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State of Kerala and ors. Vs. C.M. Francis and Co. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1961SC617; [1961]3SCR181; [1961]12STC119(SC)
ActsConstitution of India - Article 226; Code of Criminal Procedure (CrPC) , 1908 - Sections 386(1); Travancore-Cochin General Sales Tax Act, 1125
AppellantState of Kerala and ors.
RespondentC.M. Francis and Co.
Cases ReferredShankar Sahai v. Din Dial I.L.R.
Excerpt:
sales tax - recovery of arrear of tax - two remedies available and both of them were not destructive to each other and unless the statute laid down in express words, that one remedy was to the exclusion of the other, authorities could resort to any one of them at their option - appeal allowed - indian penal code, 1890 sections 300 & 100: [dalveer bhandari & harjit singh bedi,jj] murder - right of private defence - accused assaulted on head of victim by sharp edged weapon causing bone deep injury -defence version stating that there were four assailants who had come well prepared to assault at door of their own house - accused could have reasonable apprehension of death or at least grievous hurt held, it was a case of single shot that was not repeated. accused cannot be said to have..........and all of them together. take steps for the realisation.' 3. warrants under s. 386(1)(b) of the code of criminal procedure were issued to the collector of kottayam district for recovery of the arrears of sales tax. the authorities, however, started proceedings again under s. 13 of the act read with the provisions of the travancore-cochin revenue recovery act, 1951 (vii of 1951), to recover the amount as arrears of land revenue, and attached some properties belonging to the respondents within the jurisdiction of the second and third appellants, the tahsildars of kottayam and kanjirappally taluks. the firm thereupon filed the petition under art. 226 of the constitution for a writ of prohibition or other order or direction to the effect that the proceedings for realisation of the arrears.....
Judgment:

Hidayatullah, J.

1. This is an appeal with the special leave of this Court against the judgment of the High Court of Kerala dated November 18, 1957, passed in a petition for writ of prohibition under Art. 226 of the Constitution. The State of Kerala and the Tahsildars of Kottayam and Kanjirappally Taluks are the appellants, and C. M. Francis & Co., a partnership firm, is the first respondent, and the partners of the firm are the remaining respondents.

2. The respondents were doing business in hill produce like pepper, ginger, betelnuts etc., and were assessed to sales tax under the Travancore-Cochin General Sales Tax Act XI of 1125 (referred to as the Act), for the years 1950 to 1954. The respondents have to pay a sum of Rs. 1,01,716-4-3 as tax. In 1954, proceedings were started against them under s. 13 of the Act, which provides that if the tax is not paid as laid down in that section, the whole of the amount or such part thereof as remains due, may be recovered as if it were an arrear of land revenue. It appears that the proceedings were not fruitful, and a prosecution under s. 19 of the Act was instituted against the partners in the Court of the First Class Magistrate, Ponkunnam. Respondents 2 to 5 pleaded guilty, and the Magistrate passed an order on October 18, 1955 as follows :

'The sentence or other final order : A 1 to 4 sentenced to pay a fine of Rs. 50/- each and in default to undergo S.I. for one month each. A 1 to 4 admit that they failed to pay on demand by the competent authority, a sum of Rs. 1,01,716-4-3 due from them as sales tax for the years 1950 to 1954. This amount will be realised from A 1 to 4, jointly or severally, individually or collectively under the provisions of the Cr.P.C. for realisation of criminal fines, as if it were a fine imposed by this court on each accused individually and all of them together. Take steps for the realisation.'

3. Warrants under s. 386(1)(b) of the Code of Criminal Procedure were issued to the Collector of Kottayam District for recovery of the arrears of sales tax. The authorities, however, started proceedings again under s. 13 of the Act read with the provisions of the Travancore-Cochin Revenue Recovery Act, 1951 (VII of 1951), to recover the amount as arrears of land revenue, and attached some properties belonging to the respondents within the jurisdiction of the second and third appellants, the Tahsildars of Kottayam and Kanjirappally Taluks. The firm thereupon filed the petition under Art. 226 of the Constitution for a writ of prohibition or other order or direction to the effect that the proceedings for realisation of the arrears under the Revenue Recovery Act be quashed. In the petition, the respondents urged that inasmuch as they were prosecuted under s. 19 of the act and the Magistrate had issued warrants, the procedure for recovery under s. 13 was not available. They contended that under s. 386 of the Code of Criminal Procedure the warrant is to be deemed to be a decree and has to be executed according to civil process applicable to the execution of decrees under the Code of Civil Procedure. They, therefore, submitted that the procedure under s. 19 of the Act was no longer open, and could not be proceeded with.

4. Section 19 of the Act, so far as it is material, reads as follows :

'Any person who,.............

(b) fails to pay within the time allowed, any tax assessed on him.....under this Act, or...........

(d) fraudulently evades the payment of any tax assessed on him........

shall on conviction by a Magistrate of the first class, be liable to a fine which may extend to one thousand rupees and in the case of a conviction under clause (b), (d)......., the Magistrate shall specify in the order the tax........ which the person convicted has failed or evaded to pay........ and the tax........ so specified shall be recoverable as if it were a fine under the Code of Criminal Procedure for the time being in force.'

5. In dealing with the question, the learned Judges of the High Court felt that s. 13 of the Act was in the nature of a general law, over which the special procedure prescribed by s. 19 of the Act read with s. 386 of the Code of Criminal Procedure was to prevail. They, however, thought that, since all the processes available under s. 19 of the Act were also available under s. 386 of the Code of Criminal Procedure, it was not necessary to decide what would happen if the proceedings under s. 386 came to nothing. They observed that if the question arose, they would consider it. The writ of prohibition was granted by the High Court.

6. The respondents did not appear in this Court. We have heard learned counsel for the appellants, who has drawn our attention to all the relevant provisions of the law. The question which arises is whether s. 19 must be taken to prevail over s. 13 of the Act. Both the sections lay down the mode for recovery of arrears of tax, and, as has already been noticed by the High Court, lead to the application of the process for recovery by attachment and sale of movable and immovable properties, belonging to the tax-evader. It cannot be said that one proceeding is more general than the other, because there is much that is common between them, in so far as the mode of recovery is concerned. Section 19, in addition to recovery of the amount, gives the power to the Magistrate to convict and sentence the offender to fine or in default of payment of fine, to imprisonment. In our opinion, neither of the remedies for recovery is destructive of the other, because if two remedies are open, both can be resorted to, at the option of the authorities recovering the amount. It was observed by Mahmood, J. in Shankar Sahai v. Din Dial I.L.R. (1889) All 409 that where the law provides two or more remedies, there is no reason to think that one debars the other and therefore both must be understood to remain open to him, who claims a remedy. Unless the statute in express words or by necessary implication laid down that one remedy was to the exclusion of the other, the observations of Mahmood, J. quoted above must apply. In our opinion, in the absence of any such provision in the Act, both the remedies were open to the authorities, and they could resort to any one of the them at their option.

7. The appeal is allowed, and the judgment of the High Court set aside. Though the respondents did not appear, in the circumstances of the case we think we should make an order that the costs shall be paid by them both here and in the High Court.

8. Appeal allowed.


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