R.K.Dash, V.N.Singh - (1.) -Heard learned counsel for the petitioner and learned standing counsel.
(2.) THE question of quite considerable importance that arises in this case is as to whether non-payment of any debt due, personal liberty of the debtor can be curtailed and he be put behind the prison. THE petitioner had incurred loan from Punjab National Bank, Branch Nanda Nagar (Rajahi), district Gorakhpur and was in arrear of Rs. 94,937. A recovery certificate was sent to the Tahsildar, Gorakhpur, for realisation as arrear of land revenue under the U. P. Zamindari Abolition and Land Reforms Act. THE petitioner's case is that neither he was noticed nor he was given breathing time to discharge his liability by making payment of the amount as claimed. He was all of a sudden arrested in the morning of 8.5.2003 and sent behind the prison. On the same day, his father some how could arrange Rs. 34,100 and deposited with the Tehsildar Sadar, Gorakhpur and asked for a copy of the citation, but his prayer was turned down. It is urged, financial condition of the petitioner does not permit him to pay the remaining amount in lump sum and therefore, easy monthly instalments may be fixed so as to enable him to clear up the debt. It is submitted at the bar that it is the usual practice all over the State that on the basis of citation received from the banks, financial institutions and others, recovery proceedings are initiated under the U. P. Zamindari Abolition and Land Reforms Act, 1950 (in short 'the Act') for realisation of unpaid loan/dues as arrears of land revenue. Without following the procedure for service of notice and without being satisfied that the defaulter wilfully avoided to receive the notice, the Tehsildar who exercises power as an execution court proceeds to get him arrested and detained in the custody. Though arrest and detention is prescribed in the Act, it is a 'draconian' law which seriously affects one's personal liberty, a precious right guaranteed under the Constitution. After sending the defaulter to prison, the Tehsildar resorts to other methods provided in the Act to recover the amount, which procedure he should have followed at the first instance. In the case on hand, the petitioner was not served with any notice. He was unaware of the recovery proceeding. In absence of any material and without any order being passed that he wilfully defaulted to pay the debt, the Tehsildar got him arrested and detained in prison, even though from the properties, both movable and immovable which he owns, recovery could have been made by attachment and sale thereof. Learned standing counsel, on the other hand, contends that Section 279 of the Act prescribes different modes of recovery of land revenue and arrest and detention of the debtor being one of the modes no fault can be found with the authority for adopting such mode at the first instance.
(3.) SECTION 279 of the Act prescribes following procedures for recovery of arrears of land revenue : (a) by serving a writ of demand or a citation to appear on any defaulter ; (b) by arrest and detention of his person ; (c) by attachment and sale of his movable property including produce ; (d) by attachment of the holding in respect of which the arrear is due ; (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." The other relevant provisions which are necessary to be referred to, are Sections 280 and 281 of the Act. Section 280 provides that when arrear of land revenue has become due, Tehsildar may issue writ of demand calling upon the defaulter to pay the amount within specified time and in addition to or in lieu of writ of demand the Tehsildar may also issue citation against the defaulter to appear and deposit the arrears. Next comes Section 281 which envisages that the person defaulted in the payment may be arrested and detained in custody. The other relevant provisions relate to attachment and sale of movable and immovable properties of the defaulter.;