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ANIL KUMAR SINGHAL versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Anil Kumar Singhal v. State Of U.P. And Others - WRIT - C No. 62627 of 2006 [2006] RD-AH 19342 (16 November 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.35

Civil Misc.Writ Petition No.62627 of 2006

Anil Kumar Singhal

Versus

 State of U.P. through Principal Secretary Revenue Government of

U.P. Lucknow and others  

HON.R.P. MISRA, J.

HON. SHISHIR KUMAR, J.

We have heard Sri Amit Krishan, counsel for the petitioner and Sri Atiq Ahmad Khan, learned counsel for the respondents.

The present writ petition has been filed for issuing a writ in the nature of mandamus commanding the respondents not to arrest and detain the petitioner in pursuance of the recovery to the tune of Rs.54,52,123.53p+ interest.

It has been submitted on behalf of the petitioner that the recovery amount is not recoverable from the property of the petitioner.  Now the respondents are trying to arrest the petitioner and they have initiated a proceeding under Section 279(1)(b) and 281 of UPZA & LR Act for detention and arrest of the petitioner.  It has been submitted that the arrest and detention of the petitioner under Section 279 (1) (b) and 281 of UPZA & LR Act is not legally justifiable because mode of recovery of land revenue is contemplated under Section 279 of the Act which relates to the recovery of land revenue only and not to other sums of money which are recoverable as land revenue.  The other sum of money which can be recoverable as land revenue can be recovered as arrears of land revenue only by taking a mode prescribed under Section 2 of Section 286 of the Act and not by arrest and detention.  The reliance has been placed upon Sections 286 (2) and 279(1)(b) and 281 of the Act.  As the petitioner is not having any property, both immoveable and moveable in his name and he does not possess any property at any place and this fact is known to the respondents, therefore, by arresting the petitioner the same will not fetch a single penny from the petitioner. No procedure prior to the dentition as prescribed under Rule 251 of UPZA & LR Rules, 1952 has been followed and the petitioner will be arrested without any enquiry by the District Magistrate.  In view of Sub Rule 2 of Rule 251 of the Rules, it is mandatory that no person will be detained in custody unless and until there is a reason to believe that process of detention will compel the payment of the whole substantial portion of the amount.  According to Sub Rule 2, it is necessary to enquire into the matter before detention.  As the arrest and detention of a person result in serious consequences, the same can only be done when there is an adequate reason to believe that the defaulter is willfully withholding the payment.  The bank can recover its dues by taking recourse to Section 3 of the U.P. Public Money (Recovery of Dues) Act 1972 as the recovery cannot be inedle as land revenue, no steps can be taken under Section 279(1)(b) or Section 281 of the Act, therefore, the proposed arrest and detention of the petitioner is bad and illegal. The other relevant pleas have been taken by the petitioner.  

The reliance has been placed by the petitioner upon a judgment of this Court reported in 1998 (16) Lucknow Civil Decisions, 723 Mohd.Nasim Vs. State of U.P. through Collector, Bulandshahr and others and has placed reliance upon paras 5 and 6 of the said judgment the same is being reproduced below:-  

"5. The controversy in dispute has been set at rest by a Division Bench of this Court in Sangam Lal Gupta Vs. Sales Tax Officer and others (1969 ALJ 257) wherein taking into account the relevant provisions of the Act and Rules and other allied provisions, it has been held that the period of fifteen days prescribed by section 148 of the Act is the maximum period for which a defaulter may be detained in custody in respect of any arrear.  If he has been detained in custody for that period he cannot be arrested and detained again in a recovery proceeding relating to the same arrear of land revenue.  However, the arrears can be recovered through other process other than arrest and detention.

6. The above referred decision of this Court was taken into consideration by the Apex Court in Ram Narayan Agarwal etc. V. State of U.P. and others (AIR 1984 SC 1213) and the same stands affirmed by the apex Court, though the actual controversy before the apex court was a bit different."

In view of the aforesaid fact, the petitioner submits that the respondents may not be arrested in lieu of the recovery of the amount mentioned above.

After hearing counsel for the parties, it is clear that on an application made by the petitioner for a loan to the tune of Rs.20 lacs was given to the petitioner in the year 1986 that is more than 20 years but the petitioner has not shown any intention to pay the amount taken by the petitioner during this period.  It has also been submitted by the learned counsel for the petitioner that mortgaged property has already been sold by the petitioner without paying any amount to the respondents-financial corporation. Now when the recovery certificate has been issued, the petitioner has filed the present writ petition and has taken various technical grounds and pleas.  It is apparent from the record that liability upon the petitioner is to the tune of Rs.54,52,123/- from the date of taking loan the petitioner has not been paid any amount even no efforts have been made by the petitioner to pay a single paise towards the loan given to the petitioner.  Therefore, we are not inclined to accept the contention of the petitioner as the petitioner has not shown any willingness to pay the amount, which is outstanding due against the petitioner.  

In such situation, as exercising the remedy under Article 226 of the Constitution of India is a discretionary remedy and this Court in such circumstances or in the fact of each and every case can refuse to exercise the said remedy provided under Article 226 of the Constitution of India.

In view of the aforesaid fact, we are not inclined to interfere in the writ petition. The writ petition is hereby dismissed.

                         There shall be no order as to costs.

16.11.2006

SKD


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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