9911796707
TMI Blog1993 (11) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... s created through ex parte orders aforesaid were of huge amount, he could not meet the same and also could not seek his remedy in various appeals filed by him as he was financially as also physically weak. It is pleaded that he had been sick for a longtime and was not in a position to arrange money in order to pursue his remedies. In consequence of the default in payment made by him, he was arrested and detained in civil prison for 40 days. This coercive method adopted by the respondent-department, obviously with a view to recover the amount of tax from him, however, yielded no results. Petitioner is stated to be having no assets so as to meet the heavy demands. He is an old man of 65 years and is stated to be heart patient. Recently his one of the veins in nose got burst and the doctors opined that he would not survive but on account of some electric treatment, there was some improvement. On this count, it is stated, that he is physically weak and is not doing any work for the last many years. He is staying on charity and is fed by charity of relations and others. It is on the basis of facts, as made out above, that it is pleaded and so argued by learned counsel appearing for hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,58,165 17,55,585 Notices were duly issued to petitioner for the respective year of assessment but he intentionally did not appear despite service. Therefore, ex parte assessments for the years 1974-75, 1975-76, 1976-77, 1978-79, 1980-81, 1981-82 and 1982-83 were made. It is admitted that he filed appeals against some of the assessment orders and that he was arrested and detained in civil prison for 40 days in respect of the outstanding amount of Rs. 13,69,232 towards M/s. Deep Chand Lal Chand. The assessment orders alongwith demand notices were duly served upon the firms. He intentionally did not appear before the Assessing Authority. The registration certificates in respect of both the firms have since already been cancelled. It is pleaded that one Balbahaddar Jain, another partner of M/s. Jain Brothers is residing at Devan Giri in the State of Karnataka and certificate for recovery of Government dues amounting to Rs. 67,13,805 has been sent to the Collector, Bangalore vide letter dated December 2, 1988 but no recovery has been effected so far from him. It is in these circumstances that proceedings under the Punjab Land Revenue Act, 1887 were taken against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich have been made with a view to evade the tax, as void, yet there is hardly any due made out from the sections aforesaid which might throw any light on the question mooted out in this case. Learned counsel for the petitioner, however, places reliance upon two judgments of this Court in Gomti Devi v. Kalka Co-operative House Building Society Ltd. (1988) PLJ 416 and Maruti Ltd. v. Pan India Plastic Pvt. Ltd. AIR 1993 P H 215; (1993) 1 PLR 339, in support of his contention that a person cannot be arrested and detained in civil prison time over again with a view to recover any kind of dues, be it under the provisions of Code of Civil Procedure or Haryana General Sales Tax Act. In Gomti Devi s case (1988) PLJ 416 the observation of the Division Bench has not gone beyond saying that recovery of amount as arrears of land revenue by arrest and detention of person should be the last resort and the arrears have to be recovered firstly by other means of recovery under the Punjab Land Revenue Act. In M/s. Maruti Ltd. s case AIR 1993 P H 215; (1993) 1 PLR 339 once again the observations of the learned single Judge were confined to the provisions of order 21, rule 11-A of the Code of Civil Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o account. Order 21, Rule 37: Discretionary power to permit judgment-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 judgment-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 judgment-debtor. 8.. The facts of the case aforesaid reveal that the litigation giving rise to civil appeal before the Supreme Court, was between an individual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight, as granted to him by the Constitution and, in particular, fundamental rights inclusive of right of liberty spelt out in article 21 of the Constitution of India, he is duty bound to meet all the demands legitimately raised by the department and if he does not discharge the same, he can well be proceeded against under the provisions contained in section 34 of the 1973 Act. The Revenue-authorities would be well within their rights to declare the transactions made by him as void which have been made with a view to evade the tax. However, the fact that stares at the respondents is inability of petitioner to pay and assuming it to be correct, the observations made by the Supreme Court in Jolly George Varghese s case AIR 1980 SC 470, even though made while considering the contractual obligation of a debtor, would apply substantially to the case of a citizen against whom tax under the statute is due. If a citizen actually is penniless and has become pauper on account of the circumstances beyond his control and in fact is unable to pay the dues, how shall it serve the department to put him in prison time and again. Far from recovering the amount due from him, the department would be o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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