' Through the instant petition, the petitioner has sought the recovery of Khuda Baldish (detenu), his father, being in improper and illeged custody of respondents Nos.2 to 4 and presently confined in New Central Jail, Bahawalpur (civil prision cell).
2. On 21-6-1999 a bailiff was appointed to recover the said detenu and as per report of the bailiff and also the record the detenu had been confined in the Civil Prison Cell by virtue of an order dated 13-6-1999 passed by the Assistant Collector Grade-I, A.D.B.P. For nonpayment of certain dues of the respondent-Bank. In this situation, the learned counsel for the petitioner stated that as the detenu had already mortgaged his substantial properties with the respondent-Bank for repayment of amount actually due, thus, instead of confining him in Civil Prison the amount should be recovered from the sale of such properties. In the light of above a notice was issued to the Bank (A.D.B.P.) Which is represented by a learned counsel.
3. Today the learned counsel for the petitioner has attacked the order of the Assistant Collector on the touch-stone of section 82(5) of the Land Revenue Act, 1967 and has argued that the defaulter can only be confined to jail by the order of the Collector, whereas in the present case the order has been passed by the Assistant Collector who has no jurisdiction in the eyes of law to pass such order, consequently the confinement of the detenu under the order of the Assistant Collector is without lawful authority and illegel.
4. -Conversely, the learned counsel for the respondents states that Assistant Collector under section 82(3) of the Act ibid has the power to keep the defaulter under personal restraint for a period not exceeding ten days and can produce him before the Collector if the arrears are still unpaid for proper order to be passed under subsection (5) of the section 82. The order of the Assistant Collector in this case has been perused which does not contemplate that the detenu has been put under a personal restraint within the purview of subsection (3) of section 82 rather this order is passed under the provisions of subsection (5) as in very clear and unequivocal terms the order shows that the defaulter on account of arrears of land revenue be detained and to be kept in confinement in the Civil/District Jail for a period of 10 days. The submission of the learned Counsel for the respondents that the order is under subsection (3), on the face of it is not well-conceived.
Under the law it is only the Collector, who can pass an order of the detention and none-else.
' In view of above, the writ petition, the confinement of the detenu under order, dated 13-6-1999 in Civil Prison Cell is declared to be illegal, improper and unlawful in the eyes of law. The detenu present in Court is hereby set at liberty. However, the respondent-Bank is entitled to proceed against the detenu in accordance with law.