MUHAMMAD AKBAR CHEEMA vs THE PROVINCE OF WEST PAKISTAN AND ANOTHER

' S. A. NUSRAT, J.-This appeal by special leave of this Court is directed against the judgment of a learned Division Bench of the High Court of West Pakistan, Lahore, dated 9-2-1970. The brief facts of the case, shortly stated, are as under :- ' The appellant was leased out 30 acres of agricultural land by the Canal Department, Khanki Division, Tehsil Wazirabad, District Gujranwala, pursuant to a public auction on 27-3-1967 for a sum of Rs, 16,000 for the period Kharif 1967-Rabi 1970. A sum of Rs, 1,600 was paid by the appellant as earnest money at the time of auction, which was subject to the approval of the Superintending Engineer, West Circle, Lyallpur. The appellant was neither informed about the approval of the auction nor was delivered possession of the leased land. The second respondent, however, initiated proceedings against the appellant for the recovery of Rs, 8,000 on account of first three instalments as arrears of land revenue through the Collector, Gujranwala. Consequently, the Collector directed the Assistant Collector, Wazirabad, to recover the said amount through coercive process. The appellant, thereupon, filed a suit for declaration and perpetual injunction for restraining the respondents from recovering the said amount and refund of Rs, 1,600. The suit was resisted on behalf of the respondent and a preliminary objection was raised that since the amount was recoverable as arrears of land revenue, the suit could not be proceeded with unless the amount was first deposited as required under section 91 of the West Pakistan Land Revenue Act, 1967 (hereinafter called the Act). The learned Civil Judge, 1st Class, Gujranwala, framed a preliminary issue in this behalf and dismissed the suit for want of compliance of section 91 of the Act. The appellant filed appeal against the said judgment which came to be dismissed as per impugned judgment.

2. At the stage of hearing of the appeal in the High Court an official of the respondent referred to a Notification No, 7321-65/3589-LRV, dated 16th October, 1965, issued under section 3 (1) of the West Pakistan Government Dues Recovery Ordinance, 1962 providing that- "all classes of ascertained dues payable to Government, including dues payable under a decree of Civil or Revenue Court (except in cases where payment of the recovery of any such dues is stayed by a competent Court or authority) shall be recoverable from the defaulter as if such dues were arrears of land revenue."

' In view of the above notification it was held that the appellant could contest the liability only after he had made the deposit of the amount claimed under protest as envisaged by section 4 of the Revenue Recovery Act (I) of 1890.

3. Leave to appeal in this matter was granted to examine the question) as to whether a claim simpliciter could not be converted into "dues":4 until the same was established as required by law and justice to be paid: as "dues."

4. The question involved in this appeal is covered by a decision of this Court to the case of Abdul Latif v. The Government of West Pakistan and others (1). In that case too similar action for recovery of an amount alleged to be due on account of "deficiencies in remittance and shortage in stamps, etc." had been initiated as arrears of land-revenue by the Revenue Authorities which was challenged by Abdul Latif before the High Court by filing a writ of certiorari. The learned High Court held that if the petitioner challenged the claim, he must first deposit the amount claimed under protest and then seek for adjudication by the civil Court as provided by section 4 of the Revenue Recovery Act, 1890. The petition was accordingly dismissed and the matter was brought to this Court in appeal by special leave. This Court after examining the provisions of Public Accountants'

Default Act. (XII) of 1850, the Punjab Land Revenue Act, 1967 and in particular sections 3, 4 and 5 of the Revenue Recovery Act, 1890 held as under :- "It must be remembered that a right construction of the Act can only be attained if its whole scope and object together with an analysis of its wording and the circumstances in which his enacted are taken {{FOOT NOTE}}

(1) PLD 1962 SC 384 {{FOOT NOTE}} ' into consideration. From an examination of the Land Revenue Act, it is apparent that it provides first a procedure for determination of land revenue and then comes the machinery for realisation of such revenue.

"It is, therefore, manifest that before the operation of the machinery section for realisation of the arrears, the authority concerned must decide whether there is an arrear due or not."

5. The learned counsel for the appellant also referred to a judgment of the Karachi Bench of the West Pakistan High Court in the case of Province of West Pakistan v. Muhammad Ayub Khuro (1) wherein the same Notification dated 16-10-1965, referred to by the learned High Court in this case, and sections 3 and 4 of the Revenue Recovery Act (I of 1890) come to be examined and it was held that claims can 'be recovered as arrears of land-revenue only when they are converted into established dues after necessary adjudication. The judgment of this Court in Abdul Latif's case was referred to in the judgment while considering the provisions of sections 3 and 4 of the Revenue Recovery Act, 1890. The learned counsel for the respondent, on the other hand, referred to a judgment of the Baghdadul Jadeed Bench of the West Pakistan High Court reported as Noor Muhammad v. The Province of West Pakistan (2). In the said judgment, though later in point of time, the decision of this Court in the case of Abdul Latif was neither referred to nor was considered and the case is, therefore, of no help to the respondents.

6. The Revenue Officer, who was present alongwith the learned counsel for the respondents, admitted that possession of the disputed land was not delivered to the appellant nor was it contended that the disputed amount had been determined or ascertained affording any opportunity of hearing to the appellant. The notification referred to by the learned High' Court itself provides for the recovery of all classes of ."ascertained dues payable to Government" and, therefore, the machinery provisions of the Revenue Act could only be set into motion after the claim against the appellant had actually ripened into 'dues' and determined on the basis of some adjudication in accordance with the law and justice.

7. For the reasons given above, we would accept the appeal and set aside the impugned judgment and decree of the High Court. In the result the suit of the appellant should be tried afresh on merits and disposed of expeditiously: There will however, be no order as to costs. {{FOOT NOTE}}

(1) PLD 1967 Kar. 673 (2) PLD 1966 (W. P.) B J 19 {{FOOT NOTE}}