1980 PLP 1647 (CLC)

Dates of hearing : 1 st, 2nd and 3rd March 1980. Haji Wali Muhammad Khan instituted a suit against Deputy Com missioner, Dir defendant No. I and Home Secretary, Government of N.-W. F. P. defendant No. 2 seeking a declaration to the effect that due to the violation of the terms of contract dated 20th August 1970 by the defendants they are not entitled to recover the amount of Rs. 13,40,000 from the plaintiff. As a consequent relief the plaintiff has also prayed for the issuance of perpetual injunction restraining the defendants from recovering the said amount. The suit was contested by defendant No. t D.C., Dir and a written statement was filed on his behalf on 5th January, 1978.

2. On the pleadings of the parties as many as sixteen issues were framed. Issue No. 3 which reads !-- "Whether the plaintiff is liable to deposit - Rs. 13,40,000 under protest prior to the further proceedings in the case" was treated as a preliminary issue and decided by the learned Senior Civil Judge, Dir at Timargara by his order dated 27th June. 1978 in favour of the plaintiff. This order has been impugned by the defendants by filing the present revision petition. The trial Court was of the view that though the suit amount was recoverable as land Revenue by virtue of section 65 of the Basic Democracies Order, 1959 but as the Land Revenue Act was extended to the State to which the contract relates in 1974 much later than the date of contract as such the provisions of section 91 of the W. P. Land Revenue Act, 1967 laying down as a condition precedent the deposit of money where after its liability to pay could be challenged in Court were not attracted to the facts of the case and the suit was to proceed without the deposit of the disputed amount. Vide contract dated 20th August 1970 entered into between the parties Haji Wali Mohammad Khan the plaintiff was authorised to realise the octroi duty on import and export of goods in and out of Dir District for a period of one year from 13th April, 1970 to 12th April, 1971 in lieu of payment of a sum of Rs 27,70,000 by way of instalments. However, the people of Mian Kili, Jandool, Gosam and Khazana refused to pay the octroi duty which was brought to the notice of the defendants, who did not take any appropriate actions in the realisation of the octroi duty. In spite of this the plaintiff paid Rs, 14.30,0100 to the defendants and his not liable to pay the suit amount.

3. Learned counsel for the defendant petitioners contend that under Article 65 of the Basic Democracies Order 1959 which was extended to Dir State in 1969 the suit amount claimed by the local council is recoverable as arrears of land revenue. Further it was averred under sec tion 91 of the W.P. Land Revenue Act which was also extended to the area now the District of Dir, in the year 1974, no suit can be instituted about an amount recoverable as arrears of land revenue in a civil Court challeng ing the liability of its payment until it is first paid under protest made in writing; that although the W. P. Land Revenue Act was not applicable to the area when the contract was entered into but it was in the field when the suit was instituted on 26th April 1976 and it being a procedural law will have retrospective effect.

4. In order to appreciate the point involved calling for determination it will be of advantage to reproduce Article 65 of the Basic Democracies Order, 1959 (hereinafter to be referred as the Order) :- Art. 65.-(1) Unless otherwise provided, all taxes, rates, tolls and fees levied under this Order shall be collected in the pres cribed manner by the village revenue officials responsible for the collection of rent or land revenue. (2) All arrears of taxes , rates, tolls, and fees and other money claimable by a local council under this Order shall he re coverable as a public demand or as arrears of land revenue. (3) Notwithstanding the provisions of clause (2), the Govern ment may empower any local council to recover arrears of taxes, rates, tolls, fees and other moneys claimable by the counsel under this Order by distress and sale of the 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. Now Sub-Article (2) of Articles 65 lays down that all taxes etc. and other moneys claimable by a local council under this Order shall be recovered as a public demand or as arrears of land revenue. It was vehemently contended, by the learned counsel for the plaintiff-respondent that the suit: money which is being claimed by the defendant-petitioner moneys is neither covered by the taxes etc. under the Order nor is money claimable by a Local Council under the Order but is at the worst a demand arising out of the breach of a contract entered into between the parties. Article 60 of the Order empowers the District Councils with the previous sanction of the Government to levy taxes, rates, tolls and fees as mentioned in the Fifth Schedule. None of the. twenty-nine items enlisted therein relates to the money recoverable duel to the breach of a contract. Although the parties had entered into a contract whereby the plaintiff-respondent was authorised to realise the octroi duty on import and export of goods about Dir District yet: this would not render the disputed' amount to be moneys claimable by a local council under the Order, those are the amounts levied under 1-ifih Schedule and are directly payable by the assessees to the local conacil cinder Article 65 of the Order. There cannot be two opinions that Sub-Article (2'e of Art 65 of the Order only deals with the moneys claimable under the Order, In the instant case the plaintiff-respondent u lessee is not liable to pay the suit amount under the Order but he has challenged the liability to make further payment as envisaged by the contract agreement. The term "moneys claimable. under the Order" refers to the amount which can be fevered by a local council tinder the terms of the Order and cannot be extended to include the money due' from a person who has been leased cut the realization of the octroi duty,'' under a contract agreement. Leasing out of realisation of octroi duty may be a permissible activity but it is not an activity imposed by they Order and as such money due in breach of the contract does not! become money claimable under the Order. In this view of mine I am fortified by an authority reported as Sardar Mohammad and another v. Chairman, Town Committee, Sadigabad (P L D 1962 B J 8) wherein their Lordships of the Division Bench were pleased to hold that rent or lease money of the property owned by a Town Committee is not the money claimable under the Order, In the same tenor is another authority from the High Court of Baluchistan reported as Haji Syed Habibullah and another v. The Munici pal Committee, Quetta through The Administrator, Municipal Committee, Quetta and another (P L D 1977 Quetta 71.) wherein it has been held that lease money or any other rent is not money claimable under section 38 (2) of the Municipal Administration Ordinance X of 1960.

6. For what has been discussed here before the realization of octroi duty was sublet to the plaintiff-respondent through a contract agreement and the disputed amount was being demanded due to the alleged breach of the contract as such it does not fall within the phrase "moneys claimable by a local council under this Order" and is not recoverable as arrears of land revenue.

7. The other question whether the W. P. Land Revenue Act would be applicable retrospectively in view of the above finding has become of academic interest and need not be answered. The revision petition fails and is therefore, dismissed with no order as to costs. Petition dismissed.