1. NAZIM HUSSAIN SIDDIQUI, C.J.---This order will dispose of Constitutional Petitions Nos.D-1823 and 1824 of 1999, as in these petitions common question of facts and law are involved.
2. The petitioners are the contractors. Petitioner Abdul Karim (petitioner in C.P. No.D-1823 of 1999) has impugned notice, dated 29-10-1999, whereby he was directed to pay an amount of Rs.20,09,570 allegedly outstanding against him in respect of the Constitution, work, namely, (1) Up gradation of Government Intermediate College at K.N. Shah to Degree level (Add: of B.Sc. Classes), (2)
3. Construction of Basic Health Unit at Baid, (3) Construction of Basic Health Unit at Rawat Khan Lighari, (4) Construction of Basic Health Unit at Sattani Chandio and (5) Construction of Additional of 4 Class Rooms in Existing College in Sindh at K.N. Shah. It is mentioned in said letter if the amount is not paid it would be recovered as land revenue. The petitioner has claimed that nothing is outstanding against him and on the contrary the respondents are liable to pay him the amount for the work done by him and which amount has been detained by the respondents.
4. Petitioner Ashgar Khan (Petitioner in C.P. No. D-1824 of 1999) has impugned the notice, dated 29-10- 1999, whereby he was directed to pay an amount of Rs.7,41,184 in respect of cases/fraudulent payment made to him for the construction work viz (1) Mancher Lake for Fishermen Cooperative Society at Bubak and (2) Upgradation of B-Type. RHC/BHU to the level of A-Type RHC at Pat. (Indoor Block). The petitioner has claimed that nothing is outstanding against him and on the contrary the respondents are liable to pay him the amount outstanding against them. In said-notice, it is mentioned that if the amount is not paid it would be recovered as land revenue.
5. Mr. M.M. Awan, learned counsel for the petitioners, contends that the respondents have no power to recover said amount as arrears of land revenue as neither said amount was received by the petitioners by way of loan nor, it was, due against the petitioners nor said could be treated as Government dues. He also argued that contractual liabilities viz the amount in question cannot be recovered as Government dues under the provisions of Land Revenue Act. In support of above contentions, he cited:--
(i) M/s. Pakistan Pipe and Construction Company Limited v: City ,Mukhtiar kar, Karachi East and others, PLD 1984 Karachi 28.
(ii) Muhammad Akbar Cheetna v. Province of West Pakistan and another, 1984 SCMR 1047.
(iii) Agricultural Development Bank of Pakistan v. Sanaullah Khan and others, PLD 1988 Supreme Court 67.
(iv) Mumtaz Ahmed Silk. Mills. Limited v: District Sindh Employees Social Security Institution and another 1987 CLC 2531.
(v) Province of Punjab, v. Muhammad Azam, 1989 SCMR 1419 and
(vi) M/s. Hatta Construction Company (Pvt.) Ltd. v. Faisalabad Development Authority, Faisalabad, 1995 CLC 1877.
6. Ratio of above cases is that an amount of arrears of land revenue can only be recovered after determination of the amount of dues as fixed and ascertained. Further disputed claim cannot be recovered as arrears unless determined established.
7. It is noted that both the petitioners have claimed that they are not liable to pay any amount to the respondents and on the contrary the respondents are liable to pay them the amount which, according to them, the respondents have detained. The petitioners have not provided the details of the amount claimed by them as outstanding against the respondents. They have not come to the Court with clean hands. It is alleged against them that they did not fulfil contractual obligations, and ran away after receiving advance payment. These were blacklisted. It is also noted that material and substantial facts of this case are in dispute. While exercising jurisdiction under Article 199 of the Constitution the disputed facts cannot be investigated. The petitions are not maintainable.
8. On 20-1-2000 after hearing counsel for the parties, we had dismissed these petitions in limine and there are reasons for the same.