# Om Prakash Gupta v. State of U.P. and others

- **Citation:** (2003) 3 ILRA 762
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-05-19
- **Case number:** Civil Misc. Writ Petition No. 21659 of 2003
- **Bench:** R.K. Dash, V.N. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-gupta-v-state-of-u-p-and-others-40195
- **Pages:** 5

## Headnote

U.P.Z.A. & L.R. Act-Section 281-readwith
Article 21 of the Constitution of Indiavalidity of detention of the defaulteronly when the defaulter has sufficient
means to pay but avoiding the Paymentsuch
finding
must
be
recorded
in
detention order.

Held-Para 9

Though we are not dealing with the
question of legality and constitutional
validity of Section 281 of the Act,
however,
keeping
in
mind
the
International Covenant to which India is
a signatory coupled with Article 21 of the
Constitution, we are of the opinion that
merely on failure of the defaulter to
discharge his liability upon receipt of
demand notice, harsh method of arrest
and detention to coerce him to make the
payment should not be resorted. When
arrest and detention affects personal
liberty of a person, the authority before
taking recourse to such method must be
satisfied that the defaulter in spite of
having sufficient means, has willfully and
with mala fide intention refused to pay.
This satisfaction must be evident from
the
order
passed
by
the
recovery
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3 All] Om Prakash Gupta V. State of U.P. and others
763
authority for arrest and detention of the
defaulter.
Case law discussed:
AIR 1980 SC-470

## Text

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762 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
7. In the above case the order of the
Magistrate was set aside and he was
ordered to pass proper order.

8. In the case of Dinesh Chandra
and others Vs. State of U.P 2001(1) JIC
page 942, Alld., it was held that the
powers under Section 156 (3) Cr.P.C are
quite different to the power under Section
200 Cr.P.C. The case of Madhu Bala Vs.
Suresh Kumar and others, AIR 1997
Supreme Court page 3104 was fully
discussed. In the case of Dinesh Chandra
and others (Supra) and it was held as
follows.

"The Apex Court has definitely not
used the term complaint to thwart or
defeat the purpose behind the enactment
of Section 156 (3) itself. The term was
never used with any intention that the
reference order appears to channelise.
Thus in my view it should be an
application and not a complaint."

9. Thus the pronouncement of this
Court in the case of Dinesh chandra and
others (Supra) clarified the position of
complaint under Section 200 Cr.P.C and
application under Section 156(3) Cr.P.C.
I, therefore, find that the learned C.J.M.
Bhadohi exceeded the jurisdiction in
registering the application under Section
156(3) Cr.P.C as a complaint. The
application is, therefore, allowed. The
impugned order dated 19.4.2003 so far as
it relates to registration of application
under Section 156 (3) Cr.P.C as a
complaint case is quashed. The C.J.M.
Bhadohi is directed to proceed and pass
appropriate order on the application under
Section 156(3) Cr.P.C at an early date.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2003

BEFORE
THE HON'BLE R.K. DASH, J.
THE HON'BLE V.N. SINGH, J.

Civil Misc. Writ Petition No. 21659 of 2003

Om Prakash Gupta

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ranjit Asthana

Counsel for the Respondents:
Sri Hari Ashok Kumar, S.C.

U.P.Z.A. & L.R. Act-Section 281-readwith
Article 21 of the Constitution of Indiavalidity of detention of the defaulteronly when the defaulter has sufficient
means to pay but avoiding the Paymentsuch
finding
must
be
recorded
in
detention order.

Held-Para 9

Though we are not dealing with the
question of legality and constitutional
validity of Section 281 of the Act,
however,
keeping
in
mind
the
International Covenant to which India is
a signatory coupled with Article 21 of the
Constitution, we are of the opinion that
merely on failure of the defaulter to
discharge his liability upon receipt of
demand notice, harsh method of arrest
and detention to coerce him to make the
payment should not be resorted. When
arrest and detention affects personal
liberty of a person, the authority before
taking recourse to such method must be
satisfied that the defaulter in spite of
having sufficient means, has willfully and
with mala fide intention refused to pay.
This satisfaction must be evident from
the
order
passed
by
the
recovery
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3 All] Om Prakash Gupta V. State of U.P. and others
763
authority for arrest and detention of the
defaulter.
Case law discussed:
AIR 1980 SC-470

(Delivered by Hon'ble R.K. Dash, J.)

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 realization 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 installments may
be fixed so as to enable him to clear up
the debt.

3. 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
realization of unpaid loan/dues as arrears
of land revenue. Without following the
procedure for service of notice and
without being satisfied that the defaulter
willfully 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 willfully defaulted to pay
the debt, the Tehsildar got him arrested
and detained in prison, even though from
the
properties,
both
movable
and
immoveable which he owns, recovery
could have been made by attachment and
sale thereof.

4. 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.

5. Section 279 of the Act prescribes
following procedures for recovery of
arrear of land revenue:
(a) by serving a writ of demand or a
citation to appear on any defaulter,
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764 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
(b) by arrest and detention of his person.
(c) by attachment and sale of his
moveable 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, moveable or immovable of the
defaulter."

6. 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.

7. Arrest and detention of a defaulter
as provided under Section 281 are
borrowed from Section 51 and Order XXI
Rule 37 C.P.C. Section 51 runs thus:

"Powers
of
Court
to
enforce
execution:- Subject to such conditions and
limitation as may be prescribed, the Court
may, on the application of the decree
holder, order execution of the decree--

(a) by
delivery
of
any
property
specifically decreed;
(b) by attachment and sale or by the sale
without attachment of any property;
(c) by arrest and detention in prison (for
such period not exceeding the period
specified in section 58, where arrest and
detention
is
permissible
under
that
section);
(d) by appointing a receiver; or
(e) in such other manner as the nature of
the relief granted may require:
(Provided that, where the decree is for the
payment
of
money,
execution
by
detention in prison shall not be ordered
unless, after giving the judgement-debtor
an opportunity of showing cause why he
should not be committed to prison, the
Court, for reasons recorded in writing, is
satisfied--

(a) that judgment-debtor, with the
object or effect of obstructing or delaying
the execution of the decree,-

(i) is likely to abscond or leave the local
limits of the jurisdiction of the Court, or
(ii) has, after the institution of the suit in
which the decree was passed, dishonestly
transferred, concealed, or removed any
part of his property, or committed any
other act of bad faith in relation to his
property, or

(b) that the judgement-debtor has,
or has had since the date of the decree, the
means to pay the amount of the decree or
some substantial part thereof and refuses
or neglects or has refused or neglected to
pay the same, or

(c) that the decree is for a sum for
which the judgement-debtor was bound in
a fiduciary capacity to amount.
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3 All] Om Prakash Gupta V. State of U.P. and others
765

Order XXI Rule 37 under the
heading arrest and detention in the civil
prison reads as under:

"Discretionary
power
to
permit
judgement debtor to show cause against
detention in prison:- (1) Notwithstanding
anything in these rules, where an
application is for the execution of a
decree for the payment of money by the
arrest and detention in the civil prison of a
judgment-debtor who is liable to be
arrested in pursuance of the application,
the Court shall, instead of issuing a
warrant for his arrest, issue a notice
calling upon him to appear before the
Court on a day to be specified in the
notice and show cause why he should not
be committed to the civil prison:

(Provided that such notice shall not
be necessary if the Court is satisfied, by
affidavit, or otherwise, that with the
object or effect of delaying the execution
of the decree, the judgement-debtor is
likely to abscond or leave the local limits
of the jurisdiction of the Court.)

(2) Where appearance is not made in
obedience to the notice, the Court shall, if
the decree-holder so requires, issue a
warrant for the arrest of the judgmentdebtor.

8. A conjoint reading of both section
51 and Order XXI Rule 37 C.P.C. what
appears is that warrant of arrest shall not
be issued as a matter of course. It is when
the court is satisfied that the judgmentdebtor with the object of delaying the
execution of the decree is likely to
abscond or leave the local limits of its
jurisdiction or has dishonestly transferred,
concealed or removed any part of his
property or having means to pay the
decreetal amount or substantial part
thereof refuses or neglects to pay the
same, in that case, the court may order for
his arrest and detention in prison. The
question as to whether it would be
reasonable and fair to arrest a judgmentdebtor for his not satisfying the decree
came for consideration before the Apex
Court in case of Joll George Varghese
and another Versus the Bank of Cochin,
(AIR 1980, SC, 470). Referring to Article
11 of International Covenant on Civil and
Political Rights, which inter-alia says that
'no one shall be imprisoned merely on the
ground of inability to fulfil a contractual
obligation as well as Article 21 of the
Constitution the Court held:

"XXX
The
simple
default
to
discharge is not enough. There must be
some element of bad faith beyond mere
indifference to pay, some deliberate or
recusant disposition in the past or,
alternatively, current means to pay the
decree or a substantial part of it. The
provision
emphasizes
the
need
to
establish not mere omission to pay but an
attitude of refusal on demand verging on
dishonest disowning of the obligation
under the decree. Here considerations of
the debtor's other pressing needs and
straitened
circumstances
will
play
prominently. We would have, by this
construction sauced law with justice,
harmonized S. 51 with the Covenant and
the Constitution."

9. The Act with which we are
concerned in the present case is a special
statute.
It
empowers
the
recovery
authority to arrest and detain a defaulter if
fails to pay the arrear of land revenue
after notice of demand was issued to him.
Attachment and sale of his properties
comes later and it is because of that the
Tehsildar in the present case got the
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766 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
petitioner arrested and detained in the
prison. Though we are not dealing with
the question of legality and constitutional
validity of Section 281 of the Act,
however,
keeping
in
mind
the
International Covenant to which India is a
signatory coupled with Article 21 of the
Constitution, we are of the opinion that
merely on failure of the defaulter to
discharge his liability upon receipt of
demand notice, harsh method of arrest
and detention to coerce him to make the
payment should not be resorted. When
arrest and detention affects personal
liberty of a person, the authority before
taking recourse to such method must be
satisfied that the defaulter in spite of
having sufficient means, has willfully and
with mala fide intention refused to pay.
This satisfaction must be evident from the
order passed by the recovery authority for
arrest and detention of the defaulter.

10. So far as the present case is
concerned since the petition through his
father has deposited a sum of Rs. 34,100/-
we direct that on his depositing a further
sum of Rs.10,000/- within ten days from
today the Tehsildar Sadar, respondent no.
2, shall release him from prison. For
payment of the remaining amount liberty
is given to the petitioner to move an
application for grant of instalments to the
Tehsildar.
In
the
event,
such
an
application is moved the same shall be
decided keeping in mind his financial
position coupled with the fact that he has
already paid certain amount.

11. Since this order is dictated in
open Court we direct learned Standing
Counsel to communicate operative part of
the order to the Tahsildar Sadar, district
Gorakhpur for compliance.

12. Registry is directed to send a
copy of this order to the Chief Secretary,
U.P. Lucknow, who in turn shall
communicate
to
all
the
District
Magistrates for guidance and compliance.

13. A copy of the order be supplied
to the learned counsel for the petitioner on
payment of usual charges.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD MAY 14, 2003

BEFORE
THE HON'BLE B.K. RATHI, J.

Second Appeal No. 1619 of 1980

Shri Subodh Kumar ...Plaintiff-Appellant
Versus
The Zila Parishad, Bulandshahr and
others

...Respondents

Counsel for the Appellant:
Sri Arun Tandon
Sri R.K. Sharma
Sri Anurag Khanna
Sri R.B. Singhal
Sri Ramendra Asthana

Counsel for the Respondents:
Sri J.N. Chaturvedi
Sri S.C. Dwivedi

Code of Civil Procedure-Section 80-
readwith Transfer of the Property ActSection
106-
Lease
granted
for
construction
of
woman
Hospitalsubsequently
shifted
another
placeNotice providing 2 month for termination
of tenancy whether more period than the
statutory period in notice is bad in law?
Held- 'No' notice can not be said to be
invalid.

Held: Para 11