JUDGMENT K.B. Srivastava, J.
1. This is a petition under Article 226 of the Constitution of India for the issue of a writ of habeas corpus and of certiorari quashing certain documents and processes. The petition arises out of the following facts:--
2. The petitioner Ram Lal Poddar alleges that he made an application in the year 1949 for supply of some materials on credit for the construction of a masonry well for purposes of irrigation, and on the basis of that application the Agriculture Department supplied some materials in instalments but not all the materials indented by him. The Agriculture Department assessed the price of the material supplied at Rs. 420.80. He received a citation in the year 1963 for the payment of the assessed price. Subsequently, his moveables of the value of Rs. 1500/- were attached and entrusted in the Supurdgi of one Suraj Lal as custodian and the attached goods were not returned to him and nothing was heard about the recovery processes till the close of the year 1968. He was arrested on January 27, 1969 on a warrant of recovery for the realization of Rs. 420.80 as the price and Rs. 41/- as the decretal amount. He then made an application (Annexure I), supported by an affidavit (Annexure II) and he was then released on bail on furnishing a personal bond and a surety bond for Rs. 461. 80. His grievance is that he was put in double jeopardy inasmuch as his movables worth Rs. 1500/-
were attached and still he was arrested under section 281, U. P. Zamindari Abolition and Land Reforms Act and Rule 247 of the U. P. Zamindari Abolition and Land Reforms Rules. His contention is that he had purchased goods on credit and the price did not amount to arrears of land revenue and, therefore, the coercive processes prescribed for the recovery of arrears of land revenue had no application in his case. His further contention is that the unpaid purchase money could not be regarded as "financial assistance" under the Public Moneys (Recovery of Dues) Act, 1965 and, therefore, that Act also has no application. It is in these circumstances that he has prayed for a writ of habeas corpus so that the restraint put on his liberty by the personal and surety bonds is terminated and for a writ of certiorari quashing the said bonds, the citation, and ancillary recovery processes.
3. The petition has been resisted by the respondent, namely, Tahsildar, Nan-para by a counter-affidavit dated February 21, 1969, a supplementary counter-affidavit dated February 25, 1969 and a second supplementary counter-affidavit dated December 23, 1971, the first having had been filed by the Tahsildar and the latter two by Anandji Srivastava, office assistant in the office of the Agricultural Engineer, Kanpur. We will revert to the facts later in the judgment, for at the present moment, we will like to dispose of two preliminary points of law,
4. The first point is whether or not a writ of habeas corpus can lie after a person is detained and then released on bail and regains his liberty. This point is concluded by Sandal Singh v. District Magistrate and Supdt., Dehra Dun, AIR 1934 All 148, a Division Bench decision of this Court wherein Suleman, C. J. speaking for the Court observed thus:--
"The mere fact that after his arrest he was temporarily released on bail pending further enquiry does not oust the jurisdiction of the High Court under this section." Suleman, C. J. was referring to Section 491 of the Code of Criminal Procedure. It was held in 1945 Indore Law Reports 143 that even if a person is temporarily released on bail prior to his being extradited, he must be considered to be detained in the constructive custody of the Court through the surety, as his liberty is subject to restraint and he has to be produced before the Court by the surety whenever required. Reliance for this was placed on the reported decision of this Court (supra). The same view was reiterated by the Madhya Bharat High Court in Mohammad Zahural Haque v. State, 51 Cri LJ 731 = (AIR 1950 Madh B 17). We are of the view, therefore, that an application for habeas corpus is competent even when a person is released on bail.
5. The next contention of the learned counsel for the petitioner is that even if the unpaid price amounts to "financial assistance" under the Public Moneys (Recovery of Dues) Act, 1965, it cannot be recovered under that Act because it has been declared ultra vires. This contention is well founded. See P. P. Industries v. District Magistrate, Mirzapur, 1971 All LJ 1211 = (AIR 1972 All 97) (KB).
6. Now, the contention of the learned counsel for the petitioner is that the amount of Rs. 41/- which represents the decretal money can in no case amount to an arrear of land revenue. This point has been conceded and we need not, therefore, dilate any further upon it.
7. As regards the remaining amount of Rs. 420.80, his contention is that it represents either a loan in kind of materials supplied or unpaid price and in neither case can the amount be regarded as arrears of land revenue. On the other hand, this argument has been assailed by the learned Government Advocate who has urged that the amount represents a Taqavi loan and as such it can be recovered as arrears of land revenue. In order to resolve this controversy we have to look to the background history as it appears from the affidavit. Annexure 1 (now marked Annexure C by the Court in order to avoid confusion in references to annexures) is G. O. No. F-769/XII-A-207-49 dated September 27, 1949 from the Government to the Chief Agricultural Engineer, U. P. It shows that Government sanctioned a Five Year Plan of sinking masonry wells from the years 1947-1948 to 1951-1952 in order to attain self-sufficiency in the matter of food by bringing additional acreage under cultivation and by intensifying production so as to increase the yield per acre. It was emphasised that irrigation facilities played an important role in increasing production per acre and the scheme of sinking masonry wells offered considerable scope in this respect. Government, therefore, sanctioned the scheme for various districts including the District of Bahraich where the petitioner resides. A cultivator was made eligible to a subsidy at the rate of one-third of the cost of a masonry well subject to a maximum of Rs. 500/- per well provided that he possessed a holding of at least 5 acres and not more than 10 acres, his application stood sanctioned in advance, and he completed the construction of the well within a period of 12 months from the date of the sanction to the satisfaction of the Agriculture Department. The subsidy was to be paid after the Senior Mechanical Inspector or the Assistant Engineer had inspected the well and certified that it had been satisfactorily constructed. An application was to be accompanied by a certified extract from the Patwaris' record stating the size of the holding and the position of the well, if any, already existing on the holding. The G.O. further stated that if an approved applicant desired to have construction materials such as iron and steel, cement, and coal for burning bricks, he may be advanced these materials upto the value of the amount of subsidy admissible, that is l/3rd of the cost of the well. This advance was to be treated as an interest free Taqavi and the special Rules for Taqavi under Chapter VII of Taqavi Rules were to apply to such an advance. On a satisfactory completion of the well, the value of the advance was to be set off against the subsidy, otherwise it was to be recovered as a Taqavi loan. Departmental staff was instructed to ensure that the applicants utilized the materials only for the purpose for which they were issued. Annexure 2 (Annexure D) is the application of the petitioner dated November 7, 1949 made after the issue of this G.O. It is headed "Sahayak Yojna Ke Antargat Kunwen BanWane Ka Prarthana Patra". It was addressed to Agricultural Engineer through the Deputy Commissioner. It recites that he had an agricultural holding of an area of 9.700 acres in village Bhatehta but there was no existing irrigation facility. Therefore, he was making this application under "Sahayak Yojna" so that bricks, cement and iron was supplied to enable him to construct the well, before November, 1950. It went on to mention that he was prepared to make a deposit in advance to cover the price of the materials, a promise which he never fulfilled. The Pat-wari gave a certificate about the extent of the petitioner's holding and non-existence of any well on that holding. The petitioner further undertook to use the materials only in the construction of the well and for no other purpose. He also furnished two sureties. A recommendation was then made by the District authorities, Annexure 3 (E) shows that cement, M.S. Flat, Bolts, Nuts and coal of the total value of Rs. 420/12/9 were supplied on April 19, 1950 and the bill was sent to him. It further shows that he acknowledged receipt on the same day. It is meaningless to urge that the materials were supplied in instalments or some materials were not supplied. It is true that the materials were supplied on credit. It is also true that the price of the materials was to be set off towards the subsidy of Rs. 500/-but that was dependent upon the further fact that the materials were used in the construction of the well and it was duly constnicted within 12 months. The counter-affidavit shows that when an inspection was made by the Mechanical Inspector on April 11, 1954 it transpired that the petitioner had not constructed any well whatsoever. It is in these circumstances that he lost his claim to a subsidy and became liable to pay the loan as if it was a Taqavi loan. Rule 1, U. P. Taqavi Rules, says that "Taqavi" means a loan advanced under the Land Improvement Loans Act, 1883. Rule 3 says that a loan for construction of masonry wells is a loan under the said Act. Section 4 of the Act says that loans may be granted for the purpose of making any improvement. Section 4(2) of that Act says that 'improvement' means any work which adds to the letting value of land and includes the following namely,--
(a) the construction of wells, ....., for the storage, supply or distribution of water for the purposes of agriculture. Section 7 of the Act says that all loans granted under the Act ...... shall, when they become due, be recoverable by the Collector from the borrower, as if they were arrears of land revenue due by him. Chapter VII, Taqavi Rules, covers a loan of the kind in question. Section 279, U. P. Zamindari Abolition and Land Reforms Act says that any arrear of land revenue may be recovered by anyone or more of the following processes:--
"(a) by serving a writ of demand or citation to appear on any defaulter,
(b) by arrest or detention of his person,
(c) by attachment and sale of his movable property including produce,
(d) to (g) ....."
This section thus lays down the procedure for the recovery of arrears of land revenue. It enumerates as many as seven modes whereby an arrear of land revenue may be recovered from a defaulter. Several modes may be taken in hand simultaneously or one after the other. Certainly, there is a distinction between arrears of land revenue and sums recoverable as arrears of land revenue but once a Statute says that a particular loan can be recovered as if it was an arrear of land revenue, Section 279, U. P. Z. A. and L. R. Act will have full application. We are of the view, therefore, that the transaction in question was a Taqavi loan and the respondent had the right to issue a citation or to attach the movables, or to arrest the petitioner, or to do all these things simultaneously or one after the other. We are aware of the fact that some movables were attached and there is no accounting. The petitioner may seek his remedy as to that in a proper court of law, as and when advised. At present, it is clear to us that in spite of the subsisting attachment, if any, the respondent had the legal right to effect the arrest of the petitioner.
8. Altogether, therefore, no writ of habeas corpus can be issued and the citation or the bonds or the processes cannot be quashed. The writ petition is, therefore, dismissed with costs.