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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 ..... e 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(1)(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 a 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 the 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 the arrear of land revenue." Clause (b) of sub-section (1) of section 279 of the U.P. ZALR Act referred to above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the 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 pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mprisonment, 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 his 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 discus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 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 obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrest 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 defaulter can make the payment, but is wilfully withholding it, or is fraudulently evading payment. In the Act there are several sections (e.g. sections 16, 18 and 21) which prescribe, in unambiguous language, punishment to be inflicted for cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereunder 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, the 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 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 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 proce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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