2000 P Cr (PLP)

This habeas corpus petition under section 491, Cr.P.C. filed .by Muhammad Siddique petitioner, for the recovery of Abdul Aziz, his father, aged about 85 years from the, illegal confinement of respondents Nos. l to 4.

2. A bailiff of this Court was deputed to recover the said detenu. In compliance of the order of this Court, the bailiff recovered the detenu/Abdul Aziz from Tehsil lock-up and produced him today in the Court. The bailiff has reported that while he raided the Tehsil Office, there was no record present against the detenu in Tehsil Office, Kot Addu.

3. The respondent No.1/Naib-Tehsildar, Kot Addu appeared with record. He submitted that Agricultural Income-tax was outstanding against Zaib Khan and others and detenu being their tenant was arrested due to non-payment of the said tax. Respondent No. l could not produce any record against the detenu showing him to be the defaulter of the Agricultural Income-tax. No proceedings I of recovery was made against the owners of the land in accordance with law. In case of. default of the owners, the Revenue Officer could recover the Agricultural Income-tax from the owners by taking into possession the produce of the land belonging to the owners.

4. The Agricultural Income-tax is chargeable on agricultural income of an owner of the land and the definition of the owner according to clause (e), subsection (1) of section 2 of the Punjab Agricultural Income-tax Ordinance, 1997 is "owner" includes a member of a joint Hindu Family whether owning land individually or jointly with any other person and includes mortgagee in possession, or tenant of Government land. Section 3 of the Ordinance enshrines, Charge of Agricultural Income-tax.

(1) There shall be levied, assessed and collected each year a tax in respect of agricultural income of a tax year of an owner at a rate specified in the Schedule to this Ordinance.

5. From the reading of clause (e), subsection (1) of section 2 and subsection (1) of section 3 of the Ordinance it reveals that the Agricultural Income-tax is leviable on the agricultural income of owner of the land and no other person is responsible for the payment of the said tax on his behalf. The section 4 of the said Ordinance contemplates that (1) the tax shall be assessed and collected by the Collector in such manner as may- be prescribed. (2) In case of assessment regarding an owner holding land in more than one Patwar Circle the owner shall file a statement regarding the location of his land in the Punjab, in such manner as may be prescribed and section 8 of the Ordinance provides penalty for failure to furnish statement, which is reproduced as under:-- ".Where any owner has without reasonable cause, failed to furnish, within the time allowed for the purpose, any statement under section 4; the Collector may impose upon such owner a penalty not exceeding rupees one hundred for every day during which the default continues. " Section 9 further provide penalty for concealment of cultivated land etc.-- (1) Where to the course of any proceedings under this Ordinance, the Collector or the appellate or revisional authority is satisfied that .any owner has, either in the said proceedings or in any earlier proceedings relating to an . assessment in respect of the same tax year, concealed his cultivated land or furnished inaccurate particulars of such cultivated land, he or it may impose upon such owner a penalty not exceeding two and a half time but in no case less than the amount of tax which has been evaded. (2) For the purpose of subsection (1), concealment of cultivated land or the furnishing of inaccurate particulars of cultivated land shall include the suppression of information regarding any cultivated land liable to tax. Section 10 provides penalty for default in payment.

If a tax is not paid within the due date penalty at the rate of 10 per cent. of the tax payable shall be charged. Provided that no penalty shall be charged for six months commencing from the date, of service of demand notice on an owner.

6. It is astonishing how the respondent No.1 arrested the 'detenu for the fault of Zaib Khan and others. This act of the respondent No. I was unwarranted and justified. The liberty of the detenu was curtailed by keeping him under wrongful confinement for five days for a fault of others. The coercive process for the recovery of arrears of income-tax cannot be adopted by tile respondent in the first instance and the proper course for them would be to take over the land and sell the produce. The arrest and detention is a last measure to be adopted. Reliance can be placed on the case of Messrs Grain Grain Systems (Pvt.) Ltd., Karachi v. A. D. B. P., Islamabad 1993 MLD 1031.

7. On query, the Naib-Tehsildar could not satisfy the Court as to whether any proceedings for recovery of income-tax were initiated against the owners and if they were not proceeded against why the detenu was arrested and detained for the purpose of recovery of the Agricultural Income-tax of land-holders. It would means that. All the citizens are equal in the eyes of law and are entitled to be treated equally. The respondent. No. l by arresting the detenu without any justification has humiliated and insulted the said detenu, for that he can resort any legal proceedings against the delinquent person/Naib-Tehsildar. It is held that no person other than the owner or his land would be liable to pay Agricultural Income-tax in his lifetime. The tenant of the land cannot be held liable to pay the said tax in default of his landlord.

8. In views of the above, this habeas corpus petition is allowed and the arrest and detention of the detenu/Abdul Aziz is declared to be illegal and without lawful authority. He is set at liberty. N.H.Q./M-1227/L Petition allowed.