1999 PLP 778 (MLD)

The learned Assistant Advocate-General contended that respondents are duty bound to act in accordance with law. The learned Legal Advisor of respondents Nos.6 and 7 contended that no stay order was passed by this Court in the aforesaid writ petitions, therefore, mere filing of the writ petition by the petitioner did not restrain the respondents to demand outstanding arrears against the petitioner. He further contended that the aforesaid outstanding amount was duly certified by the Revenue Officer of the Department and sections 80, 81 and 82 provided different mode of recovery of the said amount, therefore, respondents were justified to adopt any mode of recovery prescribed under the law as it is the discretion of the competent authority to choose any one of the modes prescribed in the aforesaid sections. He further contended that in the given circumstances notice is not required to be issued to the petitioner as admittedly the aforesaid amount was certified by the Revenue Officer of the Department. He further contended that the habeas corpus petition is not maintainable as the petitioner has alternate remedy under the normal law. He further contended that the petitioner did not challenge the order dated 10-7-1998 passed by the competent authority under the Land Revenue Act He further contended that the contents of the earlier writ petitions and the contents of this writ petition clearly reveal that the petitioner knew that he was a defaulter, therefore, he approached this Court with unclean hands.

5. I have given my anxious consideration to the contention of learned counsel for the parties. It is better and appropriate to reproduce the relevant provisions of Electricity Act, 1910, provisions of West Pakistan Land Revenue Act 1967 and Criminal Procedure Code. Electricity Act. Charges for supply of energy recoverable as arrears of land revenue: (1) Notwithstanding anything contained in ibis Act or in any other law for the time being in force or in any instrument or agreement, the charges for supply of energy or any other sum outstanding against as consumer under this Act shall be recoverable as an arrear of land revenue (2) A licensee, or any person duly authorised by the licensee, may apply, with a certificate showing the amount outstanding against a consumer, to the Collector of the district concerned for the recovery of the said amount, and the Collector shall thereupon proceed to recover the same from such consumer, or his sureties, or from all of them, as an arrear of land revenue. Land Revenue Act 1967 Section 79 Certified account to be evidence as to arrear.

A statement of account certified by a Revenue Officer shall be conclusive proof of the existence of an arrear of land revenue of its amount and of the person who is defaulter. Section 80 Process of recovery of arrears.--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)

(b) by arrest and detention of his person under section

82. Section 81 Notice of demand. A notice of demand may be issued by Revenue Officer on or after the day following that on which an arrear of land revenue accrues. Section 82 Arrest and detention of defaulter.

(1) If after lapse of fifteen days of the service of notice of demand under section 81 on a defaulter the arrears of land revenue due from him, or any part thereof, remain unpaid, a Revenue Officer may issue a further notice to the defaulter requiring him to pay such amount, and if after lapse of thirty days of the service of such further notice, such amount or any part thereof still remains unpaid, the Revenue Officer may issue a warrant directing an officer named therein to arrest the defaulter and bring him before the Revenue Officer. (2) The further notice referred to in subsection (1) shall be served in the manner provided in subsections (1), (2) and (3) of section 24, and a copy thereof shall, wherever practicable, be also forwarded by registered post to the defaulter. (8) Any defaulter who, under subsection (3) is being kept under personal restraint, or under subsection (5) is being confined in the Civil Jail, shall forthwith be set at liberty

(a) on the arrears due from such defaulter being paid; or (b) on the defaulter furnishing to Revenue Officer ordering his arrest, or the Collector security to the satisfaction of the Revenue Officer or the Collector, as the case may be for the payment of the arrears due from him. Section 24 Mode of service of summons. (1) A summons issued by a Revenue Officer shall if practicable, be served (a) personally on the person to whom it is addressed or, failing him, (b) on his authorized agent or (c) an adult male member of his family uSullay residing with him. (2) If service cannot be effected in the manner provided in subsection (1) or if acceptance of service is refused, the summons may be served by affixing a copy thereof at the usual or last known place of residence of the person to whom it is addressed, or, if that person does not reside in the District in which the Revenue Officer is employed and the case to which the summons relates has reference to land in that District, the summons may be served by

Criminal Procedure Code Section 49, Cr.P.C. Power to issue directions of the nature of the habeas corpus.

(1) Any High Court may, whenever it thinks fit, direct

(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty.;" From the aforesaid provisions of law, it is conditioned precedent to set at liberty detenue under section 491 Cr.P.C. if the detention is illegal or improperly detained. The respondents have placed on record warrant of arrest issued by the competent authority under section 82(1) of Land Revenue Act 1967. The contention of learned counsel for petitioner/detenue that respondents failed to issue notice under section 81 and subsequently respondents also failed to issue notice under section 82 in the manner prescribed under section 24 of the Land Revenue Act, therefore, warrant of arrest is without lawful authority. He relied upon Raja Muhammad Ashraf's case (1997 PCr.LJ 845) and Muhammad Jamil Shahid's case (1997 PCr.LJ 863). It is pertinent to mention here that facts in both the abovequoted cases did not reveal that the respondents issued warrant of arrest and the detention was declared illegal only on the ground that no notice was issued to the detenue under sections 81 and 82 of Land Revenue Act and detention was declared illegal. In the present case, the learned counsel for the respondents placed on record warrant of arrest issued by the competent authority and the learned counsel for the petitioner/detenu did not challenge the same till date as the same was produced before the Court by the learned counsel for the respondents. Petitioner/detenu's counsel only contended that m the absence of notice action of respondents is without lawful authority. The respondents also placed on record certificate issued by the respondents WAPDA duly verified by the Revenue Officer of the respondents and also certificate of recovery under section 3(1) of pct, No.1 (1890) which is conclusive proof of the demand of respondents qua "e aforesaid amount as is envisaged by section 79 of the Land Revenue Act.

6. The learned counsel for the respondents raised preliminary objection, that the petitioner/detenu has alternative remedy before the Revenue Officer under section 82(8) but the petitioner/detenu failed to avail the same, therefore, habeas corpus petition is not maintainable. Since the petitioner/detenu did not obtain any stay order from any Court, therefore, the certificate issued by the respondents is conclusive and the petitioner/detenu has alternative remedy to invoke before the Revenue Officer tinder the aforesaid provisions of law. Even otherwise the petitioner/detenu has already availed the remedy qua the amount in dispute in Writ Petition No.12493/98, therefore, petitioner did not approach this Court with clean hands. The petitioner/detenu should have filed an application for amendment of the aforesaid writ petition or to challenge the warrant of arrest before the competent higher forum under the Land Revenue Act or to file writ petition before this Court, therefore, the habeas corpus is not the proper remedy. I am supported by the judgment of this Court in Akbari Begum's case (PLD 1985 Lah 123). It is settled principle of law when there is a proper remedy under the law available to the petitioner/detenu, then the habeas corpus is not maintainable. I am fortified by the judgment of Division Bench of Karachi High Court in Imdad Hussain's case (PLD 1974 Karachi 485), Ghulam Muhammad's case (PLD 1975 Karachi 118); Bari Ahmad's case (1994 CLC 273) and Ijaz Hussain's case (1994 CLC 275). When the final warrant of arrest has been issued then this Court has no jurisdiction to go beyond that to find out whether the warrant of arrest was issued after fulfilling the legal requirements E provided under the Land Revenue Act by issuing a notice or not as the same requires inquiry? The scope of power under section 491 Cr.P.C. is highlighted in reported judgment Ch. Noor Hussain's case (1983 PCr.LJ 442) and the relevant observation is as follows: "Before parting with the case, it may be observed here that scope of proceedings, under section 491, Cr.P.C. is limited and normally, this Court would not embark upon an inquiry or investigation of the disputed facts. If an aggrieved party seeks to invoke the power of this Court, under section 491, Cr.P.C., such party must come with a prima facie proof that facts relied by such party are true and rebut the presumption of regularity of performance of an official act. " Similarly, scope of section 491, Cr.P.C. was discussed regarding civil debt in shape of money in Arshad Hussain's case (PLD 1982 Azad J&K 107) and the relevant observation is as follows:-- "When a civil debt in shape of money is to be recovered and realised by the process of law such a mode cannot be declared ultra vires of the Constitution. The production of a person before a Magistrate is to deal with the criminal liabilities and the civil liability does not fall within his province and so it cannot be declared that the persons detained conditionally in this case for non-payment of debts due were liable to be produced before a Magistrate so as to obtain a remand as required by on 1,67 of the Criminal Procedure Code read with section 4(4) 2(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974." When the Want of arrest is issued in accordance with the provisions of Land Revenue Act; even in violation of the manner prescribed under the Land Revenue Act, the same cannot be declared illegal through collateral proceedings as is held by Hon'ble Supreme Court in Sabir Shah's case (PLD 1994 SC 738), therefore, the same is in accordance with law unless and until the same is set aside by any competent Court forum and the habeas corpus is not maintainable as is held by this Court in Javed Iqbal's case (1987 PCr.LJ 681.). It is the discretion of the authority under the Land Revenue Act to adopt any mode of execution. I am also fortified by the judgment (PLD 1980 Karachi 37). From the aforesaid discussion it is clear that the petitioner/detenu is a defaulter qua respondents Nos.6 and 7 are concerned of heavy amount, therefore, at the time of sending the case of the detenu to the respondent No.1 mentioning the word big defaulter. It is also admitted fact that the demands of WAPDA qua its arrears is part and parcel of public exchequer. It is also settled prevailing situation of the country that the individual are rich qua the Government It is also admitted fact that big defaulters have obtained heavy loans from the Banks PICIC, IDBP and did not repay the same. Similarly, heavy outstanding bills of Electricity and Sui gas are also outstanding against the big citizen of the country. It is also settled principle of law that Courts did not function in a vacuum and must check out into all social and moral environment prevailing in the country for which the law is to be administered. Such being the case, the petitioner/detenu is not entitled to any relief to avoid to pay heavy amount of public exchequer. The ` facts of this case indicate that the present petition was not bona fide petition. I therefore, find that this petition has been filed only to set up a defence to avoid from discharging their liabilities of the aforesaid amount due against detenu. In order to impede course of recovery and hamper due process of law with mala fide. It is settled principle of law that the bona fides of a petition have to be carefully examined so that no-one is permitted to abuse the process of law. In support of this view, I respectfully place reliance on Shaukat Ali's case (PLD 1972 SC 398) and Muhammad Sharif's case (1982 PCr.LJ 1247). Keeping in view the prevailing condition of the Country, national interest is supreme qua that individuals, therefore, technicalities cannot be hindered in the way of national interest. It was in the knowledge of petitioner/detenu qua the arrears of respondents Nos.6 and 7 and Petitioner/detenu approached this Court with malice to stop the recovery process detenu. In view of what has been discussed above, this habeas corpus petition is dismissed N.H.Q./B-42L Petition dismissed.