This Writ Petition raises an important question of law regarding the powers of a Recovery Officer under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act. The petitioner is a judgment debtor who is the defendant in O.A. No. 1351/1998 before the Debt Recovery Tribunal. Ultimately, final orders were passed quantifying the amount due from the petitioner. Petitioner’s husband is also a guarantor who is the 2nd defendant in the O.A. The said order became final. Subsequently based on the recovery certificate issued by the Debt Recovery Tribunal, the decree holder, the 2nd respondent herein, initiated steps for recovery of the amount due and filed an application Ext.P1 before the recovery officer. The prayer made in Ext.P1 is for an order of arrest and detention of the defendants/judgment debtors in the civil prison and also confiscation and impounding of her passport and also for a direction that they should not leave Indian without seeking necessary permission from the Tribunal. The 1st respondent therein is the petitioner herein. Based on Ext.P1 application, Ext.P2 was issued. Ext.P2 notice was issued intimating the Regional Passport Officer, Kochi to impound the passport issued to the petitioner Smt. Daisy Puthran and to her husband, the other certificate debtor so as to prevent them from leaving India, pending a decision on the I.A. By Ext.P3, the Debt Recovery Officer issued a notice to show cause to the petitioner herein and also to her husband to show cause why warrant of arrest should not be issued. The said notice is issued under Rule 73 of the 2nd schedule of the Income Tax Act, 1961 read with section 28 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as ‘ the’) Further, the Recovery Officer issued summons which is produced in the case Ext.P4 along with I.A. 1273/2004. As per Ext.P4 notice of summons issued to the petitioner, the petitioner was summoned to appear before the Recovery Officer on 27-1-2004 for recording her statement on oath and for filing an affidavit indicating the particulars of her assets. This summons is issued under Sec. 28 (4A) of the recovery of Debts Due to Banks and Financial Institutions Act, 1993 read with Rule 83 of the Second Schedule to the Income Tax Act, 1961. The petitioner seeks the following reliefs:

i. to issue a writ of certiorari calling for the records leading to Exts.P2 and P3 and quash the same’

ii. to declare that the 1st respondent has no jurisdiction to issue show cause notice like Ext.P2 and P3 against a woman, minor, etc. in view of clear bar under rule 81 of the Second Schedule, Procedure for Recovery of Tax, prescribed under sec. 222 and 276 of the Income Tax Act invoking the power under Sec. 29 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.

iii. to award the costs of this litigation.

iv. such other reliefs which this Hon’ble Court deems fit and necessary in the circumstances of the case.

2. It is not disputed that the amounts are still due from the petitioner as per the decree. The challenge is however, made to Exts.P2 and P3 on the ground that the steps taken by the Recovery Officer/1st respondent is contrary to Articles 13 and 14 of the Constitution of India including the steps initiated to impound the passport. Hence, Exts.P2 and P3 are also challenged for violation of the principles of natural justice.

3. Heard the learned Senior Central Government Standing counsel Smt. T.D. Rajalakshmi and Sri. K.K. Chandran Pillai.

4. The learned counsel appearing on behalf of the petitioner also contended before me that the petitioner being a woman, she cannot be arrested even as per the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and Exts.P2 and P3 are contrary to law and liable to be set aside.

5. According to the learned Counsel Sri. Chandran Pillai appearing for the 2nd respondent, what is issued is only a summons/notice and since there is a provision for filling appeal against any order passed by the recovery Officer under Sec. 13 of the said Act, Writ Petition under Article 226 and 227 is not maintainable as she has got effective alternate remedy.

6. That a petition of this nature where challenge is made against the action of an authority statutorily constituted, as one without jurisdiction and the notice issued as contrary to the provisions of articles 13 and 14 of the Constitution of India is not liable to be dismissed on the ground of an appellate remedy under the statute. If there are any statutory violation in issuing Exts.P2 and P3, then the remedy available under Articles 226 and 227 is certainly available to the aggrieved person. In the circumstances, the contention raised by the learned counsel for the 2nd respondent that merely because there is provision for appeal, the Writ Petition has to be dismissed is only to be rejected as untenable.

7. Sec. 28 of the provides for other modes of recovery of the debt when a certificate has been issued by the Debt Recovery Tribunal. The present notice, Ext.P2, is issued for impounding the passport as a step in executing the decree by arrest and detention and to secure the presence for that purpose. By Ext.P2, the Recovery Officer has requested the Regional Passport officer to impound the passport of the petitioner, no specific provision is also seen referred in Ext.P2, but the same is issued as prayed for in Ext.P1 application. In Ext.P1 it is prayed that the petitioner be arrested and detained in execution of the decree and to impound the passport. Hence, if the arrest and detention is not permissible, then the impounding of the passport cannot be sustained. So, I shall consider the contention against Ext.P3 notice of arrest and detention.

8. Ext.P3 was issued by virtue of powers under Rule 73 of the 2nd Schedule of the Income Tax Act. As per Sec. 29 of the, the provisions of the 2nd and 3rd schedules to the Income Tax Act, 1961 had been made applicable as far as possible with necessary modifications as if the said provisions and the rules referred to the amount of debt due under this Act instead of to the income-tax. Rule 73 of the Rules framed under the 2nd

“73. (1) No order for the arrest and detention in civil prison of a defaulter shall be made unless the Tax Recovery Officer has issued and served a notice upon the defaulter calling upon him to appear before him on the date specified in the notice and to show cause why he should not be committed to the civil prison, and unless the Tax Recovery Officer, for reasons recorded in writing. Is satisfied.”

From the above it can be seen that as per Rule 73, notice of show cause can be issued as to why a defaulter shall not be arrested and detained in civil prison. But in the case of a woman, there is specific rule, namely, rule 81 of the same Rules which is extracted as hereunder:

“81. The Tax Recovery Officer shall not order the arrest and detention in the civil prison of-

(a) a woman, or

(b) any person who, in his opinion, is a minor or of unsound mind”

9. Thus, Rule 73 read with Rule 81 makes it abundantly clear that the officer cannot order arrest and detention of a woman and the powers under Rule 73 is subject to the bar provided under Rule 81. Rule 73 is a general provision whereas Rule 81 is an exception and a specific provision protecting the right of a woman. If the officer cannot arrest and detain in civil prison of a woman, the question of issuing show cause notice as to why such person shall not be arrested and detained, is therefore contrary to Rule 81 itself.

10. The learned counsel appearing for the 2nd respondent, however, submitted that Sec. 34 of the has got overriding effect and notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument have effect by virtue of any law other than this Act be saved. Therefore if only there is an express provision contrary to or inconsistent with any other law, that Sec. 34 has any application. In the absence of any provision in the enabling the Recovery Officer to arrest and detain a woman, the argument based on Sec. 34 is without any force. On the other hand, the legislature in its own wisdom has made applicable all the rules in the 2nd schedule to Income Tax Act, including Rule 81 of the said Rules, by virtue of Sec. 29 of the. Therefore when the rule as such applies by virtue of Sec. 29, the exception provisions contained in Rule 81 will also apply unless a contrary intention is expressed by any specific provision contained in the. There is absolutely no provision in the which enables the Recovery Officer to arrest and detain a human in civil prison and being a Statutory Authority, his powers are well defined and to be within the frame work of the statute itself. Hence, Ext.P3 notice issued is ab initio void as it is beyond the powers of the Recovery Officer. For the above reasons, Exts.P,2 and P3 are quashed.

11. As far as Ext.P4 is concerned, only contention raised is that the absence of any power for personal execution, the notice is unwarranted. Ext.P4 is issued with reference to powers under Sec. 28(4A) of the, hence, to the extent Ext.P4 is within the said powers has to be held valid. In this connection, it has to be noticed that under Sec. 28(4A) of the, the Recovery Officer is authorised to issue an order at any stage of the execution of the certificate of recovery and require any person against whom a certificate is issued, calling upon him to declare on affidavit the particulars of his or its assets. Therefore to the extent which Ext.P4 requires the petitioner herein to declare her asset by an affidavit to be filed before the recover Officer and to give evidence on oath, is certainly valid. Rule 83 of the Income Tax Rules also empowers the Chief Commissioner of Income or Tax Recovery Officer or other officer acting under the provisions of the schedule shall have the powers of a civil court while trying a suit for the purpose of receiving evidence, administering oaths, enforcing the attendance of witnesses and compelling the productions of documents which is made applicable as per Sec. 29 of the. Hence, filing the affidavit and to declare assets as called upon by the recovery Officer under Sec. 28(4A) of the cannot be said to be unwarranted. It is permissible for the officer to summon the person for taking evidence on oath as authorised by Rule 83. In the circumstances, it cannot be said that requiring the petitioner to file an affidavit and to be examined on oath is beyond the powers of the Recovery Officer. I make it clear that if the petitioner in compliance with Ext.P4 appears before the Recovery Officer and file and affidavit, it will be open for the counsel for the respondents to cross examine on the contents of the affidavit and equal opportunity to reexamine by the counsel appearing for the petitioner herein. It is agreed by the learned counsel for the petitioner and the bank’s counsel the petitioner will appear before the Recovery Officer on 16-2-2004 at 10.30 a.m. for the said purpose as indicated above.

The Writ Petition is allowed to the extent as stated above.