2009 PLP 1464 (CLC)

MUZAFFAR ALI, J.

The subject-matter under revision pertains to recovery of the suit amount as arrears of land revenue through recovery Magistrate respondent No.1, and wrapped with the facts that the petitioner is a Government Contractor entered into a contract with the respondent No.3, later on he was declared liable for recovery of suit amount and the respondents Nos.3 and 4 claimed recovery of suit amount from the plaintiff, but the plaintiff did not comply the claim, hence the respondents 3 and 4 approached respondent No.2 (Deputy Commissioner) vide letter No.206/73/516A and in response, the respondent No.2 directed the defendant No.1 through letter No.J.28/4927-28/93 to recover the suit amount from the petitioner as arrears of land revenue. The plaintiff/petitioner felt aggrieved of the above method and evoked the aid of Civil Court by filing the Suit No.114 of 1995 but failed to get any legal help from the Civil Court as his suit was dismissed. He went to the Court of District Judge, Gilgit against the dismissal order passed by the learned Civil Judge but in vain, hence this revision before this Court against the concurrent findings of both the lower Courts. I heard the learned counsel for the parties and learned A.A.-G., at this stage, I feel it pertinent to note and appreciate the able assistance of the learned A.A.-G. who assisted me on the core legal issue involved in the case more properly than that of the assistance extended by both the learned counsel for the parties. I have gone through the impugned judgments and also perused the record of the case with the assistance of the learned A.A.-G. and found that both the learned Courts below have failed to determine the real and core issues involved in the case and have taken cognizance to decide the matter on merits leaving aside the issues which call into question (a) the legal sanction behind the procedure adopted and action taken by the respondents to recover the alleged dues from the petitioner and (b) whether the respondent No.2 is competent to simply direct the respondent No.1 (the recovery Magistrate) to recover the alleged due amount from the petitioner as if the same is arrears of the land revenue. The above issues may be answered after going through the Land Revenue Act and other relevant enactments i.e. "the Government Dues Recovery Ordinance (XXII of 1962)" (hereinafter called "Act" and "Ordinance" respectively). The relevant section 114 of the "Act" is hereunder reproduced. Section

114. Other sums recoverable as arrears of land revenue.

In addition to any sums recoverable as arrears of land revenue under this Act or any other enactment for the time being in force, the following sums may be so recovered, namely; a, b, c, . (relevant (f) Such further sums as the Government may consider necessary to recover in public interest." This section of the Act gives a way to recover other Government dues to be recovered as if the same are arrears of land revenue but the section is not exhaustive in its nature and does not provide procedure and competent authority vested with the power to declare the amount to be recovered as arrears of land revenue, this lacuna in law has been covered by the "Ordinance" as its sections 1, 2 and 3 provide procedure and competent authority in this regard, so the sections are reproduced as under:

Section 1 Short title, extent and commencement.

(1) This Ordinance may be called the Government Dues Recovery Ordinance, 1962.

2. It extends to all the provinces except the Special Areas. Section

2. In this Ordinance unless the context other wise requires, the following expressions shall have the meanings hereby respectively assigned to them, that is to say:

(a) "defaulter" means a person from whom any dues are recoverable by Government, and includes person who is responsible as surety for the payment of any such dues; and (a) "Government" means the Government of the Province concerned. 3. (1) Government may, by notification, declare that any dues or class of dues recoverable by Government shall be recoverable from the defaulters as if such dues were arrears of land revenue. (2) On the publication of a notification under subsection (1) any such dues shall be recoverable under the Revenue Recoveries Act, 1890 (Act of 1890) as arrears of land revenue. The plain reading of the above relevant provisions reveals, that any dues or class of dues recoverable by Government are recoverable from the defaulters as if such dues are arrears of land revenue but after publication of the notification by the Government declaring the dues as if the same are recoverable as arrears of land revenue. In this context, Government "means respective Provincial Government" and the outstanding amount must be payable to the respective Government itself, after that the Recovery Officer may take cognizance to recover the due amount from the defaulter but in compliance with the special procedure laid down in "Ordinance". The above discussion gives a clear picture on the subject that no officer or authority other than the Provincial Government is competent to declare any Government dues as if the same are recoverable as arrears of land revenue, since the Northern Area has special status and does not fall within the ambit of Constitution of Pakistan as such it is being governed by "The Northern Areas Governance Order 1994" (hereinafter called Order) wherein the Provincial Government has been defined in clause "j") of section 2 as under:

"Provincial Government" means the (Chairman) the (Chief Executive,) and the Chief Secretary, Northern Areas; Hence the above authorities and nobody else are competent to issue such an above notification. Admittedly, in the instant case, the Deputy. Commissioner, Gilgit District (respondent No.2) has issued directives to the Recovery Magistrate, vide letter No.J.28/4927-28/93 who figures no where in the relevant laws as such his directives are without jurisdiction and void ab initio and the respondent No.2 may be asked and subjected to inquiry by the Provincial Government on the point that under what law he assumes the powers of Provincial Government, while the "order" defines the above authorities to be Provincial Government for Northern Area. Indeed, the respondent No.2 has posed himself to have powers which he does not possess, but in my opinion the lower Courts have committed more gross negligence and showed their ignorance of law by not taking judicial notice of the above illegal and without jurisdiction action taken by the administrative authorities. The Courts of law are the only resort through which a hopeless individual, deprived of his rights, by the administrative authorities, because of their authoritative and being above law attitude, may come back to state of hope, when the judiciary prevent the administrative officers from taking the law in their hands and lead them to take course of law in its true sense. In the case in hand both the Courts below have failed to exercise their supervisory jurisdiction rather they have sanctioned the void ab initio actions and orders without jurisdiction issued by the respondents Nos.1 and

2. Hence the lower judiciary in the area is being warned and directed to be vigilant in future in such cases where administrative authorities deal individuals in resort of coercive methods but in violation of relevant laws. The last but not the least issue involves in the case is, that in the instant case the dues are allegedly due to the Army and the Army in Pakistan is under Defence Ministry and the Provincial Government of Northern Area has no link with as such whether the dues recoverable by the Army posted in the area may be interpreted to be the dues payable to the Provincial Government Northern Areas, but I leave this question of law without determination, as it would be determined when a competent authority of the Province, declares such dues to be recovered as if they are recoverable as arrears of land revenue in future. The upshot of the above discussion is that, the revision petition is accepted by setting aside the concurrent findings of the Courts below and the proceedings before the respondent No.1 are declared to be void and he is directed to restrain from taking any action against the petitioner. The Judicial Branch of this Court is directed to supply copies of this judgment to the lower judiciary in Northern Area for further guidance. H.B.T./11/Glt. Petition accepted.