- (1.) WE have heard Sri Amit Krishna, Counsel for the petitioner and Sri Atiq Ahmad Khan, learned Counsel for the respondents.
(2.) THE present writ petition has been filed for issuing a writ in the nature of mandamus commanding the respondents not to arrest and detain the petitioner in pursuance of recovery of the tune of 54,52,123.53p. interest. It has been submitted on behalf of the petitioner mat the recovery amount is not recoverable from the property of the petitioner. Now, the respondents are trying to arrest the petitioner and they have initiated a proceeding under Section 279(1)(b) and 281 of UPZA and LR Act for detention and arrest of the petitioner. It has been submitted that the arrest and detention of the petitioner under Section 279(1)(b) and 281 of UPZA and LR Act is not legally justifiable because mode of recovery of land revenue is contemplated under Section 279 of the Act which relates to the recovery of land revenue only and not to other sums of money which are recoverable as land revenue. The other sum of money which can be recoverable as land revenue can be recovered as arrears of land revenue only by taking a mode prescribed under sub-section (2) of Section 286 of the Act and not by arrest and detention. The reliance has been placed upon Sections 286(2) and 279(1)(b) and 281 of the Act. As the petitioner is not having any property, both immoveable and moveable in his name and he does not possess any property at any place and this fact is known to the respondents, therefore, by arresting the petitioner the same will not fetch a single penny from the petitioner. No procedure prior to the detention as prescribed under Rule 251 of UPZA and LR Rules, 1952 has been followed and the petitioner will be arrested without any enquiry by the District Magistrate. In view of sub-rule (2) of Rule 251 of the Rules, it is mandatory that no person will be detained in custody unless and until there is a reason to believe that process of detention will compel the payment of the whole substantial portion of the amount. According to sub-rule (2), it is necessary to enquire into the matter before detention. As the arrest and detention of a person result in serious consequences, the same can only be done when there is an adequate reason to believe that the defaulter is willfully withholding the payment. The bank can recover its dues by taking recourse to Section 3 of the U.P. Public Money (Recovery of Dues) Act, 1972 as the recovery cannot be made as land revenue, no steps can be taken under Section 279(1 )(b) or Section 281 of the Act, therefore, the proposed arrest and detention of the petitioner is bad and illegal. The other relevant pleas have been taken by the petitioner.
(3.) THE reliance has been placed by the petitioner upon a judgment of this Court Mohd. Nasim v. State of U.P. through Collector, Bulandshahr and others, 1998 (16) LCD 723 and has placed reliance upon paras 5 and 6 of the said judgment the same is being reproduced below : "(5) The controversy in dispute has been set at rest by a Division Bench of this Court in Sangam Lal Gupta v. Sales Tax Officer and others, 1969 ALJ 257, wherein taking into account the relevant provisions of the Act and Rules and other allied provisions, it has been held that the period of fifteen days prescribed by Section 148 of the Act is the maximum period for which a defaulter may be detained in custody in respect of any arrear. If he has been detained in custody for that period he cannot be arrested and detained again in a recovery proceeding relating to the same arrear of land revenue. However, the arrears can be recovered through other process other than arrest and detention. The above referred decision of this Court was taken into consideration by the Apex Court in Ram Narayan Agarwal etc. v. State of U.P. and others, AIR 1984 SC 1213 and the same stands affirmed by the Apex Court, though the actual controversy before the Apex Court was a big different." ;