P L D 1984 Karachi 28 (PLP)

NAIMUDDIN, J.-This Constitution Petition under Article 199 of the Islamic Republic of Pakistan, 1973 was filed on 8-1-1976, questioning the demand notice dated 22-12-1975, issued by the City Mukhtlarkar, Karachi East, respondent No.

1. The facts giving rise to this Constitution Petition briefly stated, are as follows The petitioners were allotted a plot of land admeasuring 5.00 acres situated in the Kotri Industrial area by the Sind Industrial Trading Estate Limited, respondent No. 2, through allotment letter dated 4-3-1964, at a rental of Rs. 950 per acre per annum. According to the petitioners the area was increased to 5.4 acres by respondent No. 2's letter dated 26-9-1964, and possession of the plot of land was handed over to them on 31-10-1964, and they submitted a building plan to respondent No. 2, in the beginning of 1967, but the same was not approved nor were the facility of ouster and other amenities provided for. The petitioners were awarded two contracts for laying pipe in Kotri Industrial Area under jobs Nos. KT. 19. and KT

25. Respondent No. 2 adjusted a sum of Rs. 10,868.54, being the rent for the period from 1-7-1965 to 30-6-1967, of the plot of land from the petitioner's oustanding bills in respect of the said contracts. Respondent No. 2 served a notice on the petitioners, being No. ADM KT-34-4537, dated 20-7-1970, claiming that the petitioner had contravened clause 2 of Standard Agreement/Licence by not putting the factory building within 12 months from the date of delivery of position of the plot of land and demanding a sum of Rs. 16,673.82, being the alleged arrears of rent. In response to the notice the petitioners through their Advocate's letter dated 6-8-1978, denied, the claim and demand made by respondent No. 2 and pointed out that it was defaulter inasmuch as it bad failed and neglected to accord its approval to the plan for building construction submitted as far back as the beginning 1967 and that it had failed to provide basic requirement such as water facility etc. within reasonable time after the delivery of possession of the land. It was also stated in reply that due to its non-cooperative attitude the petitioners had decided to surrender the plot of land in question subject however, to their rights to recover damages for action on the part of respondent No. 2 and to claim refund of the rent already paid. The petitioners also invited respondent No. 2's attention to their letter dated 29-4-1969, whereby respondent No. 2 was requested to adjust the alleged arrears of rent against the petitioners outstanding bills in respect of the said contracts. Respondent No. 2 by its letter dated 29-9-1971, accepted the surrender of land with effect from 6-8-1970, which was the date of the letter of the petitioners mentioned hereinabove. h however, demanded payment of Rs. 21,359.12 with interest at 9 per cent per annum thereon. The matter rested there for more than 3 years when after coming into force of the Sind Industrial Trading Estate Recovery of Dues Act, 197.3 (Act VIII of 1973), (hereinafter called the Act), respondent No. 2 served upon the petitioners a show cause-notice dated 23-4-1974, under the Act demanding a sum of Rs. 21,339-12 i. e. Rs. 17,172.52 being the arrears of rent and Rs. 4,166.60 being the amount of interest thereon. It would be appropriate, if we here reproduce the relevant provisions of the Act. They read as follows :- "

3. Declaration of dues.-(1) Government may by notification declare that any dues or class of dues recoverable by Sind Industrial Trading Estate shall be recoverable from defaulters as if such dues were the arrears of land revenue. (2) on publication of the notification under subsection (1) any such dues shall be recoverable under the Revenue Recovery Act, 1890 (Act I of 1890) as arrears of revenue. In reply to the show-cause notice the petitioners submitted that they had already surrendered the plot of land with effect from 6-8-1970, and they were not liable to pay any amount on account of rent and that, in any case, they requested that the same be adjusted against their outstanding bills besides pointing out that the claim had become barred by time. Thereafter the petitioners received the following notice from the City Mukhtiarkar, Karachi East, Karachi, impugned in this constitution petition. "Office of The Mukhtiarkar, Karachi East No. HM-E-5-21-9-1975 the Karachi (Notice to the defaulter under section 81, Land Revenue Act, 1967 and Rule framed thereunder). To, Messrs Pakistan Pipe Construction Company Ltd., 419 Garden East, Karachi. You are hereby, required to take notice that a sum of Rs. 23,946.62 SITE Dues, payable by you as the arrear of Land Revenue, has not been paid, unless it is paid within 10 -days from the date of this notice together with the sum of Re. 1 being the fee chargeable for this notice, compulsory proceedings will be taken according to law for the recovery of the whole of the revenue (amount) still due by you, together with an additional penalty not exceeding 1/4 of the said arrears under section 148 of the Land Revenue Code. Dated the 20th day of December, 1975. Detail -of payment. (1) Rent ) Rs., (2) Meter charge ) 23,946 (3) Other charges etc.) 20/0 R. C. Rs. 478.93. Sd. Mukhtiarkar, Karachi East." We have heard Mr. Nizam Ahmed, learned counsel for the petitioners and Mr. Syed Tariq Ali, learned counsel for respondent No. 2: No one has appeared for respondent No.

1. Mr. Nizam Ahmed has raised two-fold contentions before us. His first contention is (1) that the notice under section 81 of the Land Revenue Act, 1967, is illegal as the amount demanded thereby isinot an amount due to respondent No. 2, and (2) that the claim had became time-barred and therefore the amount could not be recovered under the Act. Now, reverting to the first contention it is submitted by the learned counsel for the petitioners that there was only a claim made by respondent No. 2 which was disputed by the petitioners on the grounds ; (i) that no rent was payable as facility of water and other amenities were not provided, (ii) that the claim had become time-barred, (iii) that the peti tioners were entitled to claim damages for non-approval or delay in the approval of the building plan, and (iv) that the petitioners were entitled to adjustment of the rent, if any, against their outstanding bills. He contended that unless the claim of respondent No. 2 was admitted or determined and established in a Court of law it could not be recovered under the Act. In support of the contention he relied ors Abdul Latif v. The Government of West Pakistan and others (1), Government of West Pakistan and others v. Abdul Majid and another (2), State Bank of Pakistan v. Karachi Development Authority (3), The Province of West Pakistan v. Muhammad Ayub Khuhro (4), Karachi Flour Mills Union and others v.; province of West Pakistan and others (5), Zakaria A. Bawany v. City Deputy Collector, Karachi and 2 others (6) and Constructions Ltd. Karachi v. Executive Engineer, Indus Bridge Division, West Pakistan P. W. D. Thatta and another (P L D 1975 Kar. 1059). (1) P L D 1962 S C 384 (2) P L D 1963 Kar. 653 (3) P;L D 1967 Kar. 216 (4) P L D 1967 Kar. 673 (5) P L D 1968 Kar. 910 (6) P L D 1975 Kar. 1008 It is admitted fact that. the .claim of respondent ho. 2 was disputed on several grounds and therefore, unless the same was determined and established the amount claimed could not be recoveredas arrears of land' revenue. In view of the several decisions cited above it is not necessary to state reasons in detail but we would confine ourselves to quote para graph 9 from the decision of a Division Bench of this Court consisting of Qadeeruddin Ahmed and R. T. Raymond, JJ. in Government of West Pakistan and. others v. Abdul Majid and others whichcontains the main reasons and which reads as follows `.- "

9. The third and fourth contentions may with advantage be dealt with together. We have closely examined the. judgment in Suit No. 169 of 1953 and we find that the ratio decidmdi of this judgment is that before any money can be recovered as arrears of land revenue, it is essential that the sum of money to be thus recovered should be determined and established. In fact, it has been stated in this judgment that, a condition precedent to the application of section 6 of the Foodgrains Nationalisation Board Act, 1951, which deals with recovery of the dues of the Board from agents as arrears of land .revenue is that there should be fixing dues which are determined and established. Now, in the instant case, the dues of the Board to be recovered from the plaintiff-respondent No. 1 have not been fixed, determined or established. The statement of account Exh. 27 merely shows the assets and liablities mentioned the figure of Rs. 1,01,695.70 as being recoverable from the plaintiff Haji Abdul Majeed Jatoi; but this amount is disputed and denied by the plaintiff so that, according to us, the total effect of Exh. 27 is that a claim of Rs. 1,01,695.70 is made upon the plaintiff which claim he disputes and denies. It is of importance to pause and reflect here for a moment upon the "lacura" in the Foodgrains Nationalisation Board Act, 1951, which has been pointed out and commented upon by one of us in the judgment in Suit No. 169 of 1953. This lacuna is the omission of any section in this Act providing for the determina tion of the due. Mr. Fazeel in his argument referred us on this point to section 149 of the Land Revenue Code and to section 46 (2) of the Income-tax Act wherein provision is made for a prior determination of this precise amount due from the debtor and the issue of a certificate which shall be "conclusive evidence of the existence of the arrears of the amount of land revenue dues and of the person who is the defaulter." In the Foodgrains Nationalisation Board Act, 1951, there is no such parallel provision to section 149 of the Land Revenue Code or section 46(2) of the Income a tax tact and on account of this lacuna in the Foodgrains Act the dues of the Board from an agent cannot be recovered as arrears of land revenue unless these dues have been fixed, determined and established. On the principle, then of the judgment of this High Court in Suit No. 169!1953 we must hold that inasmuch as the dues claimed by Government from the plaintiff in this case are not fixed, determined and established they cannot be recovered as arrears all of land revenue from him. Besides, in our opinion, the statement of account Exh. 27 is at most a statement of a claim made by Governnient upon the plaintiff. This claim having been denied and disputed by the plaintiff, Exh. 27 cannot, in our - opinion, amount to a certificate such as is envisaged by section 149 of the and Revenue Code of section 46(2) of the Income-tax Act." Dealing with a similar question is Zakaria A. Bawany's case Fakhruddin G. Ebrahim, J. in paragraph 15 of the report concluded as follows :- "My conclusion, therefore, is that under section 31 of I. C. P. Ordinance: only dues can be recovered as arrears of land revenue and since the dues are those which are determined and established, only such amounts would be recoverable as land revenue as are admitted established by a competent Court of law, and the present demand of the I. C. P. being neither, the issue No. 1 is answered in favour of the plaintiff." It may however, be mentioned that there is no provision in the Act to determine the dries. Nor has any such provision in the Sind Industrial Trading Estate Act, 1973 has been pointed out by Mr. Syed Tarid Ali, the learned counsel for respondent No.

2. Now, taking up the second contention it is submitted that the claim of respondent No. 2 was for arrears of rent and under Article 110 of the Limitation Act, the claim could be enforced within three years from the date the rent became due. The rent was being claimed from 1-7-1964 to 6-8-1970. The impugned notice was served on 23-4-1974, the entire claim, it is submitted, had therefore, become barred by time on 6-8-1973, and only that amount could be recovered as arrears of land revenue as is legally due from the petitioners and in this case ...since the claim has become time-barred the amount could not be legally recovered. In support the learned counsel relied on Ashfaq-ur-Rahman v. Chaudhri Muhammad Afzal (1). On the other hand, it is contended by Mr. Syed Tariq Ali, learned counsel for respondent No. 2 that firstly the Sind Industrial Trading Estate is a Department of the Government and the claim had not become barred by time as according to him the Limitation Act does not apply to the Government and secondly, the amount claimed was not rent but only the licence fee and therefore, Article 120 of the Limitation Act applies for which a period of six years was provided. In support of his claim that the Sind Industrial Trading State is Government he relied on Sind Industrial Trading Estate Ltd. Karachi v. Central Board of Revenue and 3 others (2). So far As the first limb of the first argument i. e. the Limitation Act does apply to the Government is concerned it is not correct. It applies to the Government as much as to any other citizen unless of course, its applica tion is excluded under some other law, partly or wholly. See for example. Article 149 of the Limitation Act. See also paragraph 17 of the H. C. Mitra's Indian Limitation Act, 4th Edition, and Appaya v. Collector- (3) and The Secretary of the State v. Municipal Committee of Karachi (4). In the last named case it was held that section 29 of the Limitation Act did apply to the Crown. . As regard the second limb of the argument in reply Mr. Nizam Ahmed pointed out that in the show-cause notice a sum of Rs. 15, 889 was claimed as rent up to 6-8-1970, and in the rest bills (Annexures `I' and `J') to the petitioner, the amount claimed therein was on account of rent as mentioned therein. Therefore, it is argued that it was only the rent which was claimed by the respondent. However, in the view that we have already taken on the first groun we need not go. into the question as to which Article of the Limitation Act applies to claim and leave it for determination by the Court in which the proceedings for recovery of the amount are filed, if respondent No. 2.is so advised, We therefore, declare that the notice dated 22-12-1975, is without lawful authority and is consequently of no legal effect. We however, leave the parties to bear their own costs. M. z. M. Petition dismissed. (1) P L D 1968 S C 230 (2) P, L D 1975 Kar. 129 (3) 1 L R 4 Mad. 155 (4) A I R 1931 Sind -55