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Regular Second Appeal No. 62 of 1968, decided on 16th March 1970.

S. 78 and West Pakistan Land Revenue Act (XVII of 1967), S. 91 Jurisdiction of civil Courts‑Suit for permanent injunction against Municipal Committee restraining it from recovering encroachment fee and demolishing structure‑Expression "persons against whom proceed ings are taken"‑Person against whom no proceedings taken Cannot be compelled to pay amount of arrears before filing civil suit‑Civil suit could proceed and be dealt with on its own merits without any advance deposit of arrears‑Civil Procedure Code (V of 1908), S. 9.

Muhammad Aslam for Appellant.

Fayyaz Hussain Kadri for Respondent.

Dates of hearing : 6th February and 16th March 1970.

Ahmad Shafi Sheikh (hereinafter called the plaintiff) filed a suit against Municipal Committee, Rawalpindi (hereinafter called the defendant) for a permanent injunction so as to restrain it from recovering the amount of encroachment fees claimed in the notices and from demolishing the constructions mentioned in the plaint. The case of the plaintiff was that he was owner of the various shops mentioned in his plaint projections of which extended over some portion of the Municipal land. The plaintiff had given these shops on rent to various tenants. The Municipal Committee served demand notices on the tenants requiring them to pay encroachment fees amounting to Rs. 6,005.30. Contending that the burden of this liability was ultimatelty to fall on the plaintiff, he filed the suit hereinbefore mentioned. The Municipal Committee defended the suit and took objection to jurisdiction of the civil Court to try the suit. On the pleadings of the parties the learned Civil Judge framed an issue which reads as follows :‑

"Whether the Court has jurisdiction to entertain this suit "

In connection with the above issue, the plaintiff appeared as his own witness and made a statement. From the side of the ‑defendant, no evidence of any nature was produced. The learned Civil Judge held that since the amount in dispute was recoverable as arrears of land revenue, therefore, civil Court had no jurisdic tion to try it in view of section 78 of the Punjab Land Revenue Act (XVI1 of 1887) where it is written that the liability to pay an amount of this kind cannot be disputed in a civil Court unless the amount is first paid under protest in writing. After giving this finding, the learned Civil Judge dismissed the suit with costs by means of his judgment and decree dated the 15th of December 1966.

2. The plaintiff filed an appeal but without any success as the same was dismissed by the learned Additional District Judge, Rawalpindi, on 9th December 1967. The plaintiff has come up in second appeal to this Court.

3. Since the suit of the plaintiff has been thrown out in view of section 78 of the Punjab Land Revenue Act (XVII of 1887), it is advisable to reproduce the same. It reads as follows :‑

"78. (1) Notwithstanding anything in section 66, when proceedings are taken under this Act for the 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."

The Punjab Land Revenue Act XVII of 1887 has now been replaced by the West Pakistan Land Revenue Act XVII of 1967, in which corresponding section is section 91 which is materially to the same effect as the old section 78 reproduced above.

4. A perusal of this section would show that it applies to "a person against whom the proceedings are taken". It was the case of the learned counsel for the defendant‑Municipal Committee appearing before me that no proceedings in the instant case had been taken against the plaintiff. He advanced this argument on the basis of written instructions which be received on the subject from the Administrator, Municipal Committee, Rawalpindi by means of letter No. 207/G, dated 26th February 1970. This letter reads as follows :‑

"Telephone No. 62768

From

Malik Muhammad Siddiq, PML & CS., Administrator,

Municipal Committee, Rawalpindi.

To

Syed Fayyaz Hussain Qadri, B.A., LL.B., 5‑Turner

Road, Lahore.

No. 207/G, dated 26th February 1970.

Subject :‑‑RSA‑62 of 1968 Ahmad Shafi v. Municipal

Committee, Rawalpindi.

Memorandum.

Reference your letter dated Nil.

2. The proceedings of recovery of encroach ment licence fee were started against the tenants of Mr. Ahmad Shafi because they are the encroachment licence‑holders of the Municipal Committee. No legal action was ever taken against Mr. Ahmad Shafi.

(Sd.) Administrator,

Municipal Committee, Rawalpindi.

26‑2‑70. "

5. In view of the position taken up by the learned counsel for the defendant, since no proceedings have been taken against the plaintiff, therefore, he was not hit by the provisions of section 78 ibid and the said section, as such was no bar to the institution of the suit. It may be mentioned that the argument that no proceedings had been taken against the plaintiff was advanced by the learned counsel for the defendant‑Municipal Committee to show that in that state of affairs the plaintiff would have no locus standi to file the suit. I apprised the learned counsel that even though his argument was directed towards the point of locus standi but it will have repurcussion on the point of jurisdiction on which the two Courts below had thrown out the plaintiff's case. When confronted with that situation, learned counsel wanted time to seek specific instructions on the subject and it was in that context that he received the letter which has been reproduced earlier. It will thus appear that in view of the definite position taken up before me that the plaintiff is not a person against whom any proceedings have been taken, he cannot be compelled to pay the amount in dispute in advance and then institute the suit. His suit can proceed without any such advance deposit and will have to be dealt with on its own merits.

6. At this stage, learned counsel for the defendant -respondent referred also to section 158 (2) (xiv) of the Punjab Land Revenue Act as a bar to the jurisdiction of the civil Court to try this suit. This section reads as follows :‑The correspond ing section in the West Pakistan Land Revenue Act is 172 (2) (xv)

"158 (2).‑A civil Court shall‑ not exercise any jurisdiction over any of the following matters, namely :‑

(i) -------------------------------

(xiv) any claim connected with or arising out of the collection by the Government, or the enforcement by the Government, of any process for recovery of land‑revenue or any sum recoverable as an arrear of land‑revenue.

A careful perusal of the above shows that it applies when the collection or recovery is being made by the Government. In the instant case, it is a common ground that the process were issued by an official of the Municipal Committee and surely he is not and cannot be called the Government.' Learned counsel argued that generally it is the Collector under the Land Revenue Act who proceeds to make recoveries and issue process. Even then he too cannot be held to be the Government. The clause of sub section (2) of section 158, hereinbefore quoted, therefore, does not support the learned counsel for the defendant‑respondent, vis‑a‑vis the ouster of the jurisdiction of the civil Court in the instant case.

7. Another feature to be noticed is that the plaint in this case contained two reliefs. One was regarding the encroachment fee and the other was to issue an injunction to restrain the Municipal Committee from demolishing the alleged encroachment. The Courts below have not adverted to the aforesaid additional claim and nor has it been shown to me as to how the Courts will have no jurisdiction to try the same.

8. The necessary result of the above discussion will be that the judgments and decrees of the Courts below shall have to be set aside and the case shall have to be remanded to the learned Civil Judge for fresh decision in accordance with law. I order accordingly. The parties will be at liberty to raise such pleas on the merits of the case or on other such points which they may wish to raise before the learned civil Court including the point of locus standi. The appeal is accepted in the terms hereinbefore mentioned. The plaintiff‑appellant will get his costs throughout.

S. Q. Appeal accepted. Case remanded.

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