1975 PLP 207 (SCMR)

MUHAMMAD AFZAL CHEEMA, J.‑Civil Petitions for Special Leave to Appeals Nos. 32‑P, 33‑P, 39‑P and 57‑P of 1974 are connected matters having the same background and involving common questions of law and are also directed against the same order of a Division Bench of the Peshawar High Court, dated 6‑12‑1973, by which their appeals were dismissed. They are, therefore, being disposed of together.

2. The controversy in these petitions centres round the enhancement of duty on timber brought into Hazara District from the forests in the former Frontier States and Frontier Regions. Vide Notification No. 47453‑/DDN, dated 22‑9‑1951, the Governor N. W. F. P. enhanced the duty on such imported timber from Annas ‑/4/‑ to Rs. 2 per cubic foot in exercise of the powers vesting in him under the provisions of Forest Act, 1927 and Hazari Forest Act, 1936. The petitioners or in some cases their predecessors‑in -interest who were all "Timber Merchants instituted civil suits in the Court of the Senior Sub‑Judge, Peshawar, challenging the legality of the enhanced levy. On 16‑1‑1953, the plaintiffs' application for a temporary injunction restraining the Provincial and the Central Governments, defendants in the suits was dismissed by the trial Court. However, a second application for the release of 9,000 logs of the plaintiffs' timber lying in various depots was allowed subject to the deposit of duty on the enhanced rate in the name of the Secretary, D. D. as Amanat, with the direction that it shall not be appropriated by the Government till the decision of the suit. Accordingly, the plaintiffs deposited various sums of money in the Government Treasury between 13‑9‑1,952 and 16‑10‑1957 and obtained the release of the consign ments of timber. Subsequently, it appears that on account of some technical difficulties, the suits were withdrawn with permission of the Court to file fresh suits which were instituted on 8‑4‑1953. A legal objection was taken on behalf of the respondent Government to the maintainability of the suits in the form in which they were instituted particularly without claiming refund of the amount deposited by the plaintiffs at the enhanced rate. This plea which formed the subject‑matter of issue No. 4 was upheld.. Issue No. 8 struck on the merits of the case was also found against the plaintiffs and the impugned Notification was held to be in order and unexceptionable. The suits were accordingly dismissed. Feeling aggrieved, the plaintiff -petitioners preferred appeals in the Court of the Judicial Commissioner of the N: W. F. P. It appears that during the pendency of the appeals, some negotiations were held between the plaintiff‑petitioners and the Government and presumably, on some commitment made on behalf of the Government, the appeals were withdrawn on 12‑4‑1958 by ‑Moving ex paste applications in Court. It was stated by the plaintiff-petitioners that they had already obtained the redress of their grievance. It would be pertinent to observe in this context that no undertaking was given on behalf of the defendant Government in Court which permitted the withdrawal of the appeals under Order XXIII, rule 1 of the C. P. C. It appears, however, that the settlement between the plaintiff-petitioners and the Government could not be finalised and the negotiations alternatively fell through with the result that the plaintiffs brought fresh suits for the third time, wherein they prayed only for the recovery of the specific amounts already deposited by them as duty and which on the withdrawal of the earlier suits had been appropriated by the Government. The pleadings of the parties crystallized into following issues:‑ (1) 1s the suit within time (2) Is the suit barred as res judicata? (3) Did the plaintiff' incur the loss of the suit amount on account of the enhancement of duty on timber" (4)Was the amount in suit deposited as a trust in the Government Treasury? (5) Is the agreement in question not binding on the defendant? (6) Has the plaintiff no cause of action?

3. Having considered the evidence adduced by the parties both oral and documentary, the trial Court dismissed all the four suits with costs. The claim of refund was found to be hit by Article 16 of the Limitation Act, and the contention that the amounts deposited by the appellants in Court and appropriated by the Government were lying as Amanat, was over ruled. It was further held that the 0‑overnment was not bound by the agreement reached between the plaintiff‑petitioners and Agha Nabi Pathan, the then Minister for Forests, which was held to be inoperative and of no legal effect.

4. The judgments of dismissal were challenged by the plaintiff/ petitioners in Regular First Appeals before the High Court, which as stated earlier, were dismissed giving rise to the present petitions.

5. The learned Judges of the High Court took the view that ~in in,‑ third round of litigation which led to appeals before the High Court, the legality of the Notification forming the basis of the enhanced levy was not challenged, and that the plaintiff‑petitioners had withdrawn their appeals from the Court of the Judicial Commissioner under Order XXIII, rule 1, C. P. C. without permission to file fresh suits in respect of the same cause of action. The finding of the trial Court that the amounts sought to be recovered were no longer lying as Amanat in the Court, was upheld and the appropriation of the amount by the Government was found to be valid and unexceptionable. The contention raised on behalf of the petitioners that the impugned Notification was subsequently rescinded by the Government of West Pakistan in 1961, was overruled by the learned Judges on the basis of section 4 of Ordinance X of 1962, which was of the widest possible amplitude and validated all dues levied or collected and even those intended or purported to have been levied or collected by the Government. It was on these considerations that the appeals were dismissed.

6. Learned counsel for the petitioners contended before us that the impugned Notification, dated 22‑9‑1951 was illegal inns ouch as it purported to levy duty retrospectively even on those consignments of timber which had been received within the boundaries of Hazara District long before the notification dated 22‑9‑1951 came into force. The contention could be overruled on the short ground that the contention of retrospectivity was never taken as before and did not form the subject‑matter of an issue. It could not, therefore, be allowed to be raised for the first time before us. It was next contended that the order of the Senior Sub‑Judge, Peshawar, dated 16‑1‑1953 passed on the application of the plaintiff‑petitioners made it abundantly clear that the amounts of duty on the enhanced rate were deposited in the name of the Secretary, D. D. as Amanat till the decision of the Court and the relevant order contained a specific prohibition that they would not be appropriated by the Government till the disposal of the cases. This contention is equally devoid of force and can be ruled out on the short ground that the prohibitory injunction could not out‑live the suits and survive even after their withdrawal. Learned counsel could not satisfy us that the Court while allowing withdrawal of the suit with the permission to file fresh suits had also made any direction for the resurrection of the prohibitory order which died a natural death with the conclusion of the proceedings marked by the withdrawal of the suits. It hardly needs an authority to support the proposition that with the removal of the foundation the entire superstructure collapses. The Courts below were, therefore, justified in taking the view that no exception could be taken to the appropri ation of the amount by the Government. Learned counsel then challenged the interpretation placed by the Courts below on Article 16 of the Limitation Act and its applicability to these proceedings. It was argued that the land Revenue Act prescribed a detailed procedure for the recovery of arrears of revenue which was not adopted in the instant case and no demands were placed against the petitioners. The argument is clearly misconceived. In fact the petitioners never allowed the Government to come to the stage of having recourse to the prescribed procedure. The very legality of the Notification which formed the basis of the enhanced levy was challenged and fortunately for the Government some amounts were already deposited by the petitioners in compliance with the direction of the Court for seeking release of the consignment of timber. The moment the restriction on their appropriation was removed by withdrawal of cases, these amounts were appropriated by the Government and rightly so. To invoke the application of Article 16 of the Limitation Act, the amounts paid and sought to be recovered should be made either in satisfaction of a claim made by the Revenue Authorities on account of arrears of revenue or alternatively it should be on account of demands recoverable as such arrears. Surely under section 56 of the Hazara Forest Act and section 82 of Forest Act XXVIII of 1927, the arrears of duty on timber are recoverable as Land Revenue, as rightly pointed out in the High Court's judgment.

7. Lastly, in order to wriggle out of the liability to pay duty at the enhanced rate an argument was half‑heartedly raised on the basis of the rescission of the relevant Notification, dated 22‑9‑1951 by a subsequent notification, dated 28‑4‑1961. This latter Notification was followed by the promulgation of Ordinance X of 1962 of which section 4 validated all previous duties. 'We have already referred to the very vast scope of this provision b y which even an intended or purported levy also stands fully covered and protected. This argument was rightly rejected by the High Court on the basis of the above‑mentioned validating provision.

8. In view of the foregoing discussion, we find no substance in these petitions, which are hereby dismissed. Leave Refused.