The petitioner herein brought a suit in the Civil Court at Sargodha against Town Committee Farooqa, through its Administrator and others for a declaration to the effect that the demand notice No.558/TCF, dated 15-9-1993 for the recovery of the arrears of Dharat Fee for the year 1987- 88 to the tune of Rs.31,490 was incorrect, illegal, time barred, collusive, mala fides, void and as such inoperative as against the rights of the plaintiff and he was not liable to pay the-same. As a consequential relief, he prayed for the issuance of a perpetual and mandatory injunction restraining the defendants from recovering the said amount based on contractual obligations through attachment of the property and arrest of the plaintiff, as required under sections 161 and 162 of the Punjab Local Government Ordinance, 1979 and through coercive measures and the same was liable to be written of.
2. The respondents contested the suit and a comparison of the pleadings of the parties gave rise to the following issues framed by the learned Civil Judge on 8-12-1993:-- (1)Whether the plaintiff had got no cause of action and locus standi to file the suit? O.P.D.
(2)Whether the suit is not maintainable in its present form, false and vexatious and defendants are entitled to special costs? O.P.D.
(3)Whether the plaintiff was liable to pay a sum of Rs.31,490 under the contract? O.P.D.
(4Whether the plaintiff had got sole right to levy Dharat Fee for the year 1987-88? O.P.P.
(5)Whether defendant has illegally issued licence for the levy of Dharat Fee to the strangers and plaintiff is not liable to pay the disputed amount? O. P. P.
(6)Relief.
3. Parties led their evidence on these issues and after taking into consideration the same, the learned Civil Judge then seized of the matter proceeded to give his findings thereon by means of his judgment and decree, dated 16-11-1994. He took up Issue No.3 first of all and after a lengthy discussion, he came to the conclusion that the plaintiff was a contractor for recovery of Dharat Fee for the year 1987-88 and was bound by his undertaking and the defendant/local body had every right to raise a demand. He, therefore, found this issue in favour of the defendants. He then took up issue No.4 and found that the plaintiff had failed to prove the same. He found Issue No.5 also in the negative. On issue No.1 he observed that in view of his findings on Issues No$.3 and 5 the plaintiff had got no cause of action. Since the defendants failed to claim any special costs in their evidence, he answered Issue No.2 against the defendants. As a result, he dismissed the plaintiff's suit but passed no order as to costs.
4. Feeling aggrieved by this judgment and decree, the plaintiff preferred an appeal which was also dismissed with costs by the learned Additional District Judge, Sargodha by means of his judgment, dated 10-10-1996.
5. Still dissatisfied, the plaintiff filed this revision petition which was admitted to regular hearing on 3-10-1997 in view of the assertion of the learned counsel for the petitioner that any lease money due to the Local Councils could not be recovered as arrears of land revenue but only through a law suit.
6. The learned counsel for the respondents has submitted "cross--objections" in writing which were entertained by the office on 16-11-1998 under Diary No.20486. The learned counsel for the respondents has, however, submitted that they are in fact his notes which he submitted in the office for the convenience of the Court.
7. This civil revision was in fact admitted to regular hearing in view of what has been laid down in Ali Muhammad & Company v. Municipal Committee, Pasrur through its Chairman and others KLR 1985 Revenue Cases 95 (Lahore) that any lease money due to the Local Councils could not be recovered as arrears of land revenue but only through a law suit. The learned counsel for the respondents, however, urged that since there was no written contract between the parties, it could not be said that the recovery could, only be made through a law suit.
8.It is not denied by the respondents that the petitioner being the highest bidder in an open auction, could collect the Dharat-fee. The real point in issue, however, was if the respondents' could serve the petitioner with the demand notice, dated 15-9-1993 in respect of the arrears of Dharat- fees liable to be recovered up to 30-6-1988 and could resort to the coercive measures under the relevant provisions of law as contained in section 141 read with sections 161 and 162 of the Punjab Local Government Ordinance, 1979. I am sorry that this aspect of the case has not been properly adverted to by the Courts below. .9. Learned counsel for the respondents has referred to a large number of reported cases namely Municipal Committee, Lahore v. Miran Bakhsh Civil Appeal No.2724 of 1926 Lahore Series, Zulaing v.
Yamethin District Council 1932 Indian Law Reports 522, Madura Municipality through Commissioner v. K. Alagirisami Naidu AIR 1939 Mad. 957, Dr. Fazal Din v. Municipal Committee, Lyallpur PLD 1956 (W.P.) Lah. 916, Dr. Azeem Shad v. Municipal Committee, Multan PLD 1968 Lah. 1419, Municipal Committee, Bannu v. Munawar Khan, Advocate PLD 1982 Pesh. 61 and Sufi Faiz Ahmad v.
Metropolitan Corporation, Lahore and others 1997 CLC 599. I am, however, afraid that these authorities do not help the respondents in claiming that the Town Committee Farooqa needed not file a civil suit for the recovery of the arrears of Dharat-fee and could seek resort to coercive measures under section 141 read with section 162 of Punjab Local Government Ordinance, 1979.
PLD 1968 Lah. 1419 where tender had been accepted by the Municipal Committee but no agreement had been recorded in writing in terms of Rule 5 of West Pakistan Municipal Committee (Contract) Rules, 1960, it was held that there was no valid contract and that formalities required by law must be gone through in order to create a binding contract and to attach liability.
The same view was taken in PLD 1982 Pesh. 61, and besides. Holding that findings of two Courts on any question found to be in utter disregard of mandatory provisions of law could be disturbed by the High Court in second appeal and that the execution of written lease deed in manner prescribed in Rule 5 was not a mere formality but statutory requirement to be complied with to make lease binding.
1997 CLC 599, it was held that although it could not be disputed that a contract not formalised or executed in accordance with Punjab Local Government Ordinance, 1979 and the rules on the subject, was not binding on the local council as these provisions have been held to be mandatory yet if as a consequence of some arrangement between the parties the Local Council had derived some benefit from the other side, it must compensate him on the principle of "quantum meruit".
This view was expressed on the strength of the judgment of Sindh High Court in Ali Muhammad v.
Karachi Metropolitan Corporation and another 1985 CLC 1730.
10. It is, thus, clear that in all these cases, the matters had been brought to the Court through law suits and the view-expressed by the learned counsel for the respondents that where the lease agreement was not reduced into writing, the defendants/respondents were not required under the law to bring a suit against the plaintiff-petitioner for recovering the arrears of the Dharat-fee cannot be upheld.
11. In fact, we, can seek assistance from what has been laid down in Haji S. Habibullah and another v. Municipal Committee, Quetta PLD 1977 Quetta 71 referred to in KLR 1985 Revenue Cases 95 (Lahore) in which a large number of earlier cases were considered including AIR 1934 Lah. 699, AIR 1933 Lah. 394, AIR 1938 Nag. 119, AIR 1926 Lah. 518 and AIR 1927 Lah. 161.
Similarly, unpaid amount of the lease money was tried to be recovered by following the procedure under section 81 of the Punjab Municipal Act in Maya Das's case AIR 1927 Lah. 161 wherein the tumtum stand of the Town Committee had been leased out and it was held that the amount due was not an amount due under the Act and that it was an amount under a simple lease or contract recoverable only by a law suit.
12 have carefully considered the relevant provisions of law as contained in sections 141, 161 and 162 and also the third schedule to Ordinance No .VI of 1979 and I have no doubt in my mind that coercive measures could not be A adopted to recover the so-called arrears of Dharat-fee. A reference to the copies of the pleadings of the parties Annexures "A", "B", "C" and "D" reveals that the plaintiff claimed that he was the contractor with regard to whole sale of vegetable and fruit at the said market and alleged that no body could sell the vegetable or fruit without his permission and that Chairman of the Town Committee issued licences to some people under the political pressure etc. On account of which he could not continue with this business and consequently had to abandon the same. It was in these circumstances that he sought the declaration and mandatory injunction prayed for. In their written statement, the defendants maintained inter alia that the plaintiff had obtained the said lease with regard to collection of Dharat-fee for a sum of Rs.41,000 and the defendants were well within their rights to claim the suit amount. The question is ' could they do it through coercive measures without recourse to a civil action'.
13. The authorities cited at the Bar by the learned counsel for the respondents are not at all relevant for the adjudication of the point in issue and rather of have gathered an impression that the learned counsel for the Town Committee perhaps wants to show that it was entitled to be compensated for the benefits drawn by the plaintiff-petitioner.
14. For all these reasons, I accept this revision petition, set aside the judgments and decrees of both the Courts below, after setting aside their findings on Issue No. l and hold that the plaintiff had a cause of action to seek declaration and injunction to the effect that the amount in C question could not be recovered as arrears of land revenue and the Town Committee must have resorted to law suit in accordance with law. Findings on Issues Nos.3 to 5 are also set aside being based on faulty approach to the facts of the case resulting in miscarriage of justice. Parties shall, however, bear their own costs throughout.