' Amir Ali petitioner has filed this habeas corpus petition for the release of his son Khadim Hussain aged 16/17 years from the illegal confinement of Tehsildar (Recovery) the respondent.
2. Vide my order dated 18-1-1993 1 deputed a bailiff to recover the alleged detenu and produce him before this Court on 19-1-1993.
3. On 19-1-1993 Tehsildar (Recovery) the respondent appeared in pursuance of the notice and he sought a short adjournment to bring the relevant record in the Court. The statement of Farrukh Rashid, Tehsildar (Recovery) Office of PA.D.S.C. Okara was recorded on 20-1-1993 in which he deposed that he put Khadim Hussain son of Amir Ali (petitioner) in civil prison on 13-1-1993 under section 4, subsection (7) of West Pakistan Land Revenue Act, 1967, being guarantor of the defaulter.
He further deposed that District Manager, P.A.D.S.C., Okara supplied to him a list of defaulters on 5- 9-1992 and he was authorised to recover the said amount as arrears of land revenue by virtue of section 18-A of the Punjab Agricultural Development and Supplies Corporation Act, 1973. He also deposed that the list supplied to him contained the name of Syed Israr Hussain Shah at Serial No,21 and according to this list Syed Israr Hussain Shah owed Rs,4,60,267 to PA.D.S.C. The Tehsildar (Recovery) did not issue any notice to him and placing reliance on previous notice which he disclosed in his other statement proceeded to arrest Syed Israr Hussain Shah who was defaulter according to the terms used in the Land Revenue Act. When the Tehsildar wanted to arrest Syed Israr Hussain Shah defaulter then Khadim Hussain Shah the detenu intervened and stood surety.
Leaving Syed Israr Hussain Shah, real defaulter he arrested Khadim Hussain.
4. After recording statement of Tehsildar (Recovery) on 20-1-1993 I directed that Khadim Hussain Shah be released subject to his furnishing security in the sum of Rs,50,000 to the satisfaction of the Tehsildar (Recovery) PA.D.S.C., Okara and adjourned the case to 23-1-1993 for procuring the attendance of District Manager, PA.D.S.C., Okara.
5. Ali Raza District Manager, PA.D.S.C., Okara appeared before this Court on 23-1-1993 and made a statement to the effect that Syed Israr Hussain Shah son of Muhammad Ashraf Shah of Chak Bawa, Haveli Lakha received a loan of Rs,4,91,860 on 4-8-1986 on his personal guarantee. Mian Nasim Ahmad khan Wattoo son of Mian Muhammad Ali Khan Wattoo resident of Haveli Lakha and Sardar Ali Khan son of Mian Sultan Ahmad Khan of Chak Bawa stood as guarantors. The guarantee was taken on a printed form which is described as letter of guarantee for loan and was executed on 4th of August, 1986 by both these guarantors on a non-judicial stamp paper of Rs,30. He deposed that this loan was granted for a period of six months. On 1-6-1988 for the first time Syed Israr Hussain Shah was directed to make the payment of loan by 15-6-1988 but he did not make the payment.
Thereafter on 20-6-1988 vide Letter No, PAD&SC-DM-OKR-Declaration-Defaulters/88/1462, dated Okara, the 20th of June, 1988, the list of defaulters was supplied to D.C., Okara, for taking action for recovery of the said loan as the arrears of land revenue under section 18-A of the Act referred to above. He also disclosed that according to the letter of guarantee in case of non-payment of the amount by the defaulter Syed Israr Hussain Shah, Sardar Ali Khan son of Sultan Ahmad Khan and Mian Nasim Ahmad Khan Wattoo son of Mian Ahmad Ali Khan Wattoo guarantors were legally liable to make the payment. According to his record notices were issued to the guarantors on 9-3- 1991 but neither the loanee nor the guarantors gave any reply to these notices. According to the record as deposed by this witness, Syed Israr Hussain Shah made payment of Rs,7,000 on 18-1-1990.
Neither the guarantors nor the original loanee denied the liability of the Corporation.
6. On 23-1-1993, I adjourned the case to 31-1-1993 with the directions that Syed Israr Hussain Shah son of Muhammad Ashraf Shah the original loanee/defaulter and Khadim Hussain Shah son of Amir Ali be produced in this Court.
7. Both the aforesaid persons appeared before me on 31-1-1993. Khadim Hussain Shah (detenu) stated that on 13-1-1993 the aforesaid Tehsildar (Recovery) came to arrest Syed Israr Hussain Shah in Chak Bawa and instead of arresting Israr Hussain Shah arrested him on the plea that he is liable for the payment of the loan as surety, and he denied the execution of documents dated 5-11-1992, 13-12-1992 and 13-1-1993 showing him as a surety for the payment of loan procured by Syed Israr Hussain Shah from PA.D.S.C. As mentioned above.
8. Syed Israr Hussain Shah (loanee) deposed that he and his son received pesticides amounting to Rs,8 lacs from PA.D.S.C., Okara, but he denied his liability to pay Rs,4,91,860. He deposed that he made payment to Muhammad Hanif Anjum Supervisor of PA.D.S.C. And obtained his signatures and also denied his liability to pay a single penny to the Corporation. He also denied this fact that Farrukli Rashid Tehsildar (Recovery) present in Court, formally arrested him on 5-11-1992 as asserted by him.
9. After recording statements of these two persons I again recorded the statement of Farrukh Rashid, Tehsildar (Recovery) on 31-1-1993. He deposed that on 5-11-1992 he arrested Syed Israr Hussain Shah defaulter but there is no corresponding record of his arrest on the file which could substantiate the factum of his arrest. He further deposed, he knew that this loan is being secured through two guarantors whose names are Sardar Ali Khan and Mian Nasim Ahmad Khan Wattoo as mentioned above. Tehsildar Recovery adhered to this position that by virtue of surety deed dated 5-11-1992 in which Khadim Hussain Shah undertook to make the payment, he treated him as defaulter in the eye of law in view of section 4, subsection (7) of West Pakistan Land Revenue Act, and therefore, arrested him. He conceded before this Court that he got executed Zamanat Nama dated 5-11-1992 by Khadim Hussain Shah without verifying this fact whether he owns any property or not. In addition to that, the learned counsel appearing for the Corporation has placed on record a photo copy of the ledger showing the liability of Syed Israr Hussain Shah dated 17-7-1988 and photo copy of notice dated 20-8-1988 issued to Syed Israr Hussain Shah to make payment of Rs,4,76,612 as well as photo copy of notice dated 25-10-1989, and a photo copy of warrants for attachment of immovable property under section 83 of West Pakistan Land Revenue Act, dated 12- 9-1990. He also placed on record the report of the Patwari dated 13-10-1990 that Syed Israr Hussain Shah defaulter does not own any land in the village vide report dated 26-11-1990 as per the entry made on this photo copy on 26-11-1990. Again another notice was issued under section 83 of West Pakistan Land Revenue Act on 16-3-1991 directing Syed Israr Hussain Shah to make the payment otherwise his crops would be attached. On which there is a report that he does not have any land or crop. The notice was issued on 9-3-1991 by Tehsildar (Recovery) to Sardar Ali Khan son of Sultan Ahmad Khan guarantor for the payment of Rs,4,60,267 as Syed Israr Hussain Shah the loanee, has failed to make the payment, and similar notice was issued to Mian Nasim Ahmad Khan Wattoo (another guarantor) on the same date. A warrant for the arrest of Syed Israr Hussain Shah son of Muhammad Ashraf Shah was issued under section 82 ibid on 2-51992 with the direction that it should be complied with on or before 12-5-1992. Again another warrant under section 82 ibid was issued for the arrest of Syed Israr Hussain Shah on 5-10-1992 with the direction that it should be executed on or before 4-11-1992 in pursuance of which the respondent allegedly arrested Syed Israr Hussain Shah on 5-11-1992 but there is no proof on the file to show this arrest. There are documents to show that Khadim Hussain Shah stood surety for the payment of that amount on behalf of Syed Israr Hussain Shah vide Zamanat Nama dated 5-11-1992.
10. The detailed narration of facts mentioned above show that the Corporation advanced the loan to Syed Israr Hussain Shah without securing that loan through property. Similarly, the letter of guarantee for loan was obtained from two persons i,e. Sardar Ali Khan son of Sultan Ahmad Khan and Mian Nasim Ahmad Khan Wattoo son of Mian Muhammad Ali Khan Wattoo without verification of this fact whether they own any property or not. The respondent while effecting the recovery of the loan advanced to Syed Israr Hussain Shah as arrears of land revenue by virtue of section 18-A of the aforesaid Act, did not comply with the provisions of sections 80, 81, 82 and 83 of West Pakistan Land Revenue Act, 1967. The respondent, leaving the loanee as contemplated by section 18-A, subsection (3) and instead introduced one Khadim Hussain (detenu) as surety and tried to recover the loan from him. It appears neither the functionary of the Corporation nor the Tehsildar took proper step to recover the loan, the possibility cannot be ruled out that this was done for some extraneous consideration with ulterior motive. By virtue of section 18-A of Punjab Agricultural Devlopment and Supplies Corporation Act, 1973, the Tehsildar was empowered to recover the certified dues of the Punjab Agricultural Development and Supplies Corporation as arrears of land revenue. For the facility of reference section 18-A ibid is reproduced:-- "18-A. Recovery of Corporation dues.---(1) Notwithstanding anything to the contrary contained in any agreement or law for the time being in force, any officer of the Corporation authorised generally or specially in this behalf by the Managing Director may, by notice, call upon any person to pay any sum of money due from him to the Corporation in respect of any agricultural supplies provided to him for his personal use or as dealer on commission basis for marketing the same.
(2) The notice referred to in subsection (1) shall indicate the time within which payment is required to be made to the Corporation.
(3) If any person fails to pay the amount demanded in the notice within the stipulated time, the Managing Director or any officer of the Corporation authorised generally or specially by him in this behalf, may issue a certificate declaring that person to be a defaulter and certifying the amount to be recoverable as arrears of land revenue.
(4) A certificate issued under subsection (3) shall be conclusive evidence that the amount certified therein is recoverable by the Corporation.
(5) Notwithstanding anything to the contrary contained in any agreement or law for the time being in force, the Corporation may recover the amount due to it either from the defaulter concerned or from his surety under the Revenue Recovery Act, 1890 as arrears of land revenue."
11. According to the aforesaid section the Tehsildar (Recovery) has got only qualified powers under the law i,e. He is empowered to recover certified dues from the loanee or under subsection (5) of section 18-A ibid, he is empowered to recover the loan from the surety which was given before the Corporation and he was not legally justified to introduce Khadim Hussain Shah the detenu as surety while making the recovery of the certified loan. Thus, the introduction of Khadim Hussain Shah as surety and his subsequent arrest is illegal void ab initio and without lawful authority.
Khadim Hussain Shah (detenu) is set at liberty. He is discharged from his bond of surety. This petition is accepted to this extent.
12. The facts mentioned above demonstrate that neither the functionary of the Corporation nor the Tehsildar took any interest or pain to effect the recovery of loan diligently in accordance with law which has caused immense loss to the public exchequer. The Tehsildar (Recovery), Okara without any legal justification as held above put up Khadim Hussain Shah as a surety who had no property, thus the conduct of these officials is not above board. The D.C., Okara is directed to make further probe into the matter either himself or through A.D.C.(G) or A.C. To pinpoint who are the Officers of the Corporation and the Revenue Department due to whose default and negligence the loan which was prima facie secured one could not be recovered. The findings of the enquiry report be sent to the Deputy Registrar (Judicial) of this Court within three months. The office is directed to send all the photo copies of the statements recorded by this Court alongwith this order to D.C., Okara, for compliance and necessary action.