Holding

The arrest and detention procedure under the U.P. ZALR Act is constitutionally valid, does not violate the ICCPR, and is not governed by Section 51 of the CPC, but existing warrants issued without a fresh enquiry must be quashed.

Summary

The petitioners, who had defaulted on Uttar Pradesh sales tax, were subject to arrest and detention under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, as a method of recovering arrears treated as land revenue. They challenged the constitutionality of this process, alleging violations of Articles 14, 19(1)(d) and 21 of the Constitution, and contending that it was repugnant to Article 11 of the International Covenant on Civil and Political Rights and that Section 51 of the Code of Civil Procedure should apply. The Supreme Court held that the statutory scheme, including the safeguards in Rule 251, is a reasonable restriction and does not infringe the constitutional rights or the international covenant, and that Section 51 CPC is inapplicable to the arrest process. However, the Court quashed any existing arrest warrants that had been issued without a fresh enquiry under Rule 251 and directed that fresh orders be made if necessary. The petitions were allowed in part and no costs were awarded.

Issues considered

The validity of arrest and detention of tax defaulters under the U.P. Zamindari Abolition and Land Reforms Act, 1950 in light of Articles 14, 19(1)(d) and 21 of the Constitution.
Whether the procedure contravenes Article 11 of the International Covenant on Civil and Political Rights.
Whether Section 51 of the Code of Civil Procedure, 1908 applies to the issuance of arrest warrants under the U.P. ZALR Act.
Whether the safeguards prescribed in Rule 251 of the U.P. ZALR Rules are sufficient and whether existing warrants can be executed without a fresh enquiry.

Legislation cited

Code of Civil Procedure, 1908s. 5, s. 51
International Covenant on Civil and Political Rightss. Article 11
Revenue Recovery Act, 1890s. 5
Uttar Pradesh Sales Tax Act, 1948s. 33, s. 8(3), s. 8(8)
Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950s. 279, s. 281, s. 282, s. 341
Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952s. 247, s. 247A, s. 247B, s. 251

Subjects

public debttax recoveryarrest and detentionconstitutional validityArticles 14, 19(1)(d), 21International Covenant on Civil and Political RightsSection 51 CPCprocedural safeguardsrevenue recovery

Judgment

684.

RAM NARAYAN AGARWAL ETC ETC.
A
v.

STATE OF UTTAR PRADESH & OTHERS

August 23, 1983
B
. (A ),'. SEN, E. S, VBNKATARAMIAH AND R. B. M1SllA, JJ.]

Public Debt-Process employed for recovery of dues to Government under
the U. P. Sales Tax Act, 1948, by resort to arrest and detention in civil prison,
in accordance with section 279(1) (b) read with seCtion 281 of the U.P. Zamindari
C Abolition and Land Reforms Act, 1950 and Rules 247, 247A, 247B and 251 of
the UPZALR 1952-Constitutional validity of-Whether violative of Articles 14,
19(1) (d) and 21 of the Constitution and repugnant to Article 11 of the Inter-
national.Covenant on Civil and Political Rights-Applicability of Section 51 of
the Code of Civil Procedure, 1908.

The Petitioners had committed default in payment of the tax payable
D by them under the U.P. Sales Tax Act, 1948. Any such dues could be recovered
as if arrears of land revenue in terms of sub~sections (3) and (8) of section 8
of the 1948 Act read with Rule 50 of the U.P; Salex Tax Rules, 1948. Section
5 of the Revenue Recovery Act, 1890, as in force in the State of Uttar Pradesh
speaks of the obligation arid other duties of the coitectors for re~overy of sums
recoverabJe as arrears of revenue on the certificates of public officers and
E Local Authorities. The procedure for such a recovery however is provided itt
sections 279 and 281 of the U. P. Zamindari Abolition and Land Revenue
Act, 1950 read with Rules 246, 247A, 2478 and 251 of the U.P. Zamindari
Abolition and Land Revenue Rules, 1952. Under clause (b) of the sub-section
(I) of section 279 of the UPZALR Act, recevery by resort to arrest and· deten-
tion of the person concerned" is also provided. On certificates jssued by the
assessing Auth9rity, in terms of section 33 of the U.P. Sales Tax Act, 1948,
F 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. The petitioners have challenged the
same as constitutionally invalid being violative of Articles 14, 19(1) (d) and 21
of the Constitution and repugnant to Article 11 of the 1nternational Covenant
on Civil and Political Rights.
G Allowing the petitions in part, the Court

HELD : 1:1. The impugned procedure contained in the U.P. Zamidari
. Abolition and Land Reforms Act, 1948 and the Rules made thereunder is not
violative of Articles 14, 19(1) (d) and 21 of the Constitution. [699 G]
H
The Co/lee/or of Malabar v. :f'rimal Ebrahim Ha]ee, (1957] S.C.R, 979
applied.
lµM NARAYAN V. U.P. 685
Sangam La( Gupta v. Sales Tax Officer & Others., [1969) All. L J. 257,
approved. ,j,

1~2. Jn the instant coses, the petitioners cannot be detained pursuant to
any warrant of arrest already issued, since no such enquiry, as contemplated
in Rule 251 of the U.P. Zamindari Abolition and Land Reforms Rules, 1952,
by the officer who issued the warrant into the question whether the detention
of the defaulter would compel him to pay the arrears by arresting and detain·
)ng the defaulters in accordance with law,by passing fresh orders. [695 G-H)
-B
2. Article 11 of the International Covenant of Civil and Political
Rights cannot come to the aid of the petitioners since it has not been made
yet a_ part of Indian municipal law and further it relates to a debt due under a
contractual obligation. [692 CJ
-c
Jolly George Verghese and Another v. The Bank of Cochin.• [1980) 2 SCR
913, explained and distinguished.

3:1 Whether a restriction imposed by..-a statutory provision on the funda-
mCntal right guaranteed under Article 19(1) (d) of the Constitution is reason·
able or not is now governed by well established norms. It is ·settled by a long D
line of decisions of this Court that the restriction must not be arbitrary or ex-
cessive in nature so as to be beyond the requirement of the general public. The
Court should strike a just ba1ance between freedom contained in Article 19(1)
(d) of the Constitution and the social interest to be protected. No universal ru1t
can be laid down in this regard. The changing social conditions, the values of
human life. the prevailing social philosophy and all the surrounding· circum-
stances should be taken into consideration. In a case like this where public E
dues are to be collected some amount of coercion is necessary to make a
recalcitrant defaulter who.!_las fraudulently secreted his assets to screen them
from being proceeded against to pay up the dues. In the contemporary Indian
conditions the process of a_rrest and detention of the judgment-debtor or a
defaulter to·enforce payment or the anlount due from him is not altogether
unreasonable. It' cannot be held to be unconstitutional if there ar~ sufficient
safeguards which µlake the· process conform to reasonable standards. F
[692 G-H, 693 A-B, 695 B·C)

State of Madras v. V. G. Row, [1952) S.C.R. 597, referred to.

3:2. Th~ defaulter_ has adequate opportunity to satisfy the Recovery
Officer concerned that there is no juStification to order his deterition. Whil• G
section 281 of the UP ZALR Act prescribes necessary safeguards in respect of
the proc:::Ss of arrest and detention like the maximum period of detention
upto fifteen days and exemPtion of cert~in persons viz. women, minors, a
bhumidhar of the specified class etc~ Ru1e 251 of UP ZALR Rules provides
safeguards like report by a Tehsildar issuing a warrant of arrest to the Collec-
tor without delay and projuction of the arrested defaulter before the officer H
i_ssuing the warrant without delay and that such defaulter should not be detained
in custody unless there is reason to believe that the process of detention will
~ompel the payment of the whole or a substantial IJOrtion of the arrear. Unqef
686 SUPREME COURT REPORTS 11983) 3 s.c.P..
Rule 251, there is necessity to enquire into the question wb.ether the detention
.A of ~the defaulter Would be productive of payment of the arrear of a
substantial portion thereof. The officer concerned is, therefore, required to
decide on the basis of the material before him and any evidence tendered or
submission made by the defaulter whether there is any justification for detain~
ing him and it is only after he is satisfied that the detention of the defaulter
will compel him to n1ake the payment of the whole or substantial part of the
arrear ho Can ·order his detention. If he is not so satisfied the officer is under
B an obli11ation to release him. (696 F, 695 C-H]

· 3:3. Each State is well within its right to devise its own machinery for
the recovery of its own public demands and that no person belonging to one
State can complain. that the law of his State is more rigorous than that of the
neighbouring State or the procedure prescribed by the Code of Civil Procedul'fl
c for execntion of the de,crees. [696 E-G]

Purshottam Govindjl Halal v. Shree B.M. Desai, Addi. Collector of Bombay
and Others, [1955].2 S.C.J.t 887, followed.

3:4. The proviso to section 33 of the U .P. Sales Tax Act no doubt says
D that without prejudice to the powers conferred under that section the Collector
shall also have th~ powers of a civil couft for the purpose of recovery of an
amount due under a decree. This proviso does not impose any further res·
triction on the power of the Collector under section 281 of the UP ZALR Act
and the Rules made thereunder which constitute 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. Where the procedure relating to
E execution mentioned in the Code of Civil Procedure is to be adopted, U.P.
ZALR Act has made an express reference to it in section 282(2) which deals
with 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. Section 341 of the UP' ZALR Act states
that unless otherwise expressly provided by or under that Act the provisions
F of the Code of Civil Procedure would apply to .the proceedings under that Act.
There are express provisions in the UP ZALR Act and the :Ru!eS made there·
.- under govornin8 the process of arrest and detention. Hence the provisions or
section 51 of the Code of Civil Procedure would not in terms be applicable to
tho process of arrest and dete~tion under tho UP ZALR Act. [698 E-H, 699 A-CJ

G Seth Banarsi Das Gupta v. State of U.P. & Others, [1975] Revenue
Decisions, 246 (Allahabad High Court), over-ruled.

3:5. However, a writ of d~mand or citation -0rdinarily should be issued
to the defaulter before resorting to the drastic process of issuing an arrest
warrant under section 281 of the UP ZALR Act. Even .if a formal writ of
H 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. (699 E-GJ
RAM NARAYAN v. U.P. (Venkataramlah, J.) 687

ORIGINAL JURISDICTION : Writ Petitions Nos. 1110, 2035, 4759,
'6431of1980, 92, 140, 152, 400, 421, 497, 1366, 4719, 6931, 8054·58, .A.
7483, 8458 of 1981, 871·873, 2362, 2621-22, 4053 and 5695 of
1982.
(Under Article 32 of the Constitution of India)
,.. Anil B. Divan, Y.S. Chitale, Mrs. Um.a Jain, R.K. Mehta, 8
M. Mudgal, Ramesh Mehrotra, E.C. Agarwa/a, R. Salis~, Vijay
Pandita, S.K. Bagga, U.P. Singh, Dr. Meera Agarwal, Mrs. Rani
Chhabra and B. Datta for the Petitioners.

Gopal Subramaniam and B.P. Maheswari for the
Respondents. c
The Judgment of the Court was delivered by

VENKATARAMIAH. J, The common question which arises for
consideration in all these petitions relates to the validity of the action
taken by the authorities concerned against the petitioners for D
recovering the 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 (i) (b) read with
section 281 of the U.P. Zamindari Abolition and Land Reforms Act,
19SO (hereinafter referred to as 'the U.P. ZALR Act') and the Rules E
made thereunder .
• •
It is alleged that the petitioners had committed default in pay·
ment 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 F
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-1ection (3) of section 8 thereof or for which he
is personally liable. to the assessing authority under sub-section (6) of
G
that section shall be recover-able 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 fd~ard to the Collector a certificate under
H
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 js liable 'and ' .
. the. Collector
•' . .011
.
688 . SUPREME COURT REPORTS (1983] 3 s.c.1t.

receipt of the certificate may proceed :to recover from ·such ~rson
the amount specified therein as if it were an arrear 'of land revenue.
It is futher {irovided that without prejudi_ce 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
,-
-B' a civil court has under the Code of Civil Procedure, 1908 for the
purpose of r~covery of an amout due under a decree._ The ExpJana· ,
tion 'to section 33 provides that the expression 'Collector' includes y
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 U.P; Sales Tax
c . 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 th<! 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)
reads : -
D
_"S. Recovery by Collectors of sums recoverable as
arrears of revenue on the certificates of public officers -
and local authorities:-(!) Where any sum is recoverable
·as an arrear of land revenue by. any· public· officer other
E 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
or"any other district in Uttar Pradesh where the defaulter.
is or has property, a certlficate in such form as may be '
• ,.prescribed by rnles made in this behalf. -~
F
. ~ . , (2). Save as otherwise pro~ided . iri this Act, the
certificate shall be conclusive of matters therein stated.

.
c· -·
(3) The - Collector shall, on receipt of the certificate
under sub-sectien (!), proceed to recover the amount
:stated therein as if the sum were payable to himself.
."
·- (4) The provisions ~f section 4 shall have -effect in
'relation to such certificate as if it were a certificate ' sent '
H --' -under sub~section (I) of section 3:"
.
In the State .of U~tar Pradesh
I
the relevant provisions
.
relating to
the procedure for recovery of arrears of land revenue are i<:> be found
(
RAM NARAYAN v. U.P. ·(venkataramiah, J.) 689

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 :- (I) An ·arrear of land · revenue . may be B
recovered by any one or more of · the following
processes :

(a) by serving a writ of demand or citation to appear
on any defaulter,
G
(b) by arrest and detention of his person,

(c) by attachment and sale of his movable property
. including produce,
D
(d) by attachment of the holding in respect of which
arrear. is di.ie,

(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 (I) shall be added to and be. recoverable in
the same manner as arrear ofland revenue."

Clause (b) of sub-section (I) of section 279 of the U.P. ZALR G
Act referred to above authorises the recovery of land revenue by the
arrest and detention of the person who has committed the default.
Section 281 of U.P. ZALR Act reads thus :-

"281. .Arrest and detention. - Any person who has'
defaulted in the payment of an arrear of land revenue may
be arrested and detained in custody up'' to· a ·period • I\Ot
69() SUPREME COURT REPORTS [1983] 3 s.c.R.

exceeding 15 days unless the arrears (including costs, if
any, recoverable under sub-section (2) of Section 279)
are sooner paid :
'
Provided that no woman or minor shall be liable to
arrest or detention under his section,

Provided further that no person shall be liable to
arrest or detention for an arrear in respect of a holding of
which 'he is .not the bhumidhar merely because of his
joint responsibility for payment of land revenue under
section 243."

Rules 247 to 253 of the U.P. Zamindari Abolition and Land
Reforms Rules, 1952 (hereinafter referred to as 'the U.P. ZALR)
Rules') framed by the State Government in exercise of its .power
conferred by the U.P. ZALR Act contain the procedure to be
followed while recovering the arrears of the land revenue by the
arrest and detention of the defaulter. It is sufficient to Set out rules
0

247, 247 (A), 247 (B) and 251 for purposes of this judgment. They
read thus:

"247. Process under Section 281 (arrest and
;.E detention) may be issued by the .Collector, the Assistant
Collector in charge of the sub-division, or the tahsildar.
If the tahsildar. issues such process against a defaulter
residing in another tahsil within the district, he may do .so
either direct or through the tahsildar of . such other
tahsil.

247-A. The warrant of arrest may be executed by
any one of the process-servers referred to in Rule 244 or
an Amin or any other officer whose name is entered in
tho warrant arrest. Where the person authorised to
.G ,execute the warrant is a process-server· who has not
furnished any security to Government, an Amin shall be
deputed to accompany such process server.

247-B. (I) Where a defaulter at the time of his
· arrest pays the entire amount of arrears specified in the
warrant of arrest along with the process-fee referred to in
Rule'.248~to the ptocess-~erveri the Amin or the officer, as
ll.AM NARAYAN v. u.P. (Veniciitaramlah, J.) 691
•
· the case may be, empowered in the said warrant to receive
such arrears and process-fee, he shall not be arrested, and
if arrested shall be released and a receipt for the ·amo'unt. ·
·so paiCI shall be issued to him ou the spot in Z.A. 'Form ·
·64 by the process-server, .Amin or officer, as· the case
maybe.
B
· (i) The amount of arrears and the process-fee paid
· by the defaulter si\all 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
ille receipt issued to the defaulter shall also be noted c
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.
D
251. (1) Whenever a tahsildar causes a default~r to
be arrested, he shall without delay report the fact for the
information of the Collector and Assistant Collector in ·
charge of the sub-division.

(2) After arrest a defaulter shall be brought without E
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 )Viii 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 F
which the detention will cease if the arrear is not sooner
paid. •

(3) If the officer who issued the warrant sees fit,
when the defaulter is produced befl)re him to give him
• further time, to pay the _arrears, instead of detaining him, G
he may release the defaulter on his undertaking to pay
the arrear within the period fixed. Should it become
· necessary to arrest the defaulter again, a fresh warrant in
Z. A. Form 70 shall invariably be issued, and a separate
fee levied. When a warrant bas been once executed by the
H
arrest of the defaulter, the same warrant cannot be exec11•
ted a second time". '
692 ~UPRM COUR't Rll~ORTS (19831 3 s.c.R..
•
The first contention urged before us on behalf of the petitioners
A is that the above mentioned process· of arrest and detention of a
defaulter in the cour!e of the tax recovery ·proceedings is opposed to
Articles 14~ 19 (I) (d) and 21 of the Constitution. It is contended ·f
that the said procedure is arbitrary,· unreasonable and unfair. In
support of the above contention reliance is placed on Article 11 of
the International Covenant on Civil and- Political Rights which
B reads : 'No one shall be imprisoned .merely on the ground of inabi- .
lity to fulfil a contractual obligation' and the decision of this Court
in Jolly George Verghese and Anr. v. The Bank of Cochin.( 1) In so far
as the international covenant referred to above is concerned, it bas to
:be observed that it bas not been made yet a part of our municipal
c law and secondly it relates to a debt due under contractual obligation.
We have here a case involving public dues payable under a statute.
Even in. England where tbe process of arrest and detention of a debtor
is abolished in the case of other kinds of debts, it is still retained in
the case of maintenance orders and of certain tax liabilities. (See
the Debtors Act, 1869 as amended by the Debtors Act of 1869 read
D with the Administration of Justice Act, 1970). In so far as the
decision of this Court in the case of Jolly George ·Verghese(') (supra)
is concerned, it may be noted that it was a case governed by section
51 of the Code of Civil Procedure, 1908. There is, however, no ·
doubt as observed in that case that the procedure adopted by an
E authority issuing the warrant of arrest should be fair and reasonable.
But the Court left open the question whether section 51 of the Code
of Civil Proce4ure was unconstitutional or not.
•
We shall now examine the' provisions, the validity of· which is
under attack. Section 279 of the U. P. ZALR Act prescribes the
F different processes that may be taken out against a defaulter who js
in arrears of land revenue and•clause (b) of sub-section {I) thereof
prescribes· the arrest and detention of the defaulter himself as one of
such processes. With regard to the determination of tlie question
(whether a restriction imposed by a statutory provision on the funda·
:G mental right guaranteed under Article 19. (I) (d) of the Consti!ution
1s 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 tq'be beypnd the
requirement of .the general public. The Court should strike a just
H ·.balance between 'freedom contained in Article 19 (I} (d) of the

(I) [1980] 2 S.C.R. 913.
hM NARAYAN v. U.P. (Venkataramiah, J.) 693
Constitution and the social interest to be protected. No universal
rule can be laid down in this regard. The changing social conditions, A
the values of hum~n 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 assets to screen them B
from being proceeded against to pay up the dues. In one of the
earliest decisions i.e. State of Ma_dras v. V. G. Row(1) this Court
observed at page 607 this :

"It is ·important ................................ to bear
in mind that the test of reasonableness wherever pres·
c
cribed, should be applied to each individual statute
impugned, and no abstract standard, or general pattern of
reasonableness can be laid down as applicable to all cases.
The nature of the right alleged to have been infringed, the
underlying purpose of the restrictions imposed, the extent D
and urgency of the evil sought to be remedied thereby, the
disproportion of the imposition,. the prevailing conditions
at the time, should all enter into the judicial verdict. In
evaluating such elusive factors and forming their own
conception of what is reasonable, in all the circumstances
of a given case, it is inevitable that the social philosop1iy
E
and the scale of values of the judges participatiug in the
decision should play an important .part, and the limit to
their interference with legislative. judgment in such cases
can only be dictated by their sense of responsibility and
self-restraint and the sobering reflection that the Consti· F
, tution is meant not only for people of their way oftbink·
ing but for all, and that the majority of the elected repre·
sentatives of the people have, in authorising the imposition
of the restrictions, considered them to be reasonable." :

This view is followed in many later decisions. The Law G
Commission in its 54th Report subniitted in .the year 1973 after
examining in detail the provisions for arrest and detention of a }udg·
ment debtor in execution of a decree passed by a civil court contained
in section 51 of the Code of Civil Procedure in the light oftbe
international covenant referred to above observed that this mode of H

(I) [1952] S.C.R. 597.
SUPREME COURT REPORTS (i983] ~ s.c.1t

A .
.. recovery should. not be given up. In its Report, the Law Commission
o15served : ·

''Situation in Section 51 (b)-
I
1-E. 12. Perhaps, it could be argued that imprison-
B ment of the judgment-debtor in the situation in section 5 l,
proviso, clause (b) causes hardship. · That cla.use applies
where the judgment-debtor (i) has the means and refuses
or neglects to pay or (ii) has had the means and has
refused or neglected to pay. The essential condition in
either case is the pe>ssession of means, coupled with con-·
c temporaneous failur.e or neglect to pay, Imprisonment, 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.
D
-J-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 from their con-
. sistency with the Covenant, they are justifiable on principle
E because the conduct which attracts their operation is·
dishonest. Technically, no crime is committed, as there is
no bodily harm t6 the decree-holder or direct harm to
society. But, to deprive another person of this lawful dues
when one has the means to pay is, in the special situa-
tions to which section 51, proviso, is confined ultimately
F . causing harm to society, which suffers if an individual '
member suffers· by reason of the dishonest conduct of
'.
another member.

Present law sufficiently restricrive.
G
l·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 discuss. This mode of
H ·f.. execution should not, therefore, be totally abolished.

The situations mentioned.in the pFOviso to section 51-
which is the section dealing with arrest in execution of
R.Al.i NARAYAN v. U.P. (l'enlcataramiah,J.) 695
decrees for payment of money-are those which 'indicate
fraud or clandestine designs on the part of judgment; A
debtor. Mere inability to perform the obligation to repay
a loan (or other monetary obligation) does not result in
imprisonment.''

The foregoing shows that iu the contemporary Indian conditions B
the process of arrest and detention of a judgmeni-debtor or a defaul-
ter to enforce payment of the amount due from him is not altogether
unreasonable. It cannot be held to be unconstitutional if there are
sufficient safeguards which· make. the process conform fo reasonable
standards.
c
Section 281 of the U. P. ZALR Act prescribes the maximum
period for which a defaulter. can be detained for non-payment of land
revenue as fifteen days unless the arrears ..(including costs, if any,
recoverable under section 279 (2) are sooner paid. A woman or a
minor cannot be arrested and detained for recovery of revenue .D
arrears. So also a defaulter who is not a bhumidhar of the ho,lding
in question cannot be arrested or detained ·when the arrears are in
respect of the said holding for payment of which he is jointly respon-
sible. The first safeguard prescribed by law in respect of the process
of arrest and detention .therefore relates to the period of deiention
E
'and the exemption of certain persons from being arrested and
detained.. The second safeguard prescribeq by the Jaw in question is
contained in Rule 251 of the U. P. ZALR Rules. Sub-rule (I) of
Rule 251 requires that wherever the process for arrest .is issued by a
tahshildar should without delay report the fact to the concerned
Collector and Assistant Collector. Sub-rule (2) of Rule 251 r~quires F
the production of the defaulter who is arrested before the officer who
issued the warrant without delay and that snch defaulter should not
be detained in custody unless there is reason to believ~ ·that the
process of detention will compel the payment of the whole or a sub•
stantial portion of the arrear. Under this sub-rule .there is necessity
to enquire into the question whether the .detention .of the .defaulter G
would be productive of payment of the arrear or a substantial portion
thereof. The officer concerned is, therefore, required to. decide on
the basis of the material before him and any ~vidence 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 deten-
'H
tion of the defaulter will compel him to make the payment of the
whole or a substantial part of the arrear he can· order his Cletentf<m.
696 Sti!>REME coUR'r MPORfS -ji983j 3 S.C.R.
•
.If he is not so satisfied the officer is under an obligation to release
A 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 nndertaking to pay the arrear within the period fixed and to
direct the arrest of the defaulter again, if necessary.

B 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
c enquiry to be made before the issue of the warrant of arrest, Rule
251 should be held to be unconstitutional. It is necessary to observe
here that each State is well within its right to devise its own
machinery for the recovery of its own public demands and that no
person belonging to <>ne State can complain that the law of his State
is more rigorous than that <>f the neighbouring State <>r the procedure
D
prescribed by the Code of Civil Procedure for executi_on of decrees.
(See Purshottam Govindji Halai 'v. Shr i B. M. Desai, Additional
• Collector of Bombay and Ors.),( 1) We are not concerned here in
examining whether the safeguards against arbitrary arrest correspond
to the safeguards contained in the Code ofCivil PTOcedure or in any
E other law. We are primarily concerned -With the question whether
the safeguards containedinRul_e 251 of the U. P. ZALR Rules are
fair, reasonable and not arbitrary and satisfy the minimum consti·
tutional requirements having regard to the nature of the arrear, the
the prevailing conditions in our society and <>!her relevant matters.
In this case we are c<>ncerned with the process. employed for recovery
F of public dues after the period prescribed for payment of &!!ch dues
in over. It is seen that tlie defaulter has ad.equate opportunity to
satisfy the officer concerned that there is no justification to order his
detention.

G This Court had occasion to consider a similar question in The
Collector of Malabar v. · Erima) Ebrahim Haj~e('). In that case the
Income Tax Officer liad forwarded a certificate under section 46(2)
~f the Indian Income Tax Act to the Collector for recovering the /

arrears of income-tax from the assessee as if they were arrears of ·
H

• (I) [1955] 2 S.C.'R. 887•
(2) [1957] S.C.R. 970.
Ii.AM NARAYAN v. U.P. (Penkataramiak, J.) 69?

land revenue. The Collector proceeded under section 48 of the
Madras Revenue Recovery Act, 1864 and had the assessee arrested A
and confined in jail. Upon a petition for a writ of habeas corpus
the !1igh Court of Madras ordered the release of the assessee holdi11g
that section 48 of the Madras Revenue Recovery Act, I 864 and
section 46(2) of the Indian Income Tax Act, I 922 were ultra vires.
The Collector appealed to this Court. Allowing the appeal, 'this
Court held that the impugned provisions were not violative of Articles
B
·14, 19, 21 and 22 of the Constitution. The Court also rejected the
plea of the assessee that the arrest was by way of punishment and
held that it was only a c.:iercive. process used for recovering arrears
of tax. This Court observed at pages 978-979 thus :
c
"There is not a suggestion in the entire section that
the arrest 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 tb,e property of the D
defaulter but the Collector shall have reason to believe
that the defaulter is wilfully witholding payment or has
been guilty "Of fraudulent conduct ih order io evade pay-
_ment. When dues in the shape of money are to be
realised by the process of law and not by voluntary pay-
ment, the element of coercion in varying degress must E
necessarily tie 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 F
the defaulter has been guilty of f~audulent conduct in
order to evade payment, obviously, it is on the supposi-
tion .that the defaul!tr can make the payment, but is
wilfully withholding it, or is fraudulently evading pay-
ment. In the Act there are several secti~ns (e.g. ss. 16,
I 8 and 21) which prescribe in uuambiguous language; G
punishment to be inilicted for certain acts done. It is
' clear, therefore, that where the Act intends to impose a
punishment or to create an offence, it employs a language ·
entirely different to that to be found in s. 48. We are
of the opinion, therefore, -that where an arrest is made H
under s. 48 after complying with its provisions, the arrest
is not for any offence committed or a punishment for
SUPREME CoURT REPORTS (19831 3 s.c.R.
defaulting in any payment. The mode of arrest is no
more than a mode for recovery of the amount due;"

Even though the pattern of the legislation involved in the
above case was slightly different from the pattern of law involfed. in
this case, the above observations appear to be relevant to consider
the question whether t]le process of arrest and ·detention can be used
8 at all recovering th.e revenue arrears,

The High Coutf of ;\llahabad (through R. S. Pathak, J. (as
he then was) in Sangam Lal Gupta v. $ales Tax Officer & Or$.{') has
also taken the view while dealing with a similar set of provisio~s
c which had been promulgated under the U.P. Land Revenue Act, 1901
that the said provisions did not amount to imposition of any un-
reasonable restrictions on the liberty of the defaulters who were
ordered fo be arrested and detained pussuant to the said provisions
the course of recovery of revenue due from them. The authority
concerned is expected to use his discretion in each case in adopting·
D any one or more of the several processes mentioned in .section 279
of the U.P. ZALR Act for the purpose of recovering the public dues ..

It is alternatively urged that the procedure. under section 51
of the Code of Civil Procedure in terms would be applicable to the
issue of warrant of arrest under section 281 of the U.P. ZALR Act.
E 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 3'3 of the. U.P. Sales
Tax Act no doubt says that without prejudice to the powers con'
ferred urlder that section the Collector shall also have the powers of
a civil court for the purpose of rec'overy of an amount due under a
decre~. ·. This proviso does not impose any further restriction on
F ,f
the powet_ of the Collector under section 281 of the U.i>. ZALR Act
and the Rules made thereunder. It only empowers the Collector,
if he chooses to do so, to exercise the iiowers nnder the Code of Civil
Procedure; The procedure prescribed by section 281 of U.P. ZLAR
Act arid the Rules made here utlder constitutes a complete code on the
process·of'arrest and detention·ofa 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, U.P. ZALR Act has
made an·express reference to it in section 282(2) which deals with
attachment and sale o( movable property by providing that every

[I) [1969) All,LJ. ZS1.
RAM NARAYAN v. U.P. (Venkataramiah, J.) 699

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 B
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 governii:ig the process of arrest and detention.
Hence section 51 of the Code of Civil Procedure cannot be relied c
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 th~t 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 D
the defaulter would be.made known that a certificate had be.en issued
\ for recovery of arrears of land revenue from him. Having given our
anxious consideration to the question, we are of tl:e view that the
provision of section 5 of the Code of Civil Procedure would not in .
terms be applitable to the process of arrest and detention under the E
U.P. ZALR Act. The decision of the Allahabad High Court in
Seth Banarsi Das Gupta v. State of U.P. & Ors.( 1) which says that
the procedure under section 51 of the Code 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 a 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
is U.P. ZAIR Act. Even if a formal writ of a demand is not issued, ' it
implicit in the nature of the process to be issued under section 281
of the U ,P. ZALR Act that the defaul.ter 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 m the U.P. ZAIR Act and
the Rules made thereunder is not violative o.f Articles 14, 19(1) (d)
and 21 of the Constitution. ·
H

(I) (1975] Revenue Decisions 246,
700 SUPREME COURT REPORTS (1983) 3 s.c.R.

The next point urged on behalf of the petitioners, however,
-A 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
B 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 det~ined
pursuant thereto. We make an order accordingly. This order is
made without prejudice to the power of the authorities concerned
c to realise the arrears by . arresting and detaining the defaulters in
accordance with law by passing fresh orders in the light of the
above decision.

It is stated that the petitioners in some of these petitions have
filed appeals or some otlier petitions under the U.P Sales Tax Act
D against the orders of assessment am! that such appeals. or petitions
are still pending. We do not express any opinion on the merits of
those appeals or other petitions. They may be disposed of accord-
ing to Jaw by the concerned authorities. I

E The petitions are accordingly allowed in part. >No costs.

S.R. Petitio'!s partly allowed.

•