1. JUDGMENT NAZIM HUSSAIN siddiqui, J.- The petitioners have impugned notice dated 2.8.1994, issued to them by the respondent No. 2 Assistant Commissioner, Karachi East, under Section 82 of the Land Revenue Act, 1967, directing them to pay Rs. 22.124 Million plus Recovery Charges of Rs.
2. 4,42,481/- within 15 days from the date of said notice. The facts relevant for decision of this petition are as follows:- The respondent No. 1, United Bank Limited, filed the Suit Nos. 390 & 391 of 1987, under the Banking Companies (Recovery of Loans) Ordinance, 1979, for Rs.33,20,122.71 and Rs. 1,88,04471.71 respectively.
3. Both these suits on 4.3.1990 were decreed against the petitioners. The petitioners preferred appeals against the Judgments and Decrees, being High Court Appeal Nos. 65 and 66 of 1990, which were dismissed on 27.4.1993 and 25.2.1993 respectively. Thereafter, the respondent No. 1 approached the Deputy Commissioner Karachi East, for recovery of decretal amount as arrears of land revenue.
4. The matter was referred to the respondent No. 2, who issued the impugned notice. The petitioners have claimed that no notice, as envisaged under the Proviso of Section 25-B of the Banking Companies Ordinance, 1962, hereinafter referred to as the Ordinance, was issued to them and the advance/loan taken by them from the respondent No. 1 was not for agricultural purposes, as such, the impugned notice is without jurisdiction and illegal.
5. The case of the respondent No. 1, as disclosed in the counter-affidavit, is that the petitioners had not brought to the notice of the Court the amended version of Section 25-B of the Ordinance.
6. According to the respondent, on 11.12.1993 notice of information, as required under Section 25-B of the Ordinance, was given through T.C.S. To the petitioners, which was returned undelivered to the respondent No. 1 with the endorsement "still closed". It is also the case of the respondent that the petitioners were informed at their address ie. The place of their business, as supplied by them to the respondent and as shown by them in Suit Nos. 390/87 & 391/87 and Appeals Nos. 65 and 66 of 1993. The respondent has also pointed out that the petitioners hove shown the same address in this Petition, but suppressed their present address and whereabouts deliberately in order to avoid payment of the huge decretal amount outstanding against them. The respondent has maintained that initially the decretal amount was Rs.2.25 crore, but now including the interest, the amount must have exceeded rupees five crore. According to the respondent, the petitioners have shifted to an unknown address and it is very difficult to locate them.
7. In order to appreciate the contentions raised on behalf of the petitioners, it would be advantageous to reproduce section 25-B of the Ordinance, which is as follows: SECTION 25-B: Recovery of certain dues of banking companies as arrears of land revenue.-Loans and advances made by a banking company for agricultural purposes and the amounts decreed by any Court in favour of a banking company or a financial institution specified in section 3-A shall be recoverable as an arrear of land revenue as if the banking company were a local authority for the purposes of section 5 of the Revenue Recovery Act, 1980 (I of 1980). Provided that no sum shall be so recoverable unless the banking company has, by notice in writing informed the debtor, not less than fifteen days before proceeding to have it so recovered, that he may repay by such instalment as may be fixed in the notice and that action to have the debt recovered as an arrear of land revenue will be taken if he fails to pay any instalment on or before the due date."
8. Mr. S.M.A. Mehmood, learned counsel for the petitioners strenuously argued that the notice, as envisaged by the Proviso of Section 25-B of the Ordinance, was not served upon the petitioners and this being a violation of a mandatory provision the entire proceedings thereafter, including issuance of the impugned notice, are illegal and on this ground alone, the impugned notice is liable to be quashed. Learned counsel also submitted in absence of said notice the respondent No. 2 could not assume jurisdiction and the whole exercise done by him in coram non judice and illegal ab initio. The above contentions have ' no force. The respondent No. 1 in the Counter Affidavit clearly stated that the notice in writing, as required by Section 25-B of the Ordinance informing the petitioners to pay the decretal amount was issued to them. A copy of said notice is available on record. It is dated 11th December, 1993. Said notice was sent through Courier Service and the Consignment Note No. 549297-C of Courier Service is no record with an endorsement "still closed".
9. It being so, it cannot be argued that the notice was not sent to the petitioners. The disputed facts cannot be investigated. Even if there is a possibility of difference of opinion, still the issue of disputed facts cannot be proved, while exercising jurisdiction under Article 199 of the Constitution.
10. Learned counsel next argued that under Section 25-B of the Ordinance only those loans and advances could be recovered as arrears of land revenue, which were given for agricultural purposes. He submitted that the amount in question was not advanced to the petitioners for the said purposes, as such, it could not be recovered as land revenue. Above contention is totally misconceived. By virtue of amendment brought by Ordinance No. III of 1994 and Ordinance No. LXIV of 1994 in the Banking Companies Ordinance, 1962, besides, the loans and advances given for agricultural purposes, any other amount decreed by any Court in favour of the Banking Company or a Financial Institution specified in Section 3-A, can also be recovered as arrears of land revenue.
11. It is an admitted fact that the two suits, mentioned above have been decreed in favour of the respondent No. 1 and the appeals preferred against them have been dismissed. Thus, the rights of the parties have been conclusively determined. It being so, the respondent No. 1, in view of the amendment referred to above, read with subsection (3) of section 8 of the Banking Companies (Recovery of Loans) Ordinance, 1979, is entitled to recover the decretal amount, outstanding against the petitioners as land revenue. In fact, it is at the option of the respondent No. 1 either to recover its dues as land revenue, or in any other appropriate manner.
12. Although the petitioners in their petition have quoted section 25-B of the Ordinance, they have not mentioned anything about said amendment. In fact, they quoted unamended Section 25-B of the Ordinance. This petition was filed on 13.10.1994, while the Ordinance No. III of 1994 and Ordinance No. LXIV of 1994 were published in Gazette of Pakistan on 13th January, 1994 and 27th September, 1994, respectively. Prima facie, it appears to be the case of deliberate misrepresentation/concealment of facts on the part of the petitioners.
13. Exercise of jurisdiction under Article 199 is discretionary in nature. No one can claim the exercise of discretionary power as a matter of right. In this case, demonstrably the equity is on the side of the respondent. The petitioners did not pay the amount as per terms of Agrement, nor they paid it after the aforesaid two suits were decreed and appeals were dismissed, nor they, now want to liquidate their liability. Manifestly, they are only interested to avoid payment of the amount outstanding against them, which now have exceeded to more than rupees five Crores. They have not come to the Court with clean hands. The amount outstanding against them is a public money and on that score also they are not entitled to any leniency.
14. Accordingly, we do not find any merit in this petition and the same is dismissed.