1992 PLP 1131 (MLD)

SYED ABDUR RAHMAN, J.‑‑‑This is a petition under Article 199 of the Constitution.

2. The facts forming the background of this petition are that the petitioner had on 19‑2‑1986 entered into a contract with respondent No.1 for supply of 1,30,000 meters of blue drill cloth on or before 15‑5‑1986. On 20‑2‑1986 the petitioner wrote a letter to respondent No.1 for extending period of delivery and thereafter repeated the request from time to time but did not receive any reply from it. Respondent No.1 cancelled the contract of the petitioner by letter, dated 16‑6‑1986 in an arbitrary manner and asked him to pay a sum of Rs.1,20,152.93 as risk‑purchase amount. The petitioner disputed the claim of respondent No.1. Respondent No.1 instead of filing a suit for damages for breach of contract and getting his dues established directed the respondent No.2 to recover the aforesaid amount of Rs.1,20,152.93 as an arrear of land revenue. Respondent No. 2 accordingly served the petitioner on 20‑9‑1986 with a notice under section 81 of the Land Revenue Act, 1967, which according to the petitioner was illegal, without lawful authority and of no effect. Hence the petition, with following prayers:‑‑‑ (1) Declaration that notice of demand, dated 17‑9‑1986 from the respondent No.2 at the instance of respondent No.1 for recovery of Rs.120,153.93 on account of claim arising out of the breach of the contract and deduction of sum of Rs.13,352.50 and Rs.16,360 (Rupees 29,712.50) from legal dues of the petitioner by the respondent No.3 ‑at the respondent No.1 against their disputed undetermined claim is without lawful authority and of no legal effect. (2) To restrain the respondents from taking steps towards recovery of the disputed undetermined and un-established claim, which is not the dues in a manner otherwise than in due course of law. (3) Any other writ of direction, this Hon'able Court may deem fit and proper in circumstances of case."

3. The respondents did not file any counter‑affidavit, objections or parawise comments to the petition.

4. We have heard Mr. Muhammad Maqsood, Advocate for the petitioner and Mr. Ahmed Yousuf Ali Rizvi, Advocate for respondent No.1.

5. Mr. Muhammad Maqsood has contended that the above notice under section 81 of the Land Revenue Act served by respondent No.2 on the petitioner is illegal as the amount demanded thereby is not an amount "due" to respondent No.1. He submitted that unless the claim of the respondent was admitted by the petitioner or determined and established by judicial process, it could not be recovered as an arrear of land revenue under the Act. We are clear in our minds that there can be no cavil with the above proposition of law, which is well‑settled. There is a chain of judicial decisions in support of this proposition some of which are as under:‑‑‑

1. Province of West Pakistan v. Muhammad Ayoob Khuro P L D 1967 Kar. 673; (2) Zikria A. Bawani v. City Deputy Collector Karachi and others P L D 1975 Kar. 1008; (3) Pakistan Pipes and Construction Company Limited v. City Mukhtiarkar and another P L D 1984 Kar. 28 and (4) Muhammad Akbar Cheema v. Province of West Pakistan 1984 S C M R 1047. The ratio decidendi of these rulings is that a claimed amount can be recovered as arrears of land revenue only when it is converted into an established due after necessary adjudication.

6. In the present case the petitioner had entered into a contract to supply 130,000 metres of blue drill cloth to the respondent No. 1 by a particular date which he could not supply. Respondent No.1 claimed damages for breach of the said contract. The claim of the respondent No.1, was, therefore, a claim for unascertained damages. Neither the petitioner had admitted the amount of damages that were sustained by respondent No.1 nor respondent No.1 had filed suit or taken any other proceedings for getting it adjudicated as to how much damages were due to him on account of the said breach. In absence of such adjudication or admission thereof by the petitioner the claim of the respondent No.1 could not by any stretch of argument be treated as a claim converted into an established due. Respondent No.1 could not, therefore, take recourse to the recovery of an unascertained claim amount arbitrarily and unilaterally. As against this Mr. Ahmed Yousuf Ali Rizvi, Advocate, referred to diction 91 of the Land Revenue Act, which reads as under:-- "REMEDIES OPEN TO PERSON DENYING HIS LIABILITY FOR AN ARREAR:‑‑‑ (1) Notwithstanding anything in section 79, when proceedings are taken under this Act for recovery of an arrear, the person against whom the proceedings are taken may, if he denies his liability for the arrear or any part thereof and pays the same under protest made in writing at the time of payment and signed by him or his agent, institute a suit in a Civil Court for the recovery of the amount so paid. (2) A suit under subsection (1) must be instituted in a Court having jurisdiction in the place where the office of the Collector of the District in which the arrear or some part thereof accrued is situated."

7. He, therefore, submitted that if the petitioner wanted to challenge the said recovery he could do so only after making payment of the amount under protest, and then filing a suit as envisaged in the above section. We are not in agreement with the contention of Mr. Rizvi. This question was considered in the case of Abdul Rauf v. Government of West Pakistan and others reported in PLD 1962 SC

384. In that case too similar action for recovery of an amount alleged to be due on account of deficiency in remittance and shortage in stamps etc., had been initiated as arrears of land revenue by the revenue authorities which was challenged by Abdul Lateef before the High Court by filing of writ of certiorari. High Court of West Pakistan held that if the petitioner challenged the claim, he must first deposit the amount claimed under protest and then seek adjudication by Civil Court. The petition was, therefore, dismissed. The matter was taken to the Supreme Court for special leave. The Supreme Court, after examining the provisions of various statutes on the point, held as under:‑‑‑ "It must be remembered that a right construction of the Act can only be attained if its whole scope and object together with an analysis of its wording and the circumstances in which it is enacted are taken into consideration. From an examination of the Land Revenue Act, it is apparent that it provides first a procedure for determination of land revenue and then comes the machinery for realisation of such revenue, 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."

8. Same view was re‑affirmed by the Supreme Court in the case of Muhammad Akbar Cheema v. Province of West Pakistan reported in 1984 SCMR 1047. We are in respectful agreement with the views of the Supreme Court referred to above. We, therefore, allow the petition and declare that the notice, dated 17‑9‑1986 is without lawful authority and, consequently of no legal effect. We, however, leave the parties to bear their own costs. AA./A‑1095/K Petition accepted.