PLJ 2001 Lahore 790
Present: CH. IJAZ AHMAD, J.
TAHIR MEHMOOD-Petitioner
versus
FEDERATION OF PAKISTAN through SECRETARY MINISTRY OF FINANCE ISLAMABAD and 2 others-Respondents
W.P. No. 3491 of 2001, decided on 13.3.2001. Constitution of Pakistan, 1973--
—- Art. 199--Small business Corporation-Recovery of loan-Charge of interest-Writ against-Availability of alternate remedy-aintainability of-Constitutional petition-Petitioner had alternate remedies under provisions of House Building Finance Act to approach respondents for redressal of grievance or file suit against them-Petitioner is directed to appear before Manager of Respondent Corporation to discharge his liabilities strictly in accordance with law, rules and notification and read with terms of agreement-Respodnent Corporation shall allow him any benefit/concession permissible in such like cases under law/rules and notifications-He is further directed to consider request of petitioner to discharge his liabilities in easy instalments in the interest of respondents and to save petitioner and his family from destruction-It was duty and obligation of bank/authority corporation to initiate proceedings against poor people immediately when first instalment was due against poor people-Supreme Court had already declared interest as unislamic and cut of date has already expired-Secretary Finance Govt. of Pakistan is directed to formulate policy to save interest of corporation/bank and also save small owners/poor people by making policy so that they are in position to discharge their liabilities in easy instalments-Held: Petition no maintainable and disposed of according. [Pp. 791 & 792] A to E
Mr. Abid Saqi, Advocate for Petitioner. Date of hearing: 13.3.2001.
order
The brief facts out of which the present writ petition arises are that the petitioner secured loan from the respondents. As agreement was also executed between the petitioner and the respondents. According to the terms and conditions of the agreement the petitioner had to repay the loan to the respondents in easy instalments.
2. Learned counsel of the petitioner submits that the petitioner had repaid almost all the principal amount and the remaining amount claimed by the respondents is interest which has already been declared by the Superior Courts as un-Islamic. Ins support of his contention, he relied upon the following judgments:--
PLD 1992 FSCI (Mehmood-ur-Rehman's case)
PLD 2000 SC 225 (Dr. Muhammad Aslam Khaki's Case).
He further relied upon the admission order in ICA No. 157/2000 and admission order in Writ Petition No. 13422/2000. He further submits that petitioner approached the respondents to provide statement of accounts but the respondents failed to provide statements of accounts to the petitioner. He further submits that respondents failed to give benefit to the petitioner under incentive schemes issued by the respondents of and on. He further submits that petitioner approached the respondents to discharge his liabilities in easy instalments but the respondents failed to consider the request of the petitioner.
3. I have given my anxious consideration to the contentions of the learned counsel for the petitioner and perused the record myself. It is admitted fact that the petitioner and respondents executed agreement of their own sweet-will. The petitioner wants enforcement of contract through this Constitutional petition which is not permissible in the eyes of law. In arriving to this conclusion I am fortified by the following judgments:--
1994 SCMR 228 Mumtaz Masood's Case.
PLD 1958 SCMR 267 The Chand Pur Mills Lac Case.
As far as the charge of the interest is concerned, this Court in view of Article 203-G of the constitution has got no authority under the law to determine the same. The Supreme Court of Pakistan in the aforesaid case has held that no doubt interest/Ribah is un-Islamic but past and closed transactions are not to be reopened. It is settled proposition of law that admission order or leave granting order is not a judgment as per principle laid down by the Hon'ble Supreme Court in PLJ 1975 Supreme Court 21 Mirza Adam Khan's case. It is also admitted fact that petitioner has alternate remedies under the a provisions of House Building Finance Act to approach the respondents for redressal of his grievance or to file the suit against them. In this view of the matter writ petition is not maintainable as per principal laid down by the Hon'ble Supreme Court in Muhammad Ismael's case PLD 1996 Supreme Court 246. The learned counsel of the petitioner has argued that the petitioner has already paid more than principal amount to the respondents therefore, balance amount claimed by the respondents is not borne out from the record of the respondents and respondents foiled to provide copy of the statements of accounts to the petitioners and also failed to consider the case of the petitioner under the incentive schemes issued by tie respondents of and on. The respondents also failed to consider the request of the petitioner to discharge his liabilities in easy instalments. In this view of the matter petitioner is directed to appear before the manager of Respondent No. 2 to discharge his liabilities of the respondents Corporation strictly in accordance ft with law rules and notification and read with the terms of the agreement. Respondent No. 2 shall allow him any benefit/concession permissible in such like cases under the law rules and notifications. He is also directed to consider the case of the petitioner under the incentive schemes issued by the respondents of and on in case, case of the petitioner falls within the four corners of the schemes. He is further directed to consider the request of the petitioner to discharge his liabilities in easy instalments in the interest of the respondents and to save the petitioner and his family from destruction. The petitioner is directed to appear before the Respondent No. 2 on 12.4.2001 who has already provided would determine the liabilities strictly in accordance with law, till determination which of course would be completed expeditiously within two months till 12.6.2001. The petitioner shall not be harrassed till the aforesaid date. It is strange to note that small business corporation and other organizations like Agricultural Development Bank of Pakistan have initiated proceedings against the poor people/small owners for the recovery of the loans from them. The respondent failed to initiate proceedings immediately just after the first instalment due from the loanee's. This fact shows that the corporation/Bank functionaries also contributory negligent due to which aforesaid amount of the bank/ corporation accumulated against the poor people. It is duty and obligation of the bank/authority corporation to initiate proceedings against poor people immediately. When the first instalment was due against the poor people. It is pertinent to mention here that it appears that the corporation/bank functionaries under the directions of their superior initiated proceedings for recovery through coercive measures from the poor people who have secured/ obtained loans for construction of houses/for the purchase of Tractor and Trollies but as is evident from the last 8/9 months small owners/poor peoples have filed writ petitions big landlords or rich people who had obtained huge loans from the respondent corporation/bank did not file any writ petition' which brings the situation where possibility cannot be ruled out that the corporation/bank authorities have not initiated proceedings against the landlords rich people who have obtained big loans from them therefore, the same is hit by Article 25 of the Constitution. The HonTale Supreme Court had already declared interest as un-Islamic in aforesaid case otMuhammad Aslant Khaki's case and cut of date has already been expired. In this view of the matter, let a copy of the writ petition be sent to Secretary Finance Government of Pakistan who is directed to look into the matter and constitute a high-powered Committee to formulate policy to save the interest of the corporation/bank and also save the small owners poor people by making policy so that they are in a position to discharge their liabilities in easy instalments.
In view of what has heen discussed above, this writ petition is disposed of with the aforesaid terms.
(B.T.) Writ petition disposed of accordingly.
Present: CH. IJAZ AHMAD, J.
TAHIR MEHMOOD-Petitioner
versus
FEDERATION OF PAKISTAN through SECRETARY MINISTRY OF FINANCE ISLAMABAD and 2 others-Respondents
W.P. No. 3491 of 2001, decided on 13.3.2001. Constitution of Pakistan, 1973--
—- Art. 199--Small business Corporation-Recovery of loan-Charge of interest-Writ against-Availability of alternate remedy-aintainability of-Constitutional petition-Petitioner had alternate remedies under provisions of House Building Finance Act to approach respondents for redressal of grievance or file suit against them-Petitioner is directed to appear before Manager of Respondent Corporation to discharge his liabilities strictly in accordance with law, rules and notification and read with terms of agreement-Respodnent Corporation shall allow him any benefit/concession permissible in such like cases under law/rules and notifications-He is further directed to consider request of petitioner to discharge his liabilities in easy instalments in the interest of respondents and to save petitioner and his family from destruction-It was duty and obligation of bank/authority corporation to initiate proceedings against poor people immediately when first instalment was due against poor people-Supreme Court had already declared interest as unislamic and cut of date has already expired-Secretary Finance Govt. of Pakistan is directed to formulate policy to save interest of corporation/bank and also save small owners/poor people by making policy so that they are in position to discharge their liabilities in easy instalments-Held: Petition no maintainable and disposed of according. [Pp. 791 & 792] A to E
Mr. Abid Saqi, Advocate for Petitioner. Date of hearing: 13.3.2001.
order
The brief facts out of which the present writ petition arises are that the petitioner secured loan from the respondents. As agreement was also executed between the petitioner and the respondents. According to the terms and conditions of the agreement the petitioner had to repay the loan to the respondents in easy instalments.
2. Learned counsel of the petitioner submits that the petitioner had repaid almost all the principal amount and the remaining amount claimed by the respondents is interest which has already been declared by the Superior Courts as un-Islamic. Ins support of his contention, he relied upon the following judgments:--
PLD 1992 FSCI (Mehmood-ur-Rehman's case)
PLD 2000 SC 225 (Dr. Muhammad Aslam Khaki's Case).
He further relied upon the admission order in ICA No. 157/2000 and admission order in Writ Petition No. 13422/2000. He further submits that petitioner approached the respondents to provide statement of accounts but the respondents failed to provide statements of accounts to the petitioner. He further submits that respondents failed to give benefit to the petitioner under incentive schemes issued by the respondents of and on. He further submits that petitioner approached the respondents to discharge his liabilities in easy instalments but the respondents failed to consider the request of the petitioner.
3. I have given my anxious consideration to the contentions of the learned counsel for the petitioner and perused the record myself. It is admitted fact that the petitioner and respondents executed agreement of their own sweet-will. The petitioner wants enforcement of contract through this Constitutional petition which is not permissible in the eyes of law. In arriving to this conclusion I am fortified by the following judgments:--
1994 SCMR 228 Mumtaz Masood's Case.
PLD 1958 SCMR 267 The Chand Pur Mills Lac Case.
As far as the charge of the interest is concerned, this Court in view of Article 203-G of the constitution has got no authority under the law to determine the same. The Supreme Court of Pakistan in the aforesaid case has held that no doubt interest/Ribah is un-Islamic but past and closed transactions are not to be reopened. It is settled proposition of law that admission order or leave granting order is not a judgment as per principle laid down by the Hon'ble Supreme Court in PLJ 1975 Supreme Court 21 Mirza Adam Khan's case. It is also admitted fact that petitioner has alternate remedies under the a provisions of House Building Finance Act to approach the respondents for redressal of his grievance or to file the suit against them. In this view of the matter writ petition is not maintainable as per principal laid down by the Hon'ble Supreme Court in Muhammad Ismael's case PLD 1996 Supreme Court 246. The learned counsel of the petitioner has argued that the petitioner has already paid more than principal amount to the respondents therefore, balance amount claimed by the respondents is not borne out from the record of the respondents and respondents foiled to provide copy of the statements of accounts to the petitioners and also failed to consider the case of the petitioner under the incentive schemes issued by tie respondents of and on. The respondents also failed to consider the request of the petitioner to discharge his liabilities in easy instalments. In this view of the matter petitioner is directed to appear before the manager of Respondent No. 2 to discharge his liabilities of the respondents Corporation strictly in accordance ft with law rules and notification and read with the terms of the agreement. Respondent No. 2 shall allow him any benefit/concession permissible in such like cases under the law rules and notifications. He is also directed to consider the case of the petitioner under the incentive schemes issued by the respondents of and on in case, case of the petitioner falls within the four corners of the schemes. He is further directed to consider the request of the petitioner to discharge his liabilities in easy instalments in the interest of the respondents and to save the petitioner and his family from destruction. The petitioner is directed to appear before the Respondent No. 2 on 12.4.2001 who has already provided would determine the liabilities strictly in accordance with law, till determination which of course would be completed expeditiously within two months till 12.6.2001. The petitioner shall not be harrassed till the aforesaid date. It is strange to note that small business corporation and other organizations like Agricultural Development Bank of Pakistan have initiated proceedings against the poor people/small owners for the recovery of the loans from them. The respondent failed to initiate proceedings immediately just after the first instalment due from the loanee's. This fact shows that the corporation/Bank functionaries also contributory negligent due to which aforesaid amount of the bank/ corporation accumulated against the poor people. It is duty and obligation of the bank/authority corporation to initiate proceedings against poor people immediately. When the first instalment was due against the poor people. It is pertinent to mention here that it appears that the corporation/bank functionaries under the directions of their superior initiated proceedings for recovery through coercive measures from the poor people who have secured/ obtained loans for construction of houses/for the purchase of Tractor and Trollies but as is evident from the last 8/9 months small owners/poor peoples have filed writ petitions big landlords or rich people who had obtained huge loans from the respondent corporation/bank did not file any writ petition' which brings the situation where possibility cannot be ruled out that the corporation/bank authorities have not initiated proceedings against the landlords rich people who have obtained big loans from them therefore, the same is hit by Article 25 of the Constitution. The HonTale Supreme Court had already declared interest as un-Islamic in aforesaid case otMuhammad Aslant Khaki's case and cut of date has already been expired. In this view of the matter, let a copy of the writ petition be sent to Secretary Finance Government of Pakistan who is directed to look into the matter and constitute a high-powered Committee to formulate policy to save the interest of the corporation/bank and also save the small owners poor people by making policy so that they are in a position to discharge their liabilities in easy instalments.
In view of what has heen discussed above, this writ petition is disposed of with the aforesaid terms.
(B.T.) Writ petition disposed of accordingly.
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