T.P.L. Alagappa Chettiar vs The District Revenue Officer, Tiruchirapalli

Ramakrishnan, J.—The question raised for decision in this writ petition for the issue of a writ of Mandamus is a very brief one. The petitioner

had to pay a large sum of Rs. 3368 by way of arrears of agricultural income tax for several years. As he had not paid the arrears, a certificate was

issued under the Agricultural Income tax Act to the Collector for enforcing the demand as arrears of land revenue. Thereafter it is alleged that the

respondent, the District Revenue Officer, Tiruchirapalli, who exercised the powers of a Collector under the Madras Revenue Recovery Act of

1864, issued a warrant of arrest of the petitioner. The petitioner states that he is entitled on the analogy of the provisions contained in 0.21, R. 37,

Civil Procedure Code, to a notice for an opportunity to show cause before he is arrested. He therefore prays for the issue of a writ of mandamus

restraining the respondent from proceeding further with the execution of the warrant of arrest issued against him. It is alleged in the counter affidavit

of the respondent as follows : No notice is necessary before arresting a defaulter under S. 48 of the Revenue Recovery Act, 1864. As it was

found, that there was no other source for recovering the dues from the petitioner, action was taken under S. 48 of the Revenue Recovery Act, to

recover the arrears. It is for the Department to decide the question as to whether to proceed against the properties or against the person.

It was reported that the petitioner had been successfully evading payment. It was then that proceedings were taken for realising the arrears by

arresting him; actually no warrant of arrest had yet been issued. The petitioner gave a petition asking for time to pay. He was informed that one

fourth of the amount should be paid in two days and if so his request would be considered. He did not even pay one-fourth portion. The petitioner

had filed a petition through his advocate on 24th March 1966 for material papers and that petition was also pending enquiry.

The decision of the The Collector of Malabar, Kozhikode and Another Vs. Erimmal Ebrahim Hajee, has laid down the scope of S. 48 of the

Revenue Recovery Act as follows:

There is nothing in S. 48 which requires the Collector to give the defaulter an opportunity to be heard before arresting him. It is true that the

Collector must have reason to believe that the defaulter is wilfully withholding payment or has been guilty of fraudulent conduct in order to evade

payment. The Collector, therefore, must have some material upon which he bases his belief a belief which must be rational belief end a court may

lock into that material in appropriate cases in order to find out if the conditions laid down in the section have been fulfilled or not.

In the present case, the petitioner has stated in his affidavit that be has no property either moveable or immovable since all of them have been

sold in court auction. There is nothing in the counter affidavit of the respondent to show that the petitioner has been guilty of fraudulent conduct in

order to evade payment and that he is wilfully withholding payment. The statement in the counter affidavit of the respondent that the petitioner is

successfully evading the payment is not tantamount to a finding that he has been guilty of fraudulent conduct in the matter of evading payment.

There is no allegation that he is wilfully defaulting to pay. Following the decision of the Supreme Court, just mentioned, it is cot necessary that a

notice should issue before arresting a default under S. 48, but the Collector should come to a conclusion on the basis of reasonable data that the

ingredients laid down in S. 48 before a person can be arrested, are satisfied. In the present case, the counter affidavit does not show what those

ingredients were found to exist. In the above circumstances, a writ of Mandamus will issue to the respondent not to proceed with the proceedings

for arresting the petitioner before the Collector is satisfied by an enquiry of the petitioner or otherwise, that sufficient material as laid down in S. 48

exists for arresting the person of the petitioner for arrears of tax. The writ petition is ordered as above. No costs.