SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the order of the High Court, dated 8-12-1997, whereby the writ petition filed by the respondent was accepted.
2. The brief facts giving rise to the present appeal are that respondent obtained a loan of Rs.80,000 for the construction of a house at Chella Bandi, Muzaffarabad, in the year 1981 from the appellants.
According to the terms and conditions of the agreement, the said loan was to be paid in monthly instalments within the period of fifteen years. According to the appellants, the respondent only returned Rs.82,000 instead of the amount which was due for payment under the terms of the agreement. It was further, alleged that the appellants issued various notices to the respondent to pay the outstanding amount of loan but he did not comply. Consequently, a notice was issued to the respondent on 10-6-1997 under section 28(1) of the House Building Finance Corporation Act, 1952 (hereinafter shall be called the Act) to pay Rs.1,14,921, the outstanding amount against him, failing which the appellants would auction his house on 28-6-1997. The respondent, herein, filed a writ petition in the High Court challenging the aforesaid notice inter alia, on the ground that the appellants were not legally competent to auction the pledged house under section 28(1) of the Act, they could only move the District Judge under section 30 of, the Act for the redressal of their grievance. The High Court, after taking necessary proceedings in the matter, accepted the writ petition upholding the contention of the respondent that the remedy available to the appellants was only to have a recourse to the District Judge concerned under section 30 of the Act who could order the auction of the pledged house under section 28 of the Act. The present appeal, by leave, has been filed against the aforesaid order of the High Court.
3. Mr. Muhammad Yaqoob Mughal, Advocate, the learned counsel for the appellants, has argued that sections 28 and 30 of the Act are applicable altogether to different situations and the High Court has committed an error in holding that the appellants were not legally competent to sell the house of the respondent without first having recourse to the District Judge under section 30 of the Act. The learned counsel for the appellants has maintained that the provisions contained in section 30 of the Act are special provisions which are only attracted if the payment of the loan advanced is sought before the agreed period due to any of the eventualities envisaged under section 29 of the Act. The learned counsel has contended that in the instant case, no premature recovery of the loan advanced was demanded before the date fixed for payment and, thus, section 30 of the Act has no application to the case in hand.
4. In reply; Mr. Abdur Rashid Abbasi, Advocate, the learned counsel for the respondent, has controverted the arguments advanced by the learned counsel for the appellants. He has drawn our attention to notice which forms Annexure ---A/2" to the memorandum of appeal in which it is mentioned that if the respondent falls to pay the amount of Rs,78,926 within seven days, which fell due for payment on 31-3-1996, he would be proceeded under section 30 of the Act for recovery of the whole of the amount as lump sum; and his pledged house would also be sold under section 28 of the Act. This notice was neither referred to or challenged by the respondent in the High Court nor it was brought on its record; this notice has been brought on the record of this Court at the time of filing of the memorandum of appeal in this Court. It may be stated here that the said notice was issued to the respondent on 7-8-1996, whereas--, the notice which was challenged before the High Court was given to .The respondent on 10-6-1997, ten months after the notice (Annexure "A/2"). The learned counsel has argued that when two provisions of a statute are attracted to a situation and one operates harshly than the other, the provision which operates less harshly should be resorted to on the principle of the 'beneficial construction'. The learned counsel has further argued that section 28(1) and section 29(b) both stipulate the breach of the agreement, according to him section 30 of the Act would be attracted in both the cases, whether the breach of agreement is made by the borrower under section 28(1) or section 29(b). Thus, according to the learned counsel, the Corporation has the remedy for realising the outstanding amount only by having recourse to section 30 of the Act and it is only the District Judge who could pass an appropriate order under the aforesaid section. The learned counsel has strenuously maintained that as in the notice, dated 7-8--1996, a reference has been made to section 30 of the Act, the matter was essentially to be deaf with by the District Judge and appellants had no authority to auction the pledged house under section 28(1) of the Act. The learned counsel has submitted following authorities in support of his contentions:------- PLD 1970 SC 185, it was observed that while interpreting a statute, construction of fairness, reason and justice should be given preference.
PLD 1995 Lah. 541, it has been observed that each and every word contained in a constitutional document must be given definite meaning and no surplusage or redundancy should be attributed to it.
PLD 1995 Kar. 59, it was held that the jurisdiction of every circuit Bench of the High Court established under Article 198 of the Constitution of Pakistan is the same as that of the principal Bench and the High Court of Sindh Benches Rules, 1987 do not limit the said jurisdiction. It has been further observed that a statute, which deals with the jurisdiction of the Court, should be strictly construed and if there is any doubt, it has to be construed in favour of the subject.
PLD 1997 SC 582. It was observed that the taxation provisions of the Constitution should not be construed in isolation; the same are to be construed in the context in which they are legislated. It was further observed that the approach for interpreting a constitutional provision should be dynamic, progressive and be oriented with the desire to meet the situation which has arisen; it should not be interpreted narrowly.
5. We have given due consideration to the arguments raised at the Bar. For elucidating the matter, it is necessary to reproduce below the relevant provisions of sections 28, 29 and 30 of the Act.
Section 28:--- "28(1) When a borrower or a partner or the surety of either of them makes default, in payment or otherwise fails to comply with the terms of the agreement or letter of guarantee with the Corporation the Corporation may sell or realise any property pledged, mortgaged, hypothecated or assigned by the borrower or the partner or the surety of either of them to the Corporation by way of security.
(2) Any transfer of property made by the Corporation in exercise of its powers under subsection (1) shall vest in the transferee all rights in or to the property transferred as if the property had been sold to the transferee by the owner.
(3) All sums due to the Corporation from a borrower or a partner or the surety of either of them shall be recoverable as arrears of land revenue. "
Section 29:----------- "29. Power to call for payment before agreed period.--- In case it is found that--
(a) a loan or investment was obtained by providing false or misleading information in any material particular; or
(b) a breach of the terms of agreement with the Corporation has been committed; or (c)--------------------
(d) --------------------
(e) --------------------
(f) --------------------
(g) the property pledged, mortgaged, hypothecated or assigned to the corporation has in any way been disposed of or charged without the prior consent of the Corporation; or on the opinion of the Board it is necessary to do so in order to protect the interest of the Corporation for any other reason, the Corporation, may notwithstanding any agreement to the contrary, by notice require the borrower, the partner or the surety of either of them, as the case may be, to repay the loan or the amount invested by the Corporation in Section 30:--- "30. Special provisions for enforcement of claim by the Corporation.--- (1) Where by reason of the breach of any agreement by the borrower or the uartner the Corporation becomes entitled to require the immediate navment of the amount due by the borrower or the partner to the Corporation, any officer of the Corporation authorised generally or specially by the Board in this behalf may apply to the District Judge within the local limits of whose jurisdiction the borrower's or the partner's house is situated for any one or more of the following reliefs, namely:,--.
(a) --------------------
(b) --------------------
(c) --------------------
(2) -------------------- A comparative study of the abovementioned provisions would show that the provisions contained In sections 28, 29 and 30 of the Act have been intended by the Legislature to apply to different situations:- Section 28 applies to a case in which default in payment is made in respect of amount which has already become due for payment according to the agreement, while sections 29 and 30, which are interrelated would apply when the amount becomes payable before the agreed period by happening any' of the eventualities envisaged under section 29; including the eventuality of the breach of the agreement, which entitles the Corporation to demand the payment of whole of the loan before the agreed period. If the premature payment of loan cannot be claimed in view of the terms of the agreement or if any such premature payment can be claimed but is not claimed, section 30 would have no application. It is crystal clear even from the title of section 29 that it is applicable only if the payment of the loan is demanded before the agreed period and not otherwise; similarly, the expression 'the Corporation becomes entitled to require immediate payment of the amount due by the borrower to the Corporation' employed in subsection (1) of section 30 and the words ' in full' used in section 29(g) further lend support to the view that section 30 of the Act would be attracted only in case of demand for payment before agreed period; if the amount is already due according to the terms of the agreement, section 30 would have no application in such a case: The provisions contained in section 28(1), reproduced above, clearly show that the Corporation has been empowered to sell the property in case of a breach of terms of agreement without having any recourse to the District Judge. Therefore, the view taken by the High Court that the Corporation was not competent to sell the pledged house without having recourse to the District Judge under section 30 of the Act or it is the District Judge only who can order the sale of the property is not correct; as has been already stated, sections 28 and 30 of the Act are applicable to different situations and the former case cannot be subordinated to A the 'latter.
Therefore, the High Court was not correct in holding that the impugned notice for auctioning the house belonging to the respondent was illegal, because this could only be done by the District Judge. It is clearly laid down under section 28(l) that in case of breach of agreement, the Corporation is competent to sell the property pledged and, thus, the view that this could not be done without intervention of the District Judge is tantamount to read in the statutory provision the words which are not there, such an approach would be violative of the settled principles which govern the interpretation of a statute.
6. As has been already stated above, notice, dated 7-8-1996 which is Annexure "A/2" to the memorandum of appeal was given ten months prior to the notice which was impugned before the High Court. It has not been pleaded by the respondent in the writ petition that in pursuance of the said notice any amount was prematurely demanded by the appellants before the agreed period of payment. It appears that the respondent tried to build up altogether a new case in this Court after realising the fact that section 30 of the Act would have no application to the case in hand, if the amount of which the payment was demanded, is not shown to be demanded prematurely, before the agreed period.