P L D 1952 Lahore 200 (PLP)

Chaudhri Barkat Ali and Mr. Ismat Ullah Khan submitted a joint tender for the lease of 590 acres 4 kanals of land belonging to Government, in Chak Ghagh, to the Colonization Officer, Haveli Project, on the 3rd of May 1945. They offered to pay Rs. 30/8/‑ per acre per harvest as lease money. The tender was accepted the same day by the Colonization Officer. Next day, the tenderers put in a petition alleging a mistake of fact on their part and praying for cancellation of the tender. They repeated the same request by another petition on the 5th of May 1945. On the 25th of May 1945, the Colonization Officer decided to rescind the contract with them in accordance with the published conditions of temporary leas' issued by him. He further directed that fresh tenders be called for the lease. As a result, the lease was ordered to be given to one , Muhammad Khan, who offered Rs. 18/12/‑ per acre per harvest. The new lessee also defaulted in the payment of the advance money due to Government, and the lease was again thrown open to tenders. This time the successful tenderer was one, Sham Das, who offered Rs. 13/8/‑ per acre per harvest. The Colonization Officer then took steps for realization of the short fall as compared with the tender submitted by Chaudhri Barkat Ali and Mr. Ismat Ullah Khan. He issued two certi ficates, one for the realization of Rs. 13,876/12/‑ from Mr. Ismat Ullah Khan and the other for the recovery of Rs. 6,200/4/ from Chaudhri Barkat Ali, as arrears of land revenue. These certificates were forwarded to the Collector of Lyallpur for making the recoveries. Chaudhri Barkat Ali and Mr. Ismat Ullah Khan then brought the two suits, out of which the present appeals have arisen, for a declaration that they were not liable to pay the amounts demanded from them and for injunctions to restrain Government from recovering the sums in dispute. The trial Sub‑Judge, in Chaudhri Barkat Ali's suit, held that the sum of Rs. 6,200/4/‑ was in fact due from Muhammad Khan and not from the plaintiff. He, therefore, granted the declaration asked for by this plaintiff. In the suit of Mr. Ismat Ullah Khan, he recorded the finding that the total sum due jointly from Chaudhri Barkat Ali and Mr. Ismat Ullah Khan being no more than Rs. 13,876/12/‑, the action of the Collector in seeking the recovery of Rs. 6,200/4/‑ from Chaudhri Barkat Ali and the whole sum of Rs. 13,876/12/‑ from Mr. Ismat Ullah Khan was illegal and ultra vires. He further held that out of this latter sum, only half the amount could be realized from Mr. Ismat Ullah Khan. Consequently, he granted a decree to the plaintiff in respect of half the sum, namely, Rs. 6,938/6/‑, and declared that to this extent, no recovery could be made from him. Mr. Ismat Mllah Khan appealed to the learned Senior Sub‑Judge, Lyallpur, and two appeals against the decision of the trial Court were also filed on behalf of the Punjab Province, in that Court. The Court of first appeal thought that certain issues arising in the case had not been framed. The learned Senior Sub‑Judge formulated additional issues and remanded the case under Order 41, rule 25, Civil Procedure Code, to the trial Court for obtaining findings on them. After this order had been complied with, the learned Senior Sub‑Judge dismissed the appeal of Mr. Ismat Ullah Khan, allowed the appeals of the Punjab Province, set aside the decrees passed by the trial Court and dismissed the two suits. The plaintiffs have filed two separate appeals in this Court, against that decision. At the outset it may be noted that a mistake appears to have been made in the office of the Colonization Officer, Haveli Project, while issuing the two certificates for recovery of the amounts involved, against Chaudhri Barkat Ali and Mr. Ismat Ullah Khan. It is not disputed before me that, under the conditions of temporary lease issued by Government, these two plaintiffs were only liable to pay the difference between the lease money calculated according to their tender and that given by Muhammad Khan. This came to Rs. 13,876‑12‑0 in all, recoverable jointly and severally from the two plaintiffs. Similarly, Muhammad Khan was liable for payment of Rs. 6,200‑4‑0 which represented the difference between the amount of money due on his own tender and that of Sham Das. This is clear from an order of the Colonization Officer himself made on a report, submitted to him by the Colonization Assistant, Exh. D. 4, dated the 25th of June, 1945. By some mistake, which is not explained, while issuing the certificates for recover as arrears of land revenue for the sums due, a certificate was issued against Mr. Ismat Ullah Khan alone for the whole sum of Rs. 13,876‑12‑0 and for Rs. 6,200‑4‑0 against Chaudhri Barkat Ali. Nothing, however, has so far been realized on these two certificates. It could not be said, therefore, that the Government has by its own act absolved Chaudhri Barkat Ali from liability. There is still time for adjustments to be made and, even if certificates had been issued against the two plaintiffs individually for the whole amount, the action could not have been objected to, provided the Government did not retain the double payment but refun ded whatever was in excess of the sum due from them. That stage has not yet arrived and the mere act of issuing a certi ficate for the recovery of the total sum due, from one out of the two joint tenderers, cannot lead to the conclusion that the intention of Government was to give up their claim against the other. As has been pointed out by Mr. Mahmud Aziz on behalf of the Provincial Government the Collector has still the opportunity of rectifying the mistake, if any. The sum being demanded from Chaudhri Barkat Ali does not exceed that for which he may have incurred joint liability and, therefore, he does not stand absolved from it. It is conceded on behalf of the appellants that their tender was sought to be revoked after the Collector had accepted their offer. With that acceptance, a complete contract came into being, to which the conditions notified in advance by the Collector applied. No cogent ground has been made out for avoiding that contract. It is pointed out on behalf of the appellants however that according to the conditions of tempo rary lease of Government lands published at page 33 of the Punjab Colony Manual, Volume II, 1942 Edition, and pro mulgated under section 10 of the Colonization of Government Lands (Punjab) Act, 1912 (hereinafter referred to as the Act), no person would be entitled as of right to receive a grant and the Financial Commissioner retained an absolute discretion in the selection of tenants. It is argued, therefore, that no enforceable contract could come into being till the Financial Commissioner had finally selected the tenant. This argument is, in my opinion, devoid of force. That stage would arise sub sequently when the grant is to be actually made to a tenant. The contract 'in this case was complete at an earlier stage, as soon as the tender submitted to the Collector was accepted by that officer, in accordance with the notified conditions even though no tenancy had yet come into existence. The contention was then raised that the Colonization Officer, who has the powers of a Collector under the Act, had no authority to notify the conditions of lease as he did, because they were in conflict with the conditions of temporary lease published by the Punjab Government in the Punjab Colony Manual, Volume II, 1942 Edition (referred to as 'the Manual'. hereinafter). The conditions notified by the Collector are embodied in Exh. D.

2. This document is based on the form of notice for temporary cultivation given at page 17 et seq of the Manual. The latter form includes condition 7 at page 18, which lays down that they offer must be accompanied, when the area applied for is below 250 acres, by a remittance of Rs. 2 per acre and otherwise, by a remittance of Re. 1 per acre, as earnest money, calculated to the nearest whole acre of the area applied fox, This condition finds no place in Exh. D. 2 issued by the Collector. It is argued, therefore, that the conditions embodied in Exh. D. 2 were illegal as they were not authorized by Government. If it is assumed that these conditions were issued by the Provincial Government under section 10 of the Act, then it is clear that, subject to the control of the Financial Commissioner, the Collector had the discretion by a written order, to declare which of the published conditions would apply to any particular transaction of lease. Reference in this con nection may be made to subsection(3) of section 10 of the Act. The Collector, under this provision, was entitled to omit any of the published conditions. The contention advanced, therefore, is without any substance. Clauses 11 and 12 of the notice, Exh. D. 2, issued by the Collector, make a tenderer, who refuses to deposit the advance, in accordance with the relevant conditions, liable to pay the difference between his own tender and the amount for which the lease may be subsequently given on default of the tenderer. It is pointed out that no such condition is included among those printed at page 33 of Volume II of the Colony Manual, purpor ting to have been issued under subsection (2) of section 10 of the Act. It is, therefore, argued that these penal clauses were not relatable to any provision of the Act and section 28 of the Act, which authorizes the Crown to realize inter alia sums due on account of fines, confiscations, costs arid penalties, as if they were arrears of land revenue, would not be attracted to the case. It is further maintained that this section covers only sums payable in respect of a tenancy and not sums due in respect of a contract antecedent to the creation of a tenancy. Mr. Mahmud Aziz, on behalf of the Provincial Government, contends that the first part of section 28, no doubt covers sums due in respect of a tenancy granted in pursuance of the Government Tenants Punjab Act, 1893, or under the provisions of the Colonization of Government Lands (Punjab) Act, 1912, or rules and conditions issued there under, but the latter part of the section, according to him, is more general in character and covers all cases of fines, confiscations, costs and penalties recoverable by virtue of the provisions of the Act or of con ditions issued thereunder, by the Government. This conten tion may be conceded as correct: The question still remains to be decided whether the penalty imposable under clauses 11 and 12 of the conditions notified by the Collector in Exh. D. 2, could be said to have been enforceable by virtue of the provisions of the Act or any conditions or rules notified thereunder. Mr. Mahmud Aziz has taken his stand on the fact that clauses 10/11 at page 17 in the form of notice for tempo rary cultivation given in the Colony Manual, are identical in terms with clause 11/12 of Exh. D.

2. According to him, there fore, it could not be said that the Collector had resorted to an innovation not authorized by Government. The only difference between these clauses that the method of calculation of loss prescribed in clause 11 of the conditions included in the Colony Manual is different from that specified in the Collector's conditions. This, however, does not conclude the matter There is nothing to indicate that the form of notice for temporary cultivation given at page 17 et seq of the Colony Manual, Volume II, had been issued by the Provincial Government under the provisions of section 10 of the Act. This form of notice was evidently authorised not by the Provincial Government as such but by the Financial Commissioner. A copy of the Financial Com missioner's Circular Letter No. 3595‑C, dated the 12th of September, 1942, issued under the signature of the Develop ment Secretary to the Financial Commissioners, Punjab, has been placed on the file in this Court by Mr. Mahmud Aziz. This makes it clear that the form of notice for inviting tenders of lease in the Canal Colonies, had been drawn up under the orders of the Financial Commissioner. At page 17 of the Colony Manual, there is also no indication that this form had been included in the statement of conditions which the Provincial Government could issue under subsection (2) of section 10 of the Act. This is in marked contrast with the fact that at page 33 of the same manual it is distinctly stated that the statement of conditions printed there was being issued in pursuance of the provisions of subsection (2) of section 10 of the Act, by the Governor of the Punjab. It is apparent that the Financial Commissioner or the Development Secre tary to the Financial Commissioners were not purporting to' act as the mouthpiece of the Provincial Government under; the provisions of section 10 of the Act, in issuing this form of notice. It was not issued in the name of the Governor of the' Punjab. It must, therefore, be regarded merely as an adminis trative or executive order issued under the authority of they Financial Commissioner himself. As such it has no statutory; force and I am inclined to uphold the contention that section' 28 of the Act,‑ consequently, is not attracted to these cases. Mr. Mahmud Aziz has drawn my attention to a judgment of Sir James Penny and Mr. J. D. Anderson, Financial Com missioners, Punjab, in Revenue Revision No. 73 of. 1943‑1944, decided by them on the 14th of April, 1944, Chaudhri Hukam Chand v. Crown. In that case certain colony land was leased for temporary cultivation and Hukam Chand tendered for two lots at a certain rate per acre per harvest. His tenders were accepted by the Collector (Colonization Officer, Haveli Project) under clause 10 of the notice issued for inviting tenders. He had to pay within one week of the date of his acceptance of the tender, as advance, a sum equal to the rent for one and a half harvests. He failed to pay it and the lease was rescinded under clause 11 of the notice issued by the Collector and the earnest money already deposited was for feited to Government. Fresh tenders were then called for with the result that they were leased at a considerably lower rate and the loss which resulted to Government in conse quence, after deducting the earnest money, was claimed to be recovered from Hukacn Chand under clause 12 of the notice. Those clauses are in pari Materia with the relevant clauses which we are considering in the present case. The Collector in that case ordered the recovery of the sum due as an arrear of land revenue under section 28 of the Act. The petitioner applied to the Collector for the withdrawal of this order, but his petition was rejected and he was unsuccessful in appeal before the Commissioner. He then sought revision of those orders from the Financial Commissioners. It was argued before the learned Financial Commissioners that section 28 of the Act would not cover such a case. They repelled the contention on the ground that though the petitioner had not vet become a tenant the second hart of section 28 was not gives wide powers to the Collector to effect rectory by summary process, of, sums falling due to Government in the course of administration of land to which the Act had open applied. They held that the sum being claimed by Govern ment was by way of penalty and fell within section 28 of the Act: The question, however, whether the condition under which the penalty was imposed, was one issued under the provisions of section 10 of the Act by the Provincial Govern ment, was not directly or indirectly discussed in that revision case. It cannot be maintained with any show of reason that the second part of section 28 of the Act applies to all penalties, etc., to which the Crown may become entitled, whether under statute or a contract which had no connection with the Act. Mr. Mahmud Aziz concedes that section 28 includes within its purview only such penalties as are imposable by or under the Act. It seems to me that the argument of the appel lant's learned counsel is well‑founded, that unless the penalty is imposable under a condition which has the sanction of the Act behind it, the sum claimed cannot be held to be within the scope of section 28 of the Act and, therefore, could not be recovered as an arrear of land revenue. In the present case it has not been shown that the penalty in question is recoverable by virtue of any provision of the Act or in any rule or condition issued thereunder. Apart from section 10 of the Act, the Collector or even the Financial Commissioner seems to have no power to issue a notice of conditions and even under that section, the Collector's authority is confined to selection out of conditions already issued by Government. The position then is that the penalty claimed in the present cases is not relatable to the Act in any manner. It may possibly be recoverable under the Contract Act by a regular civil suit. Mr. Mahmud Aziz then advanced the argument that sec tion 4 of the Revenue Recovery Act, 1890, prescribed a definite procedure which had to be complied with before a civil suit could be brought, contesting liability of any person to pay a sum demanded as an arrear of land revenue. This section lays down that if the person concerned denies his liability to pay the amount or any part thereof and pays the sum under protest made in writing at the time of payment and signed by him or his agent, he may institute a suit for the repayment of the amount, or the part thereof, so paid. It is, further, provided that such a suit may be instituted in a civil Court having jurisdiction in the local area in which the office of the Collector who issued the certificate, is situate. Here, the Collector, who issued the certificates, resides in Montgomery whereas the recovery was sought to be made at Lyallpur where these suits were instituted by the appel lants. It is, therefore, argued that no payment having yet been made by the appellants, they could not have brought any suit and that in any event, the Montgomery Courts and not the Lyallpur Courts would have jurisdiction to entertain such suits. The answer to this argument is provided by section 7 of the Revenue Recovery Act itself. This section enacts that nothing in the foregoing sections of the Act shall be construed to affect the provisions of any other enactment for the time being in force for the recovery of land revenue or of sums recoverable as arrears of land revenue. If therefore there is any Provincial Legislation existing on the subject, that would be allowed to prevail notwithstanding that it may be in conflict with the provisions of section 4 of this Act. Such a provision exists in the shape of clause (xiv) of subsection (2) of section 158 of the Punjab Land Revenue Act. This is to the effect that a civil Court shall not exercise juris diction over any claim connected with or arising out of the collection by the Government or enforcement by the Govern ment of any process for the recovery of land revenue or any sum recoverable as arrears of land revenue. This takes away the remedy conferred by section 4 of the Revenue Recovery Act so far as the Punjab is concerned. The question then is whether the suits out of which the present appeals have arisen were competent or not. The law is well‑settled that the jurisdiction of general civil Court is not ousted in any matter unless there is express enactment to that effect by the Legislature or the result follows as a necessary intendment of the law. Clause (xiv) of subsection (2) of section 158 of the Punjab Land Revenue Act no doubt bars the jurisdiction of civil Courts with respect to any claim connected with or arising out of the collection by Government or enforcement by Government of any process for the recovery of land revenue or a sum recoverable as an arrear of land revenue. If, however, the person concerned sets up a case that the sum in question was neither land revenue nor a sum recoverable as an arrear of land revenue, I apprehend that the suit could not be shut out of the cognizance of ordinary civil Courts. In such a casa, the Revenue Officer or Courts would really have no jurisdiction and the ordinary Courts can declare accordingly. To that extent the decision by the civil Courts would not amount to an encroachment on their special rights. An order passed by a special tribunal would only be sacrosanct if it is passed with jurisdiction. In that case only, the correctness of the order could not be impeached in the general civil Courts. This view would be in accordance with the provisions of section 9 of the C. P. C. Here the contention is that the sums claimed from the appellants are not really recoverable as arrears of land, in my view, therefore, the suits as brought were perfectly competent. As a result of the above discussion, I am constrained to come to the conclusion that the sums said to be recoverable from the appellants are not within the purview of section 28 of the Act and cannot be realized as arrears of land revenue. I, therefore, allow the two appeals and set aside the orders passed by the Courts below. The suits of the two appellants are decreed. In view, however, of the questions involved in the two cases. I leave the parties to bear their own costs throughout. A. H. Appeals allowed.