2. The brief facts are that Zila Council, Mianwali leased out to the petitioner the recovery of Goods Exit Tax for the year, 1990-91. According to the Lease Agreement, recovery was to be made by the Contractor through the employees of the Zila Council and the salaries of these employees were also to be paid by the Contractor. For some time, the salaries of the employees who were posted for the recovery of the tax were not paid by the Contractor, even after demand. Finally, the Zila Council referred the matter to the Deputy Commissioner/District Collector, Mianwali vide Letter No.2321 dated 9-5-1993, whereby he was asked to recover this amount from Malik & Brothers c/o Shaukat A.I, the petitioner, as arrears of land revenue after deducting 2% of recovery charges. The District Collector, Mianwali in turn issued certificate to the District Collector, Layyah for effecting recovery of the said amount as arrears of land revenue as the Contractor was resident of Chak No.296/TDA, District Layyah.
3. The petitioner challenged the action of the Zila Council to get this amount recovered as arrears of land revenue. The written statement has also been filed. Learned counsel for the Zila Council took up preliminary objection that previously the suit was filed by the petitioner in the Civil Court at Mianwali on the same cause of action which was, however, dismissed and, therefore, this petition on the same subject is not maintainable. Learned counsel for the petitioner submitted that the suit filed by the petitioner was for permanent injunction against the recovery of this amount but was not against the method of recovery, i.e. The recovery as arrears of land revenue, therefore, the petition is not hit by the principle of res judicata. He further submits that the suit was not competent against the recovery of the amount as arrears of land revenue because of the bar under the Punjab Land Revenue Act against such a suit.
4. I have gone through the plaint which was placed on record by the learned counsel for the parties. Admittedly, in the plaint, the permanent injunction was sought against the recovery of additional amount of salaries etc. But no relief was claimed against the recovery of the amount as arrears of land revenue and as a matter of fact such prayer could not be made at that time as the proceedings to effect recovery as the arrears of land revenue was initiated in the month of May, 1993 whereas the suit was filed in 1990 and dismissed on 8-6-1991. Therefore, the filing of the suit in respect of the same amount being based on different cause of action, does not bar the jurisdiction of this Court to entertain this petition.
5. The only question to be determined in this petition is whether the amount which is payable to the Zila Council by the petitioner under the Lease Agreement can be recovered as arrears of land revenue or not. Learned counsel for the petitioner has referred to section 141 of the Punjab Local Government Ordinance, 1979 and according to him the arrears of salary for the employees who were posted by the Zila Council for the recovery of the said tax under the supervision of the petitioner do not fall within the ambit of section 141 ibid and is not tax recoverable as arrears of land revenue.
6. Section 141 of the Punjab Local Government Ordinance, 1979 reads as follows:-- "Collection and recovery of taxes.---All arrears of taxes, rents and other moneys payable to a local council under the Ordinance shall be recoverable as arrears of land revenue."
7. Under section 2 of the Ordinance the 'tax' is defined as "includes any cess, fee, rate, toll or other impost leviable under the Ordinance;". Section 137 of the Ordinance provides that "a local council subject to the provisions of any other law may, and if directed by Government, shall levy all or any of the taxes enumerated in the Second Schedule". In part two of the Second Schedule the taxes are enumerated which can be levied by the Zila Council. This Schedule also does not include in the list of taxes, the salaries or the arrears of the salaries of such employees who were lent to the Contractor by the Zila Council under the Agreement of Lease. .
8. The 'rents' are not defined in the Ordinance, therefore, resort shall be made to the dictionary meaning. In the Black's Law Dictionary (Sixth Edition, page 1297), the 'rent' is defined as follows:-- "Consideration paid for use or occupation of property. In a broader sense, it is the compensation or fee paid, usually periodically for the use of any rental property, land, buildings, equipment, etc. At common law, term referred to compensation or return of value given at stated times for the possession of lands and tenements corporeal. A sum of money or other consideration, issuing yearly out of lands and tenements corporeal; something which a tenant renders out of the profits of the land which he enjoys; a compensation or return, being in the nature of an acknowledgment or recompense given for the possession of some corporeal inheritance."
9. It is thus clear that the arrears of salaries as claimed by the respondent --Zila Council from the petitioner do not fall within expression 'taxes' and 'rents' as mentioned in section 141 of the Ordinance. The only moot point, therefore, is as to whether "other moneys payable" as used in section 141 of the Ordinance, include the amount in question or not.
10. Learned counsel for the Zila Council and Mian Muhammad Bashir, learned Assistant Advocate- General, Punjab submitted that 'other moneys payable' is a wide expression which includes all dues and moneys payable to the Zila Council and, therefore, includes the arrears of salaries as claimed by the Zila Council from the petitioner. However, learned counsel have not cited any case-law on this subject in support of their contention.
11. On the other hand, learned counsel for the petitioner has cited at the bar the following reported judgments:--
(1) Sardar Muhammad and another v. Chairman, Town Committee, Sadiqabad and others (PLD 1962 (W.P.) Baghdad-ul-Jadid 8);
(2) Muhammad Akbar Cheema v. The Province of West Pakistan and another (1984 SCM R 1047).
12. In Sardar Muhammad and another v. Chairman Town, Committee, Sadiqabad and others the expression "moneys claimable" .As was used in section 38 of the Municipal Administration Ordinance, 1960 was considered by the Division Bench of the erstwhile West Pakistan High Court and it was observed as follows:-- "It was contended that as the rents accruing to the Town Committee from the property vested in or managed by it (they) formed part of the town fund created under the Order, the rents, or in other words, the lease money, must be regarded as money claimable under the Order. We see no force in this contention, for the reason that the term ' moneys claimable' under the Order clearly refers to the amounts which can be levied by the Town Committee under the terms of the Order and cannot be extended to include the rent or lease money of the property which a Town Committee is not obliged to own under the Order. "
13. In Muhammad Akbar Cheema's case the Hon'ble Supreme Court while dealing with the amount which was sought to be recovered as arrears of land revenue under the Punjab Land Revenue Act, 1967 and the Revenue Recovery Act, 1890 observed that:-- "The notification referred to by the learned High Court itself provides for the recovery of all classes of 'ascertained dues payable to Government' and, therefore, the machinery provisions of the Revenue Act could only be set into motion after the claim against the appellant had actually ripened into 'dues' and determined on the basis of some adjudication in accordance with the law and justice."
14. Admittedly, the petitioner and the Zila Council, Mianwali executed Agreement of Lease (described as Iqrarnama). Clause 9 of this Agreement is as follows:-- Accordingly, the petitioner/Contractor was to pay the salary, part of pension medical allowance, group insurance, house rent and other allowances as approved by the Government to the Zila Council every month in addition to TA/DA of the Tax Inspector, in respect of those employees of Zila Council who were posted to recover the said tax. Thus, the amount involved which is the subject- matter of this petition is based on the contractual obligation arising out of the Lease Agreement.
Therefore, the same does not fall within the purview of sections 137 and 141 of the Ordinance and is not 'money payable to the Zila Council under the Ordinance'. As such this amount is not recoverable as arrears of land revenue under the Punjab Land Revenue Act, 1967 or under the Revenue Recovery Act, 1890.
15. In the light of the above discussion, this writ petition is accepted and the notices issued by the District Collector, Mianwali and Layyah to the petitioner for the recovery of the amount in question as arrears of land revenue are declared to be without lawful authority and of no legal effect.
However, the respondent-Zila Council may effect the recovery of the amount in question in any other manner in accordance with law.
No order as to costs.