C P JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) The prayer in this petition is for the issue of a writ of Habeas Corpus directing the respondents to produce one Mani Mathew who is under detention pursuant to proceedings taken under the Kerala Revenue Recovery Act and for release of the said Mani Mathew. The petitioner also prays that certain sections of the Abkari Act and the Kerala Revenue Recovery Act, 1968 should be declared as unconstitutional and void.

(2.) The petitioner is the brother inlaw of Sri. Mani Mathew who was an Abkari contractor in the Kunnamangalam range for the periods 68-69, 69-70 and 70-71. He defaulted to pay the dues under the agreements entered into by him in regard to the conduct of toddy shops bid by him in auction. As a result, notice under S.34 of the Revenue Recovery Act (hereinafter called the Act) was issued to the said Mani Mathew on 7-5-1970. Pursuant to such notice certain properties were attached as if they were the properties of the said Mani Mathew But the attachment was raised since it was found that Mani Mathew has no proprietary rights over the properties attached. It appears that Mani Mathew was running a business in arecanuts at Kodencherry and it is the case of the petitioner that the said business was closed on 5-10-1970. When it was found that the amount due from the said Mani Mathew could not be recovered by sale of movable or immovable properties of the defaulter notice was issued under S.65 of the Act to show cause why warrant of arrest should not be issued. Ext. P1 is the copy of the notice. A copy of the tentative findings on the basis of which proceedings for recovery by way of arrest was proposed was also forwarded to the said Mani Mathew by the District Collector, Kozhikode, who issued Ext. P1 notice. The copy of the tentative findings is produced and marked as Ext: P1(a). The said Mani Mathew is seen to have appeared pursuant to such notice and it is seen from the file that he gave a statement on 17-1-1972. We have perused the copy of the statement which was in the file. The defaulter mentions therein that he is not in a position to pay the amount as he has no means to pay the same and that he would make strenuous efforts to find out funds to pay off the amount due. The District Collector thereafter passed Ext. P2 order finding that the defaulter Mani Mathew was liable to be committed to civil prison as he had wilfully evaded payment of Government dues. He further found that the defaulter was liable to detention in civil prison but it was only fair that he should be given a month's time to pay off the arrears. Accordingly a period of 30 days was given and it was provided in the order that action according to rules would be taken only on failure to comply with the direction to pay within that time. This order of the District Collector was followed by arrest and detention of the said Mani Mathew on failure to comply with the direction therein to pay the amount within a period of 30 days. It is said that the defaulter has been arrested on 17-4-1972 and is now detained in the civil Jail at Cannanore. The petitioner, who is the brother inlaw of the said Mani Mathew, avers that the petition has been filed by him at the instance of the said Mani Mathew.

(3.) The order which resulted in the detention of Mani Mathew in the civil prison, namely Ext. P2 is challenged on the ground that in passing Ext. P2 considerations relevant under S.65 of the Act have been lost sight of by the District Collector who passed that order and that the order is illegal also for the reason that the arrest and subsequent action pursuant thereto have not been as warranted by the provisions of Art.22 of the Constitution of India.