P L D 1988 Lahore 627 (PLP)

This is a Petition under section 491 of the Cr.P.C. By it, Manzoor Ahmad, petitioner, prays that his nephew Tahir Javed be set at liberty.

2. The detenu Tahir Javed is a son of Noor Ahmad; the latter is Lambardar of Chak No.40/S.B. Sargodha. it is stated that in the capacity of Larnbardar, Noor Ahmad had to collect Rs.69,000 on account of' arrears of land revenue from the Land‑owners of the Chak; that lie had recovered Rs.49,060 from the land‑owners and had deposited the same in Government Treasury and that he is making efforts to recover the remaining sum of Rs.20,000 from the and‑owners. The detenu is a school teacher. It is stated that he has nothing to do with the recovery of arrears of land revenue or with its payment to the Government. Yet, on 29‑5‑1988, the respondents Malik Yaqoob, Naib‑Tehsildar, and Muhammad Ashraf, Girdawar, took him away from his school. Since then, it is stated, they have illegally detained him.

3. This petition was made on 1‑6‑1988. 1 directed the recovery of the detenu by the Bailiff of this Court. The detenu has been produced. He is present in person and are the respondents Malik Yaqoob, Naib‑Tesildar, and Muhammad Ashraf Girdawar, with their counsel Mr. Shaukat Ali, Advocate. On behalf of the respondents, it is stated that by his order dated 2‑5‑1988, the Naib‑Tehsildar issued a notice of demand to Noor Ahmad for 21‑5‑1988: that the notice could not be served personally, for, Noor Ahmad was stated to be sick and had refused to accept service; that on 21‑5‑1988, the detenu had executed a writing undertaking to pay he arrears of land revenue by 28‑5‑1988 and that as the detenu had failed to pay the arrears of land revenue by that date, his warrants of arrest were issued and he was arrested on .19‑5‑1988 in pursuance of those warrants. In this connection, I have been shown the file containing the proceedings culminating in the warrant of arrest against the detenu. It appears, and this is the position taken by the respondents' counsel, that the alleged writing dated 21-5-1988 was purportedly executed by the detenu as a surety for his father.

4. The expression "defaulter" is defined in section 4, clause ( 7 of the Punjab Lana Revenue Act, 1967. It means a person liable for an arrear of land revenue, and includes a person who is responsible A as surety for payment of the arrear. There is no question that if Noor Ahmad is the Lambardar of the Chak and if he is liable for the arrears of land revenue then he is a defaulter within the meaning of section 4, clause (7) of the Act.

5. Learned counsel for the respondents maintains that as surety of Noor Ahmad, for payment of the arrears of land revenue, the detenu it also a defaulter. Learned counsel for the petitioner, however', argues that a person cannot be a surety unless there is reciprocity between, him and the principal debtor and here there was no such reciprocity for Noor Ahmad was wholly ignorant of the proceeding This', it appears, is a mixed question of fact and law and it is, think neither necessary nor proper to determine it in these proceedings. I shall, therefore, leave the question open to be determined, if raised, in appropriate proceedings, and shall. for the purposes of these proceedings, assume that the petitioner is a surety and is, therefore, within the definition of "defaulter".

6. Section 81 of the Punjab Land Revenue Act, 1967 provides that a notice of demand may be issued by Revenue Officer on or after the day following that on which an arrear of land accrues. Section 82 of the Act provides for the arrest and detention of defaulters and enacts the procedure to be followed by a Revenue Officer for that purpose it provides that 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, The further notice, it is laid down, "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. "

7. A plain reading of Tire provisions of sections 81 and 82 demonstrates. and demonstrates clearly, the anxiety of the legislature ensure not only that the condition of the notice of demand and the further notice has been satisfied, but also that the periods of fifteen and thirty days, prescribed, therein, have elapsed, before the Revenue Officer issues a warrant directing the arrest of the defaulter. It, therefore, appears that the power, to arrest under these sections is subject to the statutory condition precedent that the demand and further notices have been, served in accordance with section. 82, subsection (2) and the periods mentioned in that section have elapsed., If this statutory condition precedent has not been satisfied and the defaulter has been arrested, then the act of the Revenue officer must inevitably be held to be ultra vires the powers vesting in him under section 82.

8. Here I am tempted to refer to a recent case decided by the House of Lords of England, namely McO v. Mullen and others (1984) 3 All. E.R. 908 (H.L.). The facts were that on 5‑12‑1977 the respondent Mullan pleaded guilty before a Juvenile Court to an offence of having in possession four car keys for use in connection with theft. On 23‑1‑1978, when he was just 14 years of age, the respondent was ordered to attend the attendance centre at Millfied College of Technology on 28th January and subsequently at times to be fixed by the officer‑in charge of the centre. On 6th July, 1978 the respondent appeared again before the same Court charged with failing to attend the attendance centre on certain dates when he had been required to do. On 31st August 1976, he was, ordered by the appellants, the resident Magistrate and two lay justices, to be detained in a training school.. The respondent applied to the Divisional Court for an order of certiorari to quash the training school order. He relied on Art. 15 (i) of the Treatment of Offenders (Northern, Ireland) Order, 1976 which provided: "A magistrate's Court on summary conviction or a Court of assize or country Court on conviction on indictment shall not pass a sentence of imprisonment, Borstal training or detention in a young offenders centre on a person who is not legally represented in that Court and has not been previously sentenced to that punishment by a Court in any part of the United Kingdom, unless either (a) he applied for legal aid and the application was refused on the ground that it did not appear his means were such that he required assistance; or (b) having been informed of his right to ' apply for legal aid and had. the opportunity to do so, he refused or failed to apply." It was common ground that the school training order was a sentence of detention in a young offenders centre within the meaning of that article. The respondent had never before been sentenced to that punishment. Before the Juvenile Court, he was not legally represented and he had never applied for legal aid. The Divisional Court held that the training school order could not lawfully be made as the respondent had not been again informed of his right to apply for legal aid in the course of the later proceedings and quashed the training school order by order of certiorari on 17‑11‑1978 and the respondent was thereupon released. On 12‑3‑1980, the respondent brought an action for' damages for false imprisonment against the Resident Magistrate and the lay justices by whom the training school order was made. The respondent magistrate and lay justices relying upon section 15 of the Magistrate's Courts Act (Northern Ireland) 1964 claimed immunity from action. That section provided: No action shall succeed against any person by reason of any matter arising in the execution or purported execution of his office of Resident Magistrate or justice of the peace, unless the Court before which the action is brought is satisfied that he acted without jurisdiction or in excess of jurisdiction." The question, therefore, turned on whether the Resident Magistrate and lay justices, in making the training school order, acted without jurisdiction or in excess of jurisdiction. It ~vas held that the omission to inform the respondent of his right to apply for legal aid was not a mere. procedural irregularity; "that the philosophy underlying the provision must be that no one should be liable to a first sentence of imprisonment, borstal training or detention, unless he had had the opportunity of having his case in mitigation presented to the Court in the best possible light. For an inarticulate defendant, as so many are, such presentation may be crucial to his liberty. It is impossible to say in this or any other case that, if the requirements of Art. 15(l) had been satisfied, it would have made no difference to the result." For these reasons, it was held, the fulfilment of this statutory condition precedent to the imposition of such a sentence as the appellants there passed on the respondent was no less essential to support the justices jurisdiction to pass such a sentence than, for example, in the case of a sentence of immediate imprisonment, a prior conviction of an offence for which a sentence if imprisonment can lawfully be passed. The conclusion was thus reached that the Resident Magistrate and the justices had acted without jurisdiction or ,in excess of jurisdiction in making the detention order without complying with the statutory condition precedent of informing the respondent of his legal right to apply for legal aid.

9. I cite this case in support of my view that it was a necessary statutory condition precedent to the exercise of the power to arrest the detenu under section 82 that the demand notice and the "further notice" had been served upon the detenu and that the period, as mentioned above, had elapsed before the power was exercised; as also to illustrate that inspired saying that "the condition upon which' God hath given liberty to man is eternal vigilance". One can only wish that people are properly educated to safeguard their liberty in the manner, highlighted by the precedent case, that being the' only way to curb the not infrequent misuse and abuse of power.

10. Learned counsel for the petitioner expressed grave doubts as to the genuineness of the writing dated 21‑5‑1988 by which the detenu allegedly bound himself to pay the arrears of the land revenue as surety. In this connection he again referred to section 82 of the Act to point out that if the detenu had been detained as a defaulter, then the matter would have been reported to the Collector without delay in accordance with subsection (4) thereof. I do not think it necessary to go into the genuineness of the writing dated 21‑5‑1988. It suffices to say that the respondents who are Revenue Officers,. of, some experience played with the liberty of the detenu without caring to read the provisions of sections 81 and 82 and the result produced was the illegal detention of the detenu. I would. therefore, direct the respondents to pay Rs.2,000 as costs of these proceedings to the petitioner.

11. I would, therefore, hold that the detenu s detention is without jurisdiction and, therefore wholly illegal. I, therefore, set him at liberty. M.B.A./M‑830/L Petition accepted.