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Petitioner: JAVED UL HASSAN NAQVI VS Respondent: FAZAL HAQUE RANJHA
2002 P L C (C
2002 P L C (C. S.) 1224
[Lahore High Court]
Before Ch. Ijaz Ahmad, J
JAVED UL HASSAN NAQVI
Versus
FAZAL HAQUE RANJHA and 3 others
Writ Petition No.18051 of 2001, decided on 5th. October, 2001.
(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑‑
‑‑‑‑R. 4‑‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss.82‑B & 114‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑ Maintainability‑‑‑Dismissal from service and imposition of penalty‑‑ Detension for non‑payment of amount of penalty‑‑‑Remedy against‑‑ Petitioner/civil servant whose services were terminated and was imposed penalty, was arrested and confined to lockup in connection with the recovery of amount of penalty‑‑‑Petitioner had challenged action of Authority in Constitutional petition before High Court‑‑‑Validity‑‑‑Petitioner had alternative remedy before the Revenue Officer under S.82‑B, West Pakistan Land Revenue Act, 1967 but he failed to avail the same proper remedy under law being available, to the petitioner, Constitutional petition/habeas corpus petition tiled by civil servant was not maintainable‑‑‑When the final warrant of arrest had been issued to the petitioner. under provisions of West Pakistan Land Revenue Act, 1967, High Court under its Constitutional jurisdiction had no power to go beyond that to find out whether the warrant of arrest was issued after fulfilling the legal requirements under the said Act by issuing a notice or not as the same required inquiry‑‑‑When the warrant of arrest was issued in accordance with provisions of Land Revenue Act, 1967 even in violation of the manner prescribed there under, same could riot be declared illegal through collateral proceedings‑‑‑Action would be in accordance with law unless and until was set aside by any competent Court/forum‑‑‑Constitutional petition/ habeas corpus petition would not be maintainable in circumstances‑‑ Petitioner having been detained under relevant provisions of law, Constitutional/habeas corpus petition filed by him against his detention was not maintainable.
Imdad Hussain's case PLD 1974 Kar. 485; Ghulam Muhammad's case PLD 1975 Kar. 118; Bari Ahmad's case 1994 CLC 273; Ijaz Hussain's case 1994 CLC 275; Noor Hussain's case 1983 PCr.LJ 442; Arshad Hussain's case NLR 1982 Crl. 422; Nisar Ahmad's case PLD 1997 SC 852; Sabir Shah's case PLD 1994 SC 738; Javaid Iqbal's case 1987 PCr.LJ 681; Sayed Hassan Mahmud's case PLD 1980 Kar. 37; 1972 SCMR 398 and PLD 1958 Pesh.38 ref.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Bona fides of petition had to be carefully examined so that no one be permitted to abuse the process of law.
Muhammad Yasin Bhatti for Petitioner.
ORDER
The brief facts out of which the present writ petition arises are that the petitioner was an employee of the Food Department and was holding the post of Food Grains Inspector. The petitioner's services were terminated besides imposing penalty of Rs. 2,92,759 in the year 1991. The petitioner being aggrieved filed Service Appeal No.94 of 1993 before the Punjab Service‑ Tribunal which is still pending adjudication. The respondent No.1 arrested the petitioner and confined him to lock‑up of Lahore Tehsil in .connection with the recovery of aforesaid amount. Subsequently the petitioner was transferred to Kasoor with the direction that the petitioner be confined to Hawalat for 10 days and after-words the petitioner was sent to District Jail. Kasoor.
2. The learned counsel for the petitioner submits that the action of the respondent is without lawful authority as the matter qua the penalty imposed by the respondent at the time of termination of his services is still pending adjudication before the Service Tribunal. He further submits that the matter has not been finally decided by the Service Tribunal, therefore, respondent has no authority under the law to recover the amount in question from the petitioner. He further submits that respondent imposed penalty in the impugned order which is not prescribed under the Punjab Civil Servants (E&D) Rules, 1975, therefore, the impugned order qua the imposition of penalty by the respondent is not sustainable in the eye of law, He further submits that notice under section 82(1) of the West Pakistan Land Revenue Act, 1967 was not served upon the petitioner. He further submits that the provisions of West Pakistan Land Revenue Act, 1967 are not attracted to recover the disputed amount as Land Revenue on the ground that the Punjab Civil Servants Act, 1974 and Punjab Civil Servants (E&D) Rules, 1975 do not empower the Departmental Authority to recover the disputed amount as arrears of Land Revenue. He further submits that the disputed amount imposed upon the petitioner is not arrears of Land Revenue in view of section 114 of the West Pakistan Land Revenue Act, 1967. He summed up his arguments that the action of the respondent is in violation of mandatory provisions of West Pakistan Land Revenue Act, 1967 coupled with the fact that the competent Authority has also not issued any notification to recover the amount in question from the petitioner as arrears of Land Revenue under section 3(1) of West Pakistan Government dues Recovery Ordinance, 1962.
3. The learned Additional Advocate‑General submits that respondents are competent to rover the entire amount as arrears of land revenue from the petitioner. Under the law the competent Authority has passed the order against the petitioner and requested the District Collector to recover the amount in question from the petitioner as arrears of Land Revenue. The District Collector accepted the request .of the respondent department in accordance with law. The petitioner is detained by the respondent after completing all the legal formalities. He further argued that final notice of arrest has been issued by the competent Authority. He further argued that the petitioner has alternate remedy under the law, therefore, writ petition/habeas corpus petition is liable to be dismissed. He further argued that the petitioner is detained by the respondent under the law, therefore, habeas corpus petition is not maintainable.
4. I have heard the contentions of the learned counsel for the parties and perused the record myself. I would like to decide the preliminary objection first. Learned counsel for the respondent raised a preliminary objection that detenue has alternative remedy before the Revenue Officer under section 82 (b) but the detenu/petitioner failed to avail the, same. Therefore, habeas corpus petition is not maintainable. Preliminary objection raised by the learned counsel for the respondent has a force and the habeas corpus petition/writ petition is not the proper remedy as per principle laia down by this Court in Akbari Begum's case (NLR 1995 Crl. Law Judgment 51). It is also settled principle of law that there is a proper remedy under the law available to the petitioner/detenu then habeas, corpus petition/writ petition is not maintainable. In arriving to the judgment of the Division Bench of in Imdad Hussain's case (PLD 1974 Kar. 485), case (PLD 975 Kar. 118) and Bari Ahmad's case (1994 Hussain's case (1994 CLC 275). When.the final issued under the provisions of the Land Revenue Act then no jurisdiction to go beyond that to find out whether the after fulfilling the legal requirement 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. or under Article 199 is highlighted in. reported judgment Ch. Noor Hussain's case (NLR 1983 Crl. 215). The aforesaid proposition of law is also supported by the following judgments:‑‑
NLR 1982 Cr1.J 422 (Arshad Hussain's case) and PLD 1997 SC 852 (Nisar Ahmad's case).
When the warrant of arrest is issued in accordance with provisions of the 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 the Hon'ble Supreme Court in Sabir Shah's case (PLD 1994 SC 738). Therefore, same is in accordance with law unless and untill the same is set aside by any competent Court/forum and the habeas corpus petition/writ petition is not maintainable as is held, by this Court in Javaid Iqbal's case (NLR 1985 U/C. 154). It is the discretion of the authority under the Land Revenue Act to adopt any mode of execution as per principle laid down by the Karachi High Court in Sayed Hassan Mahmud's case (PLD 1980 Kar.37). It is pertinent to mention here that petitioner had given undertaken to the respondent that he would repay Rs. 24,600 to the respondent till 15‑6‑1993 and the remaining amount of Rs. 24,600 should be paid by his younger brother and the balance amount would be paid within three months. Copy of the statement of the petitioner dated 7‑6‑1993 is at page 119 of the original file, therefore, petitioner is a defaulter by virtue of section 7 of the Punjab Land Revenue Act, 1967. This fact brings the case in the area that petitioner did not approach this Court with clean hands, meaning thereby the facts of this case indicates that the present petition was not bona tide petition. Therefore, I find that this petition has been filed only to set up a defence to avoid from discharging his liabilities of the aforesaid amount due against the detenu in order to impede course of recovery and hamper due process of law with mala fide. It is settled principle of law that bona tides of a petition have to be carefully examined so that no one be permitted to abuse the process of law. In arriving to this conclusion .I am fortified by the following case:‑‑
1972 SCMR 398 (Shaukat Ali's case)
Coupled with the fact it is conditioned precedent to set at liberty the detenu it the detention is illegal or improperly detained. The respondent having detained the petitioner under the provisions of Land Revenue. Act after issuing notice to the petitioner under the provisions of the Land Revenue Act and warrant of arrest was issued by the respondent on 30‑9‑2001 tinder section 82 (1) of West Pakistan Land Revenue Act, 1967. In this view of the matter this hebeas corups petition is not maintainable as per principle later down in PLD 1958 Peshawar 38 Re; Qadir v. The State. I have perused the original record produced by the respondent which reveals that the action has been taken by the respondent after completing all the legal formalities under the provisions of West Pakistan Land Revenue Act, 1967.
In view of what has been discussed above, the petition is not i maintainable and the same is dismissed. The petitioner has a right to avail his proper remedy under the law before the competent forum who shall decide the same strictly in accordance with law without being influenced by the observation of this Court.
With these observations, this petition is disposed of:
H.B.T./J‑39/L Petition dismissed.