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TMI Blog1983 (8) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... etitions 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. - Writ Petition No. 1110, 2035, 4759, 6431 of 1980, 92, 140, 152, 400, 421, 497, 1366, 4719, 6931, 8052, 8053, 8054, 8055, 8056, 8057, 8058, 7483, 8458 of 1981, 871, 872, 873, 2369, 2621, 2622, 4053, 5695 of 1982 - - - Dated:- 23-8-1983 - SEN A.P. AND VENKATARAMIAH E.S. AND MISRA R.B. JJ. Gopal Subramaniam and B.P. Maheshwari, Advocates, for the respondents. Anil B. Divan, Senior Advocate in W.P. Nos. 497 of 1981 and 4759 of 1980, Y.S. Chitale, Senior Advocate, Mrs. Uma Jain, R.K. Mehta, M. Mudgal, Ramesh Mehrotra, E.C. Agarwal, R. Satish Vijay Pandita, S.K. Pagga, U.P. Singh, Dr. Meera Agarwal, Mrs. Rain Chhabra B. Datta, Advocates, for the petitioners. -------------------------------------------------- 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 act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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 by this Act, the certificate shall be conlusive proof of the 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 sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 processservers referred to in rule 244 or an Amin or any other officer whose name is entered in the warrant of 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 the case may be, empowered in the said warrant to receive such arrears and process-fee, he shall not be arrested, and if arre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligation" and the decision of this Court in jolly George Verghese v. Bank of Cochin [1980] 2 SCR 913. 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 1878 read with the Administration of justice Act, 1970). In so far as the decision of this Court in the case of jolly George Verghese [1980] 2 SCR 913 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 sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 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 es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very 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 tahsildar, the tahsildar should without delay report the fact to the concerned Collector and the 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 productiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Collector of Malabar v. Erimmal Ebrahim Hajee [1957] SCR 970. 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 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 rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions 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 in 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 exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not lay down the law correctly. We may, however, make it clear that 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 U.P. 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. On a careful consideration of the submissions made before us we are of the view that the impugned procedure contained in the U.P. ZALR Act and the Rules made thereunder is not violative of articles 14, 19(1)(d) and 21 of the Constitution. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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