' MUHAMMAD HALEEM, J.-The petitioner assails demand notices Nos, EX-971 ABN/1022;66, EX-970 ABN/1022/66. EX-967 ABN/1019/66, (Annexures 'F', '0', 'H' all dated 9th of December, 1972) issued by the Assistant Registrar, Co-operative Societies, Karachi, order dated 5th of January, 1973, Annexure 'II', passed by the Assistant Registrar, Co-operative Societies (Banking), Karachi, order dated 22nd of January, 1973, Annexure 'II', passed by the Deputy Registrar, Co-operative Societies, Hyderabad Region, Hyderabad and demand notices Nos, EX-970 ABN/1022/66, EX-967/ABN/ 1019/66, EX-971 ABN/1023/66 (Annexures 'K', `L' and 'M' all dated 22nd of December, 1972), issued under section 82 of the West Pakistan Land Revenue Act, 1967, by the Assistant Registrar, Co-operative Societies, Karachi, exercising powers of the Collector under the West Pakistan Land Revenue Act, 1967.
2. The petitioner claims to be a landlord having extensive agricultural property in Bahawalpur Division and is a member of the Punjab Provincial Assembly. Being a member of the first respondent he took loans and overdrafts from it as principal borrower to finance ambitious projects and also stood surety for some other borrowers. Two of the named ventures were Mahmud & Co., and Jilani Ltd., According to the statement of account filed by the petitioner the liability stood at Rs, 65,48,335.75 as on 5th of November, 1966. The reason advanced for not meeting the outstanding dues was that the ambitious projects failed to give returns. Again from another account filed by him the liability stood at Rs, 33,88,995 as on 31st of May, 1969. Two features stand out from the statement of, account, the first is that he was able to square up his liability qua six other accounts leaving three others to be adjusted namely, that of Hyderi Beverages Ltd., Jilani Ltd. And Mahmud & Co. The second is that on the principal amount due he was charged only simple interest and therefore instead of Rs, 33,88,985, his liability stood at Rs, 23,33,149.57. In the meantime Martial Law was promulgated and the Martial Law Administrator, Zone 'A' promulgated Martial Law Order No, 18 by which the borrowers were required to deposit 25% of the amount due within thirty days and also to secure the loan to the satisfaction of the first respondent within the aforesaid period. The guarantee furnished by letter dated 31st December, 1969 became innocuous as the Southern Co-operative Society Limited which stood guarantee by offering the second mortgage of 16 acres of land in Deh Gujro, district Karachi was unable to get it converted into Sikni land. Thereafter the petitioner alleges that he offered to pay Rs, 1,00,000 in October, 1972 and Rs, 10,000 per month in such manner that during the course of one year, Rs, 5,00,000 would have been paid towards the outstanding amount which offer was verbally accepted and in compliance thereof the petitioner paid a sum of Rs, 1,00,000 on 25th of October, 1972 and deposited further amounts of Rs, 3,000, 10,000 and 5,000 on 6th of November, 29th of December and 30th of December, 1972, whereafter the first respondent released the pledged goods of the petitioner. In spite of the oral acceptance of the arrangement the third respondent issued demand notices Nos, EX-971 ABN/1023/66, EX-970 ABN/1022/66 and EX-967/1019/66 (Annexure 'F', '0' and 'H') for the payment of'Rs, 6,933, 20,67,812.03 and 2,53,461 respectively within 15 days failing which coercive measures would be taken. The petitioner thereupon filed a review petition before the third respondent but it was dismissed on 5th of January, 1978. The petitioner then approached the Registrar, Co-operative Societies, Sind Region, to determine his liability but the application was dismissed by the second respondent on 22nd of January, 1973. Since the amount remained outstanding further notices Nos, EX-970 ABN/1022/66, EX-967 ABN/1019/66, and EX-971 ABN/1022/66 (Annexures `K"L' and 'M') were issued under section 82(1) of the West Pakistan Land Revenue Act, 1967, and served on the petitioner to clear his dues within thirty days failing which warrant of arrest would be executed against him. The petitioner has assailed the recevery of outstanding loan and also challenged the legality of the notices under sections 81 and 82 of the West Pakistan Land Revenue Act, 1967.
3. In the comments offered, the first respondent denied having accepted any offer verbally as to the manner in which the instalments were to be paid and as for the payment of instalments it took the stand that he made such payments on his own accord whenever he was pressed for liquidating the outstanding loan. In so far as the release of the goods pledged was concerned, its case was that the goods were pledged in the loan account of Messrs Mahmud & Company which alongwith five other accounts was adjusted on 31st May, 1969, hence the goods were released. The liability of the petitioner was determined by the awards in arbitration Cases Nos, 36/66, 40/65-66 and 45/63 under section 54 of the Co-operative Societies Act, 1925 which liability was not disputed.
It was also pleaded that at one stage the Government of West Pakistan accepted the mode of payment of loans chosen by the petitioner but inspite of the notice having been sent by registered post, acknowledgement due, vide letter dated 14th of February, 1968 requiring the petitioner to secure the loan and to repay it, the petitioner neither disputed his liability nor secured the loan nor paid the instalments, and it was therefore that the Registrar, Co-operative Societies West Pakistan, Lahore vide letter dated 25th May, 1968 directed that coercive measures be taken by arrest, auction of his property and institution of a criminal case under section 10 of the Ordinance but before any action could be taken Martial Law Order No, 18 was promulgated. The petitioner thereupon paid 25% of the amount due, i,e, Rs, 94,000 and further promised to pay the balance by instalments regularly and offered the surety of Southern Co-operative Bank which did not materialise. The petitioner also failed to pay further instalments. It was therefore as a last resort that demand notices were issued under section 8 of the Ordinance for the recovery of the amount as arrears of land revenue under sections 81 and 82 of the West Pakistan Land Revenue Act. It was denied that any opportunity of being heard is contemplated before issuing notices of demand under section 81 or 82 of the West Pakistan Land Revenue Act, 1967., The parawise comments offered by the second and third respondents also supplement the averments in the parawise comments offered by the first respondent. It would also be relevant to mention that in para. 3 of the counter-affidavit filed by Ch. Bashir Ahmed, Manager of the first respondent it is stated that notice under section 5 of the Ordinance was issued and served on him but he did not challenge the quantum of the liability which was fixed in the earlier awards. Again he has stated that the circular of Apex Bank is irrelevant as neither the Bank had availed any facility from that Bank nor the petitioner was advanced any loan from the funds of Apex Bank, and therefore the petitioner could not insist on facilities being extended to him as was given by the Apex Bank. In a nutshell the stand taken by the respondent is that in spite of the notice having been served on the petitioner under section 5 he failed to dispute his liability under section 6 and not having done so, he failed to secure the loan and to repay it in instalments as provided by section 7. The respondents therefore were justified to recover the loan under section 8 of the Ordinance by recourse to the provisions of the West Pakistan Land Revenue Act, 1967.
4. At the outset the learned counsel for the petitioner stated that he would only impugn the notice Nos, EX-971 ABN/1023/66, EX-970 ABN/ 1022/66, EX-967/1019/66, EX-970 ABN/1022/66, EX-967, ABN/1019/66 and EX-971 ABN/1022/66 marked as Annexures 'F', `G', 'H' and 'IC', `L', 'M' respectively.
Annexures 'F', 'H' and `G' are the demand notices for the payment of Rs, 6,833, 2,53,461 and 20,67,812.03. In regard to the first two amounts, recovery was being sought as surety of the principal borrower while so far as the third amount was concerned, the petitioner was himself the principal borrower. Learned counsel for the petitioner vehemently urged that the first respondent could not take steps to recover the above amounts unless the liability of the petitioner was determined under section 6 of the West Pakistan Co-operative Societies and Co-operative Banks (Repayment of Loans) Ordinance, 1966. In support of his contention the learned counsel invited our attention to section 3 of the Ordinance which reads :- "3. Repayment of loans.-Notwithstanding anything contained in any other law for the time being in force or in any agreement or other instrument, award or decree of any Court, every loan outstanding for more than one year after the date when it was re-payable, whether barred by limitation or not, in whole or in part, and every loan or any instalment whereof was outstanding for more than one year after it became due, shall, unless paid earlier, he repaid and secured in the manner provided in section 7."
' According to the learned counsel this provision rendered the awards made under section 54 of the Co-operative Societies Act, 1925 a nullity and therefore, it was incumbent that a notice under section 5 should have been issued requiring the petitioner to repay and secure the loan which was not done, and therefore the petitioner had no opportunity to deny his liability as is provided under section 6. As such no recovery could be effected under section 8 of the Ordinance.
5. Examining the said Ordinance as a whole the object for enacting it was to provide for the securing and repayment of loans taken from the A Co-operative Banks as the preamble shows.
The language of section 3 was intended to remove any obstacle in the way of securing and repayment of B loans having regard to the keywords, "repaid and secured in the manner provided under section 7". Therefore the expression, "notwithstanding any c thing contained in any other law for the time being in force or in any agreement or 'other instrument, award or decree of any Court" in section 3 have no other meaning but to render the mode other than that what I prescribed under section 7 as without any effect. It is difficult to accept the contention of the learned counsel that invariably under section 6 the liability of the petitioner has to be determined afresh. Section 6 itself provides that where a borrower or a surety, to whom notice under section 5 is issued does not admit the loan or any liability arising therefrom, he should then submit a written statement within thirty days of the receipt of the notice and in that event on enquiry is provided for determining his liability. Hence the prerequisite for invoking section 6 is that the liability should be superseded but not otherwise. This in our view is the interpretation of section 3, as was rightly urged by the learned Advocate-General, when read in the context of the other provisions of the Ordinance. Therefore it is not correct to say that the liability as determined under the awards was washed away by section 3 of the Ordinance.
6. Adverting now to the question as to whether notice was issued under section 5, there is material on record to establish it. In para. 3 of the counter affidavit of the Manager of the first respondent it has been asserted that notice under section 5 of the Ordinance was issued in August, 1966 for repaying and securing the loan. This assertion has not been rebutted and in addition to it we were shown copies of the notices from the relevant files issued under section 5 of the said Ordinance. To augment it, it is nowhere specifically pleaded that notices under section 5 were not issued and served on him. In the review petition dated 26th of December, 1972 he also did not state that such notices were not sarved on him though for the first time he disputed his liability stating that it was not determined under section 6 of the Ordinance. He also made a grievance of the fact that no enquiry as contemplated by section 6 of the Ordinance was held to determine it. Finally in the letter of petitioner dated 5th of January, 1973 addressed to the Registrar, Co-operative Societies, there is also no mention of the fact that notices under section 5 were not issued to him. The petitioner had ample opportunity to disprove the fact but he did not do so and we are constrained to hold that notices under section were issued to him.
7. There is also the conduct of the petitioner which is material while determining the question whether he had disputed his liability so as to plead non-determinasion of his liability. He has relied on the statement of accounts marked Annexures 'A' and 'B' and has not disputed their correctness.
He also entered into an arrangement with the Government of West Pakistan soon after the receipt of the notices under section 5 for repaying and securing the loan in August, 1966 and on his failure to implement his promise letter dated 7th of February, 1968 was issued directing that coercive measures be taken against him. Again, during the pendency of the petition, the petitioner entered into a compromise with the first respondent in which he did not dispute his liability and agreed to pay the instalments and to furnish surety but neither did he furnish adequate surety nor did he pay the instalments, with the result that the facilities given to him were withdrawn. It will also be pertinent to refer to three letters marked `L', 'N', and respectively, the first is dated 9th of February, 1972, the second, 1st of September, 1972 and the third, 26th of January, 1971 wherein there is no denial of liability. This being the factual position the stand taken by the petitioner is belated and an afterthought to evade the legal consequences of not securing and repaying the loan as provided by section 7 of the Ordinance. There is therefore no substance in this contention. The learned counsel while advancing his conention referred to the case of Saiyyid Abul dela Maudoodi and others v. The Government of West Pakistan and others (1), Alta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others (2), Mansab Ali v. Amir and 3 others
(3) and Rashid Ahmed v. The State (4) but the law as applied to the facts of those cases is distinguishable and therefore the principle laid down therein will not be applicable to the instant case. He also referred us to passages at pages 371, 373 and 374 of Craies on Statute Law, Seventh Edition, but the principle of construction cannot also be invoked, as the contention assumed that section 3 of the Ordinance invariably rendered the awards a nullity.
8. The second objection related to the demand notices K, L and M which were issued on 23rd of December, 1972. The precise grievance was that such notices should have been issued after the expiry of 15 days as required by section 82(1) of the West Pakistan Land Revenue Act, 1967, but this was not so before the expiry of 15 days from the date of the service of notice under section 81, such notice were issued. The underlying object of section 82 is to indicate to the borrower that he had failed to clear the outstanding loan and to give him further notice that if within 30 days the E dues are not cleared coercive measures would be taken against him. Notices under section 81 were issued on 9th of December, 1972 and were served on the same day. Calculating 15 days as from this date, the impugned notices should have been issued on 25th of December, 1972, but they were issued two days earlier probably due to some mistake. The objection thus being of a technical nature nothing will turn on it as no prejudicial action was taken against the petitioner before the expiry of the statutory period and it was only on 31st of January, 1973 that the operation of the warrant of arrest was stayed by this Court as an ad interim measure. There is no dispute as to the competency of the Assistant Registrar to issue such notices who was exercising powers of the Collector under the West Pakistan Land Revenue Act, 1967 and the objection thus as to time can have no serious consequences when no prejudice has been caused. It is not a case where injustice has been caused to call for a discretionary relief.
9. The learned counsel for the petitioner also challenged the discretion exercised by the Assistant Registrar in choosing the mode of execution under section 80 of the West Pakistan Land Revenue Act, 1967. While conceding that section 80 does give discretion to the Assistant Registrar it was urged that this discretion necessarily implied a duty to formulate a guideline as one mode may be more onerous than the other and therefore before choosing the mode of execution he should have given an opportunity to the petitioner of being heard. In the instant case clause (b) of section 80 was chosen as the mode. Section 80 provides different modes for the recovery of the outstanding amount leaving a wide discretion to the Assistant Registrar to adopt any suitable mode for the recovery of the outstanding amount. We fail to see how such discretion can be qualified by what the learned counsel has urged. There is also no room for contending that before choosing the mode the petitioner should have been heard as his liability stood determined. The petitioner having failed to honour his commitments to secure loan and to repay it inspite of the several attempts having been made earlier to get back the outstanding loan there is no scope for invoking the principles of natural justice when it is not the case of the petitioner that he was deprived of any vested right.
(1) PLD 1964 SC 673 (2) PLD 1971 SC 61
(3) PLD 1971 SC 124 (4) PLD 1972 SC 271
10. Lastly learned counsel contended that the demand notices 'C', 'H', 'K' and 'M' were defective as they were issued by the third respondent who had no powers to issue such notices as it was beyond his pecuniary jurisdiction. This argument rests on section 7 of the Ordinance which lays down the pecuniary jurisdiction of the Assistant Registrar and the Registrar but in our view this contention is misconceived for the Assistant Registrar was not acting under that section while issuing the demand notices. Section 8 of the Ordinance does not lay down any incidence of pecuniary jurisdicion and all that it provides for is that the loan would be recovered according to the law and under the rules for the time being in force for the recovery of arrears of land revenue.
Therefore the Assistant Registrar who was given the powers of a Collector under the West Pakistan Land Revenue Code, 1967, could take action under sections 81 and 82 of the West Pakistan Land Revenue Act, 1967, and no exception can be taken to it.
11. Mr. Faiz Muhammad Soomro, learned counsel for the first respondent contended that the petitioner has not come with clean hands. He has pointed out that the petitioner had not filed the second set which was a part of the statement of account marked as Annexure 'A' and referred to in para. 5 of the petition for reasons best known to him. He also stated that the petitioner has made a false statement in para. 19-A of his petition that he had paid Rs, 42,20,129.",2 which is not so. He also invited our attention to the review petition wherein it is stated that he had paid Rs, 15,00,000 "towards principal plus interest" which statement was also not correct for out of this amount he had in fact paid Rs, 5,00,000 and the balance of Rs, 10,00,C00 was remitted. Such remission is apparent from the statement of account marked 'B'. He also managed to obtain a false statement of account marked Annexure 'K' wherein his liability stood at Rs, 13,62,485.71 though at no time before the issue of impugned notices he had disputed the amount due from him. The counsel for the petitioner also did not vouchsafe for its correctness. Lastly it was contended that he entered into a compromise dated 30th of December, 1973 but he failed to fulfil its terms. In these circumstances the learned counsel contended that he is not entitled to any indulgence against the recovery of the loan. In the absence of anything to discredit what has been asserted above the conduct of the petitioner weighs heavily against the grant of discretionary relief but this is not the only ground upon which relief is being denied to him.
12. The upshot of the above discussion is, that there is no violation of section & of the Ordinance for the liability of the petitioner stood determined under the awards which was not disputed even upon being served with the notices under section 5 of the Ordinance and therefore there is no violation of any mandatory provision of the Ordinance. Such being the case no relief could be granted. Before parting with the judgment it would be of some relevance to mention that the petitioner filed Misc. Application No, 412 of 1976 seeking interlocutory relief against the auction of the properties of the petitioner pursuant to the execution certificates, two of which were dated 30th of June, 1966 and the third, dated 24th on September, 1963 on the ground that they were a nullity in view of ' section 3 of the Ordinance. These certificates were not impugned in the main petition although the petitioner could have assailed their illegality. This being so, their illegality cannot be considered in the absence of any relief in the petition.
13. In the result, for the foregoing reasons the petition is without any substance and is dismissed but with no order as to costs. Misc. Application No, 412 of 1976 also stands dismissed as it has become infructuous.