Validity of the provisions of Section 118 of the Act.

Petitioner Ebrahim Hajee, admittedly an old man of about seventy, lias applied by way of a writ of habeas corpus for his release from the Central Jail, Cannanore, to which he was commited on 1st June, 1954, on a warrant of arrest issued by the Collector of Malabar under section 48 of the Madras Revenue Recovery Act, in respect of an income-tax arrear of Rs.61,668. The warrant under which the petitioner was arrested by the Tahsildar is in accordance with section 48 and recites that the Collector had reason to believe that Ebrahim Hajee is wilfully withholding payment of these arrears and charges and has been guilty of fraudulent conduct to evade payment of them. Ebrahim Hajee was given no hearing or any opportunity to show cause against the issue of the warrant. Nor does section 48 of the Revenue Recovery Act provide for any procedure by which a defaulter imprisoned under that section can make any representation or file any appeal.

In the affidavit filed on behalf of the Collector, who has been made the first respondent, details are set out of the history of the assessment of income-tax on petitioner who had a grocery business in Cannanore. According to a counter-affidavit by the Commissioner of Income-tax, he was assessed in 1943-1944 to a tax of Rs.66,227, in 1945-46 Rs.10,752, in 1946-47 Rs.5,583, in 1947-48 Rs.15,002 and in 1948-1949 Rs.4,341. He is alleged to have disposed of substantial property and to have diverted assets from his Cannanore business to an identical business in the name of his sons W.P. Abdul Azeez and Bros., which was started in Tellicherry in 1948. We are not of course concerned in the disposal of this petition with the correctness of the assessment which we must regard as final. There is no order placed before us by the Collector setting out the material on which he was satisfied that petitioner was wilfully withholding payment and was guilty of fraudulent conduct. We may presume for the purpose of this petition that certain material was placed before the Collector by the income-tax authorities which led the Collector into this behalf.

Before considering the application of Articles 14, 21 and 22(2) of the Constitution, which Mr. Nambiar contends are contravened by section 48 of the Madras Revenue Recovery Act which is made applicable as a mode of tax recovery of income-tax by section 46(2) of the Indian Income-tax Act, it is both interesting, relevant and necessary to trace the history of debt recovery by attachment of the body and imprisonment of the debtor from 1864. Section 46(2) of the Indian Income-tax Act applies he very convenient machinery of land revenue arrear recovery to the recovery of income-tax and reads as follows:

"46(2) The Income-tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue:

"provided that without prejudice to any other powers of the Collector in this hehalf, he shall for the purpose of recovering the said amount have........the powers which under the Code of Civil Procedure, 1908 (V of 1908) a Civil Court has........for the purpose of the recovery of an amount due under a decree."

As the section stands, and read with the proviso, an alternative procedure appears to be provided for the Collector either to proceed under the Revenue Recovery Act including section 48 or to exercise the alternative powers of recovery by arrest or otherwise under the Civil Procedure Code. The proviso under the Indian Income-tax Act (XI of 1922) reads as follows:

"Provided that without prejudice to any other powers of the Collector in this behalf he shall for the purpose of recovering the said amount have in respect of the attachment and sale of debts due to the assessee the powers which under the Code of Civil Procedure, 1908, a Civil Court has in respect of