P L D 1967 Karachi 673 (PLP)

Reading the three sections together, the learned Assistant A. G. drew the conclusion that any claim which was notified under section 3 of the West Pakistan Government Dues Recovery Ordinance, 1962; becomes the amount due and recoverable by the Government, like a public demand the recovery of which can be enforced under section 3 of the Revenue Recovery Act, 1890 by stating it in a certificate and sending it to a district other than that in which it was originally payable. Mr. Haleem emphasised the provision contained in subsection (3) of section 3 of the Revenue Recovery Act, 1890, and said that the demand which is sent in terms of section 3 of the Revenue Recovery Act, 1890, becomes, under that section like an amount which has accrued due in the district to which the demand has been sent. When proceedings are taken against a defaulter under section 3 of the Revenue Recovery Act of 1890 for the recovery of an amount stated in the certificate, he is bound to pay it irrespective of any disputes that he may like to raise with regard to his liability to pay such amount. He can raise such disputes after making the payment by instituting a suit for the repayment of the amount so paid or a part thereof.

6. Mr. Muhammad Haleem said that the proceedings which have teen commenced against the defendant are not anything peculiar to this case, because similar notifications have been issued by the Government with respect to other classes of dues also. He therefore referred to the Gazette of West Pakistan, Volume I, dated the 16th of November 1952, which is reproduced at page 95 of P L D 1963: Provincial Notifications. The subject‑matter of the Gazette, on which counsel relied, is as follows :‑ "In exercise of the powers conferred by subsection (1) of section 3 of the West Pakistan Government Dues Recovery Ordinance, 1962 (Ordinance No. XXII of 1962), the Governor of West Pakistan is pleased to direct that the following classes of dues recoverable by the Government shall be recoverable from the defaulters as if such dues were arrears of land revenue‑ (a) Dues recoverable by the Agriculture Department, on account of‑ (i) sale of seeds, fertilizers, implements, gunny bags and fruit plants; (ii) hire charges of tractors and agricultural machinery; (iii) charges of boring and installation of tube‑wells. (b) Dues recoverable by the Forest Department, on account of-- (i) advances made to contractors and disbursers; (ii) excess payment made to contractors, staff and labour; (iii) rent of buildings, shops and lands not covered by Forest laws and rules made thereunder; and (iv) sale of commodities other than forest produce. (c) Dues recoverable by the Animal Husbandry Department, on account of,‑ (i) rent; (ii) sale of farm products, milk and milk products, trees, livestock, drugs and instruments and biological products; (d) Dues recoverable by the Fisheries Department, on account of auction of fishing rights."

7. A reference to above notification will show that dues recoverable by the Agriculture Department on account of sale of seeds, fertilizers, etc; by the Forest Department on account of advances made to contractors, etc; by the Animal Husbandry Department on account of rent, sale of farm products, ate; and by the Fisheries Department on account of auction of fishing rights have been declared to be recoverable from the defaulters as if such dues were arrears of land revenue. The interpretation of this notification, according to Mr. Muhammad Haleem, is that all the classes of the `dues' that have been included in the above notification are immediately recoverable by the 'process of the land revenue department, irrespective of what amount maybe named by the department to be due and of the, party who may be declared to be liable to pay it. This contention would indicate that the `dues' which were not payable on the date of the notification but would accrue is the future and would become payable in the future have also become due and immediately payable to an indefinite limit of amount, without specification of the patties, and without restriction on the period to which they might relate. This indefiniteness was pointed out by me to Mr. Muhammad Haleem; but he said that, in view of the provisions contained in sections 3 and 4 of the Revenue Recovery Act, 1890, the interpretation of a notification issued under section 3 of the West Pakistan Government Dues Recovery Ordinance, 1962, should be that any claim mentioned or any class of claims mentioned in such a notification is to be immediately recovered as an amount due and recoverable.

8. I enquired from Mr. Muhammad Haleem as to how subsection (1) of section 3 of the West Pakistan Government Dues Recovery Ordinance, 1962 could convert a claim into an amount due and recoverable in terms of the language of that provision because that provision merely says that the Government may by notification declare that any "dues" or "class of dues" recoverable" by it shall be recoverable as arrears of land revenue. The manner and the method of recovery is provided in that provision but there is nothing in it to show as to how an amount or class of amounts claimable by the Government are con verted into dues recoverable by the Government. Mr. Haleem's reply was that there was no procedure for the ascertain ment and determination of a claim as an amount due, but it was unnecessary that such a provision should have been made because the intent and the object of the law was that any claim or demand of the Government notified under section 3 of the West Pakistan Government Dues Recovery Ordinance, 1962, should be recovered as the amount due and recoverable through the process of the Revenue Department with the proviso that the person who was aggrieved could file a suit for the refund of any amount which is disputed by him.

9. It appears that the contents of sections 3 and 4 of the Revenue Recovery Act of 1890 are interpreted by Mr. Muhammad Haleem as being capable; of converting an amount claimed into an amount due; but section 3 serves the purpose of transferring an amount found due by the Revenue Department in one district for recovery to another district. The district where a demand is sent has to proceed to ace on the transferred demand as if it bad accrued due in that district although, in fact, the dues were not found sand established under the Land Revenue Code in the transferee district. In spite of the fact that the dues were found and established under the Land Revenue Code in the district of origin, a person who disputes it in another district is given the liberty to question it by filing a suit against it. What is forgotten in the argument which has been adopted by Mr. Muhammad Haleem is that a demand which is made under the Land Revenue Code is firstly found and established in terms of that Code and thereafter proceedings for its recovery commence. The Supreme Court has noted this aspect of the matter in Abdul Latif v. Government of West Pakistan (P L D 1962 S C 384 at 393) as follows :‑ "It must be remembered that a right construction of the Act (the Punjab Land Revenue Act) can only be attained if its whole scope and object, together with an analysis of its wording and the circumstances in which it is enacted are taken 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 mechinery for realisation of such revenue." This aspect of the Land Revenue Code is forgotten when it is contended that a demand sent from one district to another under section 3 of the Revenue Recovery Act of 1890 is treated as an amount due and recoverable without its previous determination by a competent authority. .

10. Mr. Dingomal has referred to the unreported Judgments delivered on Original Side of this Court in Suit No. 169 of 1953, and in Letters Patent Appeal from that Judgment bearing No. 3 of 1960. In that case the question for decision was whether an amount claimed by the Sind Food-grains Nationalisation Board could be treated as an amount due and recoverable as arrears of land revenue or not. The relevant discussion in the Judgment given on the Original Side of this Court by me on which counsel has relied, is as follows: "Section 6 of the Foodgrains Nationalisation Board Act, 1951, is as follows :‑ `Notwithstanding anything contained in any law for the time being in force, the Government may recover the dues of the Board from the Agents as arrears of land revenue as provided by the Sind Land Revenue Code, 1879'. The language of the section shows that the defendant (Province of West Pakistan) was entitled only to recover the dues of the Board from the plaintiff as arrears of land revenue, but the pro cedure for determining the dues of the Board, is not prescribed in the law. The condition precedent for the application of this section is that there should be existing dues. Counsel for the defendant contended that claims made by the defendant could be treated as dues and could be recovered under the section as arrears of land revenue: He contended that if this was not the meaning of the provision, then the section would be a dead Letter, because the agents could always dispute the correctness of the defendants claim and escape the application of the law. I think that this view of the provision is not correct because the manner of the recovery of dues only has been provided and it follows that so long as the claim of the defendant was not con verted into established dues the section was not meant to be utilised. Why the law did not provide for determination of the dues is not relevant because the absence of such 3 provision may be a lacuna in the law from which it cannot be argued that the clear meaning of the section should be enlarged. Counsel for the defendant contended that there was no lacuna in the law because the manner of determining the dues was meant to be proved by agreement between the defendant and the agents. If it is so, then the contention of counsel that the meaning of the word `dues' is to be enlarged for giving efficacy to the section loses its force. Counsel is right to the extent that the provisions of the agree ment show that they were intended to confer large powers on the defendant. The powers, however, that have been conferred by the agreement cannot be given the force of law. Moreover, as pointed out above, neither sub‑clause (1) of clause 3 nor sub‑clause (2) of clause 11 confer the authority on the defendant to compel the plaintiff to pay the claims of the sellers and on his refusal to recover the amount claimed by the sellers as dues of the Board under section 6 of the Act. I think that the provisions of sub‑clause (2) of clause 3 conclusively establish that the plaintiff had the right to dispute the claims of the sellers, because the payments that were to be made by him were entirely on his own responsibility. The defendant's adjudica tion of their claims on the ground that the plaintiff's refusal to pay might saddle the defendant with the responsibility to pay them, exposes the defendant's plea to the objection that such adjudication by it could not be fair. In these circumstances the party with an adverse interest would be the judge to decide disputes between the sellers and the agents. Such a situation must be avoided, and I think it does not arise on correct interpretation of the provisions of the contract. Both the issues are accordingly decided against the defendant and in favour of the plaintiff." The Province of West Pakistan, who was the defendant in the suit, preferred a Letters Patent Appeal, which was dismissed and the Letters Patent Bench consisting of Wahiduddin Ahmed and Farooqui, JJ. while dismissing it observed as follows :‑ "With regard to the second contention of the learned A. A: G. that the defendant was entitled to recover the claim as arrears of land revenue, it is significant to note that section 6 of the Act only entitles the Government to recover the dues of the Board. "Dues" cannot, in our opinion, mean any claim which may be made by the Board or the Govern ment. The word `dues' has been defined in Wharton's Law Lexicon to mean "that which law or justice requires to be paid or done." Therefore, before a claim can ripen into `dues' a determina tion has to be reached in accordance with law or justice. There is reference in section 6 to the Bombay Land Revenue Code of 1879, according to the provisions of which the dues of the Board from the agent have to be recovered as arrears J land revenue. Section 149 of the Bombay Land Revenue Code provides that a statement of account certified by the Collector shall for the purposes of this chapter (which relates to realization of land revenue) be conclusive evidence of the existence of the arrears of the amount of land revenue due and of the person who is the defaulter. It is only upon the receipt of such a certified statement that it becomes lawful for the Collector to proceed to recover the demand as arrears of land revenue. But before such a certificate is granted under section 149 there is an elaborate procedure which has to be followed for the determination of the land revenue. A determination in this regard by a Subordinate Revenue Officer is subject to appeal or revision."

11. It will be seen from an examination of section 3 of the West Pakistan Government Dues Recovery Ordinance, 1962, that unless the expressions "dues" and "dues recoverable" are taken to be synonymous with "claim" and "demand" the view pressed by Mr. Muhammad Haleem cannot be sustained. He, therefore, categorically stated that his stand was that they were synonymous. To my mind, there is a vast difference between the meanings of the words "claim" and "demand" on the one hand the expressions "dues" and "dues recoverable" on the other hand. The difference has been brought out in the extracts of the two judgments which have been reproduced above. I, there fore, hold that the claim made by the plaintiff in this suit for the recovery of an amount cannot be converted into a foregone decision in favour of the plaintiff by using the notification of the 16th decision October 1965, issued under section 3 of the West Pakistan Dues Recovery Ordinance, 1962.

12. Mr. Muhammad Haleem next contended that even if the plaintiff could not recover the amount claimed in the suit by using the process of the Revenue Department, the dispute raised by the defendant in this regard cannot be adjudicated in this suit because such adjudication is outside the scope of the plaintiff's suit. Counsel explained that the suit of the plaintiff is for the recovery of Rs. 50,124 as arrears of rent. It was instituted on the 4th of February 1959; whereas the notification on which the plaintiff now . relies for purposes of using the process; of the Revenue Law was made later on the 16th of October 1965, under section 3 of the West Pakistan Government. Dues Recovery Ordinance, 1962. As the statute on which the Government relies as well as the notification which has been issued under that statute came into existence after the institution of the suit, they cannot according to counsel, be treated as falling within the scope of the suit. The reply of Mr. Dingomal to this argument is that the plaintiff has filed the present suit to get a finding that the amount of Rs. 50,124 claimed by it is the amount due and recoverable by it. That claim is still awaiting final adjudication. In these circumstances, an attempt to circumvent the suit and to recover the same claim as an amount established to be immediately re coverable, is an action which directly affects the decision of the suit and the. pleadings of the parties which are before this Court. In these circumstances, the action should be treated as an attempt to defeat the defence raised by the defendant by a circuitous method. It cannot therefore be said to be outside the scope of the suit. The stand of the defendant is that the circuitous method that has been adopted is contrary to law; therefore, he has the right to apply to this Court for restraining the plaintiff from adopting that method to defeat the right of the defendant which is the subject‑matter of this suit. I am inclined to agree with the view that the subject‑matter of this application is not outside the scope of the suit.

13. In view of the above discussion I am led to the conclusion that this application should be accepted. I, therefore, order that the plaintiff will refrain from recovering the amount of Rs. 50,124 claimed by it in this suit from the defendant as arrears of rent by using the process of recovery under the Land Revenue Code, until the decision of the suit. K. M. A. Petition accepted.