P L D 1971 Lahore 206 (PLP)

Road, Lahore. No. 207/G, dated 26th February 1970. Subject :‑‑RSA‑62 of 1968 Ahmad Shafi v. Municipal Committee, Rawalpindi. Memorandum. Reference your letter dated Nil.

2. The proceedings of recovery of encroach ment licence fee were started against the tenants of Mr. Ahmad Shafi because they are the encroachment licence‑holders of the Municipal Committee. No legal action was ever taken against Mr. Ahmad Shafi.

|

3. Power of attorney in the appeal case

| This is about R. S. A. 771 of 1968 entitled Professor Shah

| some other Rehman v. Municipal Committee, Rawalpindi,

| case and we sent herewith as desired in your letter dated,)

| are not concerned 7‑2‑1970. with it. (Sd.) Administrator, Municipal Committee, Rawalpindi. 26‑2‑70. "

5. In view of the position taken up by the learned counsel for the defendant, since no proceedings have been taken against the plaintiff, therefore, he was not hit by the provisions of section 78 ibid and the said section, as such was no bar to the institution of the suit. It may be mentioned that the argument that no proceedings had been taken against the plaintiff was advanced by the learned counsel for the defendant‑Municipal Committee to show that in that state of affairs the plaintiff would have no locus standi to file the suit. I apprised the learned counsel that even though his argument was directed towards the point of locus standi but it will have repurcussion on the point of jurisdiction on which the two Courts below had thrown out the plaintiff's case. When confronted with that situation, learned counsel wanted time to seek specific instructions on the subject and it was in that context that he received the letter which has been reproduced earlier. It will thus appear that in view of the definite position taken up before me that the plaintiff is not a person against whom any proceedings have been taken, he cannot be compelled to pay the amount in dispute in advance and then institute the suit. His suit can proceed without any such advance deposit and will have to be dealt with on its own merits.

6. At this stage, learned counsel for the defendant -respondent referred also to section 158 (2) (xiv) of the Punjab Land Revenue Act as a bar to the jurisdiction of the civil Court to try this suit. This section reads as follows :‑The correspond ing section in the West Pakistan Land Revenue Act is 172 (2) (xv) "158 (2).‑A civil Court shall‑ not exercise any jurisdiction over any of the following matters, namely :‑ (i)

(xiv) any claim connected with or arising out of the collection by the Government, or the enforcement by the Government, of any process for recovery of land‑revenue or any sum recoverable as an arrear of land‑revenue. A careful perusal of the above shows that it applies when the collection or recovery is being made by the Government. In the instant case, it is a common ground that the process were issued by an official of the Municipal Committee and surely he is not and cannot be called the Government.' Learned counsel argued that generally it is the Collector under the Land Revenue Act who proceeds to make recoveries and issue process. Even then he too cannot be held to be the Government. The clause of sub section (2) of section 158, hereinbefore quoted, therefore, does not support the learned counsel for the defendant‑respondent, vis‑a‑vis the ouster of the jurisdiction of the civil Court in the instant case.

7. Another feature to be noticed is that the plaint in this case contained two reliefs. One was regarding the encroachment fee and the other was to issue an injunction to restrain the Municipal Committee from demolishing the alleged encroachment. The Courts below have not adverted to the aforesaid additional claim and nor has it been shown to me as to how the Courts will have no jurisdiction to try the same.

8. The necessary result of the above discussion will be that the judgments and decrees of the Courts below shall have to be set aside and the case shall have to be remanded to the learned Civil Judge for fresh decision in accordance with law. I order accordingly. The parties will be at liberty to raise such pleas on the merits of the case or on other such points which they may wish to raise before the learned civil Court including the point of locus standi. The appeal is accepted in the terms hereinbefore mentioned. The plaintiff‑appellant will get his costs throughout. S. Q. Appeal accepted. Case remanded.