1986 PLP 141 (CLC)

TANZIL‑UR‑REHMAN, J.‑‑ These are three Constitutional Petitions involving the same facts and law; hence we will dispose them of by this judgment.

2. The facts leading to these petitions are that: Pakistan Burmah -Shell Limited, Jamia Industries Limited and Messrs Caltex Oil (Pakistan) Limited, who are the three petitioners respectively, are public limited companies engaged in storage of lubricants and petroleum etc. and have their installations in Keamari. In the middle of year 1972, the respondents Nos. 3 and 4 designated the said installations of the petitioners as 'Key Point' under Civil Defence (Special Powers) Rule, 1951 made under the Civil Defence Ordinance, 1951 and continued under the 'Civil Defence Act, 1952) and directed the petitioners to take various measures by way of Civil Defence and over and above the said measures, the respondents Nos.3 and 4 posted at the said installations of the petitioners Police Guards comprising several Head Constable and Police Constables on or about 22‑7-1972, on their own initiative and without any request made therefor by the petitioners. After lapse of about several years the petitioners were served with the demand from the respondent No. 2 to pay expenses incurred by the respondent No.2 on posting the said guards at the installations of the petitioners. The first of such demand was made in the year 1976 and thereafter, running into lacs of rupees, from each of the petitioners. The petitioners protested against the said demand but to no avail. The said demands were repeated and were frequently coupled with a warning that if the payment was not made the matter will be reported to Government for withdrawal of guards at the risk of petitioners. The petitioners time and again protested to the respondents against the levy of said cost but with no result and respondent No.2 persisted in its demand. Ultimately, in or about 1984, the petitioners received notices under section 81 of the West Pakistan Land Revenue Act, 1967 whereby the petitioners were asked to pay various amounts within 15 days as arrears of land revenue. The petitioners, therefore, filed appeals under section 161 of West Pakistan Land Revenue Act but the same were dismissed as premature. The petitioners then filed their objections before respondent No.l, who dismissed the same holding that it was not within his competence to do anything in the matter. The petitioners then having no remedy filed the above petitions under Article 9 of the Provisional Constitutional Order, 1981 read with Article 199 of the Constitution of Pakistan, 1973.

3. We have heard Messrs Noor Muhammad, Amjad Hussain and G.M. Qureshi, learned counsel for the petitioners in all the three petitions respectively and Mr. Abdul Sattar A. Shaikh, learned Additional Advocate‑General for the respondents.

4. The main arguments were advanced by Mr. Noor Muhammad learned counsel for the petitioner in Petition No. 919 of 1984 which were adopted by the other two learned counsel, who also made their short submissions on facts of their cases. The following contentions were raised on behalf of the petitioners:‑ (1) The demand is beyond the purview of the Civil Defence Act, 1952, read with Civil Defence (Special Powers) Rules, 1951, (unamended). (2) The Notification amending the Rules on 11‑7‑1979 is ultra vires to the provisions of the Civil Defence Act, 1952. (3) In case, it is held that the amendment to Rules by notification dated 11‑7‑1979 was not ultra vires the procedure as laid down in rule 12 as amended, was not followed and complied with. (4) There being no adjudication of the demand, the recovery of the various amounts as arrears of land revenue is without lawful authority.

5. The Civil Defence Act, 1952 is an Act to provide for powers to secure the Civil defence of Pakistan which includes measures, not amounting to actual combat, for affording defence against any form of hostile attack by a foreign power or for depriving. any form of hostile attack by a foreign power by its effects wholly or in part the, where such measures are taken before, during or after the time of the attack: Section 2 of the Act gives powers to the Federal Government to frame such rules as appear to be necessary or expedient for securing the Civil Defence of Pakistan, which include providing or prohibiting any thing likely to assist the energy, the control of trade or industry for the purposes of regulating or increasing the supply of articles of any description whatsoever which may be used in connection with the civil defence making provisions of storage and maintenance of commodities and material required for conduct of civil defence, and taking measures for preventing and dealing with outbreaks of fire and for requisition and acquisition of property for the purpose of Civil Defence. Section 3 provides that ordinary avocation of life is to be interfered with as little as possible. Section 6 provides for compensation for property requisitioned or acquired. The compensation will, however, be determined by an Arbitrator, subject to the provisions of subsection (1) of section 23 of Land Acquisition Act, 1894. It also provides for the right of appeal. to the High Court. Section 8 provides for release from requisition. Section 9 provides for delegation of powers under the Act.

6. Civil Defence (Special Power) Rules, 1951 made under the Civil Defence Ordinance, 1951, which continued under the Act XXXI of 1952, as in force at the relevant time, inter alia, provided for the appointment of members and officers of civil defence service, their functions and dismissal (rules 4, 5 and 6). Rule 7 provides that Central Government or Provincial Government may, by order in respect of any articles or substances from the explosive or inflammable nature of which special precautions are in the opinion of that Government necessary or expedient for securing. the public safety, issue directions prohibiting the keeping such articles or substances in or such premises as may be specified in the order for protection of persons or property therein or thereon. or in, the vicinity thereof, for any incidental or supplementary matters for which that Government thinks it expedient for the purposes of the order to provide, including in particular the entering and inspecting the premises to which the order relates with a view to securing compliance with the order. Rule 8, provides for watching of premises, to detect fire and for requiring the occupiers of any premises to which the order applies to make and carry out such arrangements as may be specified in the order with a view to securing that fires occurring at the premises as a result of hostile attack. Rule 9 provides for measures for dealing with outbreak of fire whereas rule 10 provides for security of building and rule 11 provides for protection of major ports and their environs against fire etc. Rule 12 provides for the protection of factories and mines. Rule 14 provides for powers of requiring local authorities to take precautionary measures. Rule 15 provides for maintenance of water supply. Rules 19 and 20 provide for control of lights and sounds and of motor vehicles. Rule 21 relates to requisitioning of property and rule 22 makes provision for powers relating to storage and accommodation of any warehouse, cold storage, depot to place at the disposal of Government.

7. The Defence of Pakistan Act, 1952, and the Rules made thereunder give powers to the Central and Provincial Government to take necessary measures for protection of life and property of the persons for the purposes of civil defence with a direction that such measures will make as little interference as possible in the ordinary avocations of life and in case of acquisition or requisition of the property for the purposes of civil defence compensation shall be paid:

8. Following the observations made by the Supreme Court in Abdul Latif v. Government of 'West Pakistan P L D 1962 S C 384 "that a right construction of the 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 axe taken into consideration", the scheme of the Civil Defence Act 1952 and the rules made thereunder do not contemplate imposition or levying of expenses incurred in the process of protecting the public life or the property except recovery of cost in cases for which measures are to be taken or completed by the Government for person who has been ordered under sub‑rule (1) of rule 7 to take the measures but has failed to take it, and in case of the protection of major ports against fire, the funds of the port authority may be applied to the payment of charges and expenses incidental to such compliance of the orders relating to the protection of such ports. The levy of the costs of police guards posted at the installations of the petitioners on the Government's own initiative seems to be beyond the provisions of the Act and Rule as they stood before 11‑7‑1979. It appears that the Government being conscious of this legal position sought to amend rule 12 of the Civil Defence Rules in 1979 which, for the first time, provided for the posting of a policed guard at a factory, mine or key‑point and the expenses relating thereto were to be born by the owner of the factory, mine or key‑point.

9. We, therefore, are of the View, that the respondents Nos. 3 and 4 had no power to demand any cost of the police guard posted at the installations of the petitioners from 1972 to 10‑7‑1979, as there, seems to be no provisions in the Act and the rules made there under' for it, but the legal position after the amendment of rule 12 on 11‑7‑1979 has undergone a change, inasmuch as the. Central Government or Provincial Government in case of factories and mines on its own motion or on a report submitted to it under sub‑rule (3‑A) by an order require the owner, manager or occupier of any mine. or occupier or manager in factory to make report in writing stating the measures which he‑has taken or proposed to take to secure the safety of persons and property therein and in the vicinity thereof, in the event of an outbreak of fire whether caused by accident or otherwise. It also provides that the Central Government or Provincial Government may take such measures necessary to secure the safety of persons and property in the event of outbreak of tire. It would be relevant to quote rule& 3‑A and 3‑B newly added by the above amendments to rule 12. "3‑A. The person inspecting a factory, mine or key‑point shall:‑ (i) If he was authorised by the Federal Government, submit a report to the Federal Government; (ii) if he was authorised by a Provincial Government, submit a report to the Provincial Government concerned and a copy thereof to the Federal Government and (iii) furnish a copy of the report to the owner or manager of the factory, mine or key‑point.3‑B.On receipt of the report, or a copy of the report under sub‑rule (3‑A), the Federal Government may pass such orders as it thinks fit which shall be final, and if the orders are to post a police guard at the factory, mine or key‑point it shall request the Provincial Government concerned to post a police guard at the factory, mine or key‑point for which period as may be specified, and the expenses relating thereto shall be borne by the owner of the factory, mine or key‑point."

10. It is evident from the sub‑rules quoted above that the Government, for the first time, has provided for the expenses relating to posting of police guards at the factory, mine and key‑point to be borne by the owner of the factory, mine and key‑point. But it has provided therein that it can be done on the receiving of a report from person inspecting the said factory, mine or key‑point so authorised by the Federal Government or Provincial Government. The order to post police guard at the said installations of the petitioners as admitted by the learned Additional Advocate‑General of Sind, was not passed on report of any authorised person inspecting the installations of petitioners in persuance of the amendment nor any such report was supplied to the petitioners. It can, therefore, be legitimately concluded that condition precedent for passing order under sub‑rules (3‑A) and (3‑B) for posting of police guard at the installations of the petitioners was not in accordance with law. In fact no such order was placed on record by the learned Additional Advocate‑General. Furthermore, the order, if any, had so specify a period for which the posting of guard was considered proper. It appears that the police guards continued posted permanently since 1972 with no specified period.

11. We are, therefore, of the view, that the claim of the expenses for posting police guard at the installations of the petitioners is without lawful authority as the procedure provided in rule 12, as amended on 11‑7‑1979 was not followed.

12. Learned counsel for the petitioners have lastly contended that the recovery as land revenue is also without lawful authority as there has been no adjudication of the sum due, Mr. Noor Muhammad has placed his reliance on a number of decisions reported as Abdul Latif v. Government of West Pakistan .and others P L D 1962 S C 384; Government of West Pakistan and others v. Abdul Majid and another PLD 1963 Kar. 653; State Bank of Pakistan v . K . D . A . P L D 1967 Kar. 216; Province of West Pakistan v. Muhammad Ayub Khuhro P L D 1967 Kar. 673; Constructions Limited Karachi v. Executive Engineer Indus Bride Division West Pakistan P.W.D. Thatta and another P L D 1975 Kar. 1059, Messrs Pakistan Pipe and Construction Co. Limited v. City Mukhtiarkar Karachi P L D 1985 Kar. 28; Muhammad Akber Cheema v. The Province of West Pakistan and another 1984 S C M R 1047 and Dr. Bashir Ahmed Malik v. Government of Sind and 2 others 1984 CLC 2694. In the first above‑mentioned case the main issue requiring determination was, whether D.C. of Peshawar was entitled to recover from the appellant a sum of Rs.7,484 alleged to be due on account of deficiencies in remittance and shortage of stamps etc. as an arrears of land revenue, without giving him opportunity to question the correctness of the said alleged liability. It was observed that the revenue Act provides first a procedure for determination of land revenue and gives machinery for realisation of such revenue. It is, therefore, manifest that before an operation of the machinery section for realisation of arrears, the authority concerned must decide whether there is an arrear due or not. In January 1958 without any notice to the appellant the Treasury Officer `prepared a statement showing deficiencies in remittances and shortage for stamps etc. The Deputy Commissioner in issuing order faithfully followed the information conveyed to him by the Treasury Officer without giving the appellant an opportunity to meet the allegations made against him. The procedure adopted to say the least was against all principles and canons of justice fairplay.

14. In the second above‑mentioned case of a Division Bench comprising of Qadeeruddin Ahmed and H.T. Raymond, JJ. of the erstwhile West Pakistan High Court Karachi Bench, it was observed by Raymond, J. who wrote the judgment, that as dues claimed by the Government from the other party were not fixed, determined and established, they cannot be recovered as arrears of land revenue from such party. It was further observed that the statement of account, filed by the Government was at the most a statement of claim made by the Government upon the party: This claim having been denied and disputed by the party cannot amount to a certificate as envisaged by section 149 of Sind Land Revenue Code, 1879. Referring to the case of Abdul Latif v. Government of West Pakistan, mentioned hereinabove, and applying the observations to the facts of the case, the learned Judges agreed with the submission of the learned counsel that unless the amount of loss or damages caused by his client to Government had been fixed or determined, proceedings under the Land Revenue Code against him would not lie. This decision is, however, distinguishable to the facts of the present case as it related to the amount of loss or damages caused to the Government. In any case, the principle enunciated in the judgment applies to the present case as well.

15. In the third case Qadeeruddin Ahmed, J., following the earlier Division Bench decision reported as Government of West Pakistan v. Abdul Majeed hereinabove, of which he was a member observed as follows: ‑ "It is relevant to consider here that the Revenue Law under which the defendant proposes to proceed against the plaintiff contains provisions under which disputes relating to land revenue recoverable under that law can be adjudicated upon and determined because the method of recovery in terms of the revenue law comes into operation after the adjudication of disputes. The above quoted provisions of section 147‑A merely provide a method of recovery. It is presumed in them that the amount which is sought to be recovered by that method has been found to be due. In these circumstances, the defendant has first to get its claim duly adjudicated so that it assumes the form of 'dues'. The steps for recovering the dues can be taken after. such adjudication only."

16. In the fourth case, Qadeeruddin Ahmed, J., as he then was, observed that so long as the claim of the defendant was not converted into established dues, section 6 of Foodgrain Nationalisation Board Act, 1951 is not meant to be utilised for recovery of the dues as arrears of land revenue as provided do Sind Land Revenue Code, 1879. It was thus held by him that before a claim can ripen in the dues a determination is to be reached in accordance with law of justice. The claim made by the plaintiff in the suit for the recovery of the amount could not be converted into foregone decision in favour of the plaintiff by using the notification of the 16th of October, 1965, issued under section 3 of West Pakistan Dues Recovery Ordinance, 1962.

17. In the fifth case, a learned Single Judge of this Court reiterating the view, expressed in the decisions referred herein that before the machinery setup for realisation of arrears can be put into motion it was necessary to decide whether there was anything due or not and that this must be done in accordance with canons of justice and fairplay. In other words, the amount merely conceived by the claim to be due, could not be recovered as arrears of land revenue. It was, therefore, held that in the absence of any opportunity to show cause the demand was against the principles of natural justice.

18. In the sixth case, a Division Bench of this Court, comprising of Naimuddin and Fakhruddin H. Shaikh, JJ., held that the claim of respondent No.2 was disputed on several grounds and, therefore, unless the same was determined and established the amount of claim cannot be recovered as arrears of land revenue.

19. In the seventh case, the Supreme Court observed that the notification itself provides for the recovery of all cases of "ascertained dues payable to Government" and, therefore, the machinery provision of the Revenue Act could only be set into. motion after the claim against the appellant had actually ripened into due and determined on the basis of same deduction in accordance with law and justice.

20. The last case cited by Mr. Noor Muhammad is again of a Division Bench of this Court comprising of Naimuddin and K.A. Ghani, JJ., Naimuddin J., referring to the earlier judgment reported as Messrs Pakistan Pipe and Constructions Co. Limited v.. City Mukhtiarkar Karachi and another P L D 1984 Kar. 28 held that the demand made by the impugned notice without determining the amount in any proceedings is without lawful authority and, is, therefore, of no legal effect.

21. We may also refer to a case reported as Zakaria A. Bhawani v. City Deputy Collector, Karachi P L D 1974 Note 122 at p.177 where in Fakhruddin G. Ibrahim, J., as he then was, concluded that under section 31 of Investment Corporation of Pakistan Ordinance only dues could 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 or established by competent Court of Law.

22. Mr. Abdul Sattar A. Sheikh, learned Additional Advocate‑General in reply to the various contention raised by the petitioner contended only that the respondents were otherwise entitled to claim the expense: under section 14 of the Police Act, 1861. In this respect, he referrer to rules 2.12, 2.13, 10.21 and 10.22 of the Police Rules, 1934. We are afraid, the contention is entirely misconceived for more than one reason. Firstly, it has never been the case of the respondents Nos. 3 and 4 that they have posted the guards under the Police Act and secondly, the amount has not been claimed on the basis of scale as per rules relied on by the learned Additional Advocate‑General. In fact, the demand made by the respondents includes the fixed pay and other allowances including, ration allowance, house rent allowance, rest and recreation allowance, dearness allowance, washing allowance, clothing allowance and equipment allowance and other contingencies and contribution towards leave and pension, as if they were the regular employees of the petitioners. Admittedly, the various amounts claimed for the petitioners to which total amount come to Rs.26,43,262.58 in the three petitions, were never determined or established in accordance with law and justice by any authority competent to do so. The Civil Defence Act and Rules made thereunder do not provide for any machinery for determining the amount of expenses incurred on posting of police guards at factories, mines and key‑points. Since the amounts have not been fixed or determined or 'established by any competent authority they are to be established through competent Court of law. In the absence whereof the amounts of expenses cannot be recovered as arrears of land revenue.

23. The upshot of the discussion is that the notices of demand impugned in the petitions are declared as issued without lawful authority and are null and void. The petitions are, therefore, allowed, with no order as to costs, as it is not pressed by the petitioners. A . A . Petitions allowed.