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Regular Second Appeal No. 5 of 1972, decided on 16th June 1977.

Municipal Administration Ordinance (X of 1960) --- S. 38 read with S. 32, Basic Democracies Order (18 Of 1959), .art. 56 and West Pakistan Municipal Committees (Contract) Rules, 1960-Lease of Larry Stand by Municipal Committee-"Lease money or any other rent" fur such lease-Held, not an: amount falling within phrase "moneys claimable by a Municipal Committee" in S. 38(2) of Ordinance-Lease money recoverable only through a law suit -Sum mary procedure prescribed by S. 38 of Ordinance cannot be pressed into service for recovery of such money.-[Words and phrases].

Sardar Muhammad v. Chairman, Town Committee P L D 1962 B J 8 and Fazal Muhammad v. Province of West Pakistan P L D 1962 Quetta 96 distin guished.

Hafiz Abdullah v. Municipal Committee. Delhi A I R 1931 Lab. 3 1 5 ; Municipal Committee, Delhi v Hafiz Abdullah A I R 1934 Lab. 699; Jumna Das v. Not]fed Area Committee, Shahdara A I R 1933 Lab. 394 ; Municipal Committee, Akot v. Suraj Mal Shriram A I R 1938 Nag. 11:4 and Mana Das's case A I R 1926 Lab. 518 and Maya Das's case A I R 1927 Lab. 161 ref.

Basharatullah for Appellants.

Azizuilah Memon for Respondent No. 1.

Dates of hearing ; 9th and 10th June 1977.

In these proceedings the appellant Haji Syed Habibullah has challenged the right of Quetta Municipal Committee to recover the balance of lease money as arrears of land revenue. He became a Contractor of the Lorry Stand, Quetta, being highest bidder of Rs. 22,500 for the year x969-70. The agreement was duly entered into on 21st July, 1969. Appellant No. 2 became his guarantor. Rs. 2,000 were deposited as security. Another Rs. 17,500 was paid on the different occasions.

The appellant's contention is that it was the term of the agreement that the Chowgidar's quarter and the booking office would also be handed over to the Contractor but these two premises were not made available. An appeal by him to the Commissioner, the Controlling Authority under the Municipal Administration Ordinance, 1960 (hereinafter called the Ordinance), was successful, but in spite of that he was delivered only the possession of the Chowkidar's quarter on 24th February, 1970. Possession of the booking office was never given during the period of the contract.

The Municipal Committee claims that the amount of Rs. 4,582 was outstanding against the appellant. They therefore, on 26th May, 1971; served a notice on the appellant to pay the balance within 7 days or else it would be recovered as an arrear of land revenue. Consequently on 8th June, 1971 the appellant filed a suit seeking a perpetual injunction against the Municipal Committee, restraining it from recovering the balance amount as an arrear of land revenue. Tehsildar, Quetta was also joined as a party as it was he who had to effect the recovery.

The Municipal Committee in their written statement challenged the stand of the appellant, and at the same time raised certain legal objections. The learned trial Judge framed the following issues :-

(1) Whether the suit is incompetent in view of section 119 of the Municipal Administration Ordinance, 1960

(2) Whether the plaintiff has served notice under section 127 of the Municipal Administration Ordinance If not to what effect

(3) Whether the plaintiff is entitled to the relief claimed

The learned trial Judge, Quetta came to the conclusion that the demand by the Municipal Committee is not one of the 'moneys claimable by the Municipal Committee under the Ordinance and therefore it was held that section 38 other Ordinance was root attracted, and consequently the suit was not hit by the bar contained in section 119 thereof. As to the second issue it was held that the suit was competent in spite of the fact that no notice had been served. The result was that the sail was decreed and the injunction prayed for was granted.

In appeal the learned District Judge Quetta, reversed the findings of the learned trial Judge on the first and the third issues resulting in dismissal of the suit. Hence this second appeal.

The only question fur decision in the case is 1f the payment of the balance of lease money would fall under section 38 of the Ordinance. Subsection (2) of section 38 would be relevant for the decision of this case, which is reproduced below t-

"38.--(2) All arrears of taxes, rates, tolls and fees, and other moneys claimable by a Municipal Committee under this Ordinance, shall be recoverable as a public demand or as arrears of land revenue."

The learned District Judge, Quetta while distinguishing the authority reported as Sardar Muhammad v. Chairman, Town Committee (P L D 1962 B 18) and following the authority reported in case of Fazal Muhammad v. Province of West Pakistan (P L D 1962 Quetta 96) came to -the conclusion that rent was included among 'other moneys claimable', and therefore it could be recovered as arrears of land revenue in pursuaace of section 38(2) of the Ordinance.

In the case of Sardar Muhammad interpretation of section 38 of the Ordinance was made with reference to the provisions of the Basic Democracies Order, 1959 (hereinafter referred to as the Order). This was because the Town Committees were originally the creation of the Order, but subsequently provisions of section 38 of the Ordinance were applied mutatis mutandis to them as well. Their Lordships of the then West Pakistan High Court cane to the conclusion that, there is no provision in the Order which prescribes that a Town Committee shall lease out property and recover rent therefrom in a given manner. The leasing out of property by a Town Committee may be a permissible activity, but it is not an activity imposed by the Order and the rent due on such property does not, therefore, become money claimable under the Order.

The phrase "moneys claimable by a Municipal Committee under the Ordinance," occurring in section 38 of the Ordinance was not examined with reference to the provisions of the Ordinance itself. This authority therefore, cannot be relied upon to canvass one or the other interpretation, of this phrase.

In Fazal Muhammad's case again section 38(2) of the Ordinance was interpreted with reference so section 97 of the Baluchistan Bazaars Regulation,. 1910 (hereinafter called the Regulation). The Regulation was repealed by subsection (1) of section 4 of the Ordinance. Subsection (2) of section 4 of the Ordinance thereof provided that any contract etc. trade under: the repealed Regulation shall in the absence of any inconsistency with the Ordinance or the rules made thereunder, be deemed to have been made under the Ordinance It was therefore hold that the proceedings take under section 97 of the Regulation are to be .deemed to have been taken under the Ordinance, and could, therefore, be continued under the Ordinance. Section 97 of the Regulation talks of "arrears of any tax, rent, fees or other money. claimable by or on behalf of the Deputy Commissioner. "Rent is specifically included as one of the amounts recoverable as arrears of land revenue. Moreover, as in the opinion of their Lordships, the section does not have any limiting words as to confine the rent to the rent due under the Act or the bye-laws. In this view of the matter it was held that the rent recoverable under section 97 of the Regulation falls under the phrase "other moneys claimable . . . . . . under the Ordinance", as used in section 38 (2) of the Ordinance. Obviously this authority could also not be followed to hold that lease money is one of the moneys claimable under the Ordinance. We have, therefore to see if lease money, or any kind of rent, is one of the moneys claimable under the Ordinance.

Subsection (2) of section 38 of the Ordinance, as reproduced above, does not mention rent as one of the items to be recoverable as arrears of land revenue. It enumerates taxes, rates, tolls and fees. Rent has been specifically left out by the legislature. There is no doubt that a Municipal Committee always enjoys the powers to alienate its property by way of sale, lease etc. In this connection Article 56 of the Order read with section 32 of the Ordinance may be seen. But the right to lease out a property does not necessarily mean that the lease money becomes recoverable under the Ordinance. Section 38 of the Ordinance provides quick and summary procedure for the recovery of moneys due to a Municipal Committee This procedure is a clear departure from the general arrangement of recovery of dues through a normal civil suit. In order that a certain category of moneys should fall under subsection (2) of section 38 it has to, be clearly shown that the Ordinance or the rules made thereunder provide for the recovery of such dues in accordance with the provisions of the Ordinance, or the rules, as the case may be. The Ordinance, while conferring the right to lease out property is silent as to the manner of recovery of lease money, although they declare, in rule 8, that the Municipal Committee could dispose of its property by sale or otherwise in accordance with the provisions of the West Pakistan Municipal Committees (Contract) Rules, 1960. In subsection (2) of this section the rules prescribe the authorities who can lease out Municipal Property for different periods mentioned therein. But with all these provisions no special procedure for recovery of lease money is prescribed.

The West Pakistan Municipal Committees (Contract) Rules, 1960, provide for execution of agreements, among other things, on account of lease of Municipal Property. Under its Rule 9 the Municipal Committee is entitled to collect 10 per cent of the contract amount as security. Rule 10 enjoins upon the Chairman to take necessary steps for the enforcement and performance of the contract. Nowhere does this Rule or any other provision of their rules, declare that the least money, if it remains unpaid, shall be recoverable in the manner of subsection (2) of section 38 of the Ordinance or shall be recovered by any other special procedure.

The provisions of subsection (l) of section 38 are not new. The Punjab Municipal Act, 1911, in its section 81, as originally enacted, uses the phrase ''any arrears of any taxes, water rates, fees or any other moneys claimable by the Committee, under this Act . . . . . . . . . . . . . . . . . ' This provision has been interpreted in various cases. In Hafiz Abduilah v. Municipal Committee, Delhi (A I R 1931 Lab. 315) the Municipal Committee tried to recover .the rent of certain platforms under section 81 of the Punjab Municipal Committee Act. The attempt was resisted and a Single Judge of the Lahore High Court held that the Municipal Committee could not recover the same by invoking the provisions of section 81 of the Punjab Municipal Act.

This decision was challenged in Letter's Patent Appeal and a Division Bench in the case reported as Municipal Committee, Delhi v. Hafiz Abdullah (A I R 1934 1. ah. 699) observed as follows;

"The present dispute therefore in each case is a dispute between a landlord and a tenant for the recovery of arrears of rent. The liability of the plaintiffs for the payment of the rent arises out of a contract between the parties, and must be determined and adjudicated upon by a civil Court."

Jumna Dar v. Notified Area Committee. Shahdra (A I R 1933 Lab. 394) is another case on .the point, wherein it was held the rent of a balcony is not a money claimable under the Punjab Municipal Act, and therefore this section did not apply.

Municipal Committee, Akot v. Suraj Mul Shriram (A I R 1938 Nag. 119) is a case of interpretation of section 77 of C. P. .Municipality Act, 1922, which is in part materia with section 81 of the Punjab Municipal Act. In this case it is held that an interest on an arrear of tax is not a money claimable by the Municipal Committee under the C. P. Municipality Act.

In cases of Mona Rarer (A I R 1926 Lah. 518) and Maya Day (A I R 1927 Lah. 161) facts were largely similar to the present case. In Mann Ram's case a tonga stand in the town of Chunian was leased out by the Municipal Committee. The Municipal Committee, on the ground that the sum due under that contract or lease had not been paid, took criminal action before the Magistrate under section 81 of the Punjab Municipal Act. The Magistrate directed the recovery of the amount in accordance with that section. Shadi lal, C. J. observed, "the dispute is one between a creditor and a debtor for the recovery of money due under a contract sad must be determined by a civil Court. "In this view of the matter it was held that the money could not be recovered by setting in motion the penal provisions of section 81. In Maya Ram's case the tuuytum stand of the Town of Chiniot was leased out. Unpaid amount of the lease money was tried to he recovered by following the procedure prescribed under section 81 of the Punjab Municipal Act. It was held that the amount due was not an amount due under the Act and that it was an amount under a simple lease or contract recoverable only by a law suit.

The case-law discussed above clearly Indicates that the consistent view is that lease money, or any other rent, is not an amount falling within the phrase "moneys claimable by a Municipal Committee under this Ordinance," and that it being a money arising out of a contract is recoverable only through a law suit. The summary procedure prescribed by section 38 of the Ordinance cannot be pressed into service for its recovery. I would therefore accept the appeal with costs. The result is that injunction prayed for stands granted.

S. Q. Appeal accepted.

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