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Judgment
M.N. Chandurkar, C.J.—These appeals are admitted.
These appeals are against the interim orders vacating the injunction earlier issued with a further observation by the learned Judge that in the event
of the petitioners-appellants apprehending that they are likely to be arrested, it is open to them to move the appropriate authorities to show that
they are not liable to be arrested.
The relief sought in the two writ petitions was that respondents 1 to 3 should be restrained by a writ of mandamus from causing the arrest and
detention of the petitioners-appellants in a civil person for default in payment of sales tax. The apprehension appears to be that the authorities are
taking action to arrest the two petitioners-appellants without following the prescribed procedure.
The writ petitions themselves can be disposed of in view of the fair attitude taken by the Additional Government Pleader (Taxes). He is not in a
position to dispute that before an order of arrest is made, the provisions u/s 48 of the Revenue Recovery Act will have to be followed. Section 48
prescribes certain pre-conditions before an order of arrest and imprisonment of the defaulter can be made. The pre-condition is that the arrears
due from the defaulter cannot be liquidated by the sale of the property of the defaulter, or of his surety and further that the Collector shall have
reason to believe that the defaulter or his surety is wilfully withholding payment of the arrears, or has been guilty of fraudulent conduct in order to
evade payment. Unless these ingredients are established, the drastic power of arrest u/s 48 cannot be exercised. It is implicit in the provisions of
section 48 that the defaulter must have an opportunity to show that he is not willfully withholding payment of the arrears or that he is not guilty of
fraudulent conduct in order to evade payment. In order to ascertain the truth or otherwise of these pleas which the defaulter is entitled to take, it is
necessary for the Collector to make necessary enquiries after issuing notice to the defaulter. Unless the procedure which is implicit in the provisions
of section 48 of the Revenue Recovery Act is followed, the jurisdiction to make an order of arrest and imprisonment of the defaulter cannot be
exercised. Accordingly, the order impugned in both these appeals is set aside.
The writ petitions themselves have been take up for hearing with the consent of the parties. There will be an injunction against the respondents
restraining them from making any order of arrest and detention of the petitioners-appellants in civil prison except in accordance with the provisions
of section 48 of the Revenue Recovery Act and in the light of the observations made earlier in the judgment.
The appeals are thus allowed. The writ petitions are also allowed. However, there will be no order as to costs.
Writ appeals and writ petitions allowed.