1997CLC201 (PLP)

Choudhary Muhammad Yusuf Khan for Non‑Petitioner, The petitioner, feeling aggrieved by the recovery proceedings initiated against him by non‑petitioners Nos.2 to 6, has invoked the Constitutional jurisdiction of this Court, under section 44 of the Azad Jammu and Kashmir Interim Constitution Act; 1974.

2. Material facts leading to the filing of the present petition, briefly stated are that petitioner, an employee of Food Department of Azad Jammu and Kashmir; was posted as Food‑Grain Supervisor at Mandal‑Leepa in the year 1984; when during the intervening night of 22/23‑5‑1984, fire broke up in the said godown resultantly, everything lying therein was burnt into ashes. According to the petitioner, the guard was responsible for safe custody of the godown but without any legal justification, on account of pre‑planned conspiracy, he was involved in the case, registered against him with Police Station Chenari under sections 435, 436, 427 and 109 A.P.C. read with section 5(2), Anti‑Corruption Act. The police conducted investigation and challaned him before the Special Judge Anti‑Corruption. He was also dismissed from service which order was assailed by him before the Azad Jammu and Kashmir Service Tribunal through an appeal. The learned Tribunal allowed the appeal and remanded the case to the Food Department. The Food Department once again held him guilty of misconduct and misappropriation of the Government Store. Consequently, he was removed from service and held liable for the loss calculated to the tune of Rs.5,17,640.72, vide order dated March 13, 1986. The petitioner challenged his removal order from service before the Service Tribunal through an appeal which was dismissed on a technical ground that it was filed after the period of limitation. In the challan case, the petitioner was acquitted by the Court which order has been accepted by the non‑petitioners as validity of the same was not assailed before any superior forum by them. Later on, non‑petitioners Nos.5 & 6 started recovery proceedings against him of the amount which was calculated by the non- petitioner No.3 in his capacity as Director Food Department at the back of the petitioner.

3. Syed Hazoor Imam Kazmi, the learned counsel for the petitioner argued that the impugned notice for the recovery of Rs.5,17,640.72, as land revenue, is illegal and without legal justification. According to him, before any proceedings could be initiated against the petitioner, he should have been declared defaulter as contemplated in section 4(7) of the West Pakistan land Revenue Act, 1967. But neither any proceedings in this regard were taken against him nor any demand notice was issued to him. Therefore, the whole exercise is against the spirit of the law which justifies the interference of this Court in exercise of its extraordinary writ jurisdiction.

4. The learned Advocate‑General argued that the matter relates to the service of the petitioner as such he can seek any remedy from the Service Tribunal. Alternatively, he argued that the petitioner can raise the points relating to the procedural defects, if any, before the executing authorities. The writ is premature and liable to be dismissed.

5. I have considered the respective arguments of the learned counsel for the parties and have perused the record appended with the petition.

6. Through this petition the petitioner has prayed that after he was acquitted by the Special Judge Anti‑Corruption, he was entitled to be reinstated in service. But the non‑petitioners are declining him his right of service without any legal justification. Secondly the petitioner has challenged the legality of the proceedings which have been initiated against him for the‑ recovery of loss as land revenue. The writ petition was not admitted to the extent of the petitioner's reinstatement in service. However, he was allowed to challenge the proceedings which stood initiated against him for the recovery of the loss as land revenue.

7. In the light of the scheme of law as contemplated in the Land Revenue Act, 1967 (hereinafter to be referred as Act), it is the basic requirement that the liability be determined before the provisions of the Act could be pressed into motion for its realization as land revenue. This view finds support from a case titled "Abdul Latif v. The Government of West Pakistan and others" (PLD 1962 Supreme Court 384). wherein the apex Court of Pakistan has laid down that a statement of account certified by a Revenue Officer shall he the conclusive proof of the existence of an arrear of land revenue of its amount and of the person who is the defaulter. The learned Court has further opined that before the machinery for the realisation of the arrear can be moved, the authority concerned must decide whether there is arrear due or not. It is manifest from the Act that the Revenue Officer, prior to determining the amount as arrears of land revenue, shall issue a show‑cause notice to the person affected by the order. It is universally accepted principle that where right of hearing has not been excluded, the failure to give a hearing could not be condoned. The failure in this regard, in fact, would make the entire exercise ineffective and a nullity or non‑existent in the eye of law. In the present case, as pleaded by the petitioner and supported by him through an affidavit, which has not been rebutted through a counter affidavit, the petitioner was not heard by the non‑petitioners Nos.2 to 4 before determining the loss. In this case, no amount has been determined by any Revenue Authority thus there is substantive and fundamental flaw in the proceedings in the light of the provisions of the Act. As said earlier any amount required to be recovered as arrears of land revenue, is to be determined by Revenue Officer. The loss not calculated by Revenue Officer, therefore, could not be recovered as arrears of land revenue.

8. In a case titled "Tariq Mohsin Siddiqi v. Province of Sindh through the Secretary to the Government of Sindh, Karachi and 4 others", petitioner Tariq Mohsin Siddiqui alongwith two others was a partner of a firm which had entered into two agreements on behalf of the firm with the Chief-Conservator of Forests, Government of Sindh for the purchase of standing trees in some forests of District Hyderabad for Rs.1,52,000 and Rs.6,11,000 respectively. After the lapse of six months, the petitioner and his one partner retired from the partnership under a deed of dissolution leaving behind their third partner as sole proprieter of the firm, who under the dissolution deed had agreed to continue the above‑referred two contracts and discharge all the liabilities under them. The firm when failed to pay the instalments which fell due under the agreements, the Divisional Forest Officer served notices to the sole partner and also threatened that the material lying at the site would be seized and put to auction for the realisation of the instalments. Later on, the agreements were cancelled. The Forest Department sold the stock of the timber which was lying at the site. The Forest Department also demanded Rs.3,16,950 and Rs.57,000 respectively as due against the firm. This demand notice was served even upon Tariq Mohsin Siddiqui, the partner who had retired from the membership of the firm. The proceedings were called in question by him through a petition before the High Court where besides other grounds the main contention raised was that the amounts in question were computed by the Forest Staff on their own and the same were conveyed to the Deputy Collector for recovery through coercive means as arrears of land revenue. The controversy mooted before the Court was to the effect that neither the Forest Act, 1927 nor the Land Revenue Act, 1890 prescribed any procedure as to how the allegedly defaulting party has to be heard in connection with the allegations made against it. Whether in these circumstances, it was necessary to hear the petitioner at the time of determining the amounts. Relying on the judgment of the Supreme Court of Pakistan in "Abdul Latif v, Government of West Pakistan (PLD 1962 SC 350), it was laid down that the determination of arrears is a quasi judicial function as such the proceedings in this regard must be conducted in accordance with the principle of natural justice. The Court also relied on cases titled "Government of West Pakistan and others v. Abdul Majid and another" (PLD 1963 (W.P.) Karachi 653) and "Haji Mahboob Alam v. Province of the Punjab through Collector, Sargodha and another" (1973 SCMR 415). As notice was not issued to the petitioner therein, his Constitutional petition was accepted and the proceedings taken against him were quashed.

9. In the instant case, admittedly the petitioner was neither associated in determining the amount not any demand notice as postulated by the Act, was issued to him. Therefore, while allowing this petition with costs, the impugned order of recovery is set aside. However, this order shall not preclude the non -petitioners from determining the actual amount, if any, due from the petitioner as arrears and realising the same from him in due course of law. A.A./106/AJ&K Petition accepted.