The petitioner through this Constitution petition has challenged the validity of notices dated 4-5- 1995 and 12-5-1996 issued by respondents Nos.2 and 3 for the recovery of lease money of the contract of Adda fee to the tune of Rs.6,30,636 as arrears of land revenue.
2. The petitioner consequent upon giving offer of highest bid for Rs.14,04,000 in an open auction obtained a contract from Municipal Committee Gujar Khan for collecting the parking fee for the year 1987-88. As per terms of the auction, the petitioner was entitled to recover the parking fee at the rate of Rs.5 per loaded bus per trip, but later the rate of parking fee having reduced by the respondents to Rs.4 per trip, the petitioner statedly without raising arty dispute rescinded the contract. The respondents treating the contract in question alive for all practical purposes invoking the process of Land Revenue Act, 1967, referred the matter to the Collector of the district for recovery of the amount mentioned in the notice.
3. Mirza Anwar Baig, Learned counsel for the petitioner placing reliance on A.I Ahmad and Company v. Municipal Committee, Pasrur and others (1986 M LD 628), Sardar Muhammad and another v. Chairman Town Committee, Sadiqabad and others (PLD 1962 (W.P.) Baghdad-ul-Jadid 8) and Haji Syed Habibullah and another v. The Municipal Committee, Quetta through the Administrator, Municipal Committee (PLD 1977 Quetta 71) argued that the lease money due to the local council is not recoverable as arrears of land revenue. According to him the amount in question being not an amount due under section 141 of Punjab Local Government Ordinance, 1979, cannot be the subject-matter of sections 81 and 82 of the Land Revenue Act, 1967.
4. The examination of the provisions of law on the subject makes it clear that money payable refers only the amounts which are leviable under the Ordinance and not under a contract. Punjab Local Government Ordinance, 1979 does not empower a -local council to recover the contractual amount through the process of Land Revenue Act, 1967. A party to the contract of the nature either can file a suit for rendition of account or recovery of such amount as damages but the payments on account of a contract without determining the liability through a civil suit cannot be recovered as money payable under section 141 of Punjab Local Government Ordinance, 1979.
5. As per stand taken by respondent No.3 in the comments, the petitioner after obtaining the contract started collecting the adda fee at reduced rate without payment of any money to the Municipal Committee under the agreement and became defaulter. Consequently the contract was cancelled on 29-5-1988. The learned counsel for the respondents contended that the lease money being covered by the definition of money payable under section 141 of the Punjab Local Government Ordinance, 1979 the amount in question is recoverable as arrears of land revenue. He objected the maintainability of this petition on following two grounds:- (i)The petitioner earlier took the matter to the civil Court through a civil suit but could not succeed and (ii)The dispute was required to be referred to the Deputy Commissioner under clause 21 of the condition of auction which having not done, this petition is not competent.
6. 1 have heard the learned counsel for the parties and gone through the relevant provisions of law on the subject. After the grant of lease hold rights for the collection of parking fee the willingness of the petitioner to perform his contractual duty in terms of the agreement is not disputable. The subsequent change in the rate of adda fee less to the original rate frustrated the matter and as a result thereof no separate contract as prescribed therein having executed the terms of auction were treated as contract between the parties, according to which the lease money was to be deposited in equal instalments. The first instalment was due on 30-6-1987 and in case of non- payment of any instalment, the contract deemed to be cancelled and the dispute needed to be referred to the Deputy Commissioner but the respondents have not placed any document on record to show that the petitioner was declared defaulter. There is no evidence of delivery of possession of parking place to the petitioner or that the adda remained in possession of petitioner on lease during the period of contract or that on failure of the petitioner to deposit first instalment or any subsequent instalment, he was sent any demand notice or a notice of cancellation of contract as the case may be. It is not the case of respondents that the matter was sent to Deputy Commissioner under clause 21 of the terms of auction, who fixing the liability of the petitioner took essential step for recovery of money under the provisions of Land Revenue Act, 1967. Section 141 of Punjab Local Government Ordinance, 1979, provides as under:- "All arrears of taxes, rents, and other moneys payable to a local council under the Ordinance shall be recoverable as arrears of land revenue."
Therefore, unless the liability of the petitioner is ascertained in proper manner through the process of civil suit, the petitioner as such cannot be held responsible for payment of the contractual amount and consequently the adda fee allegedly collected by the petitioner for the period for which the lease was granted to him is not claimable as money payable under section 141 of the 8 Punjab Local Government Ordinance, 1979. .
7, The money recoverable as arrears of land revenue being different to the claim of an amount under a contract, the recovery of the contractual amount is only possible through the civil suit. The Land Revenue Act, 1967 being inapplicable in the matter, the provisions of said Act are not invocable for the recovery of amount in question.
Consequently the writ petition is accepted and the proceedings regarding the recovery of amount in question as arrears of land revenue, if any, are declared to be without lawful authority and of no