2003 PLP 1021 (CLD)

DOST MUHAMMAD KHAN, J.

This single judgment/order shall cover the instant petition as well as Writ Petitions Nos.1042 of 2002 and 1052 of 2002 because common questions of law arid facts ale involved in all the three writ petitions.

2. The brief facts are that the petitioners of the instant petition and the above connected petitions have obtained loans facility from the respondent-Bank (hereinafter called as the A.D.B.P.) to the tune of Rs.25,000 and 1,00,000 each under the policy formulated /prescribed by the A.D.B.P. to meet the needs of the farmers in calamity affected areas and the loans were, therefore, advanced to them through the local Branches of the A.D.B.P.

2. There is no denial of the fact that the areas to which the petitioners belong like other parts of the country have been affected very seriously by the drought for the last three years. The petitioners have availed the financial assistance from the concerned Branches of A.D.B.P. (ibid) by April, 2000, as stated in the petitions, but could not pay back the said amount within the supplanted period due to the depraved weather conditions prevailing in the areas.

3. The President of Pakistan keeping in view the drought prevailing in the different parts of the country and the burden of loans on the small farmers, therefore, announced a relief package giving them concession in the e-payment of loans and marks-up etc. obtained from the A.D.B.P. The A.D.B.P. vide Circular No.RD/01/2002 dated 22-5-2002 issued by the Recovery Division of A.D.B.P., Islamabad announced the relief package wherein the eligibility criteria was mentioned and it was in response to the Chief Executive Secretariat Directive No.5(3)SO(C-2)/2002, dated 7-5-2002.

4. The N.-W.F.P. Government of Revenue Department vide Notification No.303/81-A/Flood/Relief(Drought)2K-2, dated 10-5-2002 declared the areas to which the petitioners belong to be calamity hit areas for the period from Kharif, 2000 to Rabi, 2000-2001. The notification was amended through corrigendum dated 27-8-2002 bearing No.3582/81-A/Flood/Relief (Drought) 2K-2 and the period was thus substituted by 1st July, 2001 to 30th June, 2002.

5. The Managers of the concerned Branches and the Zonal Head of the A.D.B.P. are putting their own interpretation on the above corrigendum amending the original notification issued by the Government of N.-W.F.P. and, therefore, have issued coercive processes against all the petitioners in the instant petitions for forcible recovery of the loans alongwith marks-up etc.

6. We have heard the learned counsel for the parties at considerable length and have gone through the record which is available with all the three writ petitions.

7. The only/sole point of legal proposition involved in all the three petitions is as to whether the corrigendum bearing No. 3582/81-A/Flood/Relief(Drought)2K-2, dated 27-8-2002 issued by the Government of N.-W.F.P. in the Revenue Department has any retrospective effect and whether the petitioners can be allowed the benefit, if any, accruing to them under the said amendment or not.

8. No doubt the first notification declaring the areas to which the petitioners belong is with regard to the drought/ calamity hit areas for the period from Kharif, 2000 to Rabi, 2000-2001 but, as mentioned above, it was amended through the ibid corrigendum which is still effective and is not challenged either on merits or on any other legal ground, therefore, the question of interpretation of the notification and its retrospectively is to be seen as it is the only moot point in all the three petitions.

9. The Corrigendum was issued on 27-8-2002 but from its contents it is clear and crystal that in essence it has been given retrospective effect because the period computed for the purpose of calamity and drought is from 1st July, 2001 to 30th June, 2002. This, corrigendum/notification is of a kind/type which confers benefit on the petitioners who are drought affectees which fact is not denied by the respondents/A.D.B.P. By now it is well settled principle and proposition of law which has assumed a permanent status beyond the access of denial that notification which either takes away the existing rights or creates new liabilities is always prospective and not retrospective while notification which confers benefits on the individual/individuals or class of individual is always taken retrospective.

10. The apex Court has laid down authoritatively the said principle of law in the case of Messrs Army Welfare Sugar Mills Limited and others v. Federation of Pakistan (1992 SCMR 1652) which principle was reiterated and re -approved in the case of State Bank of Pakistan v. Messrs Faisal Spinning Mills Limited (1997 SCMR 1244) and again the above principle of law was re-endorsed in the case of Anoud Power Generation Limited and others v. Federation of Pakistan and others (PLD 2001 SC 340). In the former two cited cases the law enunciated by the apex Court is to the following effect:-- "Notification operates prospectively which purports to impair existing or vested rights or creates new liabilities or obligations but a notification which purports to confer benefits then this course is not legally permissible and it will operate. retrospectively."

11. While respectfully following the dictum thus laid' down by the apex Court time and again, we are left with no other option but to hold that the corrigendum/notification dated 27-8-2002 being beneficial to the petitioners/farmers has taken effect retrospectively and is applicable with full force to the case of the petitioners in all the three writ petitions and their cases are amply covered by the same and they are entitled to take benefits of it. The denial on the part of the respondents/A.D.B.P. to extend the benefit of the same to the petitioners is, therefore, an act coram non judice, without jurisdiction and without lawful authority and, therefore, is not sustainable. Accordingly, the warrants of arrest/ attachment and any other coercive action taken against the petitioners in the instant three writ petitions are equally without lawful authority and of no legal effect and the petitioners are entitled to the relief granted by the President of Pakistan through the announcement of the relief package and incorporated in Circular No.RD/01/2002, dated 22-5-2002 issued by the respondent/A.D.B.P. through its Director of Recovery at Islamabad. In view of the above, therefore, all the three writ petitions are accepted in the terms stated above and all the petitioners who have availed loan/finance facilities up to Rs.25,000 are entitled to .the write off/remission of the entire outstanding principal amount and interest/mark-up thereon while the petitioners who fall within the third category and who have availed the loan/finance facilities' from A.D.B.P. up to Rs.1,00,000 are entitled to hundred percent remission of outstanding amount of interest/ mark-up provided the principal amount is re-paid by them to the A.D.B.P. within a period of two months at the most which shall either be in lump sum or in instalments. With the above observations, all the three writ petitions are accepted with no order as to costs. C.Ms. also stand disposed of accordingly. S.A.K./698/P Petitions accepted.