P L D 1963 (W (PLP)

S. A. MAHMOOD, J.‑This writ petition is by Fazal Muhammad and Mian Ahmad, Lambardars of Chak No. 428/G. B., Muhammad Lambardar and Muhammad Sharif, Ex‑Lambardar, of Chak No. 422/G. B. Shahadat Khan and Muhammad Yar, Lambardars of Chak No. 423/G. B., Senate Khan Sarbrah Lambardar of Chak No. 427/G. B., and Nur Muhammad Khan, Lambardar of Chak No. 416/G. B., District Lyallpur, under Article 3(4) of the Laws (Continuance in Force) Order, 1958 read with Article 170 of the abrogated Constitution, by which they pray that a writ of certiorari or any other appropriate writ may be issued, quashing the order dated the 28th of April 1962, whereby they were arrested at the instance of the Tehsildar, Samundari, for non‑payment of arrears of rent due from the lessees of Crown land, which were being recovered as arrears of land revenue. 2. The Government had leased out its lands in various Chaks of Tehsil Samundari for the year 1948 to refugees at the rate of the three times the land revenue, which was subsequently increased to 20 times in the year 1956‑57, which the lessees were liable to pay directly to the Government, but they failed to pay in some cases and some arrears remained due to the Government for the period 1957 to 1960, and notices and warrants for realisation were issued to the allottees, but some amounts still remained due, which the Government was unable to realise, because the refugees had abandoned the land and had shifted to unknown places. For the realisation of these amounts, the petitioners were arrested on the 28th of April 1962 and detained for six hours, and were later released in the evening on furnishing bail to appear before the Tahsildar, respondent No. 2, on the 7th of May 1962. It is claimed in this writ petition that the Lambardars are in no way responsible for the payment of arrears of rent due from lessees of Government land, this not being a demand on account of land revenue arising out of the holdings of the co‑proprietors in the estate. 3. It is admitted in the report called for from the respon dents that the petitioners Nur Muhammad, Fazal Muhammad and Sanate Khan were arrested on the 28th of April 1962 for non payment of Government dues as defaulters, and were released on bail to deposit the dues by the 7th of May 1962. It is claimed that the detention of the defaulting Lambardars was valid, as regular warrants of arrears were issued against them for realisation of arrears of Government dues, which they had failed to deposit. It is alleged that, as required by the rules under section 20 of the Land Revenue Act, a Lambardar is responsible to recover land revenue and all sums recoverable as land revenue, as defined under section 28 of the Colonization of Government Lands Act, 1912, and, consequently, the arrears fell under the definition of sections 3(6) and 3(7) of the Land Revenue Act. The recovery of such dues by the Lambardars was one of their duties, as provided under section 20 of the Acquisition of Government Lands Act, 1912, and para. No. 21 of Standing Order No. 67, and they were liable to arrest and detention as defaulters. 4. These amounts which are being realised from the Lambardars are arrears of rent due from lessees of Government land, which are, of course, recoverable as arrears of land revenue, but the demand is not of land revenue assessed on the village estate, due from the Lambardars or co‑proprietors. The question which falls for determination is whether a Lambardar can be arrested and detained as a defaulter for non‑payment of arrears of rent due from the tenants of Government lands. In this connection, learned counsel for the petitioners drew our attention to the definition of "land‑owners" in clause (2) of section 3, "land revenue" in clause (6) of section 3, "defaulter" in clause (8) of section 3, sections 61 and 67 (1) and (b) of the Land Revenue Act, and rule 68 of the Land Revenue Rules. 5. Section 61 of the Land Revenue Act provides that in the case of every estate, the entire estate of the land‑owner, or, if there are more than one, the land‑owners jointly and severally, shall be liable for the land revenue for the time being assessed on the estate. Section 67 provides for the process of recovery of arrears of land revenue and enacts that subject to the other provisions of this Act, an arrear of land revenue may be recovered by any one or more of the following process, namely, (a) by service of a writ of demand on the defaulter, and (6) by arrest and detention of his person. Clauses (c) to (h) of this section provide for the other means of recovery of the amount from the estate or the holding of the defaulter. Therefore, the land‑owners jointly and severally and the entire estate is responsible for payment of the land revenue due on an estate, and the assessed land revenue can either be realised from the estate or holding or by the arrest and detention of the defaulter. Rule 68 of the Land Revenue Rules however provides that no defaulter shall be detained under section 69 (2) of the Act or confined under section 69 (3) for an arrear "unless it is due from himself or from a co‑proprietor, of whom he is the representative village headman"; nor shall any defaulter be imprisoned for an arrear due before he came into possession or office. This is not the case here, because the arrears are not due from any of the Lambardars or from a co‑proprietor of whom he is a representa tive village headman. The lessees of Government land were not co‑proprietors in the estate, and there is, therefore, no liability of the petitioners to arrest or detention. The amount due from the tenants may be recoverable as arrears of land revenue from them but this does not per se create a liability against the Lambardars to be arrested and detained. The Government have a long arm and many resources to enforce payment of its dues but Lambardars cannot be made scapegoats in place of losses to effect recovery from them. 6. In the report sent by the Department, reference has been made to paragraph 21 of Standing Order No. 67, but this is of no help in making the petitioners liable to arrest or detention for non‑payment of arrears of rent due from tenants of Government land. We have not been referred to any other provisions which make them liable to arrest and detention. 7. It has been stated in the report of the respondent that some of the petitioners have realised arrears of rent from some of the lessees, but if this is so, the Lambardars concerned can be prosecuted for misappropriation, but there is no warrant in law for arrest or detention of Lambardars in case of lease money due from tenants of Government's land. 8. For the reasons given above, the action of respondent No. 2 in arresting and detaining the petitioners was wholly illegal. We, therefore, set aside the order and direct that the petitioners shall not be forced by the coercive process of arrest and detention to deposit the arrears of rent due from lessees of Government land, which they have not been able to realise and to deposit the amounts in the Treasury. We accept this writ petition with costs. K. B. A. Petition accepted.