P L D 1962 (W (PLP)

ANWARUL HAQ, J.‑This judgment will dispose of Writ Petitions Nos. 12 and 13 of 1961, in which the facts are similar and the same question of law arises.

2. Writ Petition No. 12 is by Sardar Muhammad, while Writ Petition No. 13 is by Mushtaq Ahmad, both of whom are meat‑sellers by profession and have taken on lease shops owned by the Town Committee of Sadiqabad for the year 1960‑61 on a monthly rent of Rs. 250 for each shop (although in the written statement filed in Writ Petition No. 12 the monthly rent is shown as Rs. 400). They did not make the monthly payments as stipulated, with the result that on the 4th of March 1961 the Chairman of the 'town Committee of Sadiqabad (respondent No. 1) filed an application in the Court of the Magistrate 1st Class, Sadiqabad, for the recovery of the amounts out standing against the petitioners in a summary manner. The learned Magistrate considered that he had no jurisdiction to proceed under section 38 (2) of the Municipal Administration Ordinance, 1960 and accordingly he forwarded the applications to the Collector, Rahimyarkhan. The Collector has started proceedings for the recovery of these dues through the Tehsildar of Rahimyarkhan as if they were arrears of land revenue. The petitioners contend that the lease money due from them is not money claimable under the Municipal Administration Ordinance and cannot, therefore, be recovered as arrears of land revenue.

3. A Town Committee is a creation of the Basic Demo cracies Order (18 of 1959) (hereinafter referred to as the Order) as would appear from clause (51) of section 3 of the Order and is included within the definition of the term "local council" as given in clause (24) of the same section. The Municipal Administration Ordinance (Ordinance X of 1960) does not apply as such to the functioning of a Town Committee, but under a notification issued by the Governor of West Pakistan on the 29th of July 1960 and bearing No. SO (BD/25‑19/60, several sections of the Municipal Administration Ordinance, 1960, Including section 38, have been applied mutatis mutandis to all Town Committees constituted under the Basic Democracies Order, 1959. Besides section 38 of the Municipal Administration Ordinance, 1960, there is Article 65 in the Order which deals with the subject of collection and recovery of taxes. The question is whether any of these provisions are applicable in the present case.

4. Section 38 of the Municipal Administration Ordinance runs as follows :‑ "

38. Collection and recovery, of taxes.‑ (1) All taxes, rates, tolls and fees levied under this Ordinance shall be collected in the prescribed manner. (2) All arrears of taxes, rates, tolls and fees and other moneys claimable by a Municipal Committee under this Ordinance, shall be recoverable as a public demand or as arrears of land revenue. (3) Notwithstanding the provisions of subsection (2), the Government may empower any Municipal Committee to recover arrears of taxes, rates, tolls, fees and other moneys claimable by the Municipal Committee under this Ordinance by distress and sale of movable property belonging to the person concerned, or by attachment and sale of the immovable property belonging to him. (4) The Government may by rules specify the officials or classes of officials by whom the power under subsection (3) shall be exercised and prescribe the manner in which it shall be exercised."

5. Article 65 of the Basic Democracies Order, 1959, is to the following effect :‑ "

65. Collection and recovery, of taxes etc.‑ (1) Unless otherwise provided, all taxes, rates, tolls and fees levied under this Order shall be collected in the prescribed manner by the village revenue officials responsible for the collection of rent or land revenue. (2) All arrears of taxes, rates, tolls and fees, anti other moneys claimable by a Local Council under this Order shall be recover able as a public demand or as arrears of land revenue. (3) Notwithstanding the provision of clause (2), the Government may empower any Local Council to recover arrears of taxes, rates, tolls, fees and other moneys claimable by the Council under this Order by distress and sale of movable property belonging to the person concerned, or by attachment and sale of the immovable property belonging to him. (4) The Government may by rules specify the officials or classes of officials by whom the power under clause (3) shall be exercised and prescribe the manner in which it shall be exercised."

6. It will be seen that whichever provision of law is invoked, the essential conditions to be satisfied for recovering the dues as a public demand or as arrears of land revenue is that the dues should belong to one or the other of the categories specified in these provisions. It is clear that the lease money, which is the subject‑matter of the present petitions, does not fall in the category of taxes, rates, tolls and fees and we have, therefore, to determine whether it falls under the omnibus clause "other moneys claimable" under this Ordinance or Order. As the Municipal Administration Ordinance of 1960 does not apply as a whole to the functioning of Town Committees and only a few of the sections, including section 38, have been applied mutatis mutandis, the effect appears to us to be that the money should be claimable under the provisions of the Basic Democracies Order, 1959, which regulates the functioning of Town Committees.

7. We have not been able to discover any provision in the Basic Democracies Order, 1959, which would make lease money of property owned by a Town Committee to be money claimable under the Order. The learned counsel for the Town Committee of Sadiqabad drew our attention to Article 48 of the Order which' describes the constitution of local funds and paragraph (2) (c) of which mentions "all rents and profits payable or accruing to the Local Council from the property vested in or managed by the Council" as forming the content of the local fund. It was contended that as the rents accruing to the Town Committee from the property vested In or managed by it (, they) formed part of the town fund created under the Order, the rents, or in other words, the lease money, must be regarded as money claimable under the Order. We see no force in this contention, for the reason that the term "moneys claimable" under the Order clearly refers to the amounts which can be levied by the Town Committee under the terms of the Order and cannot be extended to include the rent or lease money of the property which a Town Committee is not obliged to own under the Order. There is no provision in the Order which prescribes that a Town Committee shall lease out property and recover rent therefrom in a given manner. The leasing out of property by a Town Committee may be a permis sible activity, but it is not an activity imposed by the Order and the rent due on such property do t, therefore, become money claimable under the Order.

8. For these reasons, we are of the view that the lease money in question cannot be recovered as arrears of land revenue, and the remedy for the Town Committee lies in the ordinary Civil Courts. The two writ petitions, therefore, succeed and are accepted with costs. The order of the Collector is set aside.

9. Before we part with this order, we would like to mention that during the course of arguments we were informed by Mr. Muhammad Saleem Aslam Pirzada, the learned counsel for the petitioners, that the petitioners had filed a civil suit against the Town Committee for a permanent injunction restraining the Town Committee from realising any lease money from them and from ejecting them from the property, and that the suit was still pending in the Court of the Civil Judge at Sadiqabad. We think that the Town Committee would have been well‑advised to await the decision of the Civil Court in that suit, before resorting to coercive measures against the petitioners for the recovery of the lease money in question and we should ask the Civil Court to expedite the disposal of that suit. S. B. /A. A. Petitions accepted.