' This judgment will dispose of Writ Petitions Nos.1444/13WP, 1389/BWP of 1898 and 357/BWP of 1993, as common question of law and facts are involved in these petitions.
2. The facts as disclosed in the above Constitutional petitions are that the Punjab Agricultural Development and Supplies Corporation, Lahore is a body corporate, constituted under section 3 of the Punjab Agricultural Development and Supplies Corporation Act, 1973. The functions of the said Corporation include supplies of seed, fertilizers, pesticides, weeded ides and agricultural machinery to the public and private agencies. It is contender that.The writ petition was appointed as dealer by the respondent/Corporation for the sale of pesticides in the open market and for this purpose an agreements was executed between the parties. It is the case of the petitioner that the whole quantity of the stock of pesticides which was supplied by the respondents/Corporation could not be disposed of in the open market. Resultantly, the petitioner could not retain stocks which had to be returned to the Corporation. It is contended that despite what has been stated above, the respondents proceeded to recover different amounts from the petitioner as specified in the respective writ petitions as arrears of land revenue under section 18-A of the Punjab Agricultural Development and Supplies Corporation (Amendment) Act, 1975. The grounds taken in the writ petition are as under:--
(a) that respondents Nos.1 and 2 have no authority conferred upon them by law to recover the alleged amount as arrears of land revenue and the process issued in this behalf including the coercive measures against the petitioner are as such liable to be struck down;
(b) that the alleged arrears of sale proceeds due to Corporation cannot be recovered as land revenue Inasmuch as the funds of the Corporation cannot be termed as public funds and its recovery cannot be affected under the land revenue laws, for, firstly the petitioner as per definition of a 'defaulter' as given in subsection (7) of the section 4 of the West Pakistan Land Revenue Act, does not come within the mischief of such definition to be proceeded against under the recovery of Revenue Act, 1980, secondly under the Land Revenue Act, the process in pursuance to the provisions of section 80 of the West Pakistan Act, 1967, can be issued against the defaulter of the "land revenue" as defined in clause (14) of section 4 of the Act and for no other arrears. In view of the clear-cut provisions of law as described above, respondents Nos.3 and 4 have no jurisdiction to recover the alleged amount, of arrears as land revenue at the behest of respondents Nos.1 and 2;
(c) that the arrears due to Corporation (respondent No,1) though not "settled accounts" yet are funds of a private party viz., a business corporation with its assets and liabilities to be governed and determined under the rules and regulations of the corporation as set down for the running of the corporation and Collector who is the functionary of the Provincial Government has no authority power in aid of a private Corporation unless it is being done strictly in conformity with law.
' It was thus, prayed that the respondents be restrained from recovering the said amount as arrears, of land revenue as the amount being recovered did not determine as amount due.
3. The learned counsel of the respondents brought the following facts to the' notice of this Court in respect of the default in respect of the each writ petition:-- ' W.P. No,1444 of 1989.
(i) agreement dated 24-8-1985 was executed for the supply of pesticides on credit basis of the value of Rs,4,64,400;
(ii) The petitioner issued post-dated cheque dated 30-11-1985 for the payment of the entire amount of Rs,4,64,400 which was dishonoured;
(iii) the petitioner gave a promissory note in favour of respondent No,2 for the said amount;
(iv) the petitioner was supplied pesticides on 14-9-1985 of the value of Rs,6,81,000;
(v) the total amount of Rs,11,45,400 was payable by the petitioner by 30-11-1985;
(vi) the demand notice was issued on 28-10-1985;
(vii) after receipt of demand notice, the petitioner paid a sum of Rs,1,90,158.40 on different dates;
(vii) a certificate for the balance amount of Rs,9,40,130 declaring him a defaulter was issued.
W.P. No,1389 of 1989.
(i) agreement dated 30-7-1985 was executed for the supply of pesticides on credit basis of the value of Rs,11,97,800;
(ii) the petitioner issued a cheque dated 15-12-1985 in the sum of Rs,11,97,800 which was dishonoured;
(iii) upon the non-payment of the amount by the due date, notices dated 23-12-1985, 11-1-1986 and 17-2-1987 were issued and served on the petitioner;
(iv) that after notice, the petitioner deposited a sum of Rs,75,000 only;
(v) after issuance of notice certificate, recovery proceedings commenced as arrears of land revenue.
' W.P. No,357 of 1993.
(i) agreement dated 27-8-1987 for the supply of pesticides on credit basis for the value of Rs,5,58,700;
(ii) the petitioner executed letter of guarantee for loan in favour of the Punjab Agricultural Development and Supplies Corporation in the said amount;
(iii) that on the failure of the petitioner to pay the said amount, notices were issued for the recovery of the same under the Land Revenue Act.
4. Parawise comments were called from the respondents which are on the record. The contention of the respondents as disclosed in the parawise comments are to the following effect:--
(i) that the writ petition is not maintainable as the alternate and adequate remedy provided under Order XXII of 1985 provides as under: "Provided that any person aggrieved by the certificate may within 15 days of the issuance thereof file an appeal before an Officer not below the rank of Additional Secretary to the Government who may be notified by the Government as the Appellate Authority and he shall decide the appeal after giving an opportunity of being heard to the appellant."
(ii) that a certificate has been duly issued declaring the petitioner to be a defaulter and this certificate was forwarded by respondent No,2 to the Deputy Commissioner Rahimyar Khan who after declaring the petitioner as defaulter returned the certificate to respondent No,2, ultimately the petitioner was declared as defaulter upon which the Tehsildar (Recovery) issued, notice to the petitioner under sections 81/82 of the Land Revenue Act;
(iii) that the writ petition raises a disputed questions of fact, for which, the extraordinary remedy of writ jurisdiction is not competent. Upon facts, it was stated that the quantity of pesticides etc., which was supplied to the petitioner was admittedly evaluated by both the parties and the petitioner had to make the payment in respect of the pesticides etc., supplies to him. It was further contended that there was no question of taking back the unsold stocks by the respondent/Corporation, as there was no condition in that regard in the agreement executed between the parties.
5. It is common ground between the parties that the petitioner did receive the supplies from respondent No,1 of the different items mentioned in their weements. The value of the said item is also not disputed. The main contention raised by the petitioner is that it was the responsibility of respondent No,1 to take back the quantity of stocks from the petitioner which the latter was not able to sell in the open market and that in respect of such unsold stock, the petitioners were not liable to pay any amount to the respondent/Corporation. It was further contended by the learned counsel for the petitioner that until and unless the amount is determined as due, mere raising of a claim shall not entitle the respondent to recover any amount as arrears of land revenue. The learned counsel for the petitioner, however, was not able to point out any condition in the agreement executed between the parties, according to which, the unsold stocks were to be removed by the respondent/Corporation or that the petitioner was not liable to pay for such stocks once they were delivered by the respondent/Corporation to the petitioner in terms of the agreement. The main thrust argument of the learned counsel for the petitioner was that the Collector as well as Assistant Collector (Tehsildar Recovery) had no authority to recover the alleged amount as arrears of land revenue or to adopt coercive measures against the petitioners.
It was also contended that the arrears of sale proceeds due to the Corporation cannot be termed as public funds, the petitioners cannot be described as defaulters, and therefore, on this score also, no proceedings for the recovery as arrears of land revenue were warranted under the law. It was further contended that as the amount demanded did not amount 'co settled' accounts, it could not be recovered as arrears of,land revenue. To support his submission, the learned counsel for the petitioner referred to Municipal Committee, Daska through its Chairman v. Messrs Farhat Nadeem & Co. And 5 others (1994 SCMR 1235), M. Abdul Bari and others v. West Pakistan Soil Reclamation Board, Lahore and others (PLD 1966 SC 451) Municipal Committee, Sheikhupura v. Punjab Province (PLD 1951'. Lahore 195), Sardar Muhammad and another v. Chairman, Town Committee, Sadiqabad and others (PLD 1962 (W.P.) Baghdad-ulJadid 8), Malik Fazal Muhammad v. The Province of West Pakistan and 2 others (PLD 1962 (W.P.) Quetta 96), Haji Syed Habibullah and another v. The Municipal Committee, Quetta and another (PLD 1977 Quetta 71), Ali Ahmad & Company v. Municipal Committee Pasrur and others (1986 MLD 628) and Ahmad Cotton Ginning and Pressing Factory v.
Cotton Trading Corporation of Pakistan and others (1989 MLD 2202).
6. On the other hand, the learned counsel for the respondents referred to the Punjab Agricultural Development and Supplies Corporation Act (XXI of 1973) to demonstrate that under section 18 (ibid), the powers and the functions of the Corporation have been specified and that it was in the exercise of the performance of these statutory functions that agreement was executed with the petitioner for supply of pesticides on credit basis. Each such agreement specifies the supply of the pesticides upon credit and the value and the supply of pesticides is also specifically mentioned therein. According to the terms and conditions of the said agreement, the entire sum mentioned in the agreement was payable in the lump sum by dates prescribed therein. According to clause 3(b), it has been specifically provided that in the event of the failure to pay the full amount on the date due, the Corporation shall be entitled for the recovery of its due as arrears of land revenue under the provisions of section 18-A of the Punjab Agricultural Development and Supplies Corporation Act, 1973 as amended. The learned counsel for the respondent further referred to P.C.D. & S.C. (Amendment) Act, 1975 by virtue of which section 18-A was incorporated.
"S.18-A. Recovery of Corporation dues.---(1) Notwithstanding anything to the contrary contained in any agreement or law for the time being in force, any officer of the Corporation authorised generally or specially in this behalf by the Managing Director may, by notice, call upon any person to pay any sum of money due from him to the Corporation in respect of any agricultural supplies provided to him for his personal use or as dealer on commission basis for marketing the same.
(2) The notice referred to in subsection (1) shall indicate the time within which payment is required to be made to the Corporation.
(3) If any person fails to pay the amount demanded in the notice within the stipulated time, the Managing Director or any officer of the Corporation authorised generally or specially by him in this behalf, may issue a certificate declaring that person to be a defaulter and certifying the amount to be recoverable as arrears of land revenue.
(4) A certificate issued under subsection (3) shall be conclusive evidence that the amount certified therein is recoverable by the Corporation.
(5) Not with standing anything to the contrary contained in any agreement or law for the time being in force, the Corporation may recover the amount due to it either from the defaulter concerned or from his surety under the Revenue Recovery Act, 1890 as arrears of land revenue."
' Learned counsel for the respondent further referred to Punjab Agricultural Development and Supplies Corporation (Amendment) Ordinance, 1985 and relied upon the newly-added proviso to section 18-A which reads as under:-- "Provided that any person aggrieved by the certificate may within 15 days of the issuance thereof file an appeal before an officer, not below the rank of an Additional Sepretary to the Government, who may be notified by the Government as the appellate authority and he shall decide the appeal after giving an opportunity of being heard to the appellant."
7. The crux of the arguments of the learned counsel for the respondent is that as machanism for determination of the amount due has been made in the P.A.D. & S.C. Act, 1973 as amended, the recourse to the recovery of the determined amount as arrears of land revenue was lawful. Reliance was placed on Danish Mahmood Azfaree and 2 others v. Industrial Development Bank of Pakistan through Managing Director and another (1997 CLC 941), Noor Silk Mills Ltd. v. Investment Corporation of Pakistan and another (1984 CLC 2048) and Haji Mahboob Alain v. Province of the Punjab through Collector, Sargodha and another (1973 SCMR 415) to contend that where a mechanism has been provided under an Act declaring an amount to be recoverable as arrears of land revenue, it can be so recovered as determined according to the provisions of that Act.
8. Arguments heard and record perused.
9. The perusal of the record shows that agreement to supply pesticides on credit basis was executed between the parties. According to the terms of the said agreement, the pesticides were to be supplied on credit basis and the value of the supply of pesticides was mentioned in the said agreement. It was also clearly stipulated that in the event of the failure to pay the full amount by the due date by the borrower, the Corporation shall be entitled for the recovery of its dues as arrears of ,land revenue under the provisions of section 18-A of the P.A.D. & S.C. Act, 1973 as amended. There is no cavil with the legal proposition advanced by the learned counsel for the petitioner that unless and until the amount is determined as due, it cannot be recovered as arrears of land revenue. However, the legal position that emerges is that under the Punjab Agricultural Development and Supplies Corporation (Amendment) Act, 1975 and as further amended by the P.A.D. & S.C. (Amendment) Ordinance. 1985, a complete machinery has been provided for the recovery of Corporation dues. According to the section 18-A (ibid), specific provision has been made for determination of the dues of the Corporation and for its recovery as arrears of land revenue. When a specific mechanism has been provided by a State, it is mandatory that, that procedure is adopted and a recourse to a Court of law for determination of the amount due is not necessary. In the case of Noor Silk Mills Ltd. (supra), section 30(2) provided for the machinery for determination of dues under the Ordinance which are recoverable under section 31 of the same Ordinance. It was held in the judgment that before recovering such dues as arrears of land revenue, recourse to a Court of law was not necessary. Similar view has been expressed in the case of Haji Mahboob Alam and the case of Danish Mahmood Azfaree cited above. It may also be mentioned that according to the proviso to section 18-A, alternate and adequate remedy is provided before the appellate authority without recourse to which the writ petition is not competent. According to the record, the amounts against each petitioner have been determined as due according to the terms of agreement between the parties. It has been certified by the competent authority after following due procedure. Thus, the process of recovery of dues as arrears of land revenue is lawful. Resultantly, the writ petitions are devoid of force and are hereby dismissed. The parties to bear their own costs.