SHAIKH ALI AHMED Vs. COLLECTOR OF BOMBAY

JUDGEMENT

(1.) IS an application under Section 491, Criminal Procedure Code, for directions of the nature of habeas corpus. The applicant was carrying on business in Bombay in the name of Interseas Corporation as the sole proprietor thereof. In 1946 he also promoted a private limited company under the name of Allied Agencies Ltd. and became a director thereof. He was assessed to income-tax, super-tax and surcharge, including penalties, at Rs. 10, 17, 259-3-0 for the year 1943-44. A notice calling upon him to pay thIS amount was ISsued by the Income-tax authorities. He, however, did not pay it. The Income-tax authorities, therefore, wrote to the Collector of Bombay and asked him to recover the amount in the manner provided in Section 46 of the Indian Income-tax Act. Sub-section (2) of thIS section empowers the Collector to recover the amount as if it was an arrear of land-revenue, or as if a decree for that amount had been passed by a civil Court. On May 17, 1948, the Collector attached two bank-accounts of the applicant, in which the balance was about Rs. 600, under Order XXI, Rule 46, of the Civil Procedure Code. On August 3, 1948, the applicant was arrested and detained in a civil jail under Order XXI, Rule 4 0. On August 25, 1948, a creditor, to whom the applicant owed about Rs. 24,000, presented a petition to the High Court for adjudicating the applicant an insolvent. On that application an order adjudicating the applicant as an insolvent was passed by the High Court on August 30, 1948. The applicant then applied under Section 25 of the Presidency-towns Insolvency Act for protection from arrest and detention, but thIS application was rejected. An appeal was filed against that decISion; and we have been informed at the bar that that appeal has been dISmISsed. On November 10, 1948, the applicant's nephew made an application to thIS Court under Section 491, Criminal Procedure Code, and prayed for the release of the applicant on the ground that hIS detention was illegal. That application was withdrawn on December 6, 1948. On December 1, 1948, the Collector of Bombay ISsued a notice to the applicant under Section 13 of the Bombay City Land Revenue Act, 1876, calling upon him to pay the amount of income-tax, and informed him that if thIS amount was not paid within 20 days from the date of the service of the notice, the Collector would proceed to obtain payment of the same by attachment and sale of the applicant's properties or by the other remedies mentioned in Section 13 of the Act. Thereafter certain representations were made on behalf of the applicant to the Income-tax authorities. On January 8, 1949, the Income-tax Officer, Section I, (Central), Bombay, wrote a letter to the Collector and suggested that the applicant might be released on certain conditions. On January 11, 1949, the applicant also submitted a petition to the Collector and requested for hIS release on certain conditions. The Collector also heard the applicant's counsel in the matter. As the Collector was of the opinion that it was necessary to continue the applicant's detention in the interest of public revenues, he replied to the Income-tax Officer on January 14, 1949, and enquired how it, was in the interest of public revenues that a defaulter who, there was reason to believe, had made away with hIS assets and had not paid assessment of over ten lacs, should be released. The Income-tax Officer then referred the matter to the Central Board of Revenue. On January 28, 1949, the Collector informed the applicant that hIS request for release could not be granted. Under Section 58 of the Civil Procedure Code a person cannot be detained in a civil prISon in execution of a decree for more than six months. The period of detention of the applicant ordered by the Collector under the provISions of the Civil Procedure Code read with Section 46 (2) of the Indian Income-tax Act was due to expire on February 2, 1949. As the Collector was of opinion that the income-tax dues would not be realized if the applicant was released, he passed another order under Section 18 of the Bombay City Land Revenue Acton January 28, 1949, that the applicant should continue to be detained after February 2, 1949, until further orders. Against that order the present application has been made, and it has been contended that that order IS illegal and bad in law and in excess of the powers conferred upon the Collector.

(2.) SUB-section (2) of Section 46 of the Indian Income-tax Act provides as follows : The Income-tax officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land-revenue: Provided that without prejudice to any other powers of the Collector in this behalf, he shall for the purpose of recovering the said amount have in respect of the attachment and sale of debts-due to the assessee the powers which under the Code of Civil Procedure, 1908, a Civil Court has in respect of the attachment and sale of debts due to a judgment-debtor for the purpose of the recovery of an amount due under a decree. The words 'without prejudice to any other powers of the Collector in this behalf contained in the proviso are important. They show that irrespective of any action which the Collector may take to recover the amount of income-tax as an arrear of land-revenue, it is open to him to exercise for the purpose of recovering this amount the powers which a civil Court has for recovering a decretal debt. In other words the Collector has two remedies, and he may pursue either or both of these remedies for recovering the dues. The exercise by the Collector of the powers vested in a civil Court for recovering a decretal debt would not, therefore, preclude the Collector from using the powers conferred upon him by the Bombay City Land Revenue Act.

(3.) IT is significant to note that while the words first used in paragraph 5 are 'cause him to be apprehended and confined in the civil jail', the rules referred to are the rules 'for the confinement of debtors. ' The words 'under the rules in force at the Presidency for the confinement of debtors' therefore obviously go with the words, 'confined in the civil jail'. The rules for confinement are the rules which regulate the mode of confinement, the places and hours of confinement, the food, clothing and bedding to be given to such persons and other similar matters. Such rules are framed under Section 59 of the Prisoners Act, 1894 and are contained in Chapter XXVIII of the Bombay Jail Manual, Vol. I, 1944 edition. No separate rules appear to have been framed regulating the manner in which defaulters of land-revenue are to be apprehended. IT has been argued that such persons must therefore be apprehended in the manner laid down in the Civil Procedure Code for the arrest of debtors, and that consequently it must be held that the rules referred to in Section 13 are the provisions contained in the Civil Procedure Code for the arrest and detention of debtors. Section 41 of the Bombay City Land Revenue Act empowers the Provincial Government to make rules for the guidance of the Collector and his subordinates in the discharge of their duties or for any other purpose connected with the subject matter of the Act not expressly provided for therein. Under this section, therefore, the Provincial Government can make rules regulating the manner in which the persons ordered to be arrested under Section 13 are to be apprehended. The mere fact that no such rules have been framed so far would not justify the conclusion that all the provisions contained in the Civil Procedure Code with regard to the arrest and detention of debtors apply to persons arrested under Section 13 of the Bombay City Land Revenue Act. IT may also be pointed out that the words used in the section are 'under the rules in force for the confinement of debtors' and not 'subject to the rules for the confinement of debtors. '