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Judgment
S.N. Saxena, J.—A short question is involved in the above-mentioned writ petitions. The Petitioners have challenged the adoption of coercive process by the recovery authorities against them. All the Petitioners were liable to pay sales tax to the State of U.P. They, however, did not pay the same and the State ultimately had to take recourse to coercive process against them under which demand notice was first sent and. thereafter, warrant of arrest was issued against them, as they within the period of the demand notice did not pay the sales tax amount. The Petitioners, apprehending their arrest, instituted the said writ petitions and obtained stay orders whereby the recovery proceedings against them were stayed and it was particularly ordered that they shall not be arrested.
On behalf of the Respondents, it had been contended that there was no justification at all for stay of the arrest of the Petitioners, who admittedly were liable to pay the amount of sales tax which had been found due after assessment for different years and that no enquiry at all was contemplated by law before arresting the defaulters after a decision was taken to recover the amount of sales tax as arrears of land revenue.
We heard Shri Swami Dayal, learned Counsel for the Petitioners at length and also the learned standing counsel. It was rather Interesting to observe that both of them relied upon the same decisions in support of their contentions and after going through the same, we are of the opinion that the writ petitions were devoid of merits and liable to be dismissed, as the law did not require any enquiry prior to the actual arrest of the defaulters. Whatever was required was to enquire into by the detaining authority after the defaulters were produced before him. This is the only reasonable inference which could be drawn from the decisions relied upon the parties to these writ petitions.
The sheet-anchor of the Petitioners was Hon''ble Supreme Court''s decision reported in Ram Narayan Agarwal and Others Vs. State of Uttar Pradesh and Others, After going through the same, we found that no enquiry was contemplated by law before the actual arrest of the defaulters from whom the amount was to be recovered as arrears of land revenue. The only requirement was the default on their part in paying the amount after receiving the demand notice, which had been committed by them in these cases. The contention of the learned Counsel for the Petitioners that the Petitioners could not be arrested unless an enquiry first was held as to whether they were possessed of sufficient means to pay the amount which was being recovered from them as arrears of land revenue and If It was found that they were not possessed of sufficient means, they could not be legally and validly arrested by the recovery authorities was totally devoid of merits.
Sub-rule(2) of Rule 251 of the U.P.Z.A. and L.R. Rules required the authority before whom the defaulter was produced after his arrest to enquire into the question whether the detention of the defaulter would be productive of payment of the arrears or a substantial portion thereof and the decision was to be taken by him on the basis of the material before him and any evidence tendered or submission made before him. If the concerned officer was satisfied that there was Justification for detaining the defaulter, then he could be ordered to be detained otherwise he was under the legal obligation to release him. The defaulter was to be given adequate opportunity to satisfy the officer concerned that there was no Justification to order his detention vide paras 11 and 12 of the aforesaid decision of the Hon''ble Supreme Court.
The Hon''ble Supreme Court further held that the writ of demand or citation ordinarily should be issued to the defaulter before resorting to the drastic process of issuing an arrest warrant u/s 281 of the U.P.Z.A. and L.R. Act, but even if a formal writ of demand is not issued, it is implicit in the nature of the process to be issued u/s 281 of the aforesaid Act (Z.A. and L.R. Act) that the defaulter concerned should have prior notice of the issue of the certificate of recovery to enable him to pay up the amount demanded to avoid his arrest.
It was, thus, evident that even without notice of demand the defaulter could be arrested provided he had got the knowledge that the recovery certificate had been issued for recovery of the dues from him as arrears of land revenue. This enabling provision of arrest, even without notice of demand, completely negative the contention of the Petitioners that the law required an enquiry about the means of the defaulter before his arrest and he could be arrested only if it was found that he was possessed of sufficient means to pay the amount due from him. The enquiry, as a matter of fact, was to be made by the detaining authority after the arrest of the defaulter when he was produced before him and not by the authority whose duty was to arrest the defaulter and produce him before the detaining authority. The aforesaid decision of the Hon''ble Supreme Court, thus, was of no help at all for the Petitioners. To the contrary, it fully supported the contention of the learned standing counsel that the said enquiry was to be made by the detaining authority. It may be mentioned here that in the aforesaid case before the Hon''ble Supreme Court, the constitutional validity of the recovery process was challenged by the Petitioners and after considering the relevant provisions, the Hon''ble Supreme Court held that the same was legal, valid and constitutional. It was, therefore, not open to the Petitioners to raise the question of constitutional validity before this Court again, as the aforesaid decision, in view of Article 141 of the Constitution of India, was binding as law upon all the Courts in the country. The Petitioners, thus, were being arrested in a legal, valid and constitutional manner and they were ill-advised to institute these petitions, as the stage for the same was their detention after their arrest and not the arrest itself. The Petitioners, thus, were out of Court.
The other decision relied upon by the learned Counsel for the Petitioners was a Division Bench decision of this Court reported in 1986 AU at page 404, Chhotey Lal v. State Electricity Board, U. P. Lucknow and Ors., but after going through It, we found that it also supported the contention of the learned standing counsel and not that of the Petitioners. It would be useful to reproduce the following observation of this Court in the said decision:
The intention of the Legislature (rules) can be well inferred from Clause (2) of Section 251 which provides that after the arrest, a defaulter shall be brought without delay before the officer, who issued the warrant and shall not be detained in custody unless there is reason to believe that the process of detention will compel the payment of the whole or substantial portion of the arrear.
This Court, In arriving at the aforesaid conclusion, had relied upon the above mentioned decision of the Hon''ble Supreme Court in Ram Narayan Agarwal v. State of U. P. The observation by this Court that after the arrest, the defaulter shall be brought without delay before the officer who issued the warrant left no room at all for doubt that the enquiry into the means of the defaulter was to be made after arrest and not before It.
The above mentioned writ petitions, thus, were nothing more than abuse of the process of the Court whereby the Petitioners successfully managed to get the recovery stayed for a long period and, thus, avoided payment of public dues. We, therefore, find it proper to award costs and interest to the Respondents.
The above mentioned writ petitions are dismissed with costs to the Respondents which we assess at Rs. 3.000/- in each of the writ petitions. The Petitioners in each writ petition shall also pay interest to the Respondent State of U.P. at the rate of 18 per cent per annum on the amount involved and for the period during which the writ petitions remained pending. The amount of costs and interest shall be recoverable from the Petitioners as arrears of land revenue. The stay order in each writ petition is vacated.