IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 WP(C).No. 11248 of 2008(L) -------------------------- AGAINST THE ORDER IN IA 366/2008 IN CMA.17/2008 of II ADDL. DISTRICT COURT, TRIVANDRUM .................... PETITIONER: ---------------------- A. BALAPPA,S/O. S.ARUMUGHAM PILLAI, HOUSE NO. 63,P.T.P NAGAR, VATTIYOORKAVU VILLAGE THIRUVANANTHAPURAM, NOW RESIDING AT SREENIKETHAN VATTAYAM, VELLUMANNADI,P.O.,PULLAMPARA VILLAGE, VENJARAMOODU,THIRUVANANTHAPURAM. BY ADV. SRI.S.V.RAJAN SRI.S.ARUN RAJ RESPONDENTS: ------------------------- 1. STATE OF KERALA,REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 3. THE TAHSILDAR, (REVENUE RECOVERY) THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. MUHAMMED PUZHAKKARA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 11248 OF 2008 --------------------- Dated this the 4th day of April, 2008 JUDGMENT This writ petition is preferred against the order of the II Addl. District Judge, Thiruvananthapuram, in IA 365/08 in CMA 17/08. The brief facts necessary for disposal are as follows: 2. The writ petitioner is a person against whom the government has raised claim for arrears of tax and other things to a tune of Rs.3,26,42,403/-. There was a proceeding initiated under Sec.65 of the Revenue Recovery Act to arrest the person and send him to civil prison. On an earlier occasion the matter came up before me and I have considered the same in order to enable the party to obtain some orders from the insolvency court. What has happened is the that the insolvency petition has been dismissed against which the CMA is filed. Now the apprehension of the writ petitioner is that actions are initiated by the District Collector to arrest him and detain him in civil prison. According to the petitioner, as the insolvency petition is pending, he shall not be arrested and detained in civil prison. Along with the appeal an interim application was filed and the WPC NO 11248/08 2 District Judge did not grant an order and dismissed that application. 3. At the outset, it has to be stated that the writ petitioner is a chronic defaulter of the amount due to the State Government. This court in the decision reported in Aboo v. District Collector [2001 (1) KLT 843] held that “A defaulter cannot escape and avoid an arrest by pleading that he has no means to discharge the debt. Evasion of payment alone is sufficient justification for initiating proceedings under Sec.65.” The learned Judge had considered the object ad scope of S.65 in para 11 to 13 of the said judgment. It is observed that “There should, therefore, be a motive or a principle behind such a statutory prescription. Arrest of a person, and detention in civil prison is regarded as a circumstance which is infra dig for a person who enjoys some status in society. It is likely to be avoided by any person, normally at any cost. I see the provisions for an arrest therefore as a clever method playing on the psychological strings of the defaulter and those connected with him” So, when proceedings under the Revenue Recovery Act are initiated against a person under Sec.65, the pleading of no means will not be sufficient to escape from the clutches of the provision. 4. Learned counsel for the petitioner would submit that in WPC NO 11248/08 3 that decision the question of insolvency has not been considered. The argument that insolvency is permitted to be raised in a proceeding under Sec.55 of the Civil Procedure Code is only with the object of enabling the judgment debtor to substantiate the pleading that of no means by filing an application for insolvency. But when a revenue recovery act specifically provides for arrest and detention and as interpreted by the court irrespective of the means then, the ultimate result of an insolvency petition may not loom large in such proceedings. I do not want to elaborate further at this stage for the reason that appeal is still pending before the court. I do not want to interfere with the decision rendered by the learned District Judge at this stage. Therefore the writ petition is dismissed. M.N.KRISHNAN, JUDGE vps WPC NO 11248/08 4 WPC NO 11248/08 5 WPC NO 11248/08 6