BENUDHAR SETHI Vs. CERTIFICATE OFFICER

JUDGEMENT

(1.) The petitioner had taken auction of a fishery for an amount of Rs. 16,825/-. He defaulted to pay a sum of Rs. 5,000/- out of it Action was taken against him under the Public Demands Recovery Act. A notice was issued under Rule 25 of Schedule II of the Orissa Public Demands Recovery Act, 1961 (hereinafter to be referred to as the Act). Some of his immovable properties were attached, sale proclamation was issued, but the sale has not taken place yet. While the matter was thus pending, a notice was issued to the petitioner on 11-3-1969 as to why a warrant of arrest should not be issued against him. On 10-8-1970 another order was passed that the show cause notice was served. As the judgment-debtor failed to pay the dues a warrant of arrest was issued against him and he was produced in custody under arrest. The Certificate Officer then passed the impugned older dated 16-3-1974 putting the petitioner to civil prison. It is against this order that the writ application has been filed under Articles 226 and 227 of the Constitution.

(2.) Mr. Mohanty for the petitioner accepts the position that notice was served on the petitioner under Section 37 (1) and that the petitioner was brought under warrant of arrest under Section 37 (2) (b) of the Act. This Sub-section lays down that notwithstanding anything contained in Sub-section (1), if the Certificate Officer is satisfied that the certificate-debtor refuses or neglects or has refused or negledted to pay the same, he may issue a warrant for the arrest of the certificate-debtor. Mr. Mohanty therefore does not rightly challenge the arrest of the petitioner under Section 37 (2) (b) of the Act.

(3.) The main contention of Mr. Mohanty is that after the petitioner was brought under warrant of arrest there should have been an enquiry under subsection (5) of Section 37 before the final order was passed directing the petitioner to be put to civil prison and findings should have been recorded under Section 37 (1) (a) or (b) justifying the detention in civil prison. The contention appears to be well founded.