' The plaintiff had applied for plot of land in the Industrial Zone of Korangi Township for setting up metal industry and was allotted plot No, 31 in Sector 19 measuring 1.84 acres (8889 sq. Yds.). The plaintiff was informed of the allotment by defendants No, 1 on 19th January, 1964 and the possession was delivered on 1-4-1964. According to the plaintiff at the time when the applications for allotment were invited by defendants No, 1 the question of fixation of occupancy value of the industrial plot in the Industrial Zone Korangi area was under consideration of the then Government of West Pakistan and the Central Government, and the allottees were asked to deposit in advance 1/4th of the occupancy value at a tentative rate of Rs, 10, per square yard pending and subject to the fixation of the price by the Government. Accordingly the plaintiff deposited a sum of Rs, 22,222.50. In the middle of the year 1963 the then Government of West Pakistan decide to fix the occupancy value of the Industrial plots in Korangi Township at the rate of Rs, 4, per square yard.
When the defendants No, 1 demanded from the plaintiff the balance of occupancy value at the rate of Rs, 10, per square yard, the plaintiff challenged it on the ground that according to the decision of the Government he is liable to pay only at the rate of Rs, 4, per square yard. The demand of the defendant No, 1 for Rs, 71,756, has been termed by the plaintiff as illegal. On plaintiff's failure to pay, the defendant No, 1 invoked Article 147-A of the K. D. A. Order, 1957 and threatened to recover it as arrears of land revenue. It has been alleged that on or about 5th or 6th December, 1962 some officer of the City Deputy Collector, Karachi visited the factory of plaintiff and threatened that unless the amount was paid the factory would be attached. The plaintiff served a notice dated 7-12-1972 under Article 131 of the K. D. A. Order, 1957 and filed the present suit on 12-2-1973.
2. In the written statement the defendants No, 1 have pleaded that the plot was allotted to the plaintiff which was intimated on 27-5-1963 and formally allotment order was issued to the plaintiff on 18-7-1963. It has been denied that the plaintiff was required to deposit by way of advance 1/4th of occupancy value calculated at the tentative rate of Rs, 10, per square yard subject to fixation of the price by the Government. The rate had already been fixed by the Government at Rs, 10, per square yard and the plaintiff was asked to deposit 1/4th of the occupancy value on that fixed rate.
On 19-8-1963 the Central Government introduced a new concession rate for industrial plots in Korangi at Rs, 4, per square yard for future allotment of plots and that rate is not applicable to the plaintiff. The plaintiff was many a time asked to deposit the occupancy value calculated at Rs, 10, per square yard which he failed to pay and therefore the defendants No, 1 did not have any alternative but to refer the matter to City Deputy Collector for recovery of arrears as Land Revenue.
The defendants No, 1 have maintained that the action taken by them under Article 147-A is legal and proper. It has further been pleaded that the suit is barred by time and the plaintiff is estopped from challenging the occupancy value which was fixed at the rate of Rs, 10, per square yard and that the suit is not competent as no statutory notice has been served.
3. The following consent issues were settled by the court :- "(1) Is the demand of the defendant from the plaintiff for occupancy value at the rate of R. 10, per square yard or the recovery of the balance as arrears of land revenue under Article 147-A of the K.
D. A. Order 1957, illegal or mala fide or without lawful authority?
(2) Is the suit bad for want of statutory notic under Article 131 of the K. D. A. Order?
(3) Is the suit time barred?
(4) What should the decree be?
' The parties have not led any evidence a I have only relied on the admitted documents.
4. Issue No, 1.-The plaintiff by an applicant in applied for allotment of a plot of land in Industrial Zone of Korangi row ship and alongwith this application enclosed a cheque for Rs, 11,111. 5, being 1/8th cost of the occupancy value of the plot as required by defendants No,
1. This was calculated at the rate of Rs, 10, per square yard. The defendants No, 1 by their letter dated 27th May, 1963 acknowledging the plaintiff's application and the cheque for Rs, 11,111.25 accepted it towards the 1/8th cost of the plot and asked him to send a chieque or pay order for a further sum of Rs, 11,111.25 towards further 1/8th amount of the total cost so that a provisional allotment order may be issued in his favour. The plaintiff by his letter dated 9th July, 1963 enclosed a pay order dated 24-6-1963 for Rs, 11,111.25 and requested for issuance of an allotment order. Consequently the defendants No, 1 by letter dated 18th July, 1967 issued a provisional allotment order in which the payment of Rs, 22,222.50 has been acknowledged. It also provided that the allotment was issued on terms and conditions mentioned on the reverse which would be incorporated in the lease agreement to be executed in favour of the plaintiff in due course of time. Unfortunately the photo copy of the allotment order produced and admitted by the parties does not contain such conditions which were incorporated on its reverse side. However, it seems that the defendants No, 1 by a letter dated 9th September, 1966 notified the plaintiff that he had failed the deposit second and third instalments towards the cost of plot and ground rent for 3 years up to 1-4-1967 amounting to Rs, 44,978.34 and also demanded interest at the rate of 6% per annum amounting to Rs, 3,355.60. The defendants No, 1 called upon the plaintiff to deposit Rs, 48,533.94 otherwise necessary action shall be taken and allotment was liable to be cancelled without further notice. Again by another letter dated 16th July, 1969 while referring to their letter of 9th September, 1966 the defendants No, 1 called upon the plaintiff to pay the outstanding dues within one week of the receipt of the final notice failing which allotment would be cancelled. Again on 3rd December, 1969 another letter was writtet by the defendants No, 1 in which it was categorically stated that the request of Korangi Association of Industry and Trade for reduction of rate of industrial plot in Korangi from Rs, 10 to Rs 4 per square yard was considered by the Government of West Pakistan and it was decided that the rate of Rs, 10 should be continued to be charged from all such allottees to whom plots were allotted at the said rate and therefore the defendants No, 1 asked the plaintiff to pay the dues within 15 days. It may be mentioned here that on 19th August, 1963 the Government of Pakistan had decided that price of Industrial plot of Korangi Colony should be in future reduced from Rs, 10 to Rs, 4 per square yard.
The plaintiff did not respond to any of the Jetters sent to him and therefore by a letter dated 28th December, 1970 the defendants No, 1 notified that the occupancy value of the industrial plot would be charged at the rate of Rs, 10 per square yard and the plaintiff was called upon to pay the outstanding dues by 15-1-1979 and in case he failed to pay the outstanding dues it would be recovered as arrears of land revenue and the allotment shall be cancelled. Another notice in the same terms was also issued on 29th April, 1971 but as it has not been admitted by the plaintiff it has not been exhibited. The plaintiff then served notice dated 17th December, 1972 on defendants No, 1.
5. From the statement of facts stated above it seems clear that when the application for allotment was made by the plaintiff he was aware of the fact that the occupancy value was being charged at the rate of Rs, 10, per square yard. Alongwith his application for allotment he had enclosed a cheque towards occupancy value calculated at Rs, 10, per square yard. This was admitted in his letter of 19th April, 1963. Again when the defendant No, 1 issued a letter dated 27-5-1963 demanding 1/8th cost on the basis of Rs, 10 per square yard the same was readily paid by the plaintiff. The provisional allotment order was then issued to the plaintiff on 18-7-1963 and possession was given to him. Throughout the correspondence which has been referred above it seems that the plaintiff never wrote any letter objecting to the rate of the occupancy value. There are several letters in which demands were made from time to time but the plaintiff did not object or reply to them.
6. Mr. A. R. Akhtar, the learned counsel for the plaintiff has referred to the notification of the Government of Pakistan, Rehabilitation and Works Division, dated 19th August, 1963iand has relied on clause 4 which reads as follows : "It has further been decided that the price of industry plots in the Korangi Colony should be in future reduced from Rs, 10 to Rs, 4 per square yard for all sizes of plots in order to encourage industrialization in the area and to provide more job opportunities for settlers."
' The case of the plaintiff depends upon interpretation of clause 4 of the notification. The learned counsel for the plaintiff has contended that as the order of allotment was provisional the price was tentative which was to be determined after it was decided by the Government and therefore after the decision the price has to be fixed finally which should be at the rate of Rs, 4 per square yard instead of Rs,
10. The wording of this notification is clear as it contemplates that the price of plots in Korangi Colony should be in future reduced from Rs, 10 to Rs, 4 per square yard. As the price was reduced prospectively and not retrospectively the plaintiff was not entitled to take advantage of this price reduction as the plot was allotted to him on 8th July, 1963. The fact that the allotment was issued provisionally does not alter the situation. From the very beginning the occupancy value of the plot was known to the plaintiff and in fact from time to time it was notified to the plaintiff and demands were made on the basis of Rs, 10, per square yard which was paid by him. In the face of all these facts the allotment order was issued and possession was delivered to him and therefore the plaintiff is estopped from challenging that the occupancy value of the plot should be charged at a reduced rate. The notification does not contemplate reduction in respect of the allotments made before the date of notification. The notification itself provides the rate for future allotments and it is also well A settled that a notification unless otherwise provided by law cannot have a retrospective operation. Therefore the demand of defendant No, 1 for recovery at the rate of Rs, 10, per square yard was perfectly legal and valid.
7. Coming to the second part of issue No, 1 it has to be seen whether defendant No, 1 could have taken proceedings for recovery of outstanding dues as a land revenue under Article 147-A of the K.
D. A. Order 1957 which reads as follows :- All sums due to the authority shall be recoverable as arrears of land revenue : Provided that no sum shall be so recovered unless three months' notice has first been given by the authority to the person liable to pay the same, that be may pay by such instalments as may be fixed in the notice, and that upon his so paying every instalment on or before the due date, the recovery may be suspended, but that it shall otherwise proceed as to the entire sum outstanding in case of any default in any instalment including the first."
8. Mr. A. R. Akhtar, the learned counsel for the plaintiff has contended that none of the pre- conditions imposed by Article 147-A have been complied with by the defendants No,
1. According to him it provides a form of notice which contemplates that three months notice should first be given by the authority and further the amon..t of instalments as fixed by the authority should also be notified in the notice and according to him as these conditions were not complied with the action of the defendants No, 1 in recovering the outstanding as arrears of land revenue is illegal. The learned counsel for the plaintiff has also contended that unless a sum is due to the authority no action can be taken. According to him the sum will be due only after it is admitted by the other side or that the same has been adjudicated upon. Reliance has been placed on the case of State Bank of Pakistan v. K. D. A. (1) in which referring to Article 147-A of the Order the following observation has been made :- "They indicate that the defendant can recover as arrears of land revenue any sum "due" to it. The question which arises here is as to whether the money which is claimed by the defendant is due to it or not. According to the defendant it is due to it, but the plaintiff does not take the same view and has questioned its liability. In the presence of such a dispute it is not open to anyone of the parties to say that its point of view is binding on the other. In this view of the situation, the defendant is not in a position to say that the amount claimed by it is due to it from the plaintiff in spite of the plaintiff's objection to it. In other words, the sum which is claimed by the defendant constitutes a claim of the defendant but it cannot be taken to be sum due from the plaintiff to the defendant."
' In this judgment reference was made to PLD 1963 Kar. 653 and PLD 1962 SC 383 and it was further observed as follows : "It is relevant to consider here that the Revenue Law under which the defendant proposes to proceed against the plaintiff contains provisions under which disputes relating to land revenue recoverable under that the law can be adjudicated upon and determined, because the method of recovery in terms of the revenue law comes into operation after the adjudication of disputes. The above-quoted provisions of section 147-A merely provide a method of recovery. It is presumed in them that the amount which is sought to be recovered by that method has been found to be due.
In these circumstances, the defendant has first to get its claim duly adjudicated so that it assumes the form of "dues". The steps for recovering the dues can be taken after such adjudication only. In this regard a reference to the observations made in PLD 1962 SC 384 where it was held that "before operation on the machinery section for realization of the arrears the authority concerned must decide whether there is arrears due or not."
' It is therefore clear that the power conferred on the above authority to recover the outstanding as arrears of land revenue can be exercised if there is an amount due and further that three months' notice has been served on the plaintiff. To contend that if any amount is disputed in any circumstances, whatsoever it will loose all its characteristic of being an amount due will be taking the matter beyond reasons. The observations made in PLD 1967 Kar. 216 cannot be applied with generality and without considering the facts and circumstances of the case. I respectfully agree with the observations made therein with regard to the interpretation of Article 117-A and venture to state that in cases where the amounts have been admitted or on the facts B they are clearly and legally due and payable but to delay the recovery of
(1) PLD 1967 Kar. 216 such an amount if a party raises flimsy and fictitious objections, it cannot be conceived that as a fictitious dispute has been raised, the amount is not due unless such dispute is adjudicated. The dispute relating to the liability of payment should be genuine, correct and valid. It should not be raised merely to avoid payment but it should be in the nature of a real substantial, valid and genuine controversy challenging the legality, validity and correctness of the amount claimed to be due. Surely it is the authority demanding the amount which should first establish that the amount is due. However there may be cases where the demand of any authority may be prima facie illegal and incorrect and in such cases the dictum laid down in PLD 1967 Kar. 216 shall apply with full force. In the present case as is obvious the plaintiff from the very beginning was aware of the rate and had even paid and did not challenge it till such time coercive measures were threatened to be taken against him. The objection was taken by the plaintiff for the first time in his notice under Article 131. In the face of these facts plaintiff did not have any valid dispute or genuine claim to deprive the defendants No, 1 from demanding their dues and taking steps for its recovery as arrears of land revenue.
9. Now it is to be seen whether the defendant No, 1 has complied with the conditions laid down under Article 147-A. It is clear that in none of notices issued by the defendants No, 1 three months time has been given. This is a precondition to the validity of the notice. Mr. Kizilbash, the learned counsel for the defendants No, 1 has contended that defendants No, 1 had issued three notices and as the period that has lapsed during the first notice and the last notice is more than three months it is sufficient compliance of Article 147-A. The argument raised by Mr. Kizilbash does not find support from the statute itself. It is a mandatory provision that unless three months notice is first given by K. D. A. To the person liable to pay the dues it cannot be recovered as arrears of land revenue. It does not contemplate several notices with shorter times. The law has provided protection to the persons from whom claim has been made reasoning K. D. A. To issue notice and giving them three months time before any coercive action be taken against them. This protection cannot be defeated by issuing several notices of shorter period. Any notices which does not provide three months time for payment of dues will be in contravention of Article 147-A and it will not entitle the K. D. A. To recover the dues as arrears of land revenue.
10. Mr. A. B. Akhtar, the learned counsel for the plaintiff further contended that the second precondition is that in the notice itself instalments should be fixed. The provision relating to the instalment are only discretionary and may be fixed if the authority grants such instalments or desires the defaulting party to pay the amount in instalments. Article 147-A does not cast any duty upon the authority to allow instalment much less fix it in the notice. A reading of the provision makes it clear that the argument of the learned counsel is not tenable. My finding therefore on the issue is that the plaintiff's demand for recovery of occupancy value at the rate of Rs, 10 per square yard was valid and proper but the notice issued for recovery of the balance dues as arrears of land revenue under Article 147-A was not valid as three months notice was not served upon the plaintiff.
Issue No, 2.-The plaintiff has served a notice. The issue is therefore decided in the negative.
Issue No, 3.-the learned counsel for the defendants has referred to Article 131 of K. D. A. Order and contended that as the suit has not been filed within 6 months after the accrual of the cause of action the same is barred by time. The learned counsel for the plaintiff has contended that cause of action arose on 6th December, 1972 when the plaintiff was threatened by defendant No, 2 to attach his factory. There is no evidence on the record to show that any one had threatened the plaintiff as stated in para. 9 of the plaint. The question which requires consideration is whether the plaintiff's suit is barred under Article 131, sub-clause (3). Article 131(3) fixes a special period of limitation of six months for suits described in clause (I) of Article 131 which should be filed within six months after the accrual of the cause of action. Article 131 provides that no suits shall be filed without service of notice in respect of any act purporting to be done under Article 131 of K. D. A.
Order 1957 or the rules or regulations made thereunder, until the expiry of one month from the service of notice. Therefore the special period of limitation fixed under this Article relates only to the acts purporting to be done under this Order. If the act is not an act purporting to have been done under this Order then the Article 131 cannot be pressed in service. As stated earlier the act will be purported to have been done if it is done in accordance with the provisions provided by the Order itself. The threatened action taken by the defendants No, 1 to recover the dues as arrears of land revenue without complying with the mandatory provision of law cannot be an action within the provisions of Article 147-A. It is therefore to be seen what would be the period of limitation. The plaintiff has referred to Article 120 and no other provision has been pointed out by the learned counsel for the defendant. Therefore the suit is within time.
Issue No, 4.-The suit is therefore decreed and declaration is granted that the action of defendants No, 1 to recover the dues from the plaintiff as land revenue is not valid and legal. The defendants are restrained from recovering the dues from the plaintiff as land revenue on the basis of notices dated 28-12-1970 and 29-4-1971. The defendants will however be at liberty to take such action after serving proper notice under Article 147-A of K. D. A. Order. There will be no order as to costs.