Case: Ram Narayan Agarwal Etc Etc Vs. State Of Uttar Pradesh &amp; Others

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 as arrears of land revenue the assessing authority may forward to the Collector a certificate under his signature specifying the sum due. Such certificate is required to be treated as conclusive evidence of the existence of the liability of its amount and of the person who is liable and the Collector on receipt of the certificate may proceed to recover from such person the amount specified therein as if it were an arrear of land revenue. It is further provided that without prejudice to the powers conferred by section 33, the Collector shall, for the purposes of recovering the amount specified in the certificate, have also all the powers which a Collector has under the Revenue Recovery Act, 1890, and a civil court has under theCode of Civil Procedure, 1908, for the purpose of recovery of an amount due under a decree. The explanation to section 33 provides that the expression "Collector" includes an Additional Collector or any other officer authorised to exercise the powers of a Collector under the law relating to land revenue for the time being in force in the State. Rule 50 of the U.P. Sales Tax Rules, 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) readsRecovery 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.

Reasoning:
It is alternatively urged that the procedure undersection 51 of theCode 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 exercise the powers under theCode of Civil Procedure. The procedure prescribed by section 281 of the U.P. ZALR Act and the Rules made thereunder 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 theCode of Civil Procedure. It may be noted that where the procedure relating to execution mentioned in theCode 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 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 theCode 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 provision of theCode 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 process of arrest and detention. Hencesection 51 of theCode of Civil Procedure cannot be relied on. We may observe here that the defaulter has to be ordinarily served with a writ of demand under section 280 before any other process is adopted for recovery of arrears of land revenue. Rule 242 of the U.P. ZALR Rules provides that ordinarily the process under section 280, that is, a writ of demand or citation should issue before any other process is resorted to. It follows that ordinarily the defaulter would be made known that a certificate had been issued for recovery of arrears of land revenue from him. Having given our anxious consideration to the question, we are of the view that the provisions ofsection 51 of theCode of Civil Procedure would not in terms be applicable to the process of arrest and detention under the U.P. ZALR Act. The decision of the Allahabad High Court in Seth Banarsi Das Gupta v. State of U.P. (1975) Revenue Decisions 246, which says that the procedure undersection 51 of theCode of Civil Procedure would apply to the case in terms 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 the petitioners cannot be detained pursuant to any warrant of arrest already issued. We have, therefore, to quash the warrants which are already issued in these cases and direct that the petitioners against whom such warrants have been issued should not be detained pursuant thereto. We made an order accordingly. This order is made without prejudice to the power of the authorities concerned to realise the arrears by arresting and detaining the defaulters in accordance with law by passing fresh orders in the light of the aboveis stated that the petitioners in some the these petitions have filed appeals or some other petitions 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.