Jaganmohan Reddy, C.J.
1. This Full Bench has been formed to consider the Constitutional validity of Sections 5(2) and 13 of the Madras Revenue Malversation Regulation (Madras Regulation DC of 1822) (hereinafter called 'the Regulation') as offending Articles 14, 19(1)(d), 21 and 22 of the Constitution A Bench of the Madras High Court, consisting of Rama-krishnan and Sadasivani, JJ., had, in Srinivasa Iyer v. Revenue Divisional Officer, Tiruchirapalli, 1966-1 Mad L) 459, held the aforesaid provisions as offending Article 14 of the Constitution and had struck them down. The correctness of that decision having been challenged by the learned Government Pleader before two of us (namely Basi Reddy and Anantanarayana Ayyar, JJ.) these three petitions have been directed to be posted before a Full Bench, as the issues insolved are of great public importance.
2. In Crl. M. P. No. 1740/1965, the petitioner is a village munsif of Biradavada group of villages in Nellore District. The Revenue Divisional Officer Gudur, gave a notice to the petitioner on 23-7-1985, alleging that the petitioner had embezzled two amounts of Rs. 8,909-87 and 7,229-82, paid to him in respect of landrevenue and loans, and misappropriated by him, that out of these amounts, only a sum of Rs. 1,800 was paid by him and that the balance of Rs. 14,339-19 is still to be paid. The petitioner was therefore asked to show cause before 23-8-1965 as to why the amount should not be recovered under the regulation, The petitioner avers that as directed in the notice, he appeared on 23-8-1965 and sought permission to examine the records and in Re. E. No. 7079/63 dated 2-9-1965, the Revenue Divisional Officer granted the permission. After examining the records, the petitioner submitted his explanation on 9-9-1965. Again on 15-9-1965 the petitioner appeared before the Revenue Divisional Officer and gave a written representation saying that he ad no witnesses to be examined and there was nothing to be added to the explanation submitted on 9-9-1965. On 12-10-1965, at about 6 P. M., when he was at Nayudupeta Bus stand, having then returned by bus from Kalahasti, where he had been three days earlier, the Revenue Divisional Officer, who was there in a jeep asked the petitioner to follow him and confined him in the sub-jail, stating that unless he paid Rs. 14,339-19 and fine of Rs. 500/-, he would not be released
3. The Sub-Collector (Revenue Divisional Officer), Gudur, in his counter-affidavit; while admitting that for the recovery of the two amounts of Rs. 8909-37 and 7229-82, collected by the petitioner as land-revenue loans respectively, steps were taken under the regulation and that tie issued a notice dated 23-7-1965, in exercise of the powers delegated to him by the Collector, calling the petitioner to attend an enquiry proposed to be conducted on 23-8-1965, further stated that the petitioner appeared on that day and in his presence, 71 persons, who attended the enquiry gave evidence to the effect that the petitioner had collected moneys from them towards loans and land-revenue after issuing receipts and had also filed the receipts as exhibits in the enquiry; that the petitioner was given an opportunity to cross-examine the witnesses, but the petitioner did not choose to cross-examine them, that he was given an opportunity to peruse the receipts filed as exhibits and the evidence given by the 71 persons, but the petitioner asked for time for verification, for which purpose he attended the office on 29-8-1965 and only looked into four or five receipts, that on his request, he was given further time til! 9-9-1965, posting the enquiry to 12-10-1965, that on 9-9-1965, the petitioner filed a written explanation and that after considering this explanation and after examining the evidence in the case, he (the Sub-Collector) came to the conclusion that the petitioner had misappropriated the two amounts stated in the notice and so. by a judgment dated 12-10-1965, the petitioner was directed to pay the amount of Rs. 16,400/-under Section 5(1) and was further directed to be kept in Sub-jail. Sullurpet, till the satisfaction of the judgment, under Section 5(2) of the regulation. He further stated that on the evening of 12-10-1965, the petitioner was taken into custody and confined to sub-jail.
4. In Crl. M. P, No. 1743/65, the petitioner is a karnam of Nelaballi group of villagesin Sullurpeta Taluk, and it is stated that he is in arrears of payment of loan amounts and land-revenue to the extent of Rs. 16,521-97. In February, 1964, the Sub-Collector, Gudur, kept him under interim suspension pending enquiry into the alleged charge of misappropriation of Rs. 138-94 acting under Section 7(1-A) of the Madras Hereditary Village Offices Act, that an enquiry was conducted, but no final orders were passed, that while so, suddenly the petitioner was served with a notice by the Sub Collector in his Re. E. 8371/63 dated 5-10-1965, calling upon him to show cause why the amount of Rs. 138-94 should not be recovered by issue of a demand under Section 6 of the regulation, that a notice was issued directing the petitioner to appear before the Sub Collector on 12-10-1965 at 10 A. M. at Sullurpeta, that the petitioner had accordingly appeared before the Sub Collector on that day, when the Sub Collector demanded him to pay Rs. 2750/- and an amount of Rs. 500/- towards fine and that on non-payment of that money, the petitioner was arrested then and there and sent to the sub-jail, Sullurpeta.
5. The Sub Collector in his counter-affidavit stated that the petitioner had unauthorised collections of land revenue and loans to the tune of Rs. 785-05 and 2964-09 respectively, and that an enquiry in respect of these amounts was posted to 27-10-1965 and summonses were issued to the parties. It is further stated by the Sub Collector that the petitioner had obtained loans from the Government to a tune of Rs. 7220-00 and had also admitted his liability before the Headquarters Deputy Tahsildar, Sullurpeta on 28-8-1964 for the loans of Rs. 2000 which were granted in favour of different persons, that interest accrued on the above loans is Rs. 7301-97, and thus the petitioner is in arrears of Rs. 16,521-97 towards loans, that the property of the petitioner of the value of Rs. 10,000 was already attached for the recovery of the loan amounts and as the same is not sufficient even to satisfy the loans due, he (the Sub Collector) felt it desirable to confine the petitioner in Sub-jail under Section 13 of the regulation pending enquiry into the case, and accordingly, it was stated, that the petitioner was arrested on 12-10-1965 before any enquiry was held, and confined in sub-jail. Sullurpeta.
6. In Crl. M. P. No. 1845/65, the petitioner is a permanent village munsif of Vinumala village. He was put under interim suspension by the Revenue Divisional Officer in August, 1965, in exercise of the powers under Section 7(1-A) of the Madras Hereditary Village Offices Act. Thereafter, he -was served with a notice by the Sub Collector in his Re. E. No. 2688/65 dated 3-10-1965, directing the petitioner to appeal before him on 12-10-1965 and show cause why a demand should not be made under Section 6 of the Malversation. Regulation for a sum of Rs. 4099-89. When the petitioner appeared before him on 12-10-1965, as directed, the Sub Collector straightaway took him into custody and confined him in Sub-Tail. Sullurpeta.
7. The Revenue Divisional Officer in his counter stated that the petitioner had collectedland revenue and loans to a tune of Rs. 2698-89 and 1401-00 respectively, that an enquiry was posted on 27-10-1965 and summonses to the parties were issued, that the Tahsildar reported that the delinquent petitioner does not possess any properties, and that as the petitioner was found incapable of repaying the misappropriated amounts, he felt it desirable to confine him in the sub-jail under Section 13(1) of the regulation pending enquiry into the case and accordingly the Sub Collector confined the petitioner in sub-jail on 12-10-1965 even before the enquiry was held.
8. From the above facts, it is clear that in the first case the arrest and detention were made on the very day on which it is stated the enquiry was held. Though the Sub Collector says that he had given a decision, the petitioner States that it was not given on the date on which if is purported to have been given but was served on him subsequently. In the other two eases, the petitioners were arrested even before an enquiry was held. In all these cases, however, the reason given by the Revenue Divisional Officer for the arrest and detention under the Regulation was that none of the petitioners had any property from which the defalcations could be made good.
9. Sri K. Ramachandra Rao, learned counsel for the petitioners, contends firstly, that Sections 5 and 13 of the regulation are violative of Articles 14, 19(1)(d), 21 and 22 of the Constitution; and secondly, that assuming that these provisions are valid and the Collector or Sub Collector has the power to arrest and detain, that power has been exercised in an unreasonable and arbitrary manner.
10. In so far as the contention based on Articles 19(1)(d), 21 and 22 of the Constitution is concerned, it is convenient to deal with them first. In view of the proclamation of emergency issued by the President under Article 352. Article 19 is suspended by virtue of Article 358. Articles 21 and 22 are not attracted where the personal liberty of a citizen is affected by his being detained or kept in custody in accordance with the procedure established by law Where a person is arrested and kept in detention under any law, whether of Parliament or of a State, under which the safeguards envisaged in Article 22 are provided for, the arrest and detention cannot be said to be an infringement of the fundamental rights guaranteed under the aforesaid two Articles. It has been held that the arrest of a person for recovery of amounts under Sections 48 and 49 of the Madras Revenue Recovery Act does not violate Articles 21 and 22: see Collector of Malabar v. E. Ebrahim, : 1957CriLJ1030 and Purshottam v. B. M. Desai, : 1956CriLJ129 . Clauses (1) and (2) of Art. 22 have been construed to apply to arrests made without warrant of a Court and to persons who have been taken into custody on the allegation or accusation of actual or suspected or apprehended commission by that person of any offence of a criminal or a quasi-criminal nature or some act prejudicial to the public interests, see State of Punjab v. Ajaib Singh, : 1953CriLJ180 . In other words, Clause (1) has no application where there is no accusation of any criminal or quasi-criminal nature against the person taken into custody. But where he is taken into custody under any provision of law which has no penal object in view, Article 22 has no application. Inasmuch as in these cases the arrests have been made under the provisions of the regulation only for the purposes of recovery of the moneys due to the Government, the arrest and detention cannot be regarded as arrest or detention within the meaning of Article 22. It is probably for this reason that the contentions based on Articles 19, 21 and 22 have not been seriously argued.
11. The arrests however have been impugned on the ground of discrimination between revenue officials as a class and other officials under different Acts, all of whom are charged with the duly of collection of State Revenues. There being no intelligible differentia in this classification which distinguishes persons or things that are grouped together from those left out of the group, and that differentia not having a rational relation to the object sought to be achieved by the regulation, it offends the 'equality' provision of Article 14. The different classes viz., revenue officials and other officials, such as the sales-tax officers, municipal bill collectors etc., are said to be similar, and there is no justification in discriminating one from the other. It is said all of them have to collect moneys on behalf of the State, but while the revenue officials as a class, in case of malversation of hinds, could be arrested and detained till they pay the amounts as well as expose themselves to prosecution under the criminal law, the other classes of officials cannot be so arrested but must only be dealt with under the ordinary criminal law. In other words, the regulation is discriminatory, because it does not treat persons similarly situated equally
12. In Budhan Choudhry v. State ot Bihar, ( : 1955CriLJ374 ), a Constitution Bench of seven Judges of the Supreme Court after examining the decisions beginning with Charanjit Lal Chowdhury v. Union of India, : 1SCR869 and ending with Habeeb Mohammad v State of Hyderabad, : 1953CriLJ1158 . summed up the criteria for testing whether a legislation offends Article 14, in these words :--
'In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to the objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure'.
This was affirmed in Ramkrishna Dalmia v. S. R. Tendolkar, : 1SCR279 , where S. R. Das, C. J., after examining the previous cases decided by the Supreme Court under Article 14 classified the decisions in which the above principles have been enunciated and applied, into five classes. Accordingly it was observed that a statute which may come up for consideration on a question of its validity under Article 14 may be placed in one or other of these five classes.
13. When, therefore, Article 14, which has an all-pervading sweep both over the legislative and executive field as to have earned for itself an appellation of a joker or a trump card is invoked, it will be necessary to keep the criteria enunciated by their Lordships of the Supreme Court in view, in determining the validity of the impugned statutory or executive action.
14. We may now consider the provisions of the regulation in order to determine whether and to what extent this law offends the equality provisions of Article 14. It may be pertinent to point out that the impugned regulation was enacted over 144 years ago, and was intended to meet the requirements of an age where power and authority of the East India Company were untrammelled and when the right of a citizen to the guarantee of personal liberty and freedom was undreamt of or at any rate was not given so much prominence. All that the East India Company required to validate its acts, considered draconian in subsequent ages, was the authority of law, because even in those days the governance of the country was purported to be under the authority of law. The territories acquired by the East India Company, whether by conquest or by treaty, or both, had to be administered and in so administering the set-up of the villages as existed from time immemorial of the head inhabitants, the village munsifs, the karnams and their gumasthas etc., formed the back-bone and continues to do so even to this day. Each of the districts into which the territories were divided had at its head the Collector who is not only charged with the administration of the district but had the important duty of collecting revenues, the bulk of which came from land revenue.
The provisions of the regulation, as we shall see presently, were intended to thumbscrew revenue officials embezzling moneys or corruptly receiving them or other persons who though not in public establishments of the Collector, by pretending to act in those categories demand or receive public moneys, till the amounts were paid, and tor that purpose the law authorised their being arrested and detained in Cutcheri and if it is found that the arrested person had no property to send him to the Zilla Judge for being confined in jail, without specifying any definite period during which he would be incarcerated. It is only where a person under Section 5(4) and the fine has not been paid, a definite period has been prescribed, and the Collector is authorised to sentence him to imprison merit not exceeding 12 months in default of payment of the fine amount. Under Section 8 however. If a fine imposed for fraudulently concealing or collusively receiving property after a proclamation has been issued by the Collector requiring persons holding the property of the defaulter, such person may be fined not exceeding three times the amount or value of the property concealed or collusively received and to be imprisoned until such fine is paid. The criminal judge is to levy the amount of fine and if it cannot be realised, he can imprison him for a period not exceeding 12 months.
15. It may now be pertinent to read the long title and the preamble of the regulation, any examine the relevant provisions in order to determine the object ot the regulation. The long title states that it is a regulation for empowering Collectors to the primary cognizance of cases of malversation in revenue affairs; for prescribing the rules to be observed in such investigations, and in the recovery of money embezzled or corruptly received by public servants and others amenable to the Collectors' jurisdiction: and for providing for the admission and trial of appeals from the summary decisions of Collectors in such cases. From this long title it is obvious that the regulation is meant to empower the Collectors to deal with cases of malversation, their investigation and recovery of money embezzled or corruptly received by public servants and others amenable to the Collectors' jurisdictions, for instance, the Collectors' private servants, who may be in a position to extract moneys by misrepresentations or otherwise. It also provided for appeals against the decisions of the Collectors. The preamble further makes it clear that the Collectors have been given powers to make summary enquiries and decisions in cases in which it may come to their knowledge that public servants under their superintendence, or the officers of the village establishments, or any, other persons in their behalf, or on any assumed or pretended authority, have embezzled, or received bribes, or extorted money or other valuable consideration.
It is also stated that Collectors should have power to enforce the judgment they pass in such cases; and the Commissioners to be appointed were to hear appeals from their decisions, because the regular Courts cannot always dispose of them with expedition or without public inconveniences. Section 2 Sub-section (1) authorises Collectors to take primary cognizance of cases of malversation of revenue affairs; Order-section (2) specifies the offences of which they can take cognizance viz. 1st; exacting or corruptly receiving either directly or through the means or agency of any other person any money or other valuable consideration for doing or procuring to be done any public or official Act for which no such payment or gift could be lawfully demanded or received, or for the purpose, or under preference, of obtaining or securing some undue gain, benefit or advantage to the giver of such money or other valuable consideration; 2nd, levying extra and unauthorised cesses or extra collections of any kind not sanctioned by the Regulations nor by the orders of Government, and intended for the private and personal use and profit of the persons levying or causing the same to be levied; 3rd, embezzling or fraudulently misappropriating the public money; 4th, making false or fraudulent entries in the public accounts or other records, either in regard to the receipt or expenditure of public money in any of the departments under the Collector's superintendence, or concerning the extent, value, classification or assessment of land; and 5th, knowingly and willfully falsifying, destroying or concealing public accounts or vouchers or documents of any kind immediately relating to the receipt or expenditure of the public money.
16. Having thus enumerated the offences of which the Collector can take cognisance, Subsection (3) of Section 2 enumerates the persons who are subject to the authority under the regulation. They are, 1st, all the servants of the Collector public establishment; 2nd, all head inhabitants, kamams and their gumastas, or persons doing the duty for them, and all other village officers and servants within their respective collectorates; 3rd, all persons not on the public establishment, whether being in the private service of a Collector, Sub Collector or Assistant to a Collector and pretending to act under his or their authority, or whether assuming the character of public officers, or acting or pretending to act under the authority or on behalf of revenue servants or village officers, who shall in any way interfere in the collection or disbursement of the public money, or who shall demand or receive money as public revenue, or as for revenue purposes, or shall exact or receive money or other valuable consideration under pretence of procuring some public act to be done, or some undue advantage to be given by public officers to the persons from whom such money or other valuable consideration shall have been taken. Sections 3 and 4 deal with the Collector's power to summon witnesses and summary investigation under the Regulation. Section 5 deals with the sentences which the Collector may pass on persons convicted of certain offences, the power to keep the convicted persons in custody until the judgment is satisfied, execution of the judgments of the Collectors and punishment of persons convicted of certain other offences.
17. Section 6 deals with the power of Collectors to make specific demands. Section 7 deals with the power of Collector to call on suspected persons to give security for fulfillment of the judgment and the procedure when the security is not given. Section 8 deals with the power of Collector to issue proclamation requiring the property of the defaulters to be surrendered, and punishment for concealing such property. Section 9 deals with the Collector's power to issue search warrants for discovery of papers and accounts and execution of those warrants. Section 10 deals with the power of the Collector to sell property in satisfaction of judgments of Collectors. Section 11 was repealed by Madras Regulation III of 1823. Section 12 provides for reimbursement of persons from whom money is unjustly received. It also provides that persons who report exaction have to be repaid within two months. Section 13 empowers the Collector to keep under restraint persons against whom enquiry is going on andimprisonment of the defaulter. Section 14 which deals with appeals to the Governor in Council, was repealed by Regulation VII of 1828. Section 15 was omitted by Section 2 of the Madras Revenue Miscellaneous Amendments Act, 1936 (Act VIII of 1936).
Section 16 deals with suits grounded on proceedings of Collector. It says that no suit grounded on the summary proceedings of a Collector under this Regulation, either in the form of an original complaint against such Collector, on account of any supposed injustice in conducting such proceedings, or of an appeal from his judgment, shall be received by any Court of Adalat, unless the plaint or petition is accompanied by the order referred to in clause second, Section 14 of the Regulation, remitting the party complaining to seek his redress in the Courts of Adalat. Under Section 8 of Act VII of 1828, a person against whom a judgment or order shall have passed under Section 5 or Section 6 of the Regulation, deems himself aggrieved by such decision, he is given liberty to present a petition of appeal within 3 months from the date of judgment or order, to the Board of Revenue. The Board of Revenue has to inquire into the matter and direct the relief prayed for by the petitioner to be granted or reject the petition by endorsement under the hand of their secretary, referring the party complaining to seek redress if he thinks proper, in the establishment Courts of Adalat. Sections 17, 18 and 19 of the Regulation were repealed, the first two by Central Act XII of 1876 and the last one by Act II of 1869.
18. It may also be noticed that the Madras Regulation III of 1823 repealed Section 11 of the Regulation by Section 2 (1) and by Section 2(2) it required Collectors to transmit such periodical or occasional reports of judgments passed under Section 4 of the Regulation, as the Board of Revenue may direct; and the Board was empowered to order that any such judgment be not carried into execution, and to pass such further order on the case as to them may seem equitable and just. Thereafter the Madras Regulation VII of 1828 was passed declaring the powers of Subordinate and Assistant Collectors in charge of particular divisions of districts and for facilitating proceedings under the Regulation. Section 3 (3) conferred power or superintendence, control and revision by the Collector over the proceedings of the Subordinate and Assistant Collectors. We have already given the relevant provision relating thereto, namely Section 6 of Regulation VII of 1828, dealing with appeals against decisions of Collectors and the manner in which the Board of Revenue has to proceed on those appeals.
19. As much of the argument turned on Sections 5 and 13 of the Regulation and itwas contended that they embody provisions which are arbitrary and unconstitutional. It will be convenient to give these in extenso:--
Section 5, 'First.--When persons of any of the descriptions mentioned in clause third, Section 2 of this Regulation shall be convicted before a Collector, or an inquiry conducted under this Regulation, of any or the offences of thefirst, second or third class specified in clause second of that section, the Collector shall have authority to sentence them to pay any sum not exceeding twice the amount of the money ascertained to have been extorted, unduly received, embezzled or misappropriated.
Second--After a judgment has been passed by a Collector, for the payment of money under the foregoing clause, the person against whom such judgment has been passed shall be kept in custody until that judgment shall have been satisfied first, in the Collector's kacheri and afterwards, if necessary, in the Zilla jail as hereinafter provided.
Third--The judgments of Collectors for the recovery of money under the preceding clause shall be executed in the same manner as decrees of the Courts of Adalat, by a warrant under the official seal and signature of the Collector, which shall specify the name of the person against whom the judgment has been passed, the date of the judgment on the Collector's proceedings, and the amount to be levied. In the execution of this warrant the property of the defaulter shall be seized wherever, or in whose possession so ever, it may be found. If properly which there is good reason to believe belongs to the defaulter, be claimed by any other person, the same shall nevertheless be attached by the officer charged with the execution of the warrant. If the property so attached be moveable, it shall be brought before the Collector or, if not moveable, a full report thereof shall be made to the Collector who will hold a summary inquiry on the claim preferred, or refer such inquiry to a Panchayat. If the property be proved to belong bona fide to the defaulter, a particular account of its nature and value shall be entered on the Collector's proceedings, after which he shall order it to be sold in like manner as the rest of the property attached under the warrant of execution.
' Section 13. -- First, -- Collectors are authorized to keep under restraint any persons against whom they may have instituted an inquiry under the provisions of this Regulation either by placing peons over the dwelling house of any such persons to prevent their escape, or, if necessary, by confinement in the Kacheri; and, if judgment be given against such persons, then to continue the restraint until the amount adjudged has been paid by them, or the amount realized by sale of the property attached in satisfaction of the order or judgment.
Second.--In the event of no property of a person against whom an order or judgment has been passed under this Regulation being forthcoming, or not sufficient to pay the amount due by him, the Collector shall forward the defaulter or offender to the Zilla Court, and shall at the same time furnish the Government vakil of the said Court with instructions to present a motion to the Judge for his confinement until the amount due, which shall be distinctly stated In the said motion, shall have been discharged, or until the Collector shall again move the Court for his release. The Zilla Judge shall receive such motion whether in or out of Court,and shall order the confinement of the party accordingly, and the Judge shall not discharge him from confinement except on his paying the full amount mentioned in the Collector's motion or an application from the Collector.'
20. It is apparent from a consideration of these provisions that the Regulation deals with malversation in revenue affairs by three classes of persons, namely, servants of Collectors' public establishments, village officers and intermeddlers or pretenders, who are closely connected with the Collectors and are in positions which they could misuse. There is little doubt that this Regulation was not intended to deal with any class of officers other than revenue officers or servants of the Collectors' public establishments. This regulation does not, for instance, apply to the servants of the Public Works Department, Registration Department Education Department, establishments of civil and criminal Courts, servants of the Municipality, Sales Tax Department, Entertainment-tax Department, Income-tax Department, Stamps Department, Betting Department or Motor Vehicles Taxation Department, etc. all of whom have the power and duty of collecting public revenues under the several Acts. Servants in many of these Departments have the duty to collect amounts in cash. It is not as if all revenue collections made by the Collector are in cash. The peishcush of large zamindaries is required to be paid into the Collector's treasury and that of small zamindaries and Inam villages, into the Taluk Treasury. Of course, payments of land revenue are made to the village officers, viz., the Monegar or to the Karnam.
21. It is contended by Mr. Madhava Reddy, the learned Government Pleader, that the argument of Mr. Ramachandra Rao based on discrimination proceeds first on the assumption that there are two types of punishments, one under the Regulation and the other under the general law. But this is not so, because the provisions are only intended as a coercive process for recovery of money embezzled or misappropriated, and corruptly exacted. It is, according to him, a fallacy to consider the arrest and detention under the Regulation as a punishment. The second assumption is that there is no reasonable nexus between the classification and the object sought to be achieved by the Regulation. The Regulation, according to Mr. Madhava Reddy, is designed to further better administration of the district and not necessarily confined to public servants, in that it also deals with other classes of servants who are not public servants and with acts other than misappropriation, embezzlement, extortion, etc.
In support of this, he has referred to the preamble in which it is stated that the Regulation applies also to all persons amenable to Collectors' jurisdiction and that it was intended for the welfare of the people, all of which, according to him, goes to show that it is not confined to public servants alone or for collection of public revenues alone By reference to Section 2 of the Collectors' Regulation II of 1803, the learned Government Pleader argues that since the collection of public revenue derivedfrom land tax, excise or spirituous liquors is entrusted to the Collectors who shall be covenanted servants of the Government, all persons who are charged with the duty of collecting taxes are servants of Collectors' establishments, Alternatively, he contends that the Collectors are collecting agencies under the Special Acts, i.e., If any amounts assessed or payable under those Act are not paid, they can be collected under the Madras Revenue Recovery Act, which can only be done by the Collector through his officials. It is, therefore, sought to be contended that the establishments under the special Acts come under Section 2, third, first.
22. Taking the last point, first, in our view, these contentions are not warranted by !the provisions of the Regulation or under any of the special Acts under which tax, fee, licence, cess or duty, has to be collected. It may be stated that unless the Revenue Recovery Act is made applicable by any specific Act, the Collector cannot collect the amounts due under that particular Act and only when any provision in any specific Act authorises the collections under the Revenue Recovery Act, the Collector has to collect through his officers and servants who are of his establishment, and not through officers or servants of the Departments under the specific Acts. To cite a few examples, Section 16 (4) of the Andhra Pradesh General Sales Tax Act, Section 7 of the Hyderabad Abkari Act, Section 81 of the Hyderabad Forests Act, Section 66 of the Madras Forest Act, Section 48 of the Indian Stamp Act, Section 10 (2) of the Betting Tax Act, Section 4 of the Agricultural Lands Act, Section 8 of the Cinema Shows Act, Section 14 of the Madras Agriculture and Public Forests Act, Section 14 of the Hyderabad Water-supply Act, Section 17 of the Co-operative Land Mortgage Bank Act, Section 67 of the Andhra Pradesh Co-operative Societies Act, Section 58 of the Madras Cooperative Societies Act, Section 10 of the Entertainment Tax Act, Section 32 of the Hyderabad Irrigation Act, Section 2 of the Madras Irrigation and Cess Act, Section 13 of the Madras Irrigation, Levy and Betterment Tax Act, Section 14 of the Hyderabad Motor Vehicles Act and Section 8 of the Andhra Pradesh Sale of Motor Spirits Act, are all provisions under which the Collectors have been authorised to recover by distress and sale of movable property or by any other process for the time being in force for the recovery of arrears of land revenue.
The Collectors are empowered only i the normal collecting agencies created under the statutes are not able to collect and the special provision enables the Collector to collect the same by distress and sale of move able and immoveable properties in a summary way. This, however, does not vest the Collector with primary or other cognizance of cases of malversation by the officers of establishments created under the specific statutes; each class of servants under each of the specific provisions is distinct and separate from those of the establishments of the Collectors. The very same officials who collect land revenue will have to collect dues under the specific Acts as if they are arrears of land revenue.
This feature would further reinforce the contention of the learned advocate for the petitioners that the class of revenue officials to whom the Regulation applies are primarily and essentially concerned with collecting land revenue and as a class by themselves are dealt with by the Regulation while others in similar category are left out. The fact that the Collector is vested with the administration of the District does not mean that public officials of the various departments are of his establishment; nor does the preamble or the long title or any provision of the Regulation indicate that the Collector has power and control over servants or officials functioning under other statutes so as to bring them within the category of servants of the Collectors public establishments inasmuch as it is made clear that the object of the Regulation' is to recover moneys embezzled or corruptly received by public servants and others amenable to the Collectors' jurisdiction.
The reference to others amenable to Collectors' jurisdiction' or to the 'welfare of the people' is only in relation to the collection of revenue or pretended collection of revenue. Where there is embezzlement, defalcation or extraction by persons so closely connected with the Collector as to dupe the people by their impersonation, welfare of the people is in jeopardy. Nor would it be just to leave out of consideration such class of people merely because they are private servants of the Collector. As long as they can take undue advantage of their position by being closely connected with the Collector and extract amounts from innocent persons, they are as good as public officials who commit similar malversation of revenues. The categories of public servants and Collectors' establishments, headmen and other village officers of the village and others, not on the public establishment but in the private service of the Collector, etc., nonetheless form a single class and are not different classes as is sought to be contended. The category of persons envisaged in Section Third (1st) of the Regulation arc those whose appointment, supervision, control and pay are all under the jurisdiction of the Collector. Section 9 of the Collectors' Regulation II of 1803 provides that the Collectors have had and are declared to have authority to superintend and control under the orders of Board of Revenue of persons employed in the executive administration of Public Revenue, Zamindars or proprietors of land paying revenue and farmers, riots or other persons concerned in or responsible for any part of the revenue of the Government as far as such superintendence and control relates to the executive administration of the revenue under the Regulation then enacted or to be thereafter enacted. This provision makes it abundantly clear that unless superintendence and control relating to the executive administration of revenue is given by a particular Act, the Collector cannot be said to nave control over them; nor can il be said that the persons belonging to those Departments become the Collectors' public establishments.
23. It is again contended that in so far as malversation by revenue officials is concerned, it is in a special category, inasmuch as land revenue comprises the biggest Item of the revenue of the State and the nature of the collection involves a diffused collection from a large number of petty ryots, mostly illiterate, which makes it easy for malversation by the class of officials on whom is charged the duty of collecting the revenues. Accordingly, it is contended that the Legislature is free to recognise degrees of harm and may confine its operation to those where the need is deemed to be the clearest, which is one of the principles adopted in a line of decisions of the Supreme Court as classified in clause (d) by S. R. Das, C. J., : 1SCR279 (supra). It is contended that the nature of the harm that is sought to be provided against in the collection of land revenues does not bear similarity to the collection of other categories of public revenue under any other Act. It will be a misnomer to say that when the Regulation was promulgated the law-making authorities recognised several degrees of harm, as in those days there were no classes of employees other than those specified in the Regulation for collecting public revenues. We may at once state that an examination of the various categories of revenue in the budget of 1965-66 shows that while land revenue collections are Rs. 20,00,35,000, sales tax is Rs. 22 Crores. The Central taxes, such as Income-tax, state Duty, Wealth-tax, etc., which, in so far as the share of this State is concerned, are together in the range of Rs. 9,81,00,000. Large amounts of receipts over a crore each are collected on account of electricity, stamps, registration, motor vehicle taxes, forest and irrigation, etc. We give below the actual figures:
Rs. 1Taxes on Income Other than Corporation Tax.9,46,40,3002.Estate Duty35,00,0003.Land revenue (gross)20,00,35,004.State Excise duties.18,12,04,0005.Vehicle taxes.6,70,00,0006.Sales Tax.22,00,00,0007.Other taxes and duties (luxuries, entertainment). 1,54,71,0008.Receipts from Electricity dues.2,00,39,0009.Stamps. (a) Non judiaL2,00,50,000 (b) Indicial).1,00,15.00010.Rsgistration fees. 100,54,00011.Interest 18.16,78,000I2.Agriculture.2,48.45,00013.Irrilgation.2,73,44,00014.Electricity schemes.1,76,04,00015.Forest.4,21,00,00016.Miscellaneous.1,16,89,00017.State share of Union Excise Duties. 11,13,73,30018.Grants- in-aid from Central Govt31,64,00,000
24. As we have stated earlier, sales tax collections are much more than land revenue and those collections also are diffused and spread over petty business people. They are collected on sales and consumption of all commodities from grains, oils, foodstuffs and drink, etc. There is, however, this difference, that all the collections may not be in cash though no doubt in the other Departments, such as Stamps, Registration. Education, Civil and Criminal Courts, Public' Works Department, etc., they will be paid in cash and the likelihood of malversation of those funds is equally real. The extent of the collections of public revenue under each of the categories is however, not relevant, as long as persons situated similarly, namely the different classes of public servants collecting public revenue are discriminated
25. So far as the first contention is concerned, namely, that the arrest and detention under the Regulation is a punishment and that persons dealt with under this Regulation exposed themselves to two punishments, while public servants in other similar Departments charged with the duty of collecting public revenues are exposed only to one punishment under the Indian Penal Code a ground upon which the Madras High Court in Srinivasa Iyers case, 1966-1 Mad LJ 459. (supra) had based their decision it is submitted by the learned Government Pleader that ft goes counter to the Judgments of the Supreme Court. In the Madras case, Ramakrishnan, J., delivering the judgment of the Bench observed at p. 467:
'The result at the present time is that if a village headman or a karnam misappropriates land revenue or loan collections, he will be exposed to a double penalty, namely, proceedings before the Collector which involve the onerous punishments mentioned earlier, and also a prosecution before the Criminal Court; whereas a Commercial Tax Officer guilty of a similar act of misappropriation would be subject only to the punishment provided under Section 409, Indian Penal Code, or Section 5 (1) (c) of the Prevention of Corruption Act. Whatever might be the position at the time when the Regulation was passed in the days of the East India Company after the passing of the Constitution at the present moment, the Regulation has outlived the purposes for which it was passed and clearly operates in a discriminatory way between different classes of persons similarly situated and contravenes Article 14 of the Constitution'
26. Their Lordships of the Supreme Court in : 1957CriLJ1030 (supra) and : 1956CriLJ129 (supra) have held that an arrest and detention made under Section 48 of the Revenue Recovery Act or under S. 46(2) of the Income-tax Act,1922, are not for any offence committed or a punishment (or defaulting in payment. The mode of arrest is no more than a mode of recovery of the amount due and the arrest and detention cannot, therefore, be regarded as an arrest or detention within the meaning of Art. 22 of the Constitution. In the latter case, Das, A. C. J., (as he then was) at p. 26 said:
'....it is a fallacy to regard arrest and detention of a defaulter who fails to pay income-tax as a punishment or penalty for an offence. It is a coercive process for recovery of public demand by putting pressure on the defaulter.
The defaulter can get himself released by paying up the dues.'
27. These decisions have no bearing on the present enquiry, first because we are not considering the question as to whether the fundamental right guaranteed under Art. 22 is infringed; secondly, because the provisions of the Regulation are different and indicate fines and punishments unlike under the Income-tax Act or the Madras Revenue Recovery Act and are, therefore not in pari materia. The offences mentioned in clause (2) of Section 2 committed by the persons specified in clause (3) thereof are, under Section 5 (1) liable to be sentenced to pay a sum not exceeding twice the sum of money ascertained to be extorted or otherwise received, embezzled or misappropriated, and to be detained in the Cutcheri Section 5 (2) enables the Collector to detain any person in his Cutcheri and thereafter in the Zilla Jail as provided in Section 13. Clause (3) of Section 5 provides that the amount adjudged by the Collector in the manner stated already, shall be executed as a decree of Court of Adalat, by a warrant permitting attachment and sale of property. In some classes of cases, a fine not exceeding Rs. 500 is leviable under Section 5 (4) and in default, to imprisonment for a term not exceeding 12 months. Under Section 13, Clause 1, Collectors can keep a person against whom an enquiry is to be undertaken in house custody. Section 13, Clause (2), empowers the Collector, in cases where the person proceeded against has no property of his own to pay the amount adjudged, to forward him to the Zilla Court and at the initiative of the Government Vakil, the Zilla Judge may be moved to order him to be kept in such confinement and he shall be discharged only in the event of his paying the full amount adjudged by him or on an application by the Collector.
It may be noticed that where a person is held to have no property, he is to be confined in jail for a period which is not determined or definite and which can be an indefinite period, the only limit being until he pays the amount, unlike the provisions of the Revenue Recovery Act where the maximum period of confinement has been fixed. How a person who has no property can pay the amount is difficult to understand. The only conclusion is that it is designed to put pressure on his relations and friends to pay up the amount on threat of his being Kept in jail indefinitely. These provisions in the Regulation, where the words such as 'offence', conviction', 'fine', 'punishment' are used areof highly penal in nature. In this view, with respect, we agree with the observations of the Madras High Court that there is a discrimination between the classes of individuals dealt with under the Regulation and others similarly situated, the former of which are exposed to a double penalty, namely, proceedings before the Collector which involve an onerous punishment mentioned earlier as also prosecution before a Criminal Court, while the other categories are not so exposed. There is no warrant for a comparison of this procedure, as made by the learned Government Pleader, with that of arrest before judgment or arrest in execution of a decree. An arrest before judgment would be directed only when the Court is satisfied that the defendant has absconded or is about to abscond from the local limits of the jurisdiction of the Court or is about to leave India or that he has disposed of or removed from the local limits of the jurisdiction of the Court his property or any part thereof, as provided in Order 38, Rule 1, C.P.C. Similarly arrest of the judgment-debtor in execution of a decree is ordered among other conditions as provided in Section 51, C.P.C., only if the judgment-debtor has the means to pay the amount of decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same.
28. We have, therefore, the least doubt that the provisions for arrest and detention under Sections 5 and 13 of the Regulation are discriminatory and violative of Article 14 of the Constitution and are therefore void. In this view, it is unnecessary to consider whether in the individual cases there has been any violation of the provisions of the Regulation.
29. The result is that all these applications lowed, the orders of detention are quashed and the petitioners are directed to be set at liberty. As they are already on hail their bail bonds are cancelled.