wrote to the Senior Member of Board of Revenue stating that he has been directed to request the Senior Member to direct the Land Acquisition Officer to make payment of land compensation as per section 28-A and 34 of the Land Acquisition Act. Once High Court passed an order and Ombudsman has also passed an order the Provincial Government even then directed the Land Acquisition Officer to pay compensation as per section 28-A and 34 of the Land Acquisition Act. Thereafter the petitioner approached the Land Acquisition Officer and Land Acquisition Officer referred to section 18 of the Land Acquisition Act and said that since the awards had been made in 2003, therefore, the matter is now barred by time. Once decision was given by said Secretary Land Utilization Department then the present petitioner filed application before the Land Acquisition Officer.

Once matter has become barred by time the Departmental authority is not required to consider it on merits. However, there is sufficient case law available for the proposition that even when matter has become barred by time, if the departmental authority considers it on merits, it gives sufficient cause of action to the aggrieved person to once against agitate his grievance. Since the Chief Secretary issued directions to the Senior Member Board of Revenue on 23^rd December 2006 specifically saying that compensation and interest charges as per section 28-A and 34 of the Land Acquisition Act be paid. A fresh cause of action arose and it is that cause of action which is the starting point.

Consequently respondent No.2 is directed to send reference to the Court of competent jurisdiction for deciding the amount of compensation and related question in accordance with law. All the other points raised by the learned counsel shall be available to them to be raised before the Court before which reference is filed. This Constitutional Petition is disposed of in the above terms.

Judge