Allahabad High Court
Kunwar Pal Singh vs State Of U.P. on 12 October, 2012
Author: Dharnidhar Jha
Bench: Dharnidhar Jha, Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 42 Case :- HABEAS CORPUS WRIT PETITION No. - 9245 of 2012 Petitioner :- Kunwar Pal Singh Respondent :- State Of U.P. Petitioner Counsel :- Pradeep Kr Rai[A.C.] Respondent Counsel :- Sri Sudhir Mehrotra, A.G.A. Hon'ble Dharnidhar Jha,J.
Hon'ble Ramesh Sinha,J.
We have heard Sri Pradeep Kumar Rai, learned Amicus Curiae on behalf of the petitioner Kunwar Pal Singh, father of Pushpendra Singh, who sent a telegram to the Hon'ble The Chief Justice of this Court at His Lordship's Lucknow address which runs as under:
" ek- eq[; U;k;k/kh'k] gkbZdksVZ] y[kuÅA esjs firk dqWojiky flag dks vehu] rglhynkj o ,l-Mh-,e- lnj ftyk cnk;w¡ us fof/k fo:) 5 fnuksa fn- 9@2@12 ls gokykr esa voS/kcanh cuk j[kk gS] vR;kpkj] mRihM+u tkjh gS] d`i;k lEiw.kZ U;k; o eqfDr fnyk;saA g0 iq"isUnz flag pkSgku iq"isUnz flag xzke cjk;e; [ksM+k] Fkkuk mft;kuh ftyk cnk;wW] m-iz- "
The cognizance of the telegram, treating it as an application seeking relief against an act of encroachment upon the personal liberty of Kunwar Pal Singh, father of Pushpendra Singh was taken by the Court and the matter was directed to be listed before the appropriate Bench, as appears from the order passed by the Hon'ble The Senior Judge, Lucknow Bench on 13.2.2012. The matter was listed before a Bench comprised by two Hon'ble Judges of the Lucknow Bench of the Court and the Bench finding that the territorial jurisdiction was lying within the Allahabad Bench of the Court, directed it to be listed in Allahabad and, accordingly, the proceedings of Habeas Corpus Writ Petition bearing No.9245 of 2012 was drawn up. Notices were issued. By an order dated 2.4.2012 a Bench of this Court recorded that the stand of the State of U.P. that Kunwar Pal Singh had been released from custody on 22.2.2012 be verified by the learned C.J.M., Budaun.
We had the occasion of hearing the matter and finding that these appeared prima facie case of violation of some laws to justify the arbitrary and illegal detention of Kunwar Pal Singh directed the learned AGA to file counter affidavit and, accordingly, the counter affidavits along with supplementary counter affidavit was filed.
The counter affidavit filed by the State of U.P. on 3.7.2012 contains the statements of facts on the basis of which the State of U.P. has justified the action of arresting Kunwar Pal Singh by the revenue authorities. It has been stated that in fact Kunwar Pal Singh had obtained a loan of Rs. 2,75,000/- from the State Bank of India, Ujhani Branch on 16.10.2003 to purchase a tractor, but he failed to pay back the loan and, accordingly, a recovery certificate under Section 11-A of the U.P. Agricultural Credit Act, 1973 was issued and on that basis the Tehsildar, Budaun with the endorsement of District Magistrate, Budaun proceeded in accordance with law.
It was stated that as per Rule 236 of U.P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as ''U.P.Z.A. & L.R. Rules or the Rules'), Writ of Citation in Form No.69 was issued calling upon the said Kunwar Pal Singh to appear before the Tehsildar, Ujhani on 30.5.2011. It appears that the Citation was not personally served upon Kunwar Pal Singh. Servar/Collection Peon, Chandra Pal, reported that the Citation issued in Form No.69 had been hung up at a conspicuous place of the house of Kunwar Pal Singh and a receipt was obtained in token thereof from his son Latesh. A report was submitted by the process serving peon Chandra Pal on 23.5.2011 that Kunwar Pal Singh refused to receive the Citation and, as such, a copy of Form No.69 was affixed at the house of the petitioner and in token of affixing of the Citation, signature of Latesh, s/o Kunwar Pal Singh was obtained.
It was stated that the Citation was duly and satisfactorily served as per Rule 246(1) of the U.P.Z.A. & L.R. Rules and, accordingly, a writ of arrest of Kunwar Pal Singh was issued in Form No.70 on 29.8.2011 due to his non-appearance before the authorized officer and it was handed over to the Regional Collection Amin, namely, Vidya Ram Sharma, who reported that Kunwar Pal Singh, having come to know that warrant of arrest had been issued against him, absconded with his movable property, the tractor, and as a result thereof, citation to arrest Kunwar Pal Singh was returned unexecuted. The second warrant of arrest was issued in the same Form No.70 on 9.2.2012. Before issuing the second warrant of arrest the Regional Collection Amin was reporting about the abscondence of Kunwar Pal Singh and on that account the attachment of immovable properties of Kunwar Pal Singh was ordered by issuing an order in Form No. 71 on 29.8.2011 by the S.D.M., Sadar Budaun as per Rule 244 to 271 of U.P.Z.A.& L.R. Rules and it was handed over to the Regional Collection Amin, namely, Vidya Ram Sharma and a report was submitted by him that the petitioner had already fled away along with the tractor and, as such, Form No.71 could not be executed. On the basis of the aforesaid report about the abscondence and removal of the movable property by Kunwar Pal Singh, the arrest of the petitioner was ordered in the same Form No.70 on 9.2.2012 and in compliance thereof the petitioner was arrested by the Collection Amin because he failed to pay up the loan amount. He was lodged in Tehsil lock-up on 9.2.2012 and was released on 28.2.2012 upon completion of 14 days as required by Section 281 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as U.P.Z.A. & L.R. Act or the Act).
It was also averred by the State of U.P. that the Regional Collection Amin reported that the petitioner was not ready to deposit the amount due to be paid by him and as such his confinement was ordered by the lawful authorities. On these averments, the State of U.P. justified the action of arresting Kunwar Pal Singh and sending him in to the lock up.
While addressing us, Sri Pradeep Kumar Rai, Amicus Curiae, took us to Section 279 of the U.P.Z.A. & L.R. Act and submitted that it was true that arrears of land revenue could be recovered by certain modes of enforcing the recovery as per that provision of U.P.Z.A. & L.R. Act and it is also true that the arrest could also be affected of a person who has an obligation of paying up any dues towards the arrears of land revenue, but there are certain procedures set down by the Rules framed under the Act for carrying out the procedures of enforcing the recovery of the arrears of land revenue as per the provision of Sections 279 and 280 of the U.P.Z.A. & L.R. Act. In the above context, Sri Rai took us also to Rules 236, 244, 245, 246 & 251 of U.P.Z.A.& L.R. Rules, 1952 and submitted that there was a complete violation of the Rules, especially of Rules 246 and 251 and the whole action of arresting Kunwar Pal Singh and detaining him into prison was not only arbitrary but smacked of executive superiority imposed upon the personal liberty of a person. It was, as such, contended that this Court must hold that Kunwar Pal Singh was deprived of his personal liberty without following the procedure established by law and, thus, the officers of the State of U.P. who were involved in the whole exercise had contravened the provision of Article 21 of the Constitution of India and appear to have illegally and wrongfully confined Kunwar Pal Singh.
Submission also was that the arbitrary and illegal acts of the employees of the State of U.P. in violating the fundamental rights of Kunwar Pal Singh by arresting and detaining him required that he be appropriately compensated.
Sri Sudhir Mehrotra, learned AGA, attempted to justify the actions of the revenue authority by referring to us different documents which are Annexures to the supplementary affidavit dated 3.7.2012 which contains the statements in justification of the acts of the State of U.P. and its officers.
It was submitted before us that in order to recover the loan amount taken out by Kunwar Pal Singh as arrears of land revenue, procedure under Sections 279 and 280 U.P.Z.A. & L.R. Act were to be followed and the revenue authorities who are the custodian of those provisions as regards the process to recover the arrears of land revenue followed the provisions in both later and spirit. The citation was issued by Annexure-1 on 23.5.2011 and it was addressed to Kunwar Pal Singh but as per the report appearing at page 8 of the supplementary affidavit, Kunwar Pal Singh refused to receive the citation for paying up the arrears of land revenue and as such copy of the citation was hung up at a portion of his house and compliance to that particular Rule was certified by obtaining the signature of Latesh s/o Kunwar Pal Singh. Having not appeared before the authority neither paying up the dues, gave rise to issuance of another Citation in Form No.70 on 9.2.2012 and warrant of arrest, firstly, on 29.8.2011 and thereafter on 9.2.2012, as a result of which Kunwar Pal Singh was arrested. The Regional Collecting Amin had reported that Kunwar Pal Singh, after being arrested and produced before the S.D.M. was not ready to pay up the amount due to be paid by him and as such in compliance of Rule 251 he was sent to Tehsil lock-up.
For evaluating the rival contentions, we want to point out that in order to recover the arrears of land revenue, there are powers vested in certain authorities in the revenue department to issue coercive processes against a person who is obliged to pay up the arrears of land revenue. Rule 235 of the Rules empowers that processes could be issued against any person having property in a district who is a defaulter regarding payment of arrears of land revenue, after obtaining certificate to that effect. As per Section 3 of the Revenue Recovery Act, a writ of citation or of warrant of arrest along with the warrant of attachment of movable property are the instruments to be issued as coercive processes for inducing the payment of land revenue. This appears from Rules 235 and 236 of the Rules. Rule 241 of the Rules empowers the Tehsildar of the Tehsil to issue the writ of demand or citation against a defaulter to appear before him. The same order could be issued under the order to be passed either by the Collector of the District or by the Assistant Collector In-charge of the Sub-Division. Rule 245 directs that no writ further than one, could be issued in respect of the same arrear to any defaulter except under the express order of the Collector and in case after issuance of the writ, the arrears of land revenue are not paid within 15 days of the issuance of the writ, more severe measures are promptly to be taken.
As regards the service of the writs for making payment of the land revenue, Rule 246 of the Rules is the relevant provision. It requires that writ or citation should be served upon the defaulter personally as far as possible and if in case of the same being not possible or the service not being made personally on him, it may promptly be served upon any of his agents. Again, if the defaulter or his agent both are not found, then what the process server has to do is to hang up a copy of the writ at some conspicuous part of the house of the defaulter. In case the defaulter or his agent is found and the writ is served personally upon any of them, then the counterfoil had to be made over to the defaulter or his agent and the other part of the writ or citation had to be brought to the headquarter, that's the tehsil.
Rule 246(2) further requires that in case there is no personal service on the defaulter then the reason has specifically to be shown or recorded as to why the service was not personally made upon the defaulter. Not only that, the officer who is to receive the service report has to also to make a note the particulars of the process being served or not served personally on the process itself.
We must point out here that there was no personal service and there was no report submitted by the Collecting Amin as to what was the reason for not serving the writ or citation personally upon the defaulter therein. He was simply reporting that the defaulter Kunwar Pal Singh refused to accept the notice and as such he hung a copy thereof up at some part of his house. The curious part of the report is that the process server in token of the truthfulness of the report, associated as a witness none else than the son of Kunwar Pal Singh who, in our opinion, could have been more competent an agent of Kunwar Pal Singh to be served with the copy of the citation. We do not find any report that any attempt was made by the Collecting Amin, the process server, to ask the son of Kunwar Pal Singh, namely, Latesh, whose name appears in para 4 of the supplementary affidavit, to receive the copy of the citation and issue a receipt in that behalf. This single circumstance about the compliance with Rule 246 has persuaded us to entertain an opinion as if it were an attempt made by the revenue authorities to cover up the acts which were very serious as may appear from our subsequent discussions.
The case of the revenue department and its official is that an attachment order having been issued, a report was sent by the attaching authority who was again the same Regional Collecting Amin, that Kunwar Pal Singh had removed his movable property, like, the tractor and himself had gone into hiding.
We find a report appearing at page 14 of the supplementary affidavit which reads that the defaulter had removed his tractor and had gone absconding. The tractor was purchased by the defaulter by taking out a loan from the State Bank of India. We may hold a view that unless the man had held a substantial position in society, he could not have obtained a loan and there could not have been a purpose of purchasing a tractor unless he had substantial landed property and other movable properties. Why then the attachment order was not executed against him by attaching other movable properties of his, we could not find any reason about it. What we find is that the authority who was issuing the warrant of arrest was not unintelligent as to write in his order of attachment that it was not to be executed in respect of all movable properties of Kunwar Pal Singh and that his tractor was only to be attached. As such, we carry an impression as if these reports were after thoughts which were brought into existence only after Kunwar Pal Singh had been arrested to justify the illegal action.
Rule 245 of the U.P.Z.A. & L.R. Rules reads that Citation in Form No.70, which is in fact an instrument to authorize the arrest of a defaulter, could not be issued twice. The authority which was issuing Form No.70, i.e., the warrant of arrest against Kunwar Pal Singh, was simply undermining Rule 245 and was issuing the second warrant of arrest in Form No. 70 on 9.2.2012 having earlier issued the same on 29.8.2011 in execution of which Kunwar Pal Singh was arrested.
What is the procedure after the defaulter is arrested? Rule 251 (1) requires that whenever a Tehsildar causes a defaulter to be arrested the matter of arrest of such a defaulter has to be reported without delay to the Collector for his information and also to the Assistant Collector In-Charge of the Sub-Division. We do not have any such document before us to satisfy us that Rule 251(1) of the Rules was complied by placing the information before the Collector or the Assistant Collector In-charge. One may argue that the compliance could be oral, but when we consider sub-rule (2) to Rule 251 there could be no difficulty in holding that compliance to the Rule could never be orally shown, specially when it relates to such a serious matter, like, arresting a persons.
If it has to be a 'report' then the report has always to be in writing so as to keeping a record of it that Rule 251(1) was duly complied with. There is nothing on record to satisfy us that after his arrest, Kunwar Pal Singh was brought without delay before the Tehsildar who could be the authority to issue Form No. 70 under his signature and why he was sent to custody.
In fact we find that the Rules preponderantly forbid sending an arrested defaulter to custody for detention and rather require that such an action curtailing upon the personal liberties of the person be avoided as far as it may be possible. As such the Rule 251 has set down some duties upon the officer before whom such an accused defaulter was to be produced.
Rule 251(2) requires that no defaulter shall be detained in custody unless there is reason to believe that the process of his detention in custody would compel in payment either of the whole or substantial portion of the amount. In our opinion, if a defaulter is arrested and produced before the authority under Rule 251(2) then the authority has to draw up an order noting down the whole situation that the defaulter was not ready to make payment either in full or in part and that his refusal had compelled the authority to authorize his detention in the lock up.
Sri Sudhir Mehrotra, learned AGA, drew our attention towards page 19 of the counter affidavit over which is a report submitted by the Collecting Amin to the Tehsildar to the effect that the arrested Kunwar Pal Singh, the defaulter, was being produced before the Tehsildar and that he was not ready to pay any part of the arrears of land revenue.
In our considered opinion, this was not the compliance of Rule 251(2) upon which the Tehsildar was authorizing the detention of Kunwar Pal Singh in the lock up. If we consider sub-rule (3) of Rule 251 of U.P.Z.A. & L.R. Rules, 1952 we may find that it is the requirement of that particular sub-rule that on production of the arrested defaulter before the officer who had issued the warrant of arrest, he should give some further time to such a defaulter to pay the arrears instead of detaining him and for that purpose he may release the defaulter on his undertaking to pay the arrear within a fixed period. This particular sub-rule, in our opinion, is not a mere rule of procedure or technicality. In our considered view, this rule creates a right in the defaulter, who had been arrested and who has been produced before the officer ordering his arrest to be informed about his right of being released if he gave an undertaking to pay the arrears either in part or in full as per Rule 251(2) of the Rules.
In our considered view the officer before whom the arrested person has to be produced, in such a situation, has a legal obligation cast upon him to inform such an arrested person of his right which is created by Rule 251 (3) of U.P.Z.A.& L.R. Rules and the compliance thereof must also be recorded because it could be held without assigning any reason that release of such a defaulter could never be ordered orally, it has always to be through an order and if that order was to be drawn then the right of the arrested person of being informed of being clothed with a right of availing an opportunity of paying the dues has also to be protected by making a record in writing.
Sri Sudhir Mehrotra, learned AGA was asked by us to inform us about the compliance of Rule 251(3) and he was candidly conceding that he did not have any document or record to show that Rule 251 either in part or in full as per its provisions contained in sub-rules (2) and (3) were complied with. We find that the State of U.P. admits that Kunwar Pal Singh was a defaulter. We also do not have anything to find adverse to the stand taken by the State of U.P. and its Revenue Authorities that citation of writ, for realization of arrears of Rs. 2,75,000/- as land revenue, was issued by Annexure 1 at page 6 of the supplementary affidavit. If some one has not paid the dues which is required to be recovered as land revenue under any particular Act and any particular authority was empowered to take steps in that behalf , we cannot decry those steps, if taken validly. We also do not find that no writ was issued and sent for service upon Kunwar Pal Singh, but a doubt has arisen in our minds on the correctness of the service report submitted by one Chandra Pal, the process server, which is dated 23.5.2011. The report stated that Kunwar Pal Singh was not ready to accept the writ and as such, it was hung up on any particular part of his house and evidence in that behalf was certified by obtaining signature of one of the sons of Kunwar Pal Singh.
We have also noted that the son of Kunwar Pal Singh could have been his good agent and there was no reason shown to us as to why no attempt was made to serve copy of the writ upon Latesh son of Kunwar Pal Singh. We find that the Revenue Authorities were simply acting in violation of the Rules framed under different sections of the U.P.Z.A. & L.R. Act.
We have already pointed out that a warrant of arrest could be issued once in Form No.70, the second warrant is permissible by Rule 251(3) only when after being released after giving an undertaking for paying up the dues, the defaulter does not pay. In that case the revenue authorities shall be within their rights to issue warrant of arrest again in Form No.70. It is indicated by Rule 251(3) that as soon as there was a report, and in our opinion a fake one about the removal of the tractor by Kunwar Pal Singh and himself having gone into hiding, the authority had issued another warrant, but without express order which is required to be obtained from the Collector as per Rule 245 of the U.P.Z.A.& L.R. Rules. On being arrested Kunwar Pal Singh does not appear being given a chance of exercising his right of giving an undertaking of paying up the dues in part or in full. There was no denial from him.
It was only a fake report in our opinion given by the Collecting Amin as appears from page 19 which is dated 9.2.2012 that Kunwar Pal Singh was sent to prison. There is no record that Kunwar Pal Singh was pointed out that he had a right of giving an undertaking to pay up the dues within a specific time.
We have already noted that the State of U.P. did not produce any such document or report. There was no further record to show that the officer who had issued the warrant of arrest and before whom Kunwar Pal Singh was produced was satisfied that there was no chance of Kunwar Pal Singh paying up the amount due to be paid by him either in part or in full and as such he was being detained in the Tehsil-lock-up. Thus, we find that the actions of the authorities of the Revenue Department, like, the Tehsildar or the Collecting Amin were completely in infraction of some mandatory Rules and procedures set down by them and, thus, what we find is that not only the issuance of warrant of arrest was frivolous and unsupportable by law but the arrest and confinement of Kunwar Pal Singh into custody was also not supported by the relevant Rules.
We simply want to reiterate the old adage that if law requires something to be done in a particular manner, it has to be done in that particular manner or not at all.
If the rules set down certain procedures and steps for realization of the arrears of land revenue by following them then the revenue authorities should not have invented their own rule and procedure to justify the illegal and unlawful arrest and detention in custody of Kunwar Pal Singh.
We are of firm opinion that in the garb of following Rules the authorities violated and abused the personal liberties of Kunwar Pal Singh and when they found their actions being brought under the scanner of judicial review, they created documents. Their actions are not only arbitrary but against the Rules. Their actions caused Kunwar Pal Singh to remain in custody from 9.2.2012 to 22.2.2012. This period of confinement was definitely in violation of Article 21 of the Constitution of India as the Revenue Authorities, i.e., Tehsildar, Budaun and Collecting Amin, Budaun appear completely encroaching upon the personal liberties of Kunwar Pal Singh and thereby they wrongfully confined him into custody.
Now Kunwar Pal Singh has been released. This information was placed before this Court by an affidavit dated 2.4.2012 and the order drawn by this Court on that date also records the fact subject to the statement being verified by the C.J.M., Budaun. We do not have any other report regarding the stand or information given to the Court by the learned AGA. For the illegal and wrongful confinement of Kunwar Pal Singh, he deserves to be compensated. If the wrongful confinement was in the garb of compliance to Rules or procedure the Court has always to put itself on guard not only to secure the liberties of a person, but also to properly compensate such a person if it comes to a finding that the personal liberty of such a person has been violated and abused.
We are of the opinion that a compensation of Rs. 50,000/- shall be appropriate under the facts and circumstances of the case which is required to be paid by the State of U.P. to Kunwar Pal Singh , the petitioner. We direct that the above amount be paid to him within six weeks from the present order and compliance to this order be reported by filing an affidavit.
We make it clear that it shall be the prerogative of the State and its authorities to realize the compensation amount from the concerned Tehsildar and Collecting Amin in appropriate proportions.
We must record the meaningful assistance rendered to the Court by Sri Pradeep Kumar Rai, Advocate, who was requested to assist as Amicus Curiae. We direct that the High Court Legal Service Committee pay him a fee of Rs.15,000/- for assisting us.
This writ petition drawn suo-motu by the Court is disposed of in the above terms.
Dt. 12.10.2012 NS