SATYABRATA SINHA, J. ( 1 ) THIS petition has been filed for issuance of a writ of habeas corpus directing the respondents to release Jitendra Kumar Banthia, the father of the petitioner (hereinafter referred to as "the detenu"), who is said to have been detained in civil prison by respondent No. 2 in purported exercise of his jurisdiction under Section 222 of the Income-tax Act, 1961, read with the relevant rules contained in the Second Schedule appended thereto. ( 2 ) THE detenu has been carrying on the business of jute and distributorship in cinematographic films. Allegedly because of losses suffered by the detenu, he could not pay his income-tax dues to the extent of a sum of Rs. 75 lakhs and odd. It is not disputed that the detenu who was being assessed under the provisions of the said Act, even did not file his income-tax returns after 1986 allegedly on the ground that he did not have taxable income. On February 23, the detenu was arrested and on that date itself he was sent to Alipore Central Jail by respondent No. 2 purportedly in the exercise of his powers under the provision of Rule 76 of the Second Schedule to the Income-tax Act. The petitioner has contended that the detenu is not a defaulter or deemed defaulter. He has no means to pay the tax liabilities. In any event, the mandatory procedures relating to arrest and detention of a defaulter had not been complied with before directing his detention. ( 3 ) AN affidavit-in-opposition which has been affirmed by one, Dilip Kumar Chowdhury who is the Tax Recovery Officer has been filed wherein it is stated that all the requirements for passing the order of arrest and detention of the father of the petitioner have been complied with. The respondents have also produced before us the records of the matter. ( 4 ) IT is not disputed that before a person can be arrested and detained, the requirements of the law as laid down in Section 222 of the Income-tax Act as also the provisions contained in the Second Schedule are required to be complied with. ( 5 ) SECTION 222 of the said Act provides for drawing up of proceedings by the Tax Recovery Officer when an assessee is in default or is deemed to be in default in making the payments of tax. ( 5 ) SECTION 222 of the said Act provides for drawing up of proceedings by the Tax Recovery Officer when an assessee is in default or is deemed to be in default in making the payments of tax. In terms of the provisions of the said Act and the Second Schedule appended thereto for the purpose of recovering the dues from such assessee, an action specified in the certificate by one or more of the modes mentioned therein in accordance with rules laid down in the Second Schedule can be taken recourse to which includes arrest of the assessee and his detention in prison. ( 6 ) IT is neither in doubt nor in dispute that respondent No. 2 has the requisite competence and jurisdiction to issue such a certificate. ( 7 ) RULE 1 (a) defines "certificate", inter alia, to mean the certificate drawn up for the Tax Recovery Officer under Section 222 in respect of any assessee referred to therein. ( 8 ) RULE 1 (b) of the Second Schedule defines "defaulter" to mean the assessee mentioned in the certificate. ( 9 ) RULE 2 of the Second Schedule provides for service of notice upon the defaulter requiring him to pay the amounts specified therein within 15 days from the date of service of the said notice and intimating that in default steps would be taken to realise the amount under the Schedule. Such a notice had been issued to the petitioner describing him as M. D. Banthia Jute Corporation, 8/a, Alipore Road, Calcutta-27, but upon a perusal thereof it would appear that the place where he has to deposit the amount in question was not stated. Other unnecessary words in paragraph 2 of the said notice, the words which are not applicable to him were also not scored out. Furthermore, the said notice dated October 3, 1994, issued in Form I. T. C. P. I shows that one certificate case had been initiated against the detenu for the recovery of an amount of Rs. 42,98,000 but the details thereof have not been stated on the reverse thereof. It is clear that the said notice does not satisfy the requirements of law. 42,98,000 but the details thereof have not been stated on the reverse thereof. It is clear that the said notice does not satisfy the requirements of law. ( 10 ) THE said notice was purported to have been served by one, A. K. P. Sinha, Inspector of Income-tax, and from the report submitted by him it appears that he had visited the residence of Sri J. K. Banthia and made an attempt to serve the same on October 3, 1994, between 11 a. m. and 11. 30 a. m. and again on October 4, 1994, between 11. 15 a. m. and 11. 45 a. m. but he failed to serve the same. He, thereafter, purported to serve the notice by affixation on October 6, 1994, between 11. 30 a. m. and 12 p. m. in the presence of one, Sri Ranjan Bose. The signature of the witness appears in the said notice and the same appears to have been accepted as valid by respondent No. 2. However, in support of the said service no affidavit was filed. ( 11 ) RULE 73 (1) of the Second Schedule provides that 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 as to why he should not be committed to the civil prison, and unless the Tax Recovery Officer, for reasons recorded in writing is satisfied. ( 12 ) RULE 73 (1) provides for a notice upon the defaulter calling upon him to appear before him to show cause as to why he should not be committed to the civil prison, unless for reasons to be recorded he is, inter alia, satisfied that the defaulter, has, or has had since the drawing up of the certificate by the Tax Recovery Officer, the means to pay the arrears or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same. ( 13 ) RULE 73 (2) provides that notwithstanding anything contained in Sub-rule (i), a warrant for the arrest of the defaulter may be issued by the Tax Recovery Officer if the Tax Recovery Officer is satisfied, by affidavit or otherwise, that with the object or effect of delaying the execution of the certificate, the defaulter is likely to abscond or leave the local limits of the jurisdiction of the Tax Recovery Officer. ( 14 ) SUB-RULE (3) of Rule 73 empowers the Tax Recovery Officer to issue warrant for the arrest of the defaulter if appearance is not made in obedience to such a notice. Sub-rule (4) of Rule 73 contemplates bringing of the arrested person as soon as practicable and in any event within 24 hours of his arrest. However, in terms of the proviso the defaulter may be released in the event the amount entered in the warrant of arrest as due and the cost of the arrest to the officer arresting him, is paid. ( 15 ) RULE 74 of the said rules provides for an opportunity to show cause by the defaulter as to why he should not be committed to civil prison. Rule 75 provides for custody pending hearing or the Tax Recovery Officer, who, however, may also release the arrested person on his furnishing security to his satisfaction for his appearance when required. An order of detention can be passed under Rule 76 in terms whereof the Tax Recovery Officer upon conclusion of the enquiry/order for the detention of the defaulter in the civil prison and that in that event cause him to be arrested if he is not already under arrest. The proviso appended to the said rule empowers the Tax Recovery Officer to give the defaulter an opportunity of satisfying the arrear before making the order of detention for a specified period not exceeding 15 days or release him on his furnishing security to his satisfaction for his appearance at the expiration of the specified period if the arrears are not so satisfied. ( 16 ) RULE 77 (1) provides for the period of detention and the proviso appended thereto specifies that the persons so detained shall be released if the amount mentioned in the warrant of detention is paid by the officer-in-charge of the civil prison or on the request of the Tax Recovery Officer on any ground other than the grounds mentioned in Rules 78 and 79. ( 17 ) RULE 78 empowers the Tax Recovery Officer to release a defaulter upon being satisfied that he has disclosed the whole of his property and has placed it at the disposal of the Tax Recovery Officer and that he has not committed any act of bad faith. ( 18 ) RULE 86 of the said rules provides for an appeal against any original order not being an order which is conclusive, passed by the Tax Recovery Officer under the Schedule to the Chief Commissioner or Commissioner within 30 days from the date of the order appealed against. Sub-rule (3) of Rule 86 empowers the appellate authority to stay the execution of the certificate. ( 19 ) FROM the records, it appears that a notice dated February 6, 1996, under Rule 73 was served on him by respondent No. 2 which has been received by J. K. Banthia. In the said notice Certificate Cases Nos. 1777 to 1794 and 1042 to 1045 have been mentioned. In the said notice dated February 6, 1996, also, J. K. Banthia was described as managing director of Banthia Jute Suppliers Ltd. having the same address. In terms of the prescribed form the status of the person and the certificate numbers are required to be mentioned. But, in the instant case, the status of the defaulter had not been mentioned. The date of the certificate has also not been stated. ( 20 ) FROM the requisition dated February 19, 1996, it appears that a total sum of Rs. 75,15,000 had been assessed as against the petitioner by way of tax, interest and penalty under Section 220 (2) of the Act for the periods 1985-86 to 1988-89. ( 21 ) A certificate dated September 22, 1996, was also issued by the Assistant Commissioner of Income-tax to the Tax Recovery Officer to the effect that no rectification petition or any other petition is pending before the Income-tax Appellate Tribunal as per the office record. ( 21 ) A certificate dated September 22, 1996, was also issued by the Assistant Commissioner of Income-tax to the Tax Recovery Officer to the effect that no rectification petition or any other petition is pending before the Income-tax Appellate Tribunal as per the office record. ( 22 ) FROM the order dated February 23, 1986, it transpires that Jitendra Kumar Banthia was brought before the said authority after being arrested at 7. 30 a. m. to 8. 30 a. m. and he was given an opportunity to file show cause as to why he should not be committed to the civil prison and in reply thereto he merely stated that he would not pay arrear income-tax demand even if he would be committed to the civil prison. ( 23 ) RESPONDENT No. 2 in his said order stated that on enquiry it was revealed that Sri Banthia has means to pay the arrears income-tax demand but he refused and neglected to pay the arrears income-tax demand and he had not taken the opportunity to satisfy the arrear income-tax demand. He upon conclusion of the enquiry was of the opinion that Jitendra Banthia was not co-operative relating to the payment of the income-tax demand as he failed to satisfy the arrear demand. ( 24 ) MR. S. K. Kapoor, learned counsel appearing on behalf of the petitioner, has, inter alia, raised three contentions in support of his application. Learned counsel submits that from a perusal of the records it would appear that the provisions of the Second Schedule have not at all been complied with. The notice under Rule 2 of the Second Schedule according to Mr. Kapoor being illegal, the entire proceedings must be held to be vitiated in law. It was submitted that even no proper notice was served upon the father of the petitioner. According to learned counsel, the service of notice is a sine qua non for initiating proceedings under Rule 73. Learned counsel contends that from the notices as referred to hereinbefore it would appear that the father of the petitioner has been described as managing director of Banthia Jute Suppliers Pvt. Ltd. and in that view of the matter, the notice must be held to be vague and illegal. Learned counsel contends that from the notices as referred to hereinbefore it would appear that the father of the petitioner has been described as managing director of Banthia Jute Suppliers Pvt. Ltd. and in that view of the matter, the notice must be held to be vague and illegal. In support of his aforementioned contention reliance has been placed by learned counsel on Sewlal Daga v. CIT [19653 55 ITR 406 (Cal) ; Bhagwan Devi Saraogi v. ITO; Laxmi Narain Anand Prakash v. CST,[fb] ; Shyam Sundar Bajaj v. ITO and Rama Devi Agarwalla v. CIT. ( 25 ) MR. Kapoor would urge that admittedly the entire proceeding was completed on one day and the order dated February 23, 1996, would show that no opportunity to show cause had been given to the detenu as to why he should not be committed to the civil prison. Such a proceeding according to learned counsel could not be completed on any day and in any event, no reason has been assigned in support of the finding that the detenu has the means to pay the arrears of income-tax demands, the entire proceeding is vitiated in law. ( 26 ) LEARNED counsel states that the said order has been passed in a mechanical manner. Our attention has been drawn to the fact that from the records it would appear that as late as on February 13, 1996, the Commissioner of Income-tax, West Bengal-VI, addressed a letter to the Commissioner of Income-tax with a copy of the Tax Recovery Officer to the following effect : " The Tax Recovery Officer is again directed to complete his enquiries. If, on enquiry, it is found that the assessee is not having any realisable assets, the Tax Recovery Officer should issue the irrecoverability certificate. In this connection, I call upon the concerned respondents to supply a xerox copy of the said writing to the petitioner and produce the original thereof before this court at the time of hearing of the petition. " ( 27 ) MR. Mukul Prakash Banerjee, learned counsel appearing on behalf of the respondent, firstly, submitted that Clauses (a) and (b) of Rule 73 (1) should be read as disjunctive and not conjunctive. " ( 27 ) MR. Mukul Prakash Banerjee, learned counsel appearing on behalf of the respondent, firstly, submitted that Clauses (a) and (b) of Rule 73 (1) should be read as disjunctive and not conjunctive. Learned counsel submits that the description of the detenu as managing director of Banthia Jute Supplier Company is only for the purpose of service of notice and not for the purpose of describing him as a principal officer of the said limited company as would be evident from the fact that such notices were attempted to be served at his residential address and not in the office of the company. Furthermore, contends learned counsel, in terms of Section 292b no defect in the notice would vitiate the proceedings. Learned counsel contends that as there exists a provision for appeal this court should not exercise its jurisdiction and in support of the aforementioned contention reliance has been placed on K. T. Thomas v. CIT which has been affirmed by a Division Bench in K. T. Thomas v. CIT [1990] 185 ITR 292. Learned counsel also in this connection has relied upon a decision in Antonitto v. TRO [1988] 171 ITR 461 (Ker ). Learned counsel submits that this court cannot go into the merits of the matter. Reliance in this connection has been placed on Bonomally Gupta, In re : [1917] ILR 44 Cal 723 at page 736. ( 28 ) IT was submitted that the writ court shall not appreciate evidence nor shall it go into the correctness or otherwise of the procedure. Learned counsel submits that the proceedings for recovery of tax are not violative of Articles 21 and 22 of the Constitution of India and in support of his aforementioned contention reliance has been placed on Homi Rustomji Pardivala v. Sub-Inspector Baig, AIR 1944 Lahore 196 ; Purshottam Govindji Hahai v. Shree B. M. Desai, Additional Collector of Bombay and Collector of Malabar v. Erimmal Ebrahim, Hajee. ( 29 ) THE question which arises for consideration in this application is as to whether a case for issuance of a writ of habeas corpus has been made out. ( 29 ) THE question which arises for consideration in this application is as to whether a case for issuance of a writ of habeas corpus has been made out. ( 30 ) IN Wade and Philips' Constitutional and Administrative Law, Ninth edition, at page 442, it is stated that there are ten aspects of the law relating to individual liberty ; first, the grounds on which an individual may be deprived of his physical liberty ; second, the remedies which an individual has if he wishes to contest the legality of such a deprivation. Imprisonment for civil debt is stated to be one of the grounds of personal freedom. ( 31 ) THERE cannot be any doubt that amongst others habeas corpus is one of the available remedies in case of infringement of freedom by reason whereof a person detained without legal jurisdiction, may secure proper release. It is a writ of right not of course. It is, inter alia, applicable when a Tribunal has no jurisdiction to detain the petitioner. It is available where errors are jurisdictional. It is also available where the error appears on the face of the record. ( 32 ) IN Homi Rustomji Pardivala v. Sub-Inspector, Baig, AIR 1944 Lahore 196, Harries C. J. (speaking for a Special Bench) was considering a case as to whether a proceeding under the Contempt of Courts Act can be drawn up if a lawyer is arrested by the parties while he was proceeding to defend him for filing an application to the High Court under Section 491 of the Criminal Procedure Code for the release of a detenu and appearing on his behalf. ( 33 ) IN the facts of the case it was, inter alia, held there was no evidence that the lawyer was arrested in order to prevent him from filing an application in the High Court under Section 491 of the Code of Criminal Procedure. On the facts of the case, it was held that as the detenu had already been released thus no order for his release could be passed. On the facts of the case, it was held that as the detenu had already been released thus no order for his release could be passed. ( 34 ) IN Purshottam Govindji Halai v. Shree B. M. Desai, Additional Collector of Bombay [1955] 28 ITR 891 ; 2 SCR 887, the Supreme Court, inter alia, held that the provisions of Section 46 (2) of the Indian Income-tax Act, 1922, which provided for recovery of tax did not offend Articles 13 (1), 14 and 21 of the Constitution of India. In the said case a rule was issued calling upon the respondents to show cause why a writ in the nature of habeas corpus should not be issued. The learned judges, inter alia, held that such a provision does not offend Article 21 of the Constitution of India inasmuch as the assessee has been arrested and is being detained in jail in execution of a warrant of arrest under Section 13 of the Bombay City Land Revenue Act, 1876, for the recovery of the demand certified under Section 46 (2) of the Income-tax Act. ( 35 ) IT was held that Article 21 of the Constitution of India has no application. As regards the contention that the said provision violates Article 14 of the Constitution of India in so far as different provisions have been made in different State Acts for recovery of tax dues, it was held that the classification is valid. S. R. Das, Acting C. J. (as he then was) also held that the petitioner had no case on the facts. Chandrasekhara Aiyar J. lamented while initiating recovery of tax under the Income-tax Act there should be separate procedure. The learned judge, therefore, suggested that for the enforcement of the levy of a Central tax there should be uniformity of procedure and identity of consequences from non-payment. With that end in view Parliament amended the Act and laid down a uniform procedure. ( 36 ) IN Collector of Malabar v. Erimmal Ebrahim Hajee [1957] 32 ITR 124 ; 2 SCR 970, the Supreme Court followed Purshottam Govindji's case and held that Section 46 (2) of the Indian Income-tax Act is a valid piece of legislation. With that end in view Parliament amended the Act and laid down a uniform procedure. ( 36 ) IN Collector of Malabar v. Erimmal Ebrahim Hajee [1957] 32 ITR 124 ; 2 SCR 970, the Supreme Court followed Purshottam Govindji's case and held that Section 46 (2) of the Indian Income-tax Act is a valid piece of legislation. It was further held that an arrest for a civil debt in the process of or in the mode prescribed by law for recovery of arrears of land revenue does not come within the protection of Article 22. ( 37 ) THE aforementioned decisions are authorities for the proposition that a petition for issuance of a writ of habeas corpus is maintainable in the matter of detention to pay a civil debt, if a proper case is made out therefor. ( 38 ) THERE cannot be any doubt that a writ court shall not appreciate the evidence and may in proper cases refuse to exercise its jurisdiction if there exists an alternative remedy. The court also upon consideration of the facts of the matter may come to the conclusion as to whether there were any mala fides on the part of the detaining authority or not. ( 39 ) IN K. T. Thomas v. CIT [19881 173 ITR 283 (Ker), T. L. Viswanatha Iyer J. , on the facts of the said case held that the petitioner therein dishonestly transferred his right in a property and did not disclose the same to the Income-tax Department. In that view of the matter it was held that the order of detention was valid. The said decision was upheld by K. S. Paripoornan J. (as his Lordship then was) and K. Sreedharan J. in K. T, Thomas v. CIT, holding that the order for the arrest and the detention of the petitioner and the sale of his property was justified in the facts of that case. ( 40 ) IN Antonitto v. TRO [1988] 171 ITR 461 (Ker), it was, inter alia, observed that an enquiry may be conducted and completed on the same day. Their Lordships further held (at page 464) : "the order under Schedule II, Rule 76, of the Income-tax Act was passed on March, 16, 1985. The petitioner was released even earlier on February 28, 1985. He undertook to appear after 15 days. Their Lordships further held (at page 464) : "the order under Schedule II, Rule 76, of the Income-tax Act was passed on March, 16, 1985. The petitioner was released even earlier on February 28, 1985. He undertook to appear after 15 days. The order passed under Schedule II, Rule 76, is an appealable one. Under Schedule II, Rule 86 (1) (c), the said order, exhibit P-5, should have been appealed against instead of being assailed in this court, in proceedings under Article 226 of the Constitution The learned single judge took the said view. It is not possible for us to say that the said view is either perverse or illegal. If the petitioner failed to advance any valid or proper reason for not filing the statutory appeal that is available to him against exhibit P-5 order, that itself was sufficient to deny jurisdiction under Article 226 of the Constitution of India. The writ appeal is without merit". ( 41 ) IN Kuldeep Singh v. TRO [1989] 176 ITR 204, a Division Bench of the Allahabad High Court did not interfere on the ground that there exists a remedy by way of appeal under Rule 86 (3) of the Rules as an appeal had already been filed. In that case, a writ of habeas corpus was not prayed for. Similar observations have been made in Shamsul Islam v. Govt. of Tripura, AIR 1956 Tripura 1 and Smt. Sita Devi Thapa v. Commandant, 6th Battalion Assam Rifles, AIR 1963 Tripura 31. Existence of an alternative remedy is a self-imposed restriction. A matter which has been heard on the merits may not be dismissed on the ground of availability of alternative remedy, if it found that the order passed is wholly without jurisdiction. Moreover those decisions were rendered under Section 491 of the Criminal Procedure Code. The jurisdiction of this court is wider. ( 42 ) IN the matter of Bonomally Gupta, In re [1917] ILR 44 Cal 723, a Special Bench of this court, inter alia, observed that a writ of habeas corpus is not granted to persons convicted in execution under legal process, including persons in execution of a legal sentence after conviction on indictment in the usual course. ( 43 ) THERE is no dispute as regards the aforementioned proposition of law. ( 43 ) THERE is no dispute as regards the aforementioned proposition of law. A person who has undergone a criminal trial, if convicted, must have recourse to the provision of the appeal which is provided for under the Code of Criminal Procedure. In such a case, an application for issuance of a writ of habeas corpus will not be maintainable. The said proposition of law has no application in this case. ( 44 ) THE decision in Col. Dr. B. Ramachandra Rao v. State of Orissa,and the decision of the Tripura High Court in Smt. Sita Devi Thapa v. Commandant, 6th Battalion Assam Rifles, AIR 1963 Tripura 31 are to the same effect. ( 45 ) IN Col. Dr. B. Ramachandra Rao v. State of Orissa, the apex court, inter alia, observed that a writ of habeas corpus is not granted where a person is confined in jail custody by a competent court except unless the order prima facie is without jurisdiction or wholly illegal. It is, therefore, clear that an order which is prima facie without jurisdiction or wholly illegal can come within the purview of the power of judicial review of this court, inter alia, for the purpose of issuance of the writ of or in the nature of habeas corpus. However, it is not possible to agree with Mr. Kapoor that only because the enquiry was completed in a day, the same was illegal. ( 46 ) THE question which, however, arises for consideration is as to whether the respondents have followed the procedure or not or in other words whether an error was committed within jurisdiction. As indicated hereinbefore, the notice issued under Rule 2 of the Second Schedule dated October 3, 1994, does not contain the place and the office where the amount was to be deposited. It is now well-known that the recovery proceeding must conform to the requirements of law. ( 47 ) IT is also not clear as to in what capacity the said notices were served on the defaulter. As noticed hereinbefore, many illegalities have been committed in the issuance and service of notices. There cannot be any doubt that the provision of Rules 73 to 76 are mandatory in nature. The said rules have been made in order to provide a procedural safeguard to an assessee. Personal freedom or liberty of a person is required to be zealously safeguarded. There cannot be any doubt that the provision of Rules 73 to 76 are mandatory in nature. The said rules have been made in order to provide a procedural safeguard to an assessee. Personal freedom or liberty of a person is required to be zealously safeguarded. In our considered opinion, the procedures laid down under the Second Schedule should be followed. Any deviation or departure therefrom would vitiate the order of detention. ( 48 ) IN terms of Section 282 of the Income-tax Act a notice has to be served in the manner as is laid down in the Code of Civil Procedure which provides that service of summons shall be made by delivering or tendering a copy thereof signed by the judge or such officer as he appoints in this behalf, and sealed with the seal of the court. Therefore, delivering or tendering the same is the sine qua non for such service. It is not necessary to consider different provisions of Order V of the Code of Civil Procedure except Order V, Rule 19. ( 49 ) ORDER V, Rule 19 provides that where a summons is returned under Rule 17, the court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit ; and shall either declare that the summons has been duly served or order such service as it thinks fit. ( 50 ) IN the instant case evidently the requirements under Order V, Rule 19, have not been complied with. Thus, there is no service of summons under Rule 2 of the Second Schedule. No statement has also been made in terms of Rule 17 of Order V of the Civil Procedure Code, that there was no adult member or any agent to accept the service of summons.