1988 PLP 1421 (MLD)

This is an application under Order XXXIX, Rule 1, C.P.C. moved by the plaintiff praying for interim injunction restraining the Defendants from putting into effect the orders dated 25th March 1984 and 14th April, 1984 till the disposal of the case.

2. The facts of the case in brief are that for the year 1983‑84 the contract for collection of Octroi was taken in open auction by the plaintiff from defendant No. l for Rs.11,72,00,0nG. During the period in question, the sugar was derationed and as such on reference by the defendant No.1, the Government of Sind by their Order dated 9‑8‑1984 directed that the plaintiff be asked to pay an amount of Rs.38,20,363 to KAt.C, failing which the same will be recovered as arrears of land revenue. In pursuance of this direction, the defendant No.1 issued notice to the plaintiff dated 26‑8‑1984 directing them to make the payment or the same shall be recovered as arrears of land revenue as per earlier decision.

3. It is contended by the learned counsel for the plaintiff that under Item 5 of the Schedule of Octroi, octroi was leviable on sugar and by derationing of sugar, no new item was introduced, so as to entitle the defendants to increase the amount of contract. It is also contended, that this decision to increase the amount of contract was taken by the Government without notice to the plaintiff. As such it is against the principle of natural justice. It is further contended, that this amount, if at all due, would be a contractual liability and would, as such, not be recoverable as arrears of land revenue.

4. Mr: S.M. Muslim Naqvi, learned counsel for the defendants Nos.1 and 2, has, however, relied upon condition No.9 of the terms and conditions of the contract, under which the lessee was not entitled to recover the octroi on certain items, including sugar imported by the Food Department, Government of Sind. He contends, that after de‑rationing, the sugar was being imported on private account and as such the octroi was charged by the plaintiff, which amounted to new item, as provided under Clause 24 of the agreement. He has further relied upon Clause 33 of the agreement under which, in case of dispute between K.M.C. and the lessee, the matter shall be referred to the Government and the Government's decision shall be final and binding on both the parties. .

5. Mr. Gulab M. Rang, learned counsel for the plaintiff has produced two Annexures 'D' and `E' to show, that even after derationing, the sugar was being imported in Karachi on Government account.

6. Mr. Muslim Naqvi has relied upon section 64 of the Sind Local Government Ordinance, 1979. Under subsection (1) of this section "all taxes, rates, tolls and fees levied under this Ordinance shall be collected in the prescribed manner by the persons authorised for such collection". Under subsection (2) of this section "all arrears of taxes, rates, tolls and fees etc. and other moneys claim able by a council under this Ordinance shall be recoverable as arrears of land revenue". It is contended, that the plaintiff is a person authorised under subsection (1) of section 64 to collect the taxes and that the moneys claimable from him by the K.M.C. would be recoverable as arrears of land revenue under subsection (2).

7. Mr. Gulab M. Rang, learned counsel for the plaintiff has relied upon 1980 C L C 1647 in which case a learned Single Judge of Peshawar High Court has discussed the meaning of the expression moneys claimable under Article 65 of Basic Democracies Order, 1959. It is stated that Article 65 of the said Order was identical to section 64 of the present Ordinance. The learned Single Judge 1 was of the view, "that the term `moneys claimable under Order' refers to amount which can be levied by the local council under the terms of Order and cannot be extended to include money due from a person who has been leased out the realisation of octroi duty under a contract. Leasing out of octroi duty may be permissible, but it is not activity imposed by order and does not become money claimable under Order. The learned Single Judge had relied upon a D.B. decision of the erstwhile High Court of West Pakistan reported in P L D 1962 B J 8.

8. It is further contended, that the moneys due on contract are not recoverable as arrears of land revenue. Reliance is placed on I' L D 196 7 Kar. 673 wherein a learned Single Judge of this Court had held that "Claims can be recovered as arrears of land revenue only when they are converted into established dues. In P L D 1976 Kar. 610 a Division Bench of this Court has held that Recovery proceedings under Land Revenue Act were available only where amount claimed was due.

9. The contention of the learned counsel for the plaintiffs, that the order was passed without hearing, is not refuted by any counter‑affidavit filed by the Government of Sind. It is contended, that such an order cannot be said to have finally determined the dues against the plaintiff which could be recovered asl arrears of land revenue. Considering all the facts mentioned above, interim stay, as prayed, is granted subject to furnishing security in the said amount by the plaintiff to ther, satisfaction of the Nazir of this Court, within two months. Adjourned to 1‑11‑1987 for filing issues. M.Y.H./C‑47/K Stay granted.