1984 PLP 2048 (CLC)

(ii) for a further declaration that the sum of Rs. 12,92,967.79 sought to be recovered by the defendants as arrears of land revenue pursuant to section 31 of the I. C. P. Ordinance, 1966 is not due in law as contemplated by section 31 of the I. C. P. Ordinance, 1966, and that the demand and proposed action for recovery of the aforesaid sum as arrears of land revenue by compulsory proceedings under the Land Revenue Act, 1967 is misconceived, illegal, unlawful, without authority and of no legal effect; (iii) for a permanent injunction restraining the defendants from taking any action for recovery of the aforesaid sum of Rs. 12,92,967.79 as arrears of land revenue under the West Pakistan Land Revenue Act, 1967.

7. The case of the plaintiffs as stated in paragraphs 14 and 15 of the plaint is that the demand of defendant No. 1 for Rs. 12,92,967.79, and the threatened action for recovery of the said amount as arrears of land revenue by defendant No. 2 by coercive proceedings under the Land Revenue Act, 1967 is illegal, unlawful, without lawful authority and jurisdiction and of no legal effect, inasmuch as the amount of Rs. 12,92,967.79 sought to be recovered as arrears of land revenue by defendant No. 2, at the instance of defendant No. 1 pursuant to section 31 of the I. C. P. Ordinance, 1966, is not due payable in law as contemplated by section 31 of the I. C. P. Ordinance, 1966. The stand of the plaintiffs is that the expression "all sums due" appearing in section 31 of the I. C. P. Ordinance, 1966 are only those sums which are determined or established as due by a competent Court of law.

8. It is submitted that section 31 of the I. C. P. Ordinance cannot be availed of for recovery of an alleged amount unless the amount allegedly due has been established in accordance with law and, therefore, the proposed action of the defendants for recovery of alleged dues as arrears of land revenue under the West Pakistan Land Revenue Act, 1967 is misconceived and not maintainable in law until such time as the alleged dues have been established in accordance with law.

9. We may stated that only 7‑3‑1976, a learned Single Judge had recorded the statement of the learned counsel for the parties which reads as follows :‑

"(1) Mr. Mansoor Ahmed Khan states that the plaintiff took loan for Rs. 10,00,000 from the defendant in respect of which a loan agreement 6‑8‑1970 was executed. It is Annexure "A" to the plaint. (2) Pursuant to the said loan agreement the plaintiff executed debenture Trust Deed dated 21‑9‑1970, in which United Executors and Trustees Company Ltd., were named as Trustees under the Trust Deed. It is Annexure "A" to the counter‑affidavit dated 30‑9‑1970, filed on behalf of the defendant in the proceeding under Order XXXIX, in suit. (3) Annexure "B" to the counter‑affidavit is the statement of account showing a liability of the plaintiff amounting to Rs. 10,32,967.79 which includes the principal amount under the debenture trust deed and the interest after the adjustment of certain repayments in instal ments received. The statement gives the full picture of the amount from day to day the Annexure "C" to the affidavit is the application made by the defendant to the Collector of Land Revenue, Karachi, "Deputy Commissioner South" in which a certificate for the defen dant's dues was given and the Collector re‑adjusted to release the same as arrears of land revenues under section 31 of the Land Revenue Act of I. C. P. Ordinance. The application to the Collector dated 19‑7‑1975 addressed to the Collector and the extent of the I. C. P. Ordinance showing as to what section 31 of this Ordinance is. (4) Supplementary affidavit by the defendant dated 15‑10‑1971 Photo stat copies of the debenture script has been filed. (5) The plaintiff issued the same debenture scripts and acknowledgment of debenture loan of Rs. 10,00,000 and that debenture script show the terms and conditions, on which the loan was taken and also the mortgage created under the debenture trust deed. (6) The defendants have stated their position in the counter‑affidavit dated 30‑9‑1975 and that it being a debenture loan no determination by the Court under section 31 is necessary. Mr. Liaquat Merchant Advocate states that he agrees with the aforesaid statement of Mr. Mansoor Ahmed except that‑

(1) Statement of account filed by the defendant alongwith their counter affidavit referred to above is denied. (2) That the application filed by the defendant with the Collector Land Revenue was heard without notice to the plaintiff."

10. We have heard Mr. Liaquat Merchant learned counsel for the plaintiffs and Mr. Mansoor Ahmed Khan learned counsel for defendant No. 1.

11. The learned counsel for the plaintiffs submitted that unless the amounted claimed on the suit by defendant No. 1 is admitted, or established and determined m a Court of Law it could not be recovered as arrears of land revenue, by defendant No.

2. He submitted that a claim could ripen into dues after determination in accordance with law and in the present case the amount claimed by defendant No. 1 is only a claim as it is not determined in accordance with law so to call it as dues. In this connection he relied on Abdul Latif v. The (government of West Pakistan and others (P L D 1962 S C 384), Government of West Pakistan and others v. Abdul Majid and another (P L D 1963 (W P) Kar. 653), State Bank of Pakistan v. Karachi Development Authority (P L D 1967 Kar. 216), The Province of West Pakistan v. Muhammad Ayub Khuhro (P LID 1967 Kar. 673), Karachi Flour Mills Union and others v. Province of West Pakistan and others (P L D 1968 Kar. 810), Zakaria A. Bawany v. City Deputy Collector, Karachi and 2 others (P L D 1975 Kar. 1008) and Constructions Ltd. Karachi v. Executive Engineer, Indus Bridge Division, West Pakistan P. W. D. Thatta and another (P L D 1975 Kar. 1059) and two unreported decisions of this Court in C. P. No. D‑13 of 1976, Messrs Pakistan Pipe & Construction Ltd. v. City Mukhtiarkar Karachi East and another and Writ Petition No. 304 of 1975 Ark Ocean Lines Limited v. The Director of Industries & Mineral Development (Coal Control Wing) and the City Deputy Collector, Karachi. He particularly laid much emphasis on the case reported in Constructions Ltd. Karachi v. Executive Engineer, Indus Bridge Division, West Pakistan P. W. D. Thatta and another which is a case in respect of section 31 of the Investment Corporation of Pakistan Ordinance, 1966 (hereinafter called the Ordinance of 1966).

12. On the other hand, it is submitted by Mr. Mansoor Ahmed Khan that in this case the amount claimed was determined in accordance with the provisions of section 30 of the Ordinance of 1966 and, therefore, it became the amount due and could be recovered as arrears of land revenue under section 31 of the Ordinance of 1966.

13. It may be convenient if we may here quote both the sections which read as follows;-- "

30. Power to call for payment before agreed period.‑(1) Notwithstanding any agreement to the contrary the Corporation may, by notice, require any person to which it has made advance or which is otherwise liable to make any payment on any specified date or dates forthwith to repay the advance or make, the payment aforesaid immediately in full, if‑

. (a) it appears to the Board that information false or misleading in any material particular has been given in the application for the advance or the creation of the aforesaid pecuniary liability ; or (b) the person has failed to comply with the terms of any agreement with ' the Corporation ; or (c) there is a reasonable apprehension that the person is unable to pay its debts and liabilities or may go into liquidation ; or (d) the property pledged, mortgaged, hypothecated or assigned to the Corporation, as security for the advance or the said pecuniary liability, is not insured or kept insured by the person to the satisfaction of the Corporation or has, in the opinion of the Board, depreciated in value and further security to the satisfaction of the Board is not given. (2) On the giving of such notice the entire advance or the aforesaid deferred pecuniary liability shall become immediately due and reliable. (3) Notwithstanding the provisions of any agreement of managing agency and subject to conditions prescribed in this behalf the Corporation may take over through an appointed agent the management of any company in which it has acquired majority shareholding, if the affairs of the company are, in the opinion of the Board, not being conducted in the satisfactory manner and if the share capital of the enterprise has been impaired ; "

31. Recovery of Corporation's dues.‑Without prejudiced to the right of the Corporation to recover its dues in any other manner all sums due to the Corporation shall be recoverable as arrears of land revenue; Provided that no sum shall be so recovered unless fifteen days notice has first been given by the Corporation to the debtor that the sum will be so recovered."

14. Now, it may be stated that it is well‑settled that any amount under an Act declaring the same to be recoverable as arrears of land revenue could be so recovered only, it is determined, if there is any provisions in the Act for determining the same, in accordance therewith and in absence of any such provisions in the Act by a Court of law. All the cases cited by Mr. Liaquat Merchant support this view and there is no case amongst the cases cited by him which lays down that notwithstanding the provisions contained in the Act providing machinery for determination of dues a party must first go to a Court of law for such determination. Such a proposition would be quite repugnant to the Act under which the amount is determined.

15. We may here quote a passage from the judgment of the Supreme Court in Abdul Latif v. The Government of West Pakistan and others. The passage appears at page 393 of the report and reads as follows;

"It is, therefore, manifest that before the operation of the machinery section for realisation of the arrears, the authority concerned must decide whether there is an arrear due or not."

16. In the present case the stand of the learned counsel for defendant No. 1 is that the amount has been determined in accordance with the provi sions of section 30 of the 1966, Ordinance, if it is so, then the amount has become due and it could be recovered as arrears of land revenue in accordance with the provisions of section 3 t of the 1966 Ordinance.

17. We may however, mention that in Zakaria A. Bawany v. City Deputy Collector, Karachi and 2 others, which was a case decided by a learned Single Judge of this Court, it was held at page 1115 of the report as follows "

15. My conclusion, therefore, is that under section 31 of the I. C. P. Ordinance only dues can 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 a competent Court of law, and the present demand of the I. C. P. being neither, the issue No. 1 answered in favour of the plaintiff." But in this judgment there is no reference to the provisions of section 30 of the 1966 Ordinance. These provisions, it appears, were not brought to the notice of the learned Single Judge as under the provisions of subsection (2A of section 30 of 1966 Ordinance on the giving of notice as mentioned in sub‑section (1) entire advance or deferred pecuniary liability mentioned in subsection (1) become immediately due and realiable. Thus, subsection (2) of section 30 of the 1966 Ordinance itself provides the machinery for determination of the dues. We may here mention that Mr. Liaquat Merchant fairly conceded that in this case the said provisions were not considered. Therefore, this decision will not cover these cases against defendant No. 1 which fall within the mischief of section 30 (ibid).

18. Now, taking up the second point whether the Court can in view of the provisions of rules 4‑A of Order XXXIX, C. P. C. pass successive orders of temporary injunction from time to time. We may here first quote the relevant provisions, which read as follows;

"(4‑A) Injunction to cease to be in force after certain period.

‑An injunction granted by a. Court in a suit which seeks to question the validity or legal effect of any order made, proceedings taken or act done by authority or person, which has been made, taken or done, or purports to have been made, taken or done, under any law which is specified in Part I of the First Schedule to the Constitution of relates to, or is connected with, assessment or collection of public revenue shall cease to have effect on the expiration of a period of six months following the day on which it is made, unless the case is finally decided, or the injunction is discharged or set aside, by the Court earlier. Explanation.

‑In this rule, `Public revenues' includes the dues of any bank owned by the Federal Government or of any Corporation or undertaking owned controlled by the Federal Government or a Provincial Government."

19. A perusal of the above provisions clearly shows that the intention of the Legislature seems to be this that an order of injunction granted by a Court in suit which seeks to question the validity or legal effect of any order, proceedings or act done by any authority or person in relation to any specified law, which has been made, taken or done or purports to have been made. C taken or done under the specified law and which inter alia relates to or is connected with assessment or collection of public revenue which by virtue of the explanation to this rule includes the dues of the defendants, ceases to have effect on expiration of a period of six months following the day on which it was made unless the case is finally decided or the injunction is discharged or set aside by the Court earlier.

20. It is however, submitted by Mr. Liaquat Merchant that the succes sive orders could be passed and there is nothing in the Rule to indicate that order of injunction could not be successively passed after the expiry of each period of six months. This submission is not well‑founded for if the succes sive order could be passed till the final decision of the suit then there was no necessity for introducing this rule in the Code of Civil Procedure as under the existing rules an injunction granted in suit continues till the decision of the suit unless it is granted for a particular period during the pendency of the suit. It is common experience that before introduction of these provisions a party after obtaining injunction use to delay the proceedings and thus making the recovery of public revenue delayed. The object of the Legislature seems that matters falling within the mischief of this rule should be expeditiously decided.

21. After the decision of the Supreme Court of Pakistan in Federation of Pakistan v. United Sugar Mills Ltd. (P L D 1977 S C 397), there remains no doubt as to the view we have taken. In this case his Lordship Muhammad Gul, J. while delivering the opinion of the Full Bench of 5 Judges at pages 406 and 407 of the report observed as follows :‑

"As I look at the matter, the question at the root is to ascertain the Parliament's intendment underlying clause (4‑A) in Article 199 of the Constitution. It was pointed out by the learned Attorney‑General, that the whole object was to put an end to what he described as gross abuse of process of the Court by which enormous sums of money recoverable by the State as taxes are held in abeyance for indefinite period as a result of the stay orders which are generally secured by big industrialists and businessmen to the detriment of public revenues. Indeed, the amount which has accumulated and has become due since the stay was originally granted by the High Court in C. P. 152‑R brings into sharp focus, the rational underlying the amendment. Similarly, in the case of Chaudhry Textile Mills (referred to already), in consequence of the stay granted by the High Court, arrears representing 25 % of the taxes held in abeyance, amounted to Rs. 5,46,650.61. Thus, this was the mischief which the Parliament plainly intended to eradicate by restricting the duration of the interim order issued by the High Court to not more than 60 days. Once we reach that conclusion and were to hold at the same time that the High Court will also have the power to repeat the order for interim relief after the expiry of the previous order, it will reduce the constitutional provision of clause (4‑A) otherwise competently made to a complete force."

22. However, it is submitted by Mr. Liaquat Merchant this decision is distinguishable as the provisions under consideration in this case were clause 4‑A of Article 199 of 1973 Constitution but this distinction is not of much avail for the provisions of clause 4‑A, are almost identical in material respect. We may, for the sake of convenience, quote relevant provisions here. "(4‑A) An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or done by any authority or person ; which has been made, taken or done or purports to have been made taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, assessment or collection of public revenues shall cease to have effect on the expiration of period of sixty days following the day on which it is made, unless the case is finally decided, or the interim order is withdrawn, by the Court earlier."

23. Indeed we are bound by the rule laid down by their Lordships of the Supreme Court.

24. We, accordingly, answer second question referred to us in the negative.

25. In the circumstances of the case we make no order as to costs. M. B. A. Question answered in negative.