1. SALEEM AKHTAR, J. Thepetitioner entered into two contracts dated 15-5-1979 and 21-6-1979 for supply of Tinned Jams to respondent No. 1. According to the allegation made in the petition contract dated 15-5-1979 was cancelled by respondent No. 1 and it claimed Rs. 9,400 on account of risk purchase dues. This claim was denied by the petitioner. Another notice dated 3---10-1981 was received from respondent No. 2 demanding the petitioner to pay a sum of Rs. 77,200 on account of risk purchase dues. In the notice it has been specified that this amount is payable in respect of two contracts and 15-5-1979 and 21-6-1979. Under the first contract the claim is for Rs. 48,000 and under the second contract the claim is for Rs. 29,200. The notice threatened that if this amount is not paid within 15 days proceedings will be taken according to law for the recovery of the whole amount as land revenue. The respondents have not filed any counter-affidavit.
2. The learned counsel for the petitioner has contended that the notice dated 3--10-1981 issued by the respondent No. 2 is without jurisdiction as the amount sought to be recovered has not been determined and therefore proceedings under the Land Revenue Act cannot be taken. From the statement of fact it seems that the respondent No. 1 is claiming damages for breach of contract by the petitioner. There does not seem to be any proceeding under which the quantum of damage was ascertained and determined, therefore, in these circumstances, in our view the notice issued by respondent No. 2 is not legal and. Proper. In this regard reference has been made to Agricultural Development Bank of Pakistan v. Sanaullah Khan and another (PLD 1988 SC 67) where the following observation was made.--- "Be that as it may it is now welt-settled that all provisions of law which authorise any statutory authority to recover any amount as arrears of land revenue can be invoked only after determination of the amount of dues as affixed, ascertained and determined sum of money. This principle of law has been laid down by this Court in the case of Abdul Latif v. The Government of West Pakistan and others (PLD 1962 SC 384). `Here we may observe that the object and reason of the Punjab Land Revenue Act together with the policy underlying it is all too apparent from the Act itself. ': here arc provisions in the Act with respect to the making and maintenance of records of rights in land, and other matters relating to land and liabilities incidental thereto. There are several classes of Revenue Officers under the control of the Board of Revenue. 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.
3. From these provisions it seems perfectly clear that the Act does not give absolute power to the Revenue Officer to fix the liability at their sweet will. When the land revenue has been determined after following an elaborate procedure, preparation of a statement of account becomes more or less a mechanical job. In the above context it is laid down in section 66 that a statement of account certified by a Revenue Officer shall be conclusive proof of the existence of an arrear of land revenue, of its amount and of the person who is the defaulter. It must be remembered that a right construction of the Act can only be attained if its whole scope and object, together with an analysis of its wording and the circumstances in which it is enacted are taken into consideration.
4. From an examination of the Land Revenue Act, it is apparent that it provides first a procedure for determination of land revenue and then comes the machinery for realisation of such revenue. It is, therefore, manifest that before the operation of the machinery section for realisation of the arrears, the authority concerned must decide whether there is an arrear due or not.
5. Having found that the Deputy Commissioner had served the defaulting party with an order not for the purpose of further investigation, nor for hearing what he had to say in the matter but simply to carry out the order, the action taken by the officer was held to be invalid as violative of the rules of natural justice. The position appears to be similar in the present case. In the West Pakistan Land Revenue Act, 1967, as applicable in the Province of N.W.F.P. At the relevant time, section 79 lays down as under:---- "A statement of account certified by a Revenue Officer shall be conclusive proof of the existence of an arrear of land revenue of its amount and of person who is the defaulter."
6. It will be seen that the provisions of section 79 are in para. Materia with section 66 of the Punjab Land Revenue Act on which the cited decision is based. Section 115 of the West Pakistan Land Revenue Act, 1967, expressly makes Chapter VIII of the Act applicable to the recovery of a sum as an arrear of land revenue. As section 79 falls under Chapter VIII it is clearly attracted in such a case.
7. On parity of reasoning, therefore, the machinery provisions of the realisation of amount as arrears of land revenue under section 25 of the Ordinance could only be invoked after the procedure for determination of arrears due is adopted and duly certified. In absence of such a certificate the person concerned, without being given an opportunity of hearing, will not be a defaulter within the meaning of the law. Otherwise a mere claim could be recovered by one of the parties to the contract by the coercive procedure provided in the Ordinance. Such unjust and arbitrary power could not be attributed to have been conferred on the functionary by the legislature. The Board of Revenue has taken care to frame rules called the West Pakistan Land Revenue Rules, 1968, in which Rules 57 and 58 lay down detailed procedure for adjudication of the amount due as arrears of land revenue and the person from whom it is due as the defaulter before proceedings for recovery of the same are initialed. In view of the aforesaid the matter is beyond controversy, and therefore, the procedure adopted in this case was totally unwarranted and contrary to law This observation of the Supreme Court equally applies to the present case. We therefore declare that the action taken by the respondent No. 1 in issuing the impugned notice dated 3-10-1981 was without lawful authority and of no legal effect. The respondent No. 1 shall be free to take any action it may deem fit as provided under law.