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TMI Blog1993 (11) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... against some of the orders which are stated to be still pending. Since the demands created through ex parte orders aforesaid were of huge amount, he could not meet the same and also could not seek his remedy in various appeals filed by him as he was financially as also physically weak. It is pleaded that he had been sick for a longtime and was not in a position to arrange money in order to pursue his remedies. In consequence of the default in payment made by him, he was arrested and detained in civil prison for 40 days. This coercive method adopted by the respondent-department, obviously with a view to recover the amount of tax from him, however, yielded no results. Petitioner is stated to be having no assets so as to meet the heavy demands. He is an old man of 65 years and is stated to be heart patient. Recently his one of the veins in nose got burst and the doctors opined that he would not survive but on account of some electric treatment, there was some improvement. On this count, it is stated, that he is physically weak and is not doing any work for the last many years. He is staying on charity and is fed by charity of relations and others. It is on the basis of facts, as made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. The registration certificates in respect of both the firms have since already been cancelled. It is pleaded that one Balbahaddar Jain, another partner of M/s. Jain Brothers is residing at Devan Giri in the State of Karnataka and certificate for recovery of Government dues amounting to Rs. 67,13,805 has been sent to the Collector, Bangalore vide letter dated December 2, 1988 but no recovery has been effected so far from him. It is in these circumstances that proceedings under the Punjab Land Revenue Act, 1887 were taken against the petitioner. Insofar as assertion of petitioner that he is physically very weak, is concerned, the same has been denied for want of knowledge. It is also stated that petitioner has not attached any proof about his age or that he resides on the charity of is relations. The department, it is further stated, is fully competent to arrest the petitioner if he fails to pay arrears of tax in respect of the firm M/s. Jain Brothers. The assessment orders and the recovery proceedings initiated are perfectly in accordance with law. It is admitted that the arrest and detention of petitioner did not yield any results but his arrest in future could yield some resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ales Tax Act. In Gomti Devi's case (1988) PLJ 416 the observation of the Division Bench has not gone beyond saying that recovery of amount as arrears of land revenue by arrest and detention of person should be the last resort and the arrears have to be recovered firstly by other means of recovery under the Punjab Land Revenue Act. In M/s. Maruti Ltd.'s case AIR 1993 P&H 215; (1993) 1 PLR 339 once again the observations of the learned single Judge were confined to the provisions of order 21, rule 11-A of the Code of Civil Procedure and on the basis of provisions of the order aforesaid, it was observed that if an application is made for the arrest and detention in prison of the judgment-debtor, it shall state, or be accompanied by an affidavit-stating, the grounds on which arrest is applied for. These two judgments cited by learned counsel also, thus, do not deal with the pertinent question that is involved in the present case. 7.. Learned counsel has also placed reliance upon Jolly George Varghese v. Bank of Cochin AIR 1980 SC 470. The honourable Supreme Court in the case cited above, was dealing with the provisions contained in section 51 and Order 21, rule 37 of the Code of Civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the court. (2) Where appearance is not made in obedience to the notice, the court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor." 8.. The facts of the case aforesaid reveal that the litigation giving rise to civil appeal before the Supreme Court, was between an individual and a bank. Obviously, the decree-holder was executing the decree and demanding the arrest of the debtors under the provisions of the code as quoted above. The question posed was as to whether, from the perspective of international law, it was right to enforce a contractual liability by imprisoning a debtor in the teeth of article 11 of the International Covenant on Civil and Political Rights. The answer to the question aforesaid has been given by saying that "it is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, in this land of poverty is no crime and recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Jolly George Varghese's case AIR 1980 SC 470, even though made while considering the contractual obligation of a debtor, would apply substantially to the case of a citizen against whom tax under the statute is due. If a citizen actually is penniless and has become pauper on account of the circumstances beyond his control and in fact is unable to pay the dues, how shall it serve the department to put him in prison time and again. Far from recovering the amount due from him, the department would be only spending something for securing his arrest and detaining him in civil prison. If, however, it is a case of cheating the department and such cases are not wanting, the department would be well within its rights to re-arrest a person and put him in civil prison again. If this course is not left open to the respondent-department, any one like petitioner, who has to pay almost eighty lacs of rupees to the Government, would happily serve civil prison for a period of 40 days and would get away with all the cheating that he might have done and defraud the department. However, before a step of re-arresting a citizen is taken, the department at its own level must gather some informatio ..... 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