Om Prakash Gupta vs State of U.P. and others

V. N. Singh, J.—Heard learned counsel for the petitioner and learned standing counsel.

The question of quite considerable importance that arises in this case is as to whether nonpayment of any debt due, personal liberty of the debtor can be curtailed and he be put behind the prison. The petitioner had incurred loan from Punjab National Bank, Branch Nanda Nagar (Rajahi), district Gorakhpur and

was in arrear of Rs. 94,937. A recovery certificate was sent to the Tahsildar, Gorakhpur, for realisation as arrear of land revenue under the U. P. Zamindari Abolition and Land Reforms Act. The petitioner''s case is that neither he was noticed nor he was given breathing time to discharge his liability by making payment of the amount as claimed. He was all of a sudden arrested in the morning of 8.5.2003 and sent behind the prison. On the same day, his father some how could arrange Rs. 34,100 and deposited with the Tehsildar Sadar, Gorakhpur and asked for a copy of the citation, but his prayer was turned down. It is .urged, financial condition of the petitioner does not permit him to pay the remaining amount in lump sum and therefore, easy monthly instalments may be fixed so as to enable him to clear up the debt.

It is submitted at the bar that it is the usual practice all over the State that on the basis of citation received from the banks, financial institutions and others, recovery proceedings are initiated under the U. P. Zamindari Abolition and Land Reforms Act, 1950 (in short ''the Act'') for realisation of unpaid loan/dues as arrears of land revenue. Without following the procedure for service of notice and without being satisfied that the defaulter wilfully avoided to receive the notice, the Tehsildar who exercises power as an execution court proceeds to get him arrested and detained in the custody. Though arrest and detention is prescribed in the Act, it is a ''draconian'' law which seriously affects one''s personal liberty, a precious right guaranteed under the Constitution. After sending the defaulter to prison, the Tehsildar resorts to other methods provided in the Act to recover the amount, which procedure he should have followed at the first instance. In the case on hand, the petitioner was not served with any notice. He was unaware of the recovery proceeding. In absence of any material and without any order being passed that he wilfully defaulted to pay the debt, the Tehsildar got him arrested and detained in prison, even though from the properties, both movable and immovable which he owns, recovery could have been made by attachment and sale thereof.

Learned standing counsel, on the other hand, contends that Section 279 of the Act prescribes different modes of recovery of land revenue and arrest and detention of the debtor being one of the modes no fault can be found with the authority for adopting such mode at the first instance.

Section 279 of the Act prescribes following procedures for recovery of arrears of land revenue :

(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."

The other relevant provisions which are necessary to be referred to, are Sections 280 and 281 of the Act. Section 280 provides that when arrear of land revenue has become due, Tehsildar may issue writ of demand calling upon the defaulter to pay the amount within specified time and in addition to or in lieu of writ of demand the Tehsildar may also issue citation against the defaulter to appear and deposit the arrears. Next comes Section 281 which envisages that the person defaulted in the payment may be arrested and detained in custody. The other relevant provisions relate to attachment and sale of movable and immovable properties of the defaulter.

Arrest and detention of a defaulter as provided under Section 281 are borrowed from Section 51 and Order XXI Rule 37, C.P.C. Section 51 runs thus :

"Powers of Court to enforce execution.Subject to such conditions and limitation as may be prescribed, the Court may, on the application of the decree holder, order execution of the decree

(a) by delivery of any property specifically decreed ;

(b) by attachment and sale or by the sale without attachment of any property ;

(c) by arrest and detention in prison (for such period not exceeding the period specified in Section 58, where arrest and detention is permissible under that section) ;

(d) by appointing a receiver ; or

(e) in such other manner as the nature of the relief granted may require :

Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgmentdebtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied

(a) that judgmentdebtor, with the object or effect of obstructing or delaying the execution of the decree

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or

(b) that the judgmentdebtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same ; or

(c) that the decree is for a sum for which the judgmentdebtor was bound in a fiduciary capacity to amount."

Order XXI Rule 37 under the heading arrest and detention in the civil prison reads as under :

"Discretionary power to permit judgmentdebtor to show cause against detention in prison.(1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgmentdebtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison.

Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that with the object or effect of delaying the execution of the decree, the judgmentdebtor 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 decreeholder so requires, issue a warrant for the arrest of the judgmentdebtor."

A conjoint reading of both Section 51 and Order XXI Rule 37. C.P.C., what appears is that warrant of arrest shall not be issued as a matter of course. It is when the Court is satisfied that the judgmentdebtor with the object of delaying the execution of the decree is likely to abscond or leave the local limits of its jurisdiction or has dishonestly transferred, concealed or removed any part of his property or having means to pay the decretal amount or substantial part thereof, refuses or neglects to pay the same, in that case, the Court may order for his arrest and detention in prison. The question as to whether it would be reasonable and fair to arrest a judgmentdebtor for his not satisfying the decree came for consideration before the Apex Court in case of Jolly George Varghese and another v. Bank of Cochin, AIR 1980 SC 470. Referring to Article 11 of International Covenant on Civil and Political Rights, which inter alia says that ''no one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation as well as Article 21 of the Constitution'' the Court held :

".................The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. The provision emphasizes the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor''s other pressing needs and straitened circumstances will play prominently. We would have, by this construction sauced law with justice, harmonized Section 51 with the Covenant and the Constitution."

The Act with which we are concerned in the present case is a special statute. It empowers the recovery authority to arrest and detain a defaulter if fails to pay the arrear of land revenue after notice of demand was issued to him. Attachment and sale of his properties comes later and it is because of that the Tehsildar in the present case got the petitioner arrested and detained in the prison. Though we are not dealing with the question of legality and constitutional validity of Section 281 of the Act, however, keeping in mind the International Covenant to which India is a signatory coupled with Article 21 of the Constitution, we are of the opinion that merely on failure of the defaulter to discharge his liability upon receipt of demand notice, harsh method of arrest and detention to coerce him to make the payment should not be resorted. When arrest and detention affects personal liberty of a person, the authority before taking recourse to such method must be satisfied that the defaulter in spite of having sufficient means, has wilfully and with mala fide intention refused to pay. This satisfaction must be evident from the order passed by the recovery authority for arrest and detention of the defaulter.

So far as the present case is concerned since the petitioner through his father has deposited a sum of Rs. 34,100 we direct that on his depositing a further sum of Rs. 10,000 within ten days from today the Tehsildar Sadar, respondent No. 2, shall release him from prison. For payment of the remaining amount liberty is given to the petitioner to move an application for grant of instalments to the Tehsildar. In the event, such an application is moved the same shall be decided keeping in mind his financial position coupled with the fact that he has already paid certain amount.

Since this order is dictated in open Court, we direct learned standing counsel to communicate operative part of the order to the Tahsildar Sadar, district Gorakhpur for compliance.

Registry is directed to send a copy of this order to the Chief Secretary, U. P., Lucknow, who in turn shall communicate to all the District Magistrates for guidance and compliance.

A copy of the order be supplied to the learned counsel for the petitioner on payment of usual charges.