1. ' SAIYED SAEED ASHHAD, this Constitutional petition, the petitioner has sought the following reliefs:--
(a) declaring the demand and show-cause notice dated 20-12-1990 and the notice of demand dated 9-1-1991 (the year wrongly stated as 1990) under section 81 of the West Pakistan Land Revenue Act. 1967 of the respondents 2 and 3 respectively as without the authority of law and of no legal effect;
(b) directing the respondents and their subordinates and agents to refrain from enforcing or implementing the said notices of respondents 2 and 3 against the petitioner; and
(c) granting such other or further reliefs to the petitioner as may appear to this Hon'ble Court just and proper in the circumstances of the case.
2. ' The brief facts as stated by the petitioners in the memo. Of petition that they are public limited company engaged in the business of storing and marketing petroleum products all over Pakistan.
3. It was further stated that the petitioner's main establishments are at its Head Office, Keamari Installations, Southern Area Office at Karachi, Northern Area Office at Lahore, Resident's Office at Rawalpindi as well as small establishments at all the airports in Pakistan. It was further submitted that all the eighteen (18) establishments of the petitioner situated in different places in Pakistan were got registered with respondent No,1 Employees' Old-Age Benefits Institution. (hereinafter referred to as the institution) which is a body corporate established under section 4 of the Employees' Old-Age Benefits Act, 1976 (hereinafter referred to as the Act of 1976) while respondents Nos.2 and 3 are the functionaries of respondent No,1. It was further stated that the petitioners regularly used to pay contributions as provided by section 9 of the Act of 1976 in respect of its employees who were covered by the Act of 1976. It was further submitted that on 19-12-1990 a functionary of respondent No,1 visited the Quetta Depot of the petitioner and made inquiries concerning the payments of the contributions and employees. Of the petitioner working at the Quetta Depot, which were attended to informing him that the petitioner was paying contributions in respect of all the employees of the petitioner working at the said Quetta Depot. According to the petitioner, respondent No,2 by his demand/show-cause notice dated 20-12-1990 stating therein that on verification of the books of accounts of the petitioner's establishment at Quetta Depot, it was found that a sum of Rs,31,320 was due and payable towards the contributions for the period from July, 1986 to December, 1990 alongwith statutory increase at the rate of 15 per cent amounting to Rs,15,660 as per requirement of section 13 totalling to Rs,46,980. The petitioner challenged the validity of the said demand/show-cause notice as no details were mentioned therein for determination of the outstanding dues. A reply dated 3-1-1991 was sent to the petitioner stating that the contributions were being paid regularly and no amount was due and payable. It was alsO requested that details of the outstanding be provided to them so that a proper explanation could be furnished. However, respondent No,1 in ignorance of the above reply issued a notice of demand dated 9-1-1991 under section 81 of the Land Revenue Act, 1967 demanding payment of Rs,46,980 on or before 25-1-1991. The petitioner further submitted that the demand/show-cause notice dated 20-12-1990 and the notice of demand dated 9-1-1991 (year wrongly typed as 1990) under section 81 of the Land Revenue Act were without lawful authority of no legal effect and were liable to be declared as such hence the above petition.
4. ' We have heard the arguments of. Mr. Sahid Anwar Bajwa, Advocate for the petitioner and Mr. M.A.M. Namazie. Advocate for the respondents.
5. ' Mr. M.A.M. Namazie objected to the maintainability of the Constitutional petition on the ground that the' petitioner did not approach the forum provided under the Act of 1976 for settlement of disputes of the nature involved in this Constitutional petition. He drew our attention to sections 33,34 and 35 of the Act of 1976 and stated that clause (c) to section 33 provides that in case of dispute relating to the amount of contribution payable by an employer in respect of an insured person the matter shall be decided by the institution. Mr. Namazie further submitted that the Institution has been defined in section 4 of the Act of 1976 to mean the Employees' Old-Age Benefits Institution had that by virtue of section 6 of the Act or 1976 the management and superintendence of the affairs of the Institution vests in a Board which has been empowered to exercise all powers and do all acts and things which may be exercised or done by the Institution. The ground raised by Mr. Namazie is linked with the main question involved in this Constitutional petition which is whether the demand notice/show-cause notice by respondent No,1 was made in accordance with law after holding investigation or proceedings for determination of the amount due or having become due or accrued. It was submitted by Mr. Shahid Anwar Bajwa that respondent No,1 was required to undertake an investigation or inquiry for the purpose of determining the amount due after affording an opportunity of hearing to the petitioner but from a perusal of the demand notice/show-cause notice dated 20-12-1990 it clearly transpired that respondent No,1 had not undertaken any investigation or proceedings for the purpose of determining the amount allegedly due and payable by the petitioner in respect of its employees of the Quetta Depot. Mr. Shahid Anwar Bajwa further submitted that notice of demand under section 81 of the Land Revenue Act could be issued by the Revenue Officer for recovery of the amount as arrears of land revenue only after such arrears/outstanding amount has been determined as due and accrued. He further submitted that respondent No,1 was required to resort to be substantive provisions of the Act of 1976 for determining the sum allegedly due and payable and only then a notice under section 81 of the Land Revenue Act could have been issued. He further submitted that in view of the above facts, demand/show-cause notice dated 20-12-1990 and the notice of demand dated 9-1-1991 (year wrongly typed as 1990) were absolutely illegal and void documents as a result of which the petitioners were under no obligation to have recourse to the remedies provided by sections 33, 34 and 35 of the Act of 1976 and he could approach this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan directly without exhausting the statutory remedies relying on the case of Khalid Mehmood v. Collector of Customs, Customs House, Lahore (1990 SCMR 1881). In this case, it was.Held by the Supreme Court that where the order 'complained of was patently illegal, void or wanting in jurisdiction then recourse to the alternative remedy would only be ounter productive and it by invocation of Article 199 the mischief could forthwith be nipped in the bud then in such matters neither the alternative remedy would be adequate nor the bar of jurisdiction in the sub-Constitutional legislation would come in the way of this Court in exercising its Constitutional jurisdiction. In the case of Gatron (Industries) Limited v. Government of Pakistan and others (1999 SCM R 1072), it was pronounced that a Constitutional petition without exhausting all other remedies was competent if the order was passed by a Court of authority be exceeding its jurisdiction.
6. ' Section 9 of the Act of 1976 required all the employers registered with respondent No,
1. To make contributions in respect of the employees working in their establishments which were duly registered under the Act of 1976. In case an employer is found to violate the provisions of the Act of 1976 or had made short contributions for a certain periods then the provisions of the Act of 1976 required holding of a proper inquiry by respondent No,1 for determining the amount due and payable on account of non-payment or short payment. Principle of natural justice required that the aggrieved persons, which in this case is the petitioner, should have been given proper opportunity to participate in the inquiry/investigation required to be undertaken by respondent No,1 for determining the dues. From the material on record, it transpires that respondent No,1 did not undertake any inquiry or investigation and did not hold any proceedings for determining the amount which could be said to be due and payable by the petitioner towards the contributions to be made by them in respect of their employees employed in the Quetta Depot. Respondent No,1 did not even furnish a working on the basis of which it had come to the conclusion that an amount of Rs,31,320 was found due and payable towards the contribution in respect of the employees of the petitioner working in Quetta Depot and the consequential increase thereon as per requirement of section 13 of the Act of 1976.Notice of demand under section 81 of the Land Revenue Act can only be issued if the amount is determined as due in a proper proceedings and manner. Unless an amount is legally determined as due and payable and ascertained, notice under section 81 of the Land Revenue Act could not be issued legally or validly. The question of issuance of demand notice under section 81 was in issue before the Supreme Court in the case of Agricultural Development Bank of Pakistan v. Sanaullah Khan and others (PLD 1988 SC 67) and it was held that it was well- settled that all provisions of law which authOrized any statutory authority to recover any amount as arrears of land revenue could be invoked only after determination of the amount of dues as fixed ascertained and determined sum of money. In the aforecited case, reference was made to the case of Abdul Latif v. The Government of West Pakistan and others (PLD 1962 SC 384) a portion from the judgment whereof was reproduced in the case of Agricultural Development Bank of Pakistan v. Sanaullah Khan and others (supra) and it will be useful to reproduce the relevant part from the said portion as under:-- " There is elaborate procedure for reconsideration of assessment and the assessee has a right of appeal.. The order of the Revenue Officer is also open to revision. From these provisions it seems perfectly clear that the Act does not give absolute power to the Revenue office to fix the liability at their sweet-will From an examination of the Land Revenue Act, it is apparent that it provides first a procedure for determination of the land revenue and then comes the machinery for realization of such revenue.
7. ' It is, therefore, manifest that before the operation of the machinery section for realization of the arrears, the authority concerned must decide whether there is an arrear due or not."
8. ' Keeping in view the observations made by the Supreme Court in the aforecited two cases, it is to be observed that it was the duty of the officer of respondent No,1 to hold an inquiry or proceeding for determination of the amount of contributions due and payable by the petitioner wherein an opportunity of participation should have been provided to the petitioner as the Act did not give absolute power to the concerned officer of respondent No,1 to fix the liabilities on their sweet-will without giving any explanation or disclosing the working therefor. The respondents did not act in accordance with the above requirements and acted arbitrarily. Whimsically and illegally in holding that sum of Rs,31,320 was due and payable as arrears of contribution under section 9 of the Act of 1976 for the period from July, 1986 to December, 1990. Without first determining the amount due and payable the provisions of section 81 of the Land Revenue Act could not have been invoked. In the circumstances, both the demand/show-cause notice dated 20-12-1990 calling upon the petitioner to pay the amount of Rs,46,980 towards the contribution and increase thereon as well as the notice of demand dated 9-1-1991 under section 81 of the Land Revenue Act were absolutely in violation of the provisions of law, without lawful authority and void ab initio.
9. ' As it has been concluded that the two impugned orders/notices were without lawful authority and void ab initio, therefore the petitioner was not required to approach the authorities/forum provided by the Act C of 1976 in view of the pronouncements made by the Supreme Court in the case of Khalid Mehmood v. Collector' of Customs and Gatron (Industries) Limited v. Government of Pakistan (supra).
10. ' For the foregoing reasons and discussion, this Constitutional petition is found to have force.
11. Accordingly, this Constitutional Petition is allowed. The impugned demand/show-cause notice dated 20-12-1990 and the notice of demand dated 9-1-1991 (year wrongly typed as 1990) are declared to be without lawful authority having no legal effect. Respondent No,1 will, however, be at liberty to proceed against the petitioner in respect of the alleged default of the petitioner in payment of the above contributions in accordance with law if such is permissible at this stage.##TE#