HARIRAM DHOLANDAS Vs. COLLECTOR OF KURNOOL

JUDGEMENT

(1.) SAIT Pamandas Sugnaram was arrested on July 9, 1959, at 5-30 p.m., under orders of the Collector, Kurnool, for non-payment of income-tax amounts due for the assessment years 1947-48 to 1953-54 amounting to Rs. 89,163.88 nP. on the strength of certificates issued under section 46(2) of the Indian Income-tax Act. He was detained in the Central Jail, Rajahmundry, on July 11, 1959. This habeas corpus petition is filed by the brothers son of the said SAIT Pamandas Sugnaram, challenging the legality, validity and propriety of the order of detention in a civil prison made by the Collector, Kurnool. A rule nisi was issued and on the debtor being produced, we have directed him to be enlarged on bail by our order date July 20, 1959, in order to enable him, at his own request, to furnish the necessary particulars of the several creditors from whom monies are due to him, the judgment debtors against whom he was decrees and also other details of properties which could be attached and sold for the realisation of the tax due from him.

(2.) THE petitioners contention is that the order made by the Collector, Kurnool, is illegal and wholly without jurisdiction as he had no power to proceed to arrest and detain any person under Order XXI, rule 38, of the Code Civil Procedure read with the proviso to section 46(2) of the Indian Income-tax Act. THE learned advocate for the petitioner contends : (1) All that sub-section (2) directs the Collector to do is to proceed to recover the certified amount as if it were an arrears of land revenue, that is to say, he is to adopt the procedure prescribed by the appropriate law of the State for the recovery of land revenue and that in proceedings he is, under the proviso, to have all the powers which a civil court had under the Code. THE Collector is not competent to take any independent proceedings under the Code Civil Procedure. (2) Even if under the proviso to sub-section (2) of section 46 of the Indian Income-tax Act, another mode of recovery by arrest is provided, apart from the mode prescribed under section 48 of Act 11 of 1864 whereunder he can act as a civil court, applying the provisions of the Code of Civil Procedure governing arrest and detention in a civil prison for non-payment of amount due under a decree, arrest cannot be ordered under section 51 of the Code of Civil Procedure, unless an opportunity is given to the judgment-debtor and the court is satisfied that one or other of the conditions prescribed in the proviso to section 51 of the Code of Civil Procedure are fulfilled. Further, after arrest, he must be produced before the court which has not been done in this case. (3) Order XXI, rule 38 makes it obligatory on the court, in an application for execution of the decree by arrest and detention, to issue a notice calling upon the judgment-debtor to show cause why he should not be committed; but such a notice has not been given. (4) THEre is also a provision under section 59 for release of the judgment-debtor who has been arrested and detained, or grounds of ill-health and though the debtor was suffering from blood-pressure and indifferent health, that fact was not taken into consideration and he was detained in a prison; and (5) when the debtor has property the Collector must proceed against it and not straightway arrest him.

(3.) IT is now necessary to examine the relevant provisions of law under which the Collector is empowered to make the arrest. The relevant provision of section 46 under which the Collector could take action is sub-section (2) thereof which is as follows :