SYNOPSIS

SYNOPSIS

AND

LIST OF DATES & EVENTS

This is a case of shocking and gross misuse of power by the Revenue Department Officials in the states of Uttar Pradesh, Madhya Pradesh, Uttaranchal, Jharkhand and Bihar, who carry out unofficial arrests without any decree or order of any Court, and keep indigent and destitute persons in unofficial jails like caged animals on account of their inability to repay a civil debt.

The Revenue Departments of the Respondent States have and are regularly misusing the provisions governing recovery of dues of the Uttar Pradesh Public Moneys (Recovery of Dues) Act 1972 (hereinafter referred to as the UP Recovery Act) and of the Uttar Pradesh Zamindari Abolition and Land Reforms Act 1950 (hereinafter referred to as the UP Act) to officiate the arrest of destitute defaulters, with total disregard for the safeguard provisions contained therein.

The UP Recovery Act provides for the transfer of only those debts and loans that are granted by the financial institutions included in the definition of Banks in Section 2 (f) of the Act to the Revenue Department to be recovered as arrears of land revenue. The definition of banks in the UP Recovery Act is enumerative and exhaustive in nature, including the State Bank of India and its subsidiary banks; corresponding new banks under the Banking Companies Act, 1970; a banking company as defined in the Banking Regulation Act, 1949; a financing bank or Central Bank as defined in the Uttar Pradesh Co-operative Societies Act, 1965 not being a land development bank. As per the definition, the UP Recovery Act does not cover statutory banks such as the U.P. State Agro-Industrial Corporation Ltd, the Agriculture Finance Corporation Ltd. and the Regional Rural Banks. Pertinent of the instant petition are the Regional Rural Banks which are incorporated under the Regional Rural Banks Act, 1959 and provide loans for specific purposes only. Being statutory banks, Regional Rural Banks are not within the ambit of the UP Recovery Act and dues to the same are not transferable to the Revenue Departments for recovery as arrears of land revenue. While the UP Recovery Act declares certain dues as recoverable as arrears of land revenue and lays down the procedure for their transfer to the concerned Revenue Departments, it is the UP Zamindari Abolition and Land Reforms Act 1950 that actually lays down in its Chapter X the procedure and modes for recovery of dues of land revenue. Section 279 of Chapter X of the said UP Act gives the procedure for recovery of an arrear of land revenue, wherein the Sub-section (1) of the said section provides for the use of any one or more of the seven distinct processes. Section 279 (1) (b) of the Act permits the arrest and detention of his person. Section 280 of the Act provides that the Tahsildar may issue a writ of demand or a citation on the defaulter calling upon him to appear and deposit the amount due by or on a date specified. Thereafter, the Tahsildar may cause the defaulter to be arrested under Section 281, with the exception of women and minors who are not liable to be arrested under this section. The section further stipulates that no defaulter shall be detained in custody for a period exceeding 15 days unless the arrears are sooner paid. The constitutionality of the above mentioned Sections 279 and 281 has been challenged time and again in the Honble Supreme Court of India as being hit by Article 14. However, having upheld the constitutionality of both the sections, this Honble Court has observed that the necessary safeguard against the arbitrary and illegal use of the provisions of arrest and detention is contained in Rule 251 of the UP Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as the Rules).

Rule 251 of the Rules provides as follows

(1) Whenever the Tahsildar causes a defaulter to be arrested, he shall without delay report the fact for the information of the Collector and Assistant Collector of the Sub-division.

(2) After arrest, a defaulter shall be brought without delay before the officer, who issued the warrant and shall not be detained in custody unless there is reason to believe that the process of detention will compel the payment of the whole or a substantial portion of the arrear. If an order for detention is passed, it shall specify the date on which the detention will cease if the arrear is not sooner paid.

It distinctly emerges from the above provision of the law that the officer causing the arrest of the defaulter should hold an inquiry into the means and ability of the debtor to repay the loan and only upon being satisfied that the defaulter has had the means and thereafter refused or neglected to repay the amount due, should the officer continue to hold his person in detention. Imprisonment as it follows, in such cases, is not based on mere non-payment nor on mere inability to pay, but is confined to cases where the person is able to pay and dishonestly or fraudulently makes default in payment. The essential condition for detaining a defaulter in custody is the possession of the means coupled with the failure or neglect to pay.

The basis of the instant petition is the sixteen case-studies that the Petitioner has collected and documented in the course of his field work for the Right to Food Campaign in the state of Uttar Pradesh and Uttaranchal. All the defaulters in the cases-studies are indigent destitute persons who were, prior to taking of the loan that they are now unable to repay, subsisting on whatever trifling sum they earned working as agricultural labourers.

The modus operandi in almost all cases is the same. The person concerned takes a small debt of between Rs. 5000/- to Rs. 15, 000/- from their local Regional Rural Banks. After paying some installments due to a crisis or illness or bankruptcy, the person is unable to repay the loan for various reasons. In order to recover the loan, the following is done.

The Regional Rural Banks transfer these loans, and various other dues that have become unrecoverable to the Revenue Department to be recovered as arrears of land revenue, following the procedure as prescribed under the UP Act, 1950.The Revenue Officials then arrest the persons. They lock him up in a jail, which is generally a room belonging to the Revenue Department at the tehsil or taluka level. They keep the person locked up for 14 days at a time. The rooms have no toilets or water supply. The prisoner urinates and defecates in the same room in which he sleeps.

He is provided neither food nor water, nor medical treatment by the Revenue Officials. His family and relatives are allowed to pass the prisoner food through the bars of the jail.

The relatives are required to pay the Revenue Officials for the cost incurred by them in incarcerating the persons @ Rs. 50 per day. At the end of 14 days on the promise of repayment of loan, the person is set free and is told that if the loan were not repaid within a specified period, he would be arrested and jailed again.

This Petition is squarely covered by the direction of this Honble Court in Jolly George Varghese and Anr. Versus The Bank of Cochin reported in (1980) 2 SCC 360, Justice VR Krishna Iyer and Justice RS Pathak held that To cast a person in prison because of his poverty and consequent inability to meet his contractual liability is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his willful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness. Further referring to Article 11 of the International Covenant on Civil and Political Rights, the judgment states that it is violative of the spirit of Article 11 to arrest and confine him in jail so as to coerce him into payment...The Article 11 of the International Covenant on civil and Political Rights reads, No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation.

To elucidate further, the judgment states, The covenant bans imprisonment merely for not discharging a decree debt. Unless there be some other vice or mens rea apart from failing to foot the decree, international law frowns on holding the debtors person in civil prison, as hostage by the court. India is now a signatory to this Covenant and Article 51 (c) of the Constitution obligates the State to foster respect for international law and treaty obligations in the dealings of organized people with one another.

In the judgment Honble Justice Krishna Iyer summed up by stating that 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 emphasises 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.

While upholding the Constitutional validity of the Uttar Pradesh Zamindari Abolition & Land Reforms Act 1950, the Honble Supreme Court in Ram Narayan Agarwal V. State of Uttar Pradesh, reported as (1983) 4 SCC 276, took the view that The situations mentioned in the proviso to Section 51 which is the section dealing with arrest in execution of decrees for payment of money are those which indicate fraud or clandestine designs on the part of the judgment-debtor. Mere inability to perform the obligation to repay a loan (or other monetary obligation) does not result in imprisonment.

Further in Paragraph 11. of the judgment, this Honble Court also pointedly states that The second safeguard prescribed by the law in question is contained in Rule 251 of the U.P. ZALR Rules. Sub-rule (2) of Rule 251 requires that the production of the defaulter who is arrested before the officer who issued the warrant without delay and that such defaulter should not be detained in custody unless there is reason to believed that the process of detention will compel the payment of the whole or a substantial portion of the arrear.

Thus, in conclusion, in Paragraph 17 the Honble Court held that since no such inquiry is held in any of these cases. Hence, the petitioners cannot be detained pursuant to any warrant of arrest already issued. We have, therefore, to quash the warrant...

This Writ Petition is based on the testimonies of 16 such destitute persons who were illegally arrested and detained in such circumstances on a number of occasions and kept in deplorable conditions and treated worse than animals. The sixteen documented case-studies set forth are harrowing tales of human rights abuse.

The loans in the instant cases were granted by the local Regional Rural Banks to destitute persons for one of the purposes that these banks were incorporated. These banks are statutory banks and clearly distinguishable from the banks under the UP Recovery Act. Hence the loans in all the cases cited herein are, in the first place, not transferable to the Revenue Department for recovery following the procedure of arrest and detention under Section 279 of the Act.

Notwithstanding the aforesaid, the procedure laid down in the said Act under Section 280 requires a writ of demand or citation to be issued by the Tahilsdar to the defaulter calling upon him to pay the amount due within a specified time. There is no record of any such notice having been issued to any of the defaulters. Furthermore, the precautionary measure to conduct an inquiry into the means and ability of the defaulter to repay the loan that justifies the process of arrest and detention as a mode of recovery as provided for in Rule 251 of the UP Rules has also not been followed by the concerned officers, for had any such inquiry been held the officer would most certainly have arrived at the conclusion that the defaulters herein did not at any point in time after having received the loan have the means to repay the amount. Not following the procedure of conducting an inquiry under Rule 251 has in itself been held sufficient reason, by this Honble Court, to quash all proceedings against the defaulters. The chronological sequence of the facts and events relevant to the present case is as follows:

1950The Uttar Pradesh Zamindari Abolitiona and Land Reforms Act was enacted wherein the procedure for recovery of arrears of land revenue has been laid down and its Section 279 and Section 281 provides for arrest and detention as a mode for recovery of dues of land revenue or other dues that have become recoverable as arrears of land revenue.

1972The Uttar Pradesh Public Moneys (Recovery of Dues) Act came into force with the main object of declaring certain dues and moneys that are referred to in the Act shall be recoverable as arrears of land revenue and it lays down the procedure for the transfer of the same to the Revenue Department which is the competent authority for recovery of land revenue and its arrears.

04.02.1980Jolly George Varghese V. Bank of Cochin, (1980) 2 SCC 360, a landmark judgment of this Honble Court, referred to Article 11 of the International Covenant on Civil and Political Rights when he stated that it is violative of the spirit of Article 11 to arrest and confine him in jail so as to coerce him into payment.. It further states that To cast a person in prison because of his poverty and consequent inability to meet his contractual liability is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his willful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness.

23.08.1983Though a Bench of three in a matter titled Ram Narayan & Ors. V. State of Uttar Pradesh & Ors., reported as (1983) 4 SCC 276 held that the procedure contained in Section 279 (1) (b) and Section 281 of the Act read with Rules 247 to 253 of the Rules are not violative of Articles 14, 19 (1) (d) and 21, they further held that certain safeguards that have been provided therein must be followed failing which the defaulters cannot be detained in custody.

1988 to 1996Mr. Santram, a destitute, wanted to set up a tea-shop for which he took on loan goods worth Rs. 6000/- and Rs. 2000/- in cash from the Regional Rural Bank, Rampur, Faizabad on 15.02.1988. Due to Santram being a person belonging to scheduled caste, people hesitated in visiting his shop and soon it had to be closed. The peon of the Revenue Department started harassing him for repayment. One Mr. Tuntun Singh first visited him in this regard in 1992. He was eventually arrested on three occasions, in 1993, 1995 and 1996, where he was incarcerated for 14 days on every instance.

1989 to 1990Mr. Yaad Ram, a 55 years old destitute man from Hossilpur village, District Faizabad applied for a loan of Rs. 16000/-, to open a general merchant shop, from the Regional Rural Bank, Rampur. He received Rs. 8000/- in cash and the other half in the form of goods for the shop. Yaad Ram fell severely ill and continues to be under treatment till date. All the money from the loan was used up for treatment and now he is neither left with any means to re-start his shop nor with any to repay the loan. The Revenue Department officials arrested him in 1990 for a period of 14 days. While in detention he was given no food or water. He eventually paid Rs. 1100/- to buy his release. This case study is peculiar in nature, as the borrower has repaid the entire amount of the loan by leasing his land to the Department officials for which he has not even been given a receipt and yet the Revenue Officials continue to harass him.

1989 to 1992A young man, Delip Kumar wanted to open a shop in his village of Horilpur in the District of Faizabad. He took a loan at the rate of 12% interest per annum on 02.08.1989. He received two installments of Rs. 10000/- in cash from the Regional Rural Bank of Rampur, Faizabad. Delip sold his piece of land to repay Rs. 12306/- of the total loan amount. As he was unable to repay the balance, the Revenue Department Officials started harassing him and finally arrested him for a period of 4 days in 1992 when he managed to free himself by paying the officials. He is now not only a destitute but also landless, leaving him with no means of daily sustenance.

1990 to 2003A woman, Mrs. Shanti, age 60 years, resident of village Pakkanpur, tehsil Akbarpur wanted to set up a shop. She obtained a loan in kind of Rs. 10000/- on 18.09.1990. In June, 2002 a local level employee of the Revenue Department began harassing her and she was arrested twice. In 2002, she was picked up from her home and detained for 6 days whereas in 2003 she was arrested and detained for 14 days. All she wants now is that she should not be sent to jail again.

1991 to 2004A resident of village Bevana, Mr. Phulen was unable to repay a loan amount of Rs. 12197/- to the Regional Rural Bank, Jafarganj, Ambedkar Nagar, which he had taken on 06.02.1991 to set up shop for earning regular livelihood. Of the loan applied for, Mr. Phulen received only Rs. 8500/-. He was later told that he is required to repay only Rs. 6197/- to the Bank. However, he had to shut shop due to the demise of his brother. The bank staff started their routine harassment on 20.02.2004 after which he was arrested from his home and detained for 5 days in the private lock-up room of the Revenue Department. The detainee was forced to urinate and defecate in the same room that he was confined in.

1991 to 2002Aged Mr. Shriram is 85 years old and a destitute, residing at Gynapur village, Tehsil Akhbarpur. He acquired an engine worth Rs. 9500/- after having taken a loan on 21.12.1991 from the Regional Rural Bank, Rampur, Faizabad. His harassment began in 1993 by the peon of the Bank. He has since been arrested four times. In 1994, he was picked up from his field; in 1995 he was re-arrested from his home this time to be released after a fortnight. He was later arrested in 1998 from his field again and the last time he was arrested was from the market place in 2002. A period of 14 days on every arrest means a total of 56 days of detention.06.04.1992In T.N. Mathur Vs. State of Uttar Pradesh, reported as 1993 Supp (1) SCC 722 this Honble Court has held that the wherever such detentions are resorted to, the persons detained must be housed in a lock-up which will provide at least 40 sq. ft. per person with minimal facilities of some furniture such as a cot for each of the detained persons and supply potable water. Having regard to the climatic conditions of the place, the lock-up should provide for an electric fan. There must be hygienic arrangements for toilet.1992 to 1996Fateh Bhadur, wanting to purchase flour mill engines, took a loan of Rs. 15000/- from the Regional Rural Bank, Rampur in Faizabad District. The cheque was released in the name of the dealer from whom the engine was to be purchased. At the time of taking the loan he was asked to sign a blank stamp paper. He began repayment in installments until he suffered a fracture in his hand, after which he has not been able to continue the payment. In 1996, the Revenue Department officials took Bhadur into custody from a field, for two days, where the treatment meted out to him was worse than that of animals. After making a representation to the local authorities he received a grant of Rs. 5000/- from the government. He repaid the loan entirely by contributing Rs. 10000/- from his side but the Revenue Officials have not yet stopped ill-treating and harassing him.

1993 to 2001To purchase a diesel engine for a tubewell, Late Mr. Naresh took a loan of Rs. 13000/- of which he repaid Rs. 2700/- on 24.03.2001 and another Rs. 2000/- on 13.07.2001. Since his demise, the Revenue Department is still claiming a total of Rs. 13499/- from his sons for which the officials are routinely torturing them.

1995 Mrs. Bhanmati is a woman residing in village Usmarpur, tehsil Akbarpur. She belongs to the Kewat caste, which is considered the most backward in the region. She took a loan of Rs. 10000/- from Faizabad Regional Rural Bank in Jafarganj, Ambedkar Nagar, for setting up a cloth shop. She ultimately received only Rs. 6200/-. Bhanmati suffers from asthma and soon all the borrowed money was spent on her treatment, leaving her nothing to establish her shop with. The Collector along with Amin, a local level Revenue Department employee started harassing her to recover the amount. When they attempted to arrest her, she managed to flee despite being chased by the police. All that Bhanmati wants now is that the amount be collected from her in installments.

1998 to 2003Mr. Mundar Ram received a loan of Rs. 9500/- at 4% interest rate from the Regional Rural Bank, Rampur to purchase a weaving machine. However, due to ill-health he was unable to repay the same. On 28.02.2002, the Revenue Department officials started harassing him and he was arrested from the market, to be detained for 3 days. He was once again arrested in 2003, only this time he was kept in the Revenue Department lock up for 14 continuous days.

2000Shri Ganesh Ram is a destitute resident of Village- Garhigoath, Champawat District. He borrowed an amount of Rs.1700/- to purchase cattle for the purposes of breeding and trading. The animals he purchased were normally left in the open forest area surrounding his village. However, on one such occasion, all he found of his livestock when he came to fetch them was their carcass as some sort of a wild animal in the forest had devoured them. The Naib Tehsildar alongwith another local level official reached his house, tied him up with a rope and placed him under arrest. He sustained himself on the little food that his family was allowed to throw into his cell from the space in between the bars. He was finally released when his wife sold all the jewelry and utensils to repay the debt.

2001 to 2002A landless farmers, Ram Pratap purchased a buffalo after taking a loan of Rs. 10000/- in cash from the Agricultural Development Bank, Akbarpur district. However, the buffalo he had bought died and he now owns nothing with which he can repay the loan. Personnel from the District Administration arrested him in 2002, when he was kept in custody for 14 days. The only demand of Ram Pratap now is that the harassment is stopped and he be given an opportunity to repay the loan.

February 2002Mr. Suresh Ram Arya, a destitute from Village-Panthagoath, Tehsil Champawat took a loan of Rs. 7000/- from a developmental bank to set-up a small shop in his village. However, the majority population of the village being of the upper-class refused to purchase at his shop as he was a member of the dalit community and soon he had to shut shop. The Revenue Officials called him to a neighbouring village named Khatima where he was suddenly taken into custody. He was detained here for a period of 14 days, with no food or water as his family did not know of his whereabouts.

2003 - 2004One Mr. Chanchal Ram, was a landless labour in his native village of Garhigoath in the Champawat district of the State of Uttaranchal. He purchased two buffaloes out of a loan amount of Rs. 7000/- from a local bank. These were stolen when he had left them in open pastures to graze. All his attempts to find to the stolen buffaloes failed, leaving him with no means to repay his loan amount. This fact did not deter the Officials from the Revenue Department, who alongwith police personnel, ransacked the house of Mr. Ram, used profanity of the worst kind in the presence of his other family members, dragged him on the ground and beat him up badly. After his friends and family managed to put together some money to repay a portion of the loan, he was released only to be haunted yet again. In February 2004, the Revenue Department people were back once again but left soon after taking money for not arresting him again.

15.04.2004

Hence, the present Writ Petition.

IN THE SUPREME COURT OF INDIA

ORIGINAL CIVIL JURISDICTION

WRIT PETITION (CIVIL) NO. 510 OF 2004

(Under Article 32 of the Constitution of India)

IN THE MATTER OF:

Sanjay Kumar Rai

A 8 Sarvoday Nagar,

Indra Nagar,

Lucknow 226 016

Petitioner

VERSUS

1.The Union of India,Through its Secretary,Ministry of Human Resources Development, Shastri Bhavan, New Delhi-110001

2.State of Uttar Pradesh

Through its Chief Secretary,

Sachivalaya, Lucknow,Uttar Pradesh

3.State of Madhya Pradesh

Through its Chief Secretary,

Secretariat, Bhopal,Madhya Pradesh

4.State of Chhattisgarh

Through its Chief Secretary,

Secretariat, Raipur,Chattisgarh

5.State of Jharkhand

Through its Chief Secretary,

Secretariat, Raipur,Chattisgarh

6.State of Uttaranchal

Through its Chief Secretary,

Secretariat, Dehradun,Uttaranchal

7.State of BiharThrough its Chief Secretary Secretariat, PatnaBihar

Respondents

A CIVIL WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA FOR A WRIT OF MANDAMUS OR ANY OTHER WRIT, ORDER OR DIRECTION IN THE NATURE OF MANDAMUS DIRECTING THE RESPONDENTS TO DISCONTINUE THE PRACTISE OF ARREST FOR INABILITY TO REPAY CIVIL DEBTS AND TO COMPENSATE PERSONS SO INCARCERATED AND FOR OTHER RELATED RELIEFS.

To

The Honble Chief Justice of the

Supreme Court of India & his Lordships

Companion Judges of the Honble Supreme Court

the humble Petition of the

Petitioner above named

MOST RESPECTFULLY SHOWETH:

1. That the present petition arises under Article 32 of the Constitution of India seeking for a Writ of Mandamus or any other Writ, order or direction in the nature of Mandamus, directing the Respondents to discontinue the misuse of the provisions allowing arrest as a means of recovery of arrears of land revenue provided in the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the UPZALR Act), to arrest and detain destitute persons for their inability to repay civil debts and to compensate persons so incarcerated and for other related reliefs as this practice is a clear violation of Article 21 of the constitution of India.

2. That the Petitioner herein is a citizen of India and is therefore entitled to seek the indulgence of this Honble Court by way of Writ Petition under Article 32 of the Constitution of India. He is a social activist who has been working largely on the Right to Food campaign in the state of Uttar Pradesh. It is the campaign that arose out of a petition presently pending before this Honble Court, Writ Petition (Civil) No. 196 of 2001 titled PUCL Vs. Union of India & Ors. This petition is an outcome of the work of this public-spirited citizen to bring forward the thirteen stark cases, of indigent destitute people who are unable to approach this Honble Court due to various reasons, into full public view so that the incarceration of destitute persons for recovery of civil debts or any other property which now continues unabated be stopped.

3. That the Respondent No. 1 is the Union of India. The Respondent No. 2 to Respondent No. 6 are states in the northern and central regions of India where the practice of arrest and detention as coercive means of extracting payment, even from destitute indigenous persons, are common place and are as such responsible for the continuance of the same as Revenue Officials are not just partisans but amongst those responsible for the shameful violation of the most fundamental of rights of destitute and illiterate citizens of a belt that is already struck with wide-spread poverty, disease, malnutrition and unemployment.

4. That the facts and circumstances leading to the filing of this petition are as follows.

5. That the plight of all the persons who had been incarcerated for the recovery of loans due to various local Regional Rural Banks first came to the knowledge of the Petitioner herein on his visits to the interiors of Uttar Pradesh and Uttaranchal where he works for the Right to Food Campaign. Due to the abject poverty that prevails in the region, all the persons whose cases have been cited herein approached the Petitioner and made emotional representations. Thereafter, the Petitioner interviewed each of those who had deposed before him and documented the details of their cases.

6. That the harassment in most cases began soon after a year of having taken the loans lapsed or as soon as the now defaulters failed to timely pay a prefixed installment amount. The perpetrators of such harassment and coercion were generally the clerical staff such as the peon and in other cases the Revenue Officials, for instance the Amin or the Collector themselves were the harassers. 7. That the loans have been taken from Regional Rural Banks for one of the purposes that such banks were incorporated for under the Regional Rural Banks Act, 1976. These banks are statutory banks and clearly distinguishable from the banks whose bad debts can be transferred under the UP Recovery Act to the Revenue Department for recovery as public dues of land revenue arrears. The definition of banks under Section 2 (f) of the said Act is enumerative and exhaustive including State Banks, corresponding new banks, banks under the Banking Regulation Act and Banking Companies under the Companies Act, therefore not covering statutory banks such as the Regional Rural Banks. 8. That the defaulters were illegally arrested under Sections 279 and 281 of the UP Act when the harassment did not result in recovery. The plea that they had no means of repaying the loan amount and that they would arrange to repay at the earliest possible fell upon deaf ears. These poverty stricken defaulters were picked up from their homes, the market place or from the fields they worked on.9. That the mandatory inquiry under Section 251 of the UP Rules into the means of the defaulters to repay the loan amount was not conducted. Sub-section (2) of the said Section 251 reads After arrest, defaulter shall be brought without delay before the officer, who issued the warrant and shall not be detained in custody unless there is reason to believe that the process of detention will compel the payment of the whole or a substantial portion of the arrear. It is the only safeguard measure against arbitrary and illegal arrests that can be officiated by the Revenue Officials in a gross misuse of their powers.

10. That all arrests were carried out without following the due procedure as established by law. There is no record or proof of a warrant being issued in any of the case-studies as is required to be done prior to any arrest for recovery of dues even as established by Section 281 of the UP Act and Rule 247 of the Rules. The writ of demand or a citation to appear as can be issued and served upon the defaulter under Section 280 of the Act have also not been issued. 11. That in any case, such arrests are prima facie illegal by the virtue of the simple fact that they were being conducted by Revenue Department Officials who have no authority to carry out arrests unless an inquiry is made into the ability of the defaulter to repay establishes that the defaulter is willfully withholding payment.12. That the persons were illegally confined by the officials in private jails belonging to the Revenue Department. There was no sign of even basic civic amenities. Those incarcerated were left to urinate and defecate in the same rooms that they lived in. Water and electricity was not made available. Some were kept for 14 days in a row in solitary confinement. The family members of the arrested persons could not see or meet them. They were only allowed to pass food across through bars of an open window in the rooms.

13. That thirteen persons in the District of Faizabad, Uttar Pradesh and four other destitute persons from the state of Uttaranchal were arrested and detained by the Revenue Department Officials for their inability to repay civil debts from the Regional Rural Banks. They were picked up and held in private jails of the Revenue Department offices for periods of fourteen days in a row and released on paying bribes to the tune of thousands.

14. That the persons so incarcerated belong to schedule caste or other backward classes and are extremely poor. Neither do they own agricultural land nor are they of a fixed income of any other kind. The loans that they applied for from the Regional Rural Banks were for the purpose of establishing some steady source of income such as tea-shops or repair shops or for improving their meager agricultural incomes by installing a well pump engine. 15. That it is apparent from these case-studies that the economic hardships that are faced in the region are more acute for persons belonging to the Scheduled Castes. As is the scenario in the instant case-studies, the members of backward classes are the most harassed and easy targets for the officials.

16. That the case-studies listed herein also reflect that acquiring the loan amount applied for was anything but simple. Not only did all the debtors settle for unfair interest rates as terms of repayment but they also paid close to 15% to 50% of the amount as an unofficial commission to the Bank Officials who sanctioned their individual loans. 17. That the Revenue Officials only released the persons from illegal detention that they were kept in with the threat that they would certainly be re-arrested if the money was not repaid soon enough. In some instances, they were released earlier if the family managed to gather enough money to bribe the officials into releasing him. For some of them the misery did not end after being arrested the first time. The Revenue Department officials returned with more threats and coerced these destitute villagers who kept paying various amounts, big and small, to the officials to escape arrest.18. That no personal information of the defaulter has been maintained by the Revenue Department Officials. Besides having received some part of the loan amounts, these illiterate and unassuming indigent persons did not even receive a receipt of the amount finally released. In some cases, the money was directly paid to the store from which they wished to purchase machinery. Worse still are the cases of those persons who deposited the initial installments and no receipts to the effect were issued to them. In these cases, the Revenue Department is still claiming the entire loan amount from them.19. That this petition is squarely covered by the direction of this Honble Court in Jolly George Varghese & Anr. Vs. The Bank of Cochin reported in (1980) 2 SCC 360, where it was held that To cast a person in prison because of his poverty and consequent inability to meet his contractual liability is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his willful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness. Further referring to Article 11 of the International Covenant on Civil and Political Rights, the judgment states that it is violative of the spirit of Article 11 to arrest and confine him in jail so as to coerce him into payment...The Article 11 of the International Covenant on civil and Political Rights reads, No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation. To elucidate further, the judgment states, The covenant bans imprisonment merely for not discharging a decree debt. Unless there be some other vice or mens rea apart from failing to foot the decree, international law frowns on holding the debtors person in civil prison, as hostage by the court. India is now a signatory to this Covenant and Article 51 (c) of the Constitution obligates the State to foster respect for international law and treaty obligations in the dealings of organized people with one another.

In the judgment this Honble Court summed up by stating that 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 emphasises 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.20. That the deplorable state in which the destitute persons were detained constitutes cruel, inhuman and degrading treatment amounting to torture and violative of the judgment in T.N. Mathur Vs. State of Uttar Pradesh, reported as 1993 Supp (1) SCC 722 wherein this Honble Court has held that the wherever such detentions are resorted to, the persons detained must be housed in a lock-up which will provide at least 40 sq. ft. per person with minimal facilities of some furniture such as a cot for each of the detained persons and supply potable water. Having regard to the climatic conditions of the place, the lock-up should provide for an electric fan. There must be hygienic arrangements for toilet. 21. That in each of the sixteen cases various provisions of the law have been flagrantly and purposefully ignored in order to carry out illegal and arbitrary arrests. A synopsis of the case-studies where the violations are the starkest are being reproduced hereinafter to highlight such blatant abuse of the law and to further highlight the plight of the destitute persons who become the victims of these practices. Mr. Santram was arrested thrice. He wanted to set up a tea-shop for which he took on loan goods worth Rs. 6000/- and Rs. 2000/- in cash from the Regional Rural Bank, Rampur, Faizabad. Due to Santram being a person belonging to scheduled caste, people hesitated in visiting his shop and soon it had to be closed. The peon of the Revenue Department soon started harassing him for repayment. One Mr. Tuntun Singh was one of the persons who first visited him in this regard in 1992. He was arrested on three occasions, in 1993, 1995 and 1996, where he was incarcerated for 14 days on every instance. Mr. Shriram is 85 years of age, R/o Village Gynapur, Tehsil Akhbarpur who acquired an engine worth Rs. 9500/- after having taken a loan from the Regional Rural Bank, Rampur, Faizabad. His harassment began in 1993 with the Peon of the Bank. He has since been arrested four times. In 1994, he was picked up from his field; in 1995 he was re-arrested from his home this time to be released after a fortnight. He was later arrested in 1998 from his field again and the last time he was arrested was from the market place in 2002. A period of 14 days on every arrest totals to 56 days of arrest in all. Fateh Bhadur, wanting to purchase flour mill engines, took a loan of Rs. 15000/- from the Regional Rural Bank, Rampur in Faizabad District. At the time of taking the loan he was asked to sign a blank stamp paper. He began repayment in installments until he suffered a fracture in his hand, after which he has not been able to continue the payment. In 1996, the Revenue Department officials took Bhadur into custody from a field for two days. After making a representation to the local authorities he received a grant of Rs. 5000/- from the government. He repaid the loan entirely by contributing Rs. 10000/- from his side but the Revenue Officials have not yet stopped ill-treating and harassing him. To purchase a diesel engine for a tubewell, Late Mr. Naresh took a loan of Rs. 13000/- of which he repaid Rs. 2700/- on 24.03.2001 and another Rs. 2000/- on 13.07.2001. Since his demise, the Revenue Department is still claiming a total sum of Rs. 13499/- from his sons for which the officials are routinely torturing and harassing them. Delip Kumar applied for a loan of Rs. 22000/- to set up a shop. He received the same in two installments of Rs. 10000/- in cash at the rate of 12% interest per annum from the Regional Rural Bank of Rampur, Faizabad. Delip sold his piece of land to repay Rs. 12306/- of the total loan amount. As he was unable to repay the balance, the Revenue Department Officials started harassing him and finally arrested him for a period of 4 days in 1992 when he managed to free himself by bribing the officials. As only some portion of the sum remains to be repaid, he wants the same to be waived. Mrs. Shanti is a destitute 60 years old woman and wanted to set up a shop. She obtained a loan in kind of Rs. 10000/-. In June, 2002 a local level employee of the Revenue Department began harassing her. She was then arrested twice. In 2002, she was picked up from her home and detained for 6 days whereas in 2003 she was arrested and detained for 14 days. All she wants now is that she should not be sent to jail again. Whereas the first proviso of Section 281 of the UP Act clearly reads that no woman or minor shall be liable for arrest under this section. The case of another destitute woman is that of Mrs. Bhanmati, resident of village Usmarpur, tehsil Akbarpur alongwith her husband. She took a loan of Rs. 10000/- from Faizabad Regional Rural Bank in Jafarganj, Ambedkar Nagar, for setting up a cloth shop. She, however, ultimately received only Rs. 6200/- of the loan amount. Bhanmati suffers from asthma and soon all the borrowed money was spent on her treatment, leaving her nothing to establish her shop with. The Collector along with the Amin started harassing her to recover the amount. All that Bhanmati wants now is that the amount be collected from her in installments. Mr. Chanchal Ram is a landless labour in his native village of Garhigoath, Champawat district, Uttaranchal. He purchased two buffaloes out of a loan amount of Rs. 7000/- from a local bank. The cattle were stolen from the grazing pastures where he had let them loose. All his attempts to recover the buffaloes failed, leaving him with no means to repay his loan amount. This fact did not deter the Officials from the Revenue Department, who alongwith police personnel, ransacked his house, used profanity of the worst kind in the presence of his family members, dragged him on the ground and beat him up badly. The police and the Revenue Department Officials also beat up all the people who protested the arrest of Chanchal Ram.

22. That the taking of a loan from a bank involves a contractual obligation to repay the same. However, the Supreme Court has time and again reiterated that no person can be arrested for his inability to fulfill a contractual liability, and especially not when he is of any means to do so. In Jolly George Varghese V. Bank of Cochin, (1980) 4 SCC 360, a landmark judgment by the Honble Supreme Court referred to Article 11 of the International Covenant on Civil and Political Rights when he stated that it is violative of the spirit of Article 11 to arrest and confine him in jail so as to coerce him into payment.. 23. That the judgment of Jolly George Varghese Vs. The Bank of Cochin (Supra) further states that To cast a person in prison because of his poverty and consequent inability to meet his contractual liability is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his willful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness.24. That it is more than apparent from the sixteen case-studies cited herein that the officials of the Revenue Department are regularly misusing those provisions of the law that were are, in the first place, made with public interest as the prime concern. This trend of arbitrary and illegal arrests to recover dues, coercing innocent people for personal monetary gains, and thereby, causing grave and irreparable loss to destitute villagers who have no knowledge of the law, grows unabated in the Respondent States.

25. That freedom from arbitrary arrest is a basic human right which is secured by a provision that any one who is arrested must be immediately brought before a judicial body which can then pronounce on the legality of the arrest, and in appropriate cases, authorize his continued detention. However, the persons arrested by the Revenue Department were neither produced before a judicial authority nor was the proper procedure as established by law followed.

26. That the right not to be deprived of ones liberty except by the authority of law is a principle which does not emanate exclusively from Article 21 of the Constitution, but exists independently of the Article under the aegis of natural law. However, the same has been guaranteed as a Fundamental Right and by that virtue its sanctity is inviolable.GROUNDS:

Aggrieved at the action of the Respondents which is totally arbitrary, discriminatory and hence, unconstitutional, the Petitioner is filing the present petition on the following amongst other grounds which are set out without prejudice to each other:

A. Because it is contrary to the Constitutional mandate of Article 21 for the personal liberty of any person may be held ransom purely on account of his inability to repay a civil debt.

B. Because in Jolly George Varghese and Anr. Vs. The Bank of Cochin it was held by this Honble Court that To cast a person in prison because of his poverty and consequent inability to meet his contractual liability is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his willful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness.

C. Because such arrests for the recovery of civil debts and any enactment permitting the same are further violative of Article 11 of the International Covenant on Civil and Political Rights, which having been ratified by India is enforceable under Article 51 ( c) of the Constitution.

D. Because the Regional Rural Banks are statutory banks incorporated under the Regional Rural Banks Act, 1976 and clearly differentiable from the banks that are incorporated under the Banking Regulation Act, 1949 and the Banking Companies Act, 1970. Hence, dues recoverable from defaulters of the Regional Rural Banks are not transferable to the Revenue Department under the Uttar Pradesh Public Money (Recovery of Dues) Act to be recovered as arrears of land revenue.

E. Because notwithstanding the aforesaid, Rule 251 of the UP Rules requires an inquiry to be made to ascertain whether the process of detention will compel payment of the whole or a substantial portion of the arrear, that is to say that the defaulter indeed has the means to repay the dues and is not willfully denying repayment.

F. Because firstly even the procedure that has been minutely laid down in the UP Recovery Act for transfer of such loans from one Bank to another Department for recovery as arrears of land revenue has not been followed and secondly, no inquiry which acts as the only safeguard against arbitrary arrest under Rule 251 of the Rules has been conducted in any of the cases cited herein.

G. Because had the prescribed inquiry been duly conducted, the Revenue Department would have, with no difficulty, been able to establish beyond doubt that in all the cited cases the defaulters are destitute persons and at present have no means whatsoever of repaying their respective loans.

H. Because in the circumstances, the actions of the Revenue Officials in arresting and detaining persons purely on account of their inability to repay a civil debt is illegal, arbitrary and unconstitutional.

I. Because the arrests so carried out in excess of the powers of arrest granted to the Revenue Department as the instant loans are not public dues and hence, not recoverable as land revenue arrears.

J. Because the Revenue Officials involved in the illegal arrest herein are liable to compensate the persons thus incarcerated.

K. Because the mandate of the Revenue Authorities does not go beyond the recovery of land revenue arrears and arrests ordered by any revenue official in cases of any other nature are not sanctioned by any law, thus making them liable for disciplinary action in the cases set out herein.

L. Because the deplorable state in which the destitute persons were detained constitutes cruel, inhuman and degrading treatment amounting to torture and violative of the judgment of this Honble Court in the T.N. Mathur Vs. State of Uttar Pradesh, reported as 1993 Supp (1) SCC 722.

27. That the Petitioner has no other equally efficacious alternative remedy other than the filing of the present petition.

28. That the Petitioners have not filed any other petition seeking the same relief as prayed for herein against the Respondents herein before this Honble Court or before any other Court in the country.

PRAYER:

In the above mentioned facts and circumstances, it is most respectfully prayed that this Honble Court may graciously be pleased to:

a) Issue a Writ of Mandamus or any other appropriate writ or order directing the Respondents to restrain their respective Regional Rural Banks from recovering their loans, directly or indirectly, as arrears of land revenue; and

b) Issue a Writ of Mandamus or any other appropriate writ or order directing the Respondents Authorities to conduct an enquiry in accordance with law to determine whether the debtor iswillfully not repaying the loan or is indigent and cannot pay and, in the latter case restrain the Respondent Authorities from incarcerating the debtor; and

c) Issue a Writ of Mandamus or any other appropriate writ or order directing that an inquiry be conducted into the manner and mode or incarcerating persons and condition of their incarceration , and take appropriate action on the Report; and

d) Issue a Writ of Mandamus or any other appropriate writ or order directing the Respondents to discontinue the practice of arresting indigent and destitute people for their inability to repay civil debts; and

e) Issue a Writ of Mandamus or any other appropriate writ or order directing the Respondents to compensate the people so incarcerated; and

f) Pass such other order or orders as this Honble Court may deem fit in the facts and circumstances of the case

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.

(APARNA BHAT)

ADVOCATE FOR THE PETITIONER

Dated:

New Delhi

IN THE SUPREME COURT OF INDIA, AT NEW DELHI

ORIGINAL CIVIL (WRIT) JURISDICTION

CIVIL WRIT PETITION NO.______ OF 2004

(Under Article 32 of the Constitution of India)

IN THE MATTER OF:

SANJAY KUMAR RAI

PETITIONER

VERSUS

THE UNION OF INDIA & ORS.

RESPONDENTSPAPER BOOK

(FOR INDEX KINDLY SEE INSIDE)

ADVOCATE FOR THE PETITIONER: APARNA BHAT

NEW DELHI

DATED: 15.04.2004

INDEX