MIAN MUHAMMAD LATIF Versus PROVINCE OF WEST PAKISTAN THROUGH THE DEPUTY COMM SSIOAER, KHAIRPUR

1. WAHIDUDDIN AHMAD, J .‑This appeal by special leave is directed against the order of the West Pakistan High Court, Karachi Bench, in Revision Application No. 69 of 1967, dated the 16th November 1967, which was dismissed in limine.

2. The facts, leading to this appeal, are that in former Khairpur State there was in force an Act known as Ijara Tax Act (III of 1901), which provided for levy of tax for Ijara on such commo dities which were taken out or brought into Town Committee area in the State at such rate as may be prescribed. Under section 1 of the said enactment:‑ "if any person brings in, takes out any article without payment of Ijara, then on proof of 1st offence, ten times the amount of Tara' should be recovered from the contractor".

3. This tax used to be auctioned by the Khairpur State and Sled Rafiq Hussain respondent No. 2, purchased in auction the right to collect ijara tax and became the contractor on behalf of the Khairpur State for collection of ijara tax (Octroi duty). On the 22nd March 1952, he filed two complaints in the Court of Mukhtiarkar, Khairpur. . One of these complaints v as against Messrs Ghulam Farid Muhammad Latif, through their Manager, Fazal Karim. In this complaint it was alleged that between 6th and 29th February 19:2, the appellant had supplied 500 bales of cotton to the Khairpur Textile Mills at Rs. 113 per maund and had failed to pay ijara tax at the rate of Re. 0‑0‑6 per maund and a sum of Rs. x,121‑14‑0 was due from him along with penalty equal to ten times. The second complaint was against Fazal Karim, the Manager of Sethraja Ginning Factory, which has been taken on lease by the appellant. In this complaint it was alleged that the appellant had Gbld 1000 bales at Rs. 100 per maund and was liable to pay Rs. 13,771‑4‑0 as ijara tax at the rate of Re. 0‑0‑6 per maund along with penalty equal to ten times. These complaints were dismissed by the Mukhtiarkar, Khairpur, by order dated the 24th May 1954, on the ground that under the Ijara Rules and the Resolution of the Council of Ministers, dated the 17th January 1952, no ijara was leviable on the aforesaid goods. This order was challenged in appeal by respondent No. 2 before the Assistant Revenue Officer and First Class Magistrate, Khairpur. The learned Officer, by order dated the 31st January 1955, allowed the appeal holding that ijara on the aforesaid goods was payable and remanded the case to the Mukhtiarkar for determining the actual amount of ijara that was payable by the defaulters. The respondent's case is that the Revenue Officer, after recording the evidence, went into the accounts. On the 8th October 1958, he held that Messrs Ghulam Farid Muhammad Latif were liable to pay Rs. 2,39,638‑7‑0 as ijara tax with penalty. Thereafter, the papers were submitted to the Deputy Commis sioner, Khairpur, who on the 1st February 1962, passed an order that the said amount be recovered as land revenue. On the 31st May 1962, the Deputy Commissioner issued certificate under section 149 of the Land Revenue Code and forwarded the papers to the Deputy Commissioner, Sangbar for realising the above amount from the appellant. In pursuance of this certificate, Deputy Commissioner, Sanghar directed Mukhtiarkar, Shahdadpur, to recover the said amount from the appellant. Thereupon, Mukhtiarkar, Shahdadpur, issued notice under section 165 of the Land Revenue Code on the 30th December 1965, and published for auction the property known as Messrs Ghulam Farid Muhammad Latif Cotton Ginning Factory, Tando Adam belonging to the appellant situated within the local limits of Tando Adam Municipal Committee.

4. The appellant challenged the said action in First Class Suit No. 4 of 1966 in the Court of First Class Civil Court, Khairpur and prayed for a declaration that the order of the Collector was illegal, inoperative and without jurisdiction and further prayed for permanent injunction restraining the respondent from recovering the amount in dispute in any manner. Along with the plaint, he also filed an application for temporary injunction. The learned Civil Judge First Class, Khairpur, granted a temporary injunction to him by order dated the 21st February 1966, on the condition that he would not sell or mortgage or gift away the attached property during the pendency of the suit and furnish a solvent surety in the sum of Rs. 2,50,000. Both the parties being dissatisfied with this order filed separate appeals, in the Court of District Judge, Khairpur. The learned First Appellate Court dismissed the appeal filed by the appellant and accepted the appeals filed by the respondents. It vacated the injunction on the ground that the Civil Suit filed by the appellant was barred by section 11 of the Sind Revenue Jurisdiction Act, 1876. The matter was then taken in revision before the High Court of West Pakistan, Karachi Bench. A learned Single Judge of the High Court, by order dated the 16th November 1967, also upheld this view and dismissed the revision petition in limine. Leave was granted in this case to consider the following questions:‑

(i) That the Sind Revenue Jurisdiction Act, 1876, was not applicable to the Khairpur State in the years 1952‑54 when orders for levy of Ijara Tax were passed and therefore, the bar of Section 11 would not be attracted to this case, and

(ii) that the order for levying Ijara Tax was wholly without jurisdiction and nullity in law and hence the proceedings for recovery of the said tax as land revenue were also of no legal effect.

5. In support of the appeal, Mr. A. K. Brohi, learned counsel for the appellant, has contended that the proceedings against the appellant before the Mukhtiarkar and other Revenue Authorities suffered from the principle of natural justice and, therefore, 'the claim against the appellant is a nullity in the eye of law. He further contended that at no time, the Mukhtiarkar or for the matter of that any other competent Revenue Authority has deter mined the ijara tax in accordance with law. The learned counsel took us through the entire record of the case and contended that after the case was remanded by the Assistant Revenue Officer on the 31st January 1955, the Mukhtiarkar has not determined the ijara tax due from the appellant. It was also contended that no appeal was competent from the dismissal of the complaints by Mukhtiarkar on the 21st May 1951, and that the ‑view of Mukhtiarkar that the goods in question were not liable to ijara tax is in accordance with the Resolution of the Council of Ministers, dated the 17th January 1952. According to the learned counsel, the claim against the appellant having not been deter mined in accordance with law cannot be enforced against hull and the civil Court have jurisdiction to go into these questions.

6. After hearing the learned counsel for the parties there is little doubt that the appellant has made out a good prima facie case for the investigation of the various points which have been raised by him in the suit. It is for consideration whether, at any time, he was served with notice of the proceedings which were taken against him. It is further for consideration whether ijara tax was, at any time, determined against him by any competent authority in accordance with law. The learned Additional Advocate‑General had referred us to page 17 of File No. II which shows that the Mukhtiarkar, Khairpur, only submitted the details of the amount of the ijara tax which were worked out by him on the information collected from the Khairpur Textile Mills to the Deputy Commissioner, Khairpur, who approved it by order dated the 2nd November 1958. This supports the contention of Mr. Brohi that from the 4th February 1957, to the 25th November 1958, no final order was passed by the Mukhtiarkar about the Ijara tax and no penalty was imposed against the appellant. In fact, the letters written by respondent No. 2 to the Revenue authorities show that he was pressing them to impose penalty against the appellant. There is, therefore, much force in the contention of the learned counsel for the appellant that there are important questions involved in the suit which require determination by the civil Court.

7. It will be noticed that the learned District Judge and the High Court have refused to issue injunction in favour of the appellant on the ground that section 11 of the Sind Revenue Jurisdiction Act, 1876, is a bar to the suit filed by the appellant in the Court of First Class Sub‑Judge, Khairpur. This provision of law reads as under:‑

8. "No civil Court shall entertain any suit against the Crown on account of any act or omission of any Revenue Officer unless the plaintiff first p over that previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force as, within the period of limitation allowed for bringing such suit, it was possible to present."

9. There is no doubt that under it ordinarily a party in revenue matters should exhaust all his remedies by way of appeal before invoking the aid of the civil Court. But there are different considerations where the allegation of a party is that the impugned order is a nullity in the eye of law. There is ample) authority that in such cases the jurisdiction of the civil Court is not barred. This aspect of the question was considered by the Privy Council in the case of Secretary of State v. Mask & Co. (A I R 1940 P C 105). It was held in that case‑

10. "It is also well settled that even if jurisdiction is so excluded, the civil Court have jurisdiction to examine into cases where provisions of the Act have not been complied with or the statutory tribunal has not acted in confirmity with the funda mental principles of judicial procedure."

11. In our opinion this well established principle also applies to the facts of the present case. The allegation of the appellant is that the impugned certificate for various reasons mentioned above is a nullity in the eye of law and has not been passed in accordance with the provision of the relevant law. On the above principle the civil Court have jurisdiction to examine these questions. We; would, therefore, hold that the learned Courts below, in these circumstances, were not justified in holding that the appellant's suit was not competent.

12. It is needless to mention that in a case where temporary injunction is claimed, the plaintiff has only to make out that he has a good prima facie case meaning thereby that a serious question is to be tried in the suit and that in the event of success if the injunction is not issued he will suffer irreparable injury. The appellant has, in the present case, fulfilled all these conditions. Even the learned Additional Advocate‑General and Mr. Nathu Lal, learned counsel for respondent No. 2 have not opposed the issue of injunction.

13. We would, therefore, set aside the order of the High Court and restore the order of the Sub‑Judge by which an injunction was issued in favour of the appellant. 'The order of the Sub -Judge is, however, modified to this extent that the appellant instead of furnishing security will only execute a personal bond giving an undertaking that during the pendency of the suit he will not dispose of the Mill which is sought to be auctioned.

14. In the result, the appeal is allowed. Costs of this appeal will be cost in the suit.

15. K. B. A. Appeal accepted.