Full Judgment Text
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PETITIONER:
RAM NARAYAN AGARWAL ETC ETC.
Vs.
RESPONDENT:
STATE OF UTTAR PRADESH & OTHERS
DATE OF JUDGMENT23/08/1983
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
SEN, A.P. (J)
MISRA, R.B. (J)
CITATION:
1984 AIR 40 1983 SCALE (2)1239
ACT:
Public Debt-Process employed for recovery of dues to
Government under the U.P. Sales Tax Act, 1948, by resort to
arrest and detention in civil prison, in accordance with
section 279(1) (b) read with section 281 of the U.P.
Zamindari Abolition and Land Reforms Act, 1950 and Rules
247, 247A, 247B and 251 of the UPZALR 1952-Constitutional
validity of-Whether violative of Articles 14, 19(1) (d) and
21 of the Constitution and repugnant to Article 11 of the
Inter national Covenant on Civil and Political Rights-
Applicability of Section 51 of the Code of Civil Procedure,
1908.
HEADNOTE:
The Petitioners had committed default in payment of the
tax payable by them under the U.P. Sales Tax Act, 1948. Any
such dues could be recovered as if arrears of land revenue
in terms of sub-sections (3) and (8) of section 8 of the
1948 Act read with Rule 50 of the U.P. Sales Tax Rules,
1948. Section 5 of the Revenue Recovery Act, 1890, as in
force in the State of Uttar Pradesh speaks of the obligation
and other duties of the collectors for recovery of sums
recoverable as arrears of revenue on the certificates of
public officers and Local Authorities. The procedure for
such a recovery however is provided in sections 279 and 281
of the U.P. Zamindari Abolition and Land Revenue Act, 1950
read with Rules 246, 247A, 247B and 251 of the U.P.
Zamindari Abolition and Land Revenue Rules, 1952. Under
clause (b) of the sub-section (1) of section 279 of the
UPZALR Act, recovery by resort to arrest and detention of
the person concerned" is also provided. On certificates
issued by the assessing Authority, in terms of section 33 of
the U.P. Sales Tax Act, 1948, warrants of arrest had either
been issued or were about to be issued by the concerned
Revenue Officers for the arrest and detention of the
petitioners, in the course of the recovery proceedings. The
petitioners have challenged the same as constitutionally
invalid being violative of Articles 14, 19(1) (d) and 21 of
the Constitution and repugnant to Article 11 of the
International Covenant on Civil and Political Rights.
Allowing the petitions in part, the Court
^
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HELD: 1:1. The impugned procedure contained in the U.P.
Zamindari Abolition and Land Reforms Act, 1948 and the Rules
made thereunder is not violative of Articles 14, 19(1) (d)
and 21 of the Constitution. [699 G]
The Collector of Malabar v. Erimal Ebrahim Hajee,
[1957] S.C.R, 970 applied.
685
Sangam Lal Gupta v. Sales Tax Officer & Others., [1969]
All. L J. 257, approved.
1:2. In the instant cases, the petitioners cannot be
detained pursuant to any warrant of arrest already issued,
since no such enquiry, as contemplated in Rule 251 of the
U.P. Zamindari Abolition and Land Reforms Rules, 1952, by
the officer who issued the warrant into the question whether
the detention of the defaulter would compel him to pay the
arrears by arresting and detaining the defaulters in
accordance with law by passing fresh orders. [695 G-H]
2. Article 11 of the International Covenant of Civil
and Political Rights cannot come to the aid of the
petitioners since it has not been made yet a part of Indian
municipal law and further it relates to a debt due under a
contractual obligation. [692 C]
Jolly George Verghese and Another v. The Bank of
Cochin, [1980] 2 SCR 913, explained and distinguished.
3:1 Whether a restriction imposed by a statutory
provision on the fundamental right guaranteed under Article
19(1) (d) of the Constitution is reasonable or not is now
governed by well established norms. It is settled by a long
line of decisions of this Court that the restriction must
not be arbitrary or excessive in nature so as to be beyond
the requirement of the general public. The Court should
strike a just balance between freedom contained in Article
19(1) (d) of the Constitution and the social interest to be
protected. No universal rule can be laid down in this
regard. The changing social conditions, the values of human
life, the prevailing social philosophy and all the
surrounding circumstances should be taken into
consideration. In a case like this where public dues are to
be collected some amount of coercion is necessary to make a
recalcitrant defaulter who has fraudulently secreted his
assets to screen them from being proceeded against to pay up
the dues. In the contemporary Indian conditions the process
of arrest and detention of the judgment-debtor or a
defaulter to enforce payment of the amount due from him is
not altogether unreasonable. It cannot be held to be
unconstitutional if there are sufficient safeguards which
make the process conform to reasonable standards.
[692 G-H, 693 A-B, 695 B-C]
State of Madras v. V.G. Row, [1952] S.C.R. 597,
referred to.
3:2. The defaulter has adequate opportunity to satisfy
the Recovery Officer concerned that there is no
justification to order his detention. While section 281 of
the UP ZALR Act prescribes necessary safeguards in respect
of the process of arrest and detention like the maximum
period of detention upto fifteen days and exemption of
certain persons viz. women, minors, a bhumidhar of the
specified class etc. Rule 251 of UP ZALR Rules provides
safeguards like report by a Tehsildar issuing a warrant of
arrest to the Collector without delay and production of the
arrested defaulter before the officer issuing the warrant
without delay and that such defaulter should not be detained
in custody unless there is reason to believe that the
process of detention will compel the payment of the whole or
a substantial portion of the arrear. Under
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686
Rule 251, there is necessity to enquire into the question
whether the detention of the defaulter would be productive
of payment of the arrear of a substantial portion thereof.
The officer concerned is, therefore, required to decide on
the basis of the material before him and any evidence
tendered or submission made by the defaulter whether there
is any justification for detaining him and it is only after
he is satisfied that the detention of the defaulter will
compel him to make the payment of the whole or substantial
part of the arrear he can order his detention. If he is not
so satisfied the officer is under an obligation to release
him. [696 F, 695 C-H]
3:3. Each State is well within its right to devise its
own machinery for the recovery of its own public demands and
that no person belonging to one State can complain that the
law of his State is more rigorous than that of the
neighbouring State or the procedure prescribed by the Code
of Civil Procedure for execution of the decrees. [696 E-G]
Purshottam Govindji Halai v. Shree B.M. Desai, Addl.
Collector of Bombay and Others, [1955] 2 S.C.R. 887,
followed.
3:4. The proviso to section 33 of the U.P. Sales Tax
Act no doubt says that without prejudice to the powers
conferred under that section the Collector shall also have
the powers of a civil court for the purpose of recovery of
an amount due under a decree. This proviso does not impose
any further restriction on the power of the Collector under
section 281 of the UP ZALR Act and the Rules made thereunder
which constitute a complete code on the process of arrest
and detention of a defaulter and it is not modified by any
of the provisions of the Code of Civil Procedure. Where the
procedure relating to execution mentioned in the Code of
Civil Procedure is to be adopted, U.P. ZALR Act has made an
express reference to it in section 282(2) which deals with
attachment and sale under section 282 shall be made
according to the law in force for the time being for the
attachment and sale of movable property in execution of a
decree of a civil court. Section 341 of the UP ZALR Act
states that unless otherwise expressly provided by or under
that Act the provisions of the Code of Civil Procedure would
apply to the proceedings under that Act. There are express
provisions in the UP ZALR Act and the Rules made thereunder
governing the process of arrest and detention. Hence the
provisions of section 51 of the Code of Civil Procedure
would not in terms be applicable to the process of arrest
and detention under the UP ZALR Act. [698 E-H, 699 A-C]
Seth Banarsi Das Gupta v. State of U.P. & Others,
[1975] Revenue Decisions, 246 (Allahabad High Court), over-
ruled.
3:5. However, a writ of demand or citation ordinarily
should be issued to the defaulter before resorting to the
drastic process of issuing an arrest warrant under section
281 of the UP ZALR Act. Even if a formal writ of demand is
not issued, it is implicit in the nature of the process to
be issued under section 281 of the U.P. ZALR Act that the
defaulter concerned should have prior notice of the issue of
the certificate for recovery to enable him to pay up the
amount demanded to avoid the arrest. [699 E-G]
687
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petitions Nos. 1110, 2035,
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4759, 6431 of 1980, 92, 140, 152, 400, 421, 497, 1366, 4719,
6931, 8054-58, 7483, 8458 of 1981, 871-873, 2362, 2621-22,
4053 and 5695 of 1982.
(Under Article 32 of the Constitution of India)
Anil B. Divan, Y.S. Chitale, Mrs. Uma Jain, R.K. Mehta,
M. Mudgal, Ramesh Mehrotra, E.C. Agarwala, R. Satish, Vijay
Pandita, S.K.Bagga, U.P. Singh, Dr. Meera Agarwal, Mrs. Rani
Chhabra and B. Datta for the Petitioners.
Gopal Subramaniam and B.P. Maheswari for the
Respondents.
The Judgment of the Court was delivered by
VENKATARAMIAH. J, The common question which arises for
consideration in all these petitions relates to the validity
of the action taken by the authorities concerned against the
petitioners for recovering the arrears of tax due and
payable by them under the U.P. Sales Tax Act, 1948 by the
arrest and detention in civil prison of the petitioners in
accordance with section 279 (i) (b) read with section 281 of
the U.P. Zamindari Abolition and Land Reforms Act, 1950
(hereinafter referred to as ’the U.P. ZALR Act’) and the
Rules made thereunder.
It is alleged that the petitioners had committed
default in payment of the tax payable by them under the U.P.
Sales Tax Act and warrants of arrest had either been issued
or were about to be issued by the concerned Revenue Officers
for the arrest and detention of the petitioners in the
course of the recovery proceedings. Sub-section (8) of
section 8 of the U.P. Sales Tax Act, 1948 provides that any
tax or other dues payable to the State Government under that
Act or any amount or money which a person is required to pay
to the assessing authority under sub-section (3) of section
8 thereof or for which he is personally liable to the
assessing authority under sub-section (6) of that section
shall be recoverable as arrears of land revenue. Section 33
of the U.P. Sales Tax Act, 1948 further provides that in
respect of any sum recoverable under that Act as arrears of
land revenue the assessing authority may forward to the
Collector a certificate under his signature specifying the
sum due. Such certificate is required to be treated as
conclusive evidence of the existence of the liability, of
its amount and of the person who is liable and the Collector
on
688
receipt of the certificate may proceed to recover from such
person the amount specified therein as if it were an arrear
of land revenue. It is further provided that without
prejudice to the powers conferred by section 33, the
Collector shall, for the purposes of recovering the amount
specified in the certificate, have also all the powers which
a Collector has under the Revenue Recovery Act, 1890 and a
civil court has under the Code of Civil Procedure, 1908 for
the purpose of recovery of an amount due under a decree. The
Explanation to section 33 provides that the expression
’Collector’ includes an additional Collector or any other
officer authorised to exercise the powers of a Collector
under the law relating to land revenue for the time being in
force in the State. Rule 50 of U.P. Sales Tax Rules, 1948
provides that where a dealer or a person fails to deposit
the tax or any other amount payable by him under the U.P.
Sales Tax Act, 1948 within the period fixed in that behalf,
the same may be recovered as arrear of land revenue. Section
5 of the Revenue Recovery Act, 1890 (as in force in the
State of Uttar Pradesh) reads:
"5. Recovery by Collectors of sums recoverable as
arrears of revenue on the certificates of public
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officers and local authorities:-(1) Where any sum is
recoverable as an arrear of land revenue by any public
officer other than a Collector or by any local
authority, such officer or authority may send to the
Collector of the district in which the office of that
officer or authority is situate or of any other
district in Uttar Pradesh where the defaulter is or has
property, a certificate in such form as may be
prescribed by rules made in this behalf.
(2) Save as otherwise provided in this Act, the
certificate shall be conclusive of matters therein
stated.
(3) The Collector shall, on receipt of the
certificate under sub-section (1), proceed to recover
the amount stated therein as if the sum were payable to
himself.
(4) The provisions of section 4 shall have effect
in relation to such certificate as if it were a
certificate sent under sub-section (1) of section 3."
In the State of Uttar Pradesh the relevant provisions
relating to the procedure for recovery of arrears of land
revenue are to be found
689
in section 279 and other cognate provisions in Chapter X of
the U.P. ZALR Act.
Section 279 of the U.P. ZALR Act reads thus:-
"279. Procedure for recovery of an arrear of land
revenue:-(1) An arrear of land revenue may be recovered
by any one or more of the following processes:
(a) by serving a writ of demand or citation to
appear on any defaulter,
(b) by arrest and detention of his person,
(c) by attachment and sale of his movable
property including produce,
(d) by attachment of the holding in respect of
which arrear is due,
(e) by lease or sale of the holding in respect of
which the arrear is due,
(f) by attachment and sale of other immovable
property of the defaulter, and
(g) by appointing a receiver of any property,
movable or immovable of the defaulter.
(2) The costs of any of the processes mentioned in
sub-section (1) shall be added to and be recoverable in
the same manner as arrear of land revenue."
Clause (b) of sub-section (1) of section 279 of the
U.P. ZALR Act referred to above authorises the recovery of
land revenue by the arrest and detention of the person who
has committed the default. Section 281 of U.P. ZALR Act
reads thus:-
"281. Arrest and detention.-Any person who has
defaulted in the payment of an arrear of land revenue
may be arrested and detained in custody up to a period
not
690
exceeding 15 days unless the arrears (including costs,
if any, recoverable under sub-section (2) of Section
279) are sooner paid:
Provided that no woman or minor shall be liable to
arrest or detention under his section,
Provided further that no person shall be liable to
arrest or detention for an arrear in respect of a
holding of which he is not the bhumidhar merely because
of his joint responsibility for payment of land revenue
under section 243."
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Rules 247 to 253 of the U.P. Zamindari Abolition and
Land Reforms Rules, 1952 (hereinafter referred to as ’the
U.P. ZALR) Rules’) framed by the State Government in
exercise of its power conferred by the U.P. ZALR Act contain
the procedure to be followed while recovering the arrears of
the land revenue by the arrest and detention of the
defaulter. It is sufficient to set out rules 247, 247 (A),
247 (B) and 251 for purposes of this judgment. They read
thus:
"247. Process under Section 281 (arrest and
detention) may be issued by the Collector, the
Assistant Collector in charge of the sub-division, or
the tahsildar. If the tahsildar issues such process
against a defaulter residing in another tahsil within
the district, he may do so either direct or through the
tahsildar of such other tahsil.
247-A. The warrant of arrest may be executed by
any one of the process-servers referred to in Rule 244
or an Amin or any other officer whose name is entered
in the warrant arrest. Where the person authorised to
execute the warrant is a process-server who has not
furnished any security to Government, an Amin shall be
deputed to accompany such process server.
247-B. (1) Where a defaulter at the time of his
arrest pays the entire amount of arrears specified in
the warrant of arrest along with the process-fee
referred to in Rule ’248’to the process-server, the
Amin or the officer, as
691
the case may be, empowered in the said warrant to
receive such arrears and process-fee, he shall not be
arrested, and if arrested shall be released and a
receipt for the amount so paid shall be issued to him
on the spot in Z.A. Form 64 by the process-server, Amin
or officer, as the case may be.
(2) The amount of arrears and the process-fee paid
by the defaulter shall immediately be deposited in the
tahsil in the same manner as a land revenue collection
is deposited. The fact of payment of the aforesaid
amounts as also the reference of the Receipt No. and
Book No. of the receipt issued to the defaulter shall
also be noted down on the warrant which shall then be
put up before the officer issuing the warrant of arrest
who shall ensure that the amounts noted on the warrant
have been duly deposited in the Tahsil.
251. (1) Whenever a tahsildar causes a defaulter
to be arrested, he shall without delay report the fact
for the information of the Collector and Assistant
Collector in charge of the sub-division.
(2) After arrest a defaulter shall be brought
without delay before the officer, who issued the
warrant and shall not be detained in custody unless
there is reason to believe that the process of
detention will compel the payment of the whole or a
substantial portion of the arrear. If an order for
detention is passed, it shall specify the date on which
the detention will cease if the arrear is not sooner
paid.
(3) If the officer who issued the warrant sees
fit, when the defaulter is produced before him to give
him further time, to pay the arrears, instead of
detaining him, he may release the defaulter on his
undertaking to pay the arrear within the period fixed.
Should it become necessary to arrest the defaulter
again, a fresh warrant in Z.A. Form 70 shall invariably
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be issued, and a separate fee levied. When a warrant
has been once executed by the arrest of the defaulter,
the same warrant cannot be executed a second time".
692
The first contention urged before us on behalf of the
petitioners is that the above mentioned process of arrest
and detention of a defaulter in the course of the tax
recovery proceedings is opposed to Articles 14, 19 (1) (d)
and 21 of the Constitution. It is contended that the said
procedure is arbitrary, unreasonable and unfair. In support
of the above contention reliance is placed on Article 11 of
the International Covenant on Civil and Political Rights
which reads: ’No one shall be imprisoned merely on the
ground of inability to fulfil a contractual obligation’ and
the decision of this Court in Jolly George Verghese and Anr.
v. The Bank of Cochin.(1) In so far as the international
covenant referred to above is concerned, it has to be
observed that it has not been made yet a part of our
municipal law and secondly it relates to a debt due under
contractual obligation. We have here a case involving public
dues payable under a statute. Even in England where the
process of arrest and detention of a debtor is abolished in
the case of other kinds of debts, it is still retained in
the case of maintenance orders and of certain tax
liabilities. (See the Debtors Act, 1869 as amended by the
Debtors Act of 1869 read with the Administration of Justice
Act, 1970). In so far as the decision of this Court in the
case of Jolly George Verghese(1) (supra) is concerned, it
may be noted that it was a case governed by section 51 of
the Code of Civil Procedure, 1908. There is, however, no
doubt as observed in that case that the procedure adopted by
an authority issuing the warrant of arrest should be fair
and reasonable. But the Court left open the question whether
section 51 of the Code of Civil Procedure was
unconstitutional or not.
We shall now examine the provisions, the validity of
which is under attack. Section 279 of the U.P. ZALR Act
prescribes the different processes that may be taken out
against a defaulter who is in arrears of land revenue and
clause (b) of sub-section (1) thereof prescribes the arrest
and detention of the defaulter himself as one of such
processes. With regard to the determination of the question
(whether a restriction imposed by a statutory provision on
the fundamental right guaranteed under Article 19 (1) (d) of
the Constitution is reasonable or not) there are now well
established norms. It is settled by a long line of decisions
of this Court that the restriction must not be arbitrary or
excessive in nature so as to be beyond the requirement of
the general public. The Court should strike a just balance
between freedom contained in Article 19 (1) (d) of the
693
Constitution and the social interest to be protected. No
universal rule can be laid down in this regard. The changing
social conditions, the values of human life, the prevailing
social philosophy and all the surrounding circumstances
should be taken into consideration. In a case like this
where public dues are to be collected some amount of
coercion is necessary to make a recalcitrant defaulter who
has means to pay or who has fraudulently secreted his assets
to screen them from being proceeded against to pay up the
dues. In one of the earliest decisions i.e. State of Madras
v. V.G. Row(1) this Court observed at page 607 this:
"It is important ........................to bear
in mind that the test of reasonableness wherever
prescribed, should be applied to each individual
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statute impugned, and no abstract standard, or general
pattern of reasonableness can be laid down as
applicable to all cases. The nature of the right
alleged to have been infringed, the underlying purpose
of the restrictions imposed, the extent and urgency of
the evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing
conditions at the time, should all enter into the
judicial verdict. In evaluating such elusive factors
and forming their own conception of what is reasonable,
in all the circumstances of a given case, it is
inevitable that the social philosophy and the scale of
values of the judges participating in the decision
should play an important part, and the limit to their
interference with legislative judgment in such cases
can only be dictated by their sense of responsibility
and self-restraint and the sobering reflection that the
Constitution is meant not only for people of their way
of thinking but for all, and that the majority of the
elected representatives of the people have, in
authorising the imposition of the restrictions,
considered them to be reasonable."
This view is followed in many later decisions. The Law
Commission in its 54th Report submitted in the year 1973
after examining in detail the provisions for arrest and
detention of a judgment debtor in execution of a decree
passed by a civil court contained in section 51 of the Code
of Civil Procedure in the light of the international
covenant referred to above observed that this mode of
694
recovery should not be given up. In its Report, the Law
Commission observed:
"Situation in Section 51 (b)-
1-E. 12. Perhaps, it could be argued that
imprisonment of the judgment-debtor in the situation in
section 51, proviso, clause (b) causes hardship. That
clause applies where the judgment-debtor (i) has the
means and refuses or neglects to pay or (ii) has had
the means and has refused or neglected to pay. The
essential condition in either case is the possession of
means, coupled with contemporaneous failure or neglect
to pay, Imprisonment, if it follows in such cases, is
not based on mere non-payment nor on mere inability to
pay, but is confined to cases where a person is able to
pay and dishonestly makes default in payment.
1-E.13. It will, thus. be seen that the provisions
as to arrest do not violate the provision in the
International Covenant, as they are not based on mere
non-fulfilment of a contract. Further, even apart from
their consistency with the Covenant, they are
justifiable on principle because the conduct which
attracts their operation is dishonest. Technically, no
crime is committed, as there is no bodily harm to the
decree-holder or direct harm to society. But, to
deprive another person of this lawful dues when one has
the means to pay is, in the special situations to which
section 51, proviso, is confined ultimately causing
harm to society, which suffers if an individual member
suffers by reason of the dishonest conduct of another
member.
Present law sufficiently restrictive.
1-E.14, We are, therefore, of the view that so far
as the cases in which arrest may be ordered are
concerned the law in India is sufficiently restrictive,
except in two respects, which we shall presently
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discuss. This mode of execution should not, therefore,
be totally abolished.
The situations mentioned in the proviso to section
51-which is the section dealing with arrest in
execution of
695
decrees for payment of money-are those which indicate
fraud or clandestine designs on the part of judgment-
debtor. Mere inability to perform the obligation to
repay a loan (or other monetary obligation) does not
result in imprisonment."
The foregoing shows that in the contemporary Indian
conditions the process of arrest and detention of a
judgment-debtor or a defaulter to enforce payment of the
amount due from him is not altogether unreasonable. It
cannot be held to be unconstitutional if there are
sufficient safeguards which make the process conform to
reasonable standards.
Section 281 of the U.P. ZALR Act prescribes the maximum
period for which a defaulter can be detained for non-payment
of land revenue as fifteen days unless the arrears
(including costs, if any, recoverable under section 279 (2)
are sooner paid. A woman or a minor cannot be arrested and
detained for recovery of revenue arrears. So also a
defaulter who is not a bhumidhar of the holding in question
cannot be arrested or detained when the arrears are in
respect of the said holding for payment of which he is
jointly responsible. The first safeguard prescribed by law
in respect of the process of arrest and detention therefore
relates to the period of detention and the exemption of
certain persons from being arrested and detained. The second
safeguard prescribed by the law in question is contained in
Rule 251 of the U.P. ZALR Rules. Sub-rule (1) of Rule 251
requires that wherever the process for arrest is issued by a
tahshildar should without delay report the fact to the
concerned Collector and Assistant Collector. Sub-rule (2) of
Rule 251 requires the production of the defaulter who is
arrested before the officer who issued the warrant without
delay and that such defaulter should not be detained in
custody unless there is reason to believe that the process
of detention will compel the payment of the whole or a
substantial portion of the arrear. Under this sub-rule there
is necessity to enquire into the question whether the
detention of the defaulter would be productive of payment of
the arrear or a substantial portion thereof. The officer
concerned is, therefore, required to decide on the basis of
the material before him and any evidence tendered or
submission made by the defaulter whether there is any
justification for detaining him and it is only after he is
satisfied that the detention of the defaulter will compel
him to make the payment of the whole or a substantial part
of the arrear he can order his detention.
696
If he is not so satisfied the officer is under an obligation
to release him. Sub-rule (3) of Rule 251 also empowers the
officer who issued the warrant, if he considers it fit to do
so, to release the defaulter on his undertaking to pay the
arrear within the period fixed and to direct the arrest of
the defaulter again, if necessary.
It is argued on behalf of the petitioners that since
under rule 251 of the U.P. ZALR Rules an enquiry is
contemplated after the defaulter is arrested and produced
before the officer and not before his arrest and since such
procedure is not in conformity with the provisions contained
in corresponding laws in force in other States or in section
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51 of the Code of Civil Procedure which require an enquiry
to be made before the issue of the warrant of arrest, Rule
251 should be held to be unconstitutional. It is necessary
to observe here that each State is well within its right to
devise its own machinery for the recovery of its own public
demands and that no person belonging to one State can
complain that the law of his State is more rigorous than
that of the neighbouring State or the procedure prescribed
by the Code of Civil Procedure for execution of decrees.
(See Purshottam Govindji Halai v. Shri B. M. Desai,
Additional Collector of Bombay and Ors.).(1) We are not
concerned here in examining whether the safeguards against
arbitrary arrest correspond to the safeguards contained in
the Code of Civil Procedure or in any other law. We are
primarily concerned with the question whether the safeguards
contained in Rule 251 of the U.P. ZALR Rules are fair,
reasonable and not arbitrary and satisfy the minimum
constitutional requirements having regard to the nature of
the arrear, the prevailing conditions in our society and
other relevant matters. In this case we are concerned with
the process employed for recovery of public dues after the
period prescribed for payment of such dues in over. It is
seen that the defaulter has adequate opportunity to satisfy
the officer concerned that there is no justification to
order his detention.
This Court had occasion to consider a similar question
in The Collector of Malabar v. Erimal Ebrahim Hajee(1). In
that case the Income Tax Officer had forwarded a certificate
under section 46(2) of the Indian Income Tax Act to the
Collector for recovering the arrears of income-tax from the
assessee as if they were arrears of
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land revenue. The Collector proceeded under section 48 of
the Madras Revenue Recovery Act, 1864 and had the assessee
arrested and confined in jail. Upon a petition for a writ of
habeas corpus the High Court of Madras ordered the release
of the assessee holding that section 48 of the Madras
Revenue Recovery Act, 1864 and section 46(2) of the Indian
Income Tax Act, 1922 were ultra vires. The Collector
appealed to this Court. Allowing the appeal, this Court held
that the impugned provisions were not violative of Articles
14, 19, 21 and 22 of the Constitution. The Court also
rejected the plea of the assessee that the arrest was by way
of punishment and held that it was only a coercive process
used for recovering arrears of tax. This Court observed at
pages 978-979 thus:
"There is not a suggestion in the entire section
that the arrest is by way of punishment for mere
default. Before the Collector can proceed to arrest the
defaulter, not merely must the condition be satisfied
that the arrears cannot be liquidated by the sale of
the property of the defaulter but the Collector shall
have reason to believe that the defaulter is wilfully
withholding payment or has been guilty of fraudulent
conduct in order to evade payment. When dues in the
shape of money are to be realised by the process of law
and not by voluntary payment, the element of coercion
in varying degrees must necessarily be found at all
stages in the mode of recovery of the money due. The
coercive element, perhaps in its severest form is the
act of arrest in order to make the defaulter pay his
dues. When the Collector has reason to believe that
withholding of payment is wilful, or that the defaulter
has been guilty of fraudulent conduct in order to evade
payment, obviously, it is on the supposition that the
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defaulter can make the payment, but is wilfully
withholding it, or is fraudulently evading payment. In
the Act there are several sections (e.g. ss. 16, 18 and
21) which prescribe in unambiguous language, punishment
to be inflicted for certain acts done. It is clear,
therefore, that where the Act intends to impose a
punishment or to create an offence, it employs a
language entirely different to that to be found in s.
48. We are of the opinion, therefore, that where an
arrest is made under s. 48 after complying with its
provisions, the arrest is not for any offence committed
or a punishment for
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defaulting in any payment. The mode of arrest is no
more than a mode for recovery of the amount due."
Even though the pattern of the legislation involved in
the above case was slightly different from the pattern of
law involved in this case, the above observations appear to
be relevant to consider the question whether the process of
arrest and detention can be used at all recovering the
revenue arrears.
The High Court of Allahabad (through R.S. Pathak, J.
(as he then was) in Sangam Lal Gupta v. Sales Tax Officer &
Ors.(1) has also taken the view while dealing with a similar
set of provisions which had been promulgated under the U.P.
Land Revenue Act, 1901 that the said provisions did not
amount to imposition of any unreasonable restrictions on the
liberty of the defaulters who were ordered to be arrested
and detained pursuant to the said provisions the course of
recovery of revenue due from them. The authority concerned
is expected to use his discretion in each case in adopting
any one or more of the several processes mentioned in
section 279 of the U.P. ZALR Act for the purpose of
recovering the public dues.
It is alternatively urged that the procedure under
section 51 of the Code of Civil Procedure in terms would be
applicable to the issue of warrant of arrest under section
281 of the U.P. ZALR Act. in view of section 33 of the U.P.
Sales Tax Act and section 341 of the U.P. ZALR Act. The
proviso to section 33 of the U.P. Sales Tax Act no doubt
says that without prejudice to the powers conferred under
that section the Collector shall also have the powers of a
civil court for the purpose of recovery of an amount due
under a decree. This proviso does not impose any further
restriction on the power of the Collector under section 281
of the U.P. ZALR Act and the Rules made thereunder. It only
empowers the Collector, if he chooses to do so, to exercise
the powers under the Code of Civil Procedure. The procedure
prescribed by section 281 of U.P. ZLAR Act and the Rules
made here under constitutes a complete code on the process
of arrest and detention of a defaulter and it is not
modified by any of the provisions of the Code of Civil
Procedure. It may be noted that where the procedure relating
to execution mentioned in the Code of Civil Procedure is to
be adopted, U.P. ZALR Act has made an express reference to
it in section 282(2) which deals with attachment and sale of
movable property by providing that every
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attachment and sale under section 282 shall be made
according to the law in force for the time being for the
attachment and sale of movable property in execution of a
decree of a civil court. In section 282(3) of the U.P. ZALR
Act there is reference to section 60 of the Code of Civil
Procedure which exempts certain kinds of property from
attachment and sale. There is no similar provision governing
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the process of arrest and detention. Section 341 of the U.P.
ZALR Act states that unless otherwise expressly provided by
or under that Act the provisions of the Code of Civil
Procedure would apply to the proceedings under that Act. As
mentioned earlier there are express provisions in the U.P.
ZALR Act and the Rules made thereunder governing the process
of arrest and detention. Hence section 51 of the Code of
Civil Procedure cannot be relied on. We may observe here
that the defaulter has to be ordinarily served with a writ
of demand under section 280 before any other process is
adopted for recovery of arrears of land revenue. Rule 242 of
the U.P. ZALR Rules provides that ordinarily the process
under section 280, that is, a writ of demand or citation
should issue before any other process is resorted to. It
follows that ordinarily the defaulter would be made known
that a certificate had been issued for recovery of arrears
of land revenue from him. Having given our anxious
consideration to the question, we are of the view that the
provision of section 5 of the Code of Civil Procedure would
not in terms be applicable to the process of arrest and
detention under the U.P. ZALR Act. The decision of the
Allahabad High Court in Seth Banarsi Das Gupta v. State of
U.P. & Ors.(1) which says that the procedure under section
51 of the Code of Civil Procedure would apply to the case in
terms does not lay down the law correctly. We may, however,
make it clear that a writ of a demand or citation ordinarily
should be issued to the defaulter before resorting to the
drastic process of issuing an arrest warrant under section
281 of the is U.P. ZAIR Act. Even if a formal writ of a
demand is not issued, it implicit in the nature of the
process to be issued under section 281 of the U.P. ZALR Act
that the defaulter concerned should have prior notice of the
issue of the certificate for recovery to enable him to pay
up the amount demanded to avoid the arrest. On a careful
consideration of the submissions made before us we are of
the view that the impugned procedure contained in the U.P.
ZAIR Act and the Rules made thereunder is not violative of
Articles 14, 19(1) (d) and 21 of the Constitution.
700
The next point urged on behalf of the petitioners,
however, appears to be a substantial one. Even though Rule
251 of the U.P. ZALR Rules requires an enquiry to be held by
the officer who issued the warrant into the question whether
the detention of the defaulter would compel him to pay the
arrear or a substantial portion thereof, admittedly no such
inquiry is held in any of these cases. Hence the petitioners
cannot be detained pursuant to any warrant of arrest already
issued. We have, therefore, to quash the warrants which are
already issued in these cases and direct that the
petitioners against whom such warrants have been issued
should not be detained pursuant thereto. We make an order
accordingly. This order is made without prejudice to the
power of the authorities concerned to realise the arrears by
arresting and detaining the defaulters in accordance with
law by passing fresh orders in the light of the above
decision.
It is stated that the petitioners in some of these
petitions have filed appeals or some other petitions under
the U.P. Sales Tax Act against the orders of assessment and
that such appeals or petitions are still pending. We do not
express any opinion on the merits of those appeals or other
petitions. They may be disposed of according to law by the
concerned authorities.
The petitions are accordingly allowed in part. No
costs.
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S.R. Petitions partly allowed.
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