' The judgment of the learned District Judge, Dadu, dated 31st May, 1972 passed in F.C. Suit No, 31/70 has been challenged in this appeal.
2. The plaintiff/appellant is a claimant displaced person. He was allotted 12,878 Produce. Index Units of agricultural land in Dadu against his verified claim. Then came the M.L.Rs, 89 and 91 where under the allotment formula was changed. The appellant, under these regulation was found to be entitled to retain an area of 28,791 Produce Index Units and had to surrender the excess area of 9999 Produce Index Units. He was however given an option to purchase this excess area if he wished to retain the same.
' This option was exercised by the appellant and he communicated his consent to the authorities to accept transfer on the terms notified by the Government for disposal of such land. The disposal of the surendered land was to be made by the Government under Settlement Schemes notified and amended from time to time.
3. The first of these schemes was published on 28th December, 1961. It was corrected by a correction slip, dated 1st February, 1962. In these above two schemes, the rate and schedule of payment of purchase price etc. Were mentioned.
4. Para. 4 of the Scheme, dated 28th December, 1961 which was the provision applicable, was deleted and was replaced by correction slip of 1st February, 1962.
' Under para. 4 of the original scheme, dated 28th December, 1961 the intending purchaser was offered the land on the terms that 25% of the purchase price was to be paid immediately, the balance 75% was payable in 12 equal 6 monthly instalments. The failure in payment of any two successive instalments could result in cancellation of the sale and forfeiture of the whole or part of the money already paid. There was no question of any interest in any manner.
' This para. 4 was substituted by the correction slip, dated 1st February, 1962. As this is the relevant provision I reproduce it.
"The purchase price shall be recoverable in 20 equal half-yearly instalments. If the purchaser so desires, he can pay the price of the land in a lump sum. The first instalment of the purchase price shall be payable by the end of March, 1962 and interest at the rate of 6% shall be charged on the unpaid instalments. If the purchaser fails to pay two successive instalments the Deputy Commissioner of the District shall cancel the sale and may forfeit whole or parts of the money already paid subject to such directions as may be given by the provincial Government."
' It is evident that concept of charging interest came up for the first time on the basis of this correction slip.
5. The scheme was further modified relaxing the conditions further and making the payment of purchase price easier by increasing the number and period of payment of instalments and reducing the rate of sale price per acre. But we are not concerned with these and subsequent amendment and changes and it is not necessary to examine them.
' As stated above the appellant exercised the option to purchase and it is admitted position in the case that he has made full payments according to the scheme prescribed, in time according to the schedule. As a matter of fact he has discharged all the liability in 15 instalments instead of 20 instalments under the scheme.
6. After having paid the entire money the appellant realised that he had made overpayments to the Government under bona fide mistake or miscalculations. He wrote to the authority concerned to refund the amount of overpayments, which according to the appellant was Rs, 19,402. As the respondent failed to refund this amount the appellant was obliged to file the suit for recovery of this amount. The respondent took up a position that they had charged interest on the purchase price and thus justified this conduct of withholding the excess payment.
7. The learned Judge, on reading the relevant portion of clause 4 of the scheme came to the conclusion that although the appellant/ plaintiff had never fallen in arrears and had discharged his entire liability in 15 instalments instead of 20 instalments yet he was liable to pay interest at the rate of 6%. The learned Judge dismissed the suit. The plaintiff has appealed against this judgment and the short question that falls for determination is whether the retention of the amount of Rs, 19,403.15 by the respondents in excess to the purchase price of land on the pretext of interest is permissible and justified.
8. There seems to be no disagreement between the two counsel that the substituted para. Introduced in the scheme by correction slip would govern the case on hand. The counsel however differ on the interpretation of the text of this para. ' Learned counsel for the respondent contends that a bare recording of para. 4 of the scheme would show that interest is chargeable on the balance of amount payable in instalments while,the counsel for appellant interprets the expression unpaid instalments to mean that such instalments as are remaining unpaid on time as per time-table or schedule of payment prescribed in the scheme. It would be profitable to refer to these words in their setting in this para. Once again : " If such a person exercises the option to purchase the land with in the period mentioned above, the land may be sold to him at the rate prescribed in the Scheme. The purchase price shall be recoverable in 20 equal half-yearly instalments. If the purchaser so desires he can pay the price of the land in a lump sum. The first instalment of the purchase price shall be payable by the end of March, 1962 and interest at the rate of 6% shall be charged on the unpaid instalments."
' Mr. Mateen, learned counsel for the appellant contents that if it was intended to burden the instalments with interest it could be expressed in plain words. For instance it could be said that if the purchase price is not paid in lump sum and is paid in instalments then 6% interest would be charged.
9. According to the learned counsel payment in lump sum is left to the good sense and desire of the purchaser. This mode is permissive. The real beneficial aspect of the clause is allowing the facility of payment by instalment. The word instalment does not stand alone. It is preceded by the word unpaid. This according to the counsel seeks to draw a line and distinguishes the two classes of purchasers, namely the one who pays the instalment in time and the other who does at pay them in time but makes a default. It is the later class who would lose the purely , beneficial element of the scheme and would be burdened with interest. To interpret the clause otherwise would seem treating both the classes of purchasers at par. In support of his contention the learned counsel has relied on an unreported judgment of Agha Ali Hyder, J., in constitution petition No, 359 of 1972. All the three schemes were made in para. 5 of the judgment.
"5. The position therefore, would be that the petitioner would be liable to pay the price in accordance with the Scheme of 1st February, 1962 that is Rs, 10 per unit and interest at the rate of 6% per annum was to be paid_ only on the unpaid instalments. If there were no defaults, the question of any interest would not arise, and the interest also would be on the unpaid instalments and not on the amount due."
' The above observations support the contention of the learned counsel of the appellant. But, the learned counsel has tried to take his plea higher than that. He contended that even if the expression "unpaid instalments" is not clear enough and is found to be capable of two interpretations the one beneficial to the subject would be adopted. In support of this view the learned counsel has relied on a number of decisions. He first quoted the following passage from Maxwell on Statutes page 283 10th Edition : "Statutes which impose pecuniary burden, also, are subject to the same rule of strict construction. It is well-settled.Rule of law that all charges upon the subject must be imposed by clear and unambigous language because in some degree they operate as penalties. The subject is not to be taxed unless the language of the statute clearly imposes the obligation. In a taxing Act one has to look merely at what is clearly said. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. In a case of reasonable doubt the construction most beneficial to the subject is to be adopted. Still less is the language of a section to be stressed in order to tax a transaction which, had the Legislature thought of it would have been covered by appropriate words."
' Learned counsel then relied on a F.B. Case of Lahore High Court reported in AIR 1946 page 280 in which interpretation of section 7 (iv) (f) of the Court Fees Act was involved.
' The Full Bench was constituted to answer a reference whether under section 7 (iv) (f) it was open to a defendant in the suit to put his own valuation on the memo. Of appeal different from the value at which the plaintiff had valued the plaint of the suit. The following observations fall from Teja Singh, J, at page 298 of the report : "Before concluding I would like to add one other word. The Court fees Act is a fiscal enactment and it is a well-recognised principle of interpretation of statutes that a fiscal enactment should be construed strictly and whenever there is an ambiguity the benefit of the doubt should be given to the subject. If any authorities be needed in support of this proposition reference may be made to 47 All. 757, AIR 1928 Pat. 85 and AIR 1936 Mad.
420. The mere fact that there is a very serious conflict of opinion as regards the interpretation of S. 7(iv) and the effect of the use of the words "memorandum of appeal in the penultimate sentence of the clause shows that the matter is not free from doubt. Accordingly I venture to think that for this reason alone the clause should be interpreted in favour of the appellant and it be held that where the appellant is the defendant he should be free to value his memorandum of appeal regardless of the plaintiff's valuation in the plaint. The defect in the wording of the clause is of such a nature that it can be removed only by the Legislature and not by the Courts."
10. The learned counsel next relied on the observations made by Hamoodur Rahman, J, in a case reported in PLD 1961 SC 375. In this case an expression "Escaped assessment" and provisions of sections 11 and 14 of the Business Profit Tax Act fell for interpretation before the Court. Incidentally (not directly) observations were made by the late Justice Hamoodur Rahman which are quoted in headnote of the case as follows : "Two equally reasonable constructions-Construction favourable to the subject to be preferred."
' Another case relied upon by the learned counsel for the appellant is PLD 1969 Dacca 803.
' The question involved in this case was whether on a claim based on the award ad valorem court- fee under section 7 (iv) (f) would be payable or a fixed court-fee as provided in Article II of the Second Schedule of the Court Fees Act could be paid. The following passage from this judgment at page 818 is note worthy : "There is yet another aspect of the matter which deserves consideration. It is a well-recognized principle of interpretation of statutes that a fiscal enactment should be construed strictly and whenever there is an ambiguity, the benefit of the doubt should be given to the citizens. Again, if two equally reasonable constructions are possible, then, the construction favourable to the citizens should be preferred."
' The last case cited at the bar was 1980 Karachi page 458. At page 465 my Lord Mr. Justice Naimuddin, discussing the question of priority between port charges and mooring fee and the claim for wages of the crew and bills for the necessities supplied made the following observations at page 465 " It is retired that if the language of any provision of statute clearly impose a tax or confers the power 'of imposing a tax that provision must be given its proper effect. But where two possible meanings could be given to the provision of a statute, that which is more favourable to the subject ought to be accepted. If any authority is needed reference may be had to a Division Bench decision of the case in Messrs Star Vacuum Bottle Manufacturing Ca. Ltd., v. Collector of Central Excise and Land Customs, Karachi and 2 others PLD 1972 Kar.
210."
11. The result is that on the reading of the plain language of the substituted para. 4 of the Scheme published on 1st February, 1962 the contention of the counsel for the appellant seems to have substance and rationale. Fiber supplemented by well settled position of law quoted above, the appellant must succeed in this appeal. The appeal is allowed with costs throughout and the judgment and decree passed by the learned District Judge, Dadu, dated 31st May, 1972 passed in suit No, 31 of 1970 is set aside. The plaintiff's suit for recovery of excess amount paid by him is decreed.