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PETITIONER: KESHO RAM

       Vs.

RESPONDENT: DELHI ADMINISTRATION

DATE OF JUDGMENT03/04/1974

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH SARKARIA, RANJIT SINGH

CITATION:  1974 AIR 1158            1974 SCR  (3) 827  1974 SCC  (4) 509

ACT: Delhi  Municipal  Corporation Act 1957--Ss. 154, 155  &  161 read  with Secs. 353/332 333 of I.P.C.--Whether seizure  and detention of animal u/s 161 possible without notice u/s. 154 for recovery of milk tax--If notice optional.

HEADNOTE: The  appellant was convicted u/s 353/332/333 of  the  Indian Penal  Code and was sentenced accordingly.  The  prosecution case  was that the appellant obstructed 3 inspectors  and  a peon  of the Delhi Municipal Corporation, when they went  to seize the appellants’ buffalo in the discharge of their duty to  realise  the  milk tax from him and struck  one  of  the officers  on the nose with the result that it bled  and  was found fractured. The main contention of the appellant was that the attempt to realise  the  arrears of milk tax and recovery  charges  was illegal because no demand noticed under Sec. 154 of the  Act was served on the appellant, and therefore, he had the right of private defence. The  prosecution relied on Sec. 99 Indian Penal  Code  which provides  that there is no right of private defence  against an act of a public servant, done in good faith under  colour of  his office, though that act may not be  strictly  justi- fiable  by law.  Further according to the prosecution,  Sec. 161  of them Act empowered the Inspector of the  Corporation to seize and remove the appellant’s buffalo for  non-payment of  tax  and the section gave them an over-riding  power  to resort  to  seize and detention of the  animal.   Therefore, according  to the prosecution, the appellant was  guilty  of the offences charged. Dismissing the appeal, HELD  : (1) Although the interpretation placed by  the  High Court  that seizure and detention of a vehicle or an  animal is  possible  under sec. 161 at anytime after  the  tax  has become  due’ when read in the light of other  provisions  of the  Act,  it has to be remembered that  section  161  would become  the repository of a rather drastic power  of  acting without  previous notice to seize any animal’ or vehicle  at any  time  after  the  tax  became,  due,  and  thereby,  of seriously  injuring even innocent individuals who  may  have every  intention and the capacity to pay the  demanded  tax,

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but  may  have defaulted only by some oversight and  may  be unable  to  produce the required money on the spot.   It  is well  settled that out of two possible  internationals,  the one  which confines the content of such power of seizure  to reasonable  limits  and fair modes of  operation  should  be preferred. [831 D] Therefore, although Sec. 161 of the Act can be used ’at  any time’. against a defaulter, yet a defaulter in view of sees. 154 and 155 of the Act would be a person who refuses to  pay within  a  period specified in Sec. 155 of the Act  after  a notice  of demand u/s. 154 of the Act.  Although the  demand of  notice  is  optional,  yet, but the  option  has  to  be exercised  if it is intended to invoke the powers  contained in sec. 161. [831 F] (ii) The Inspectors were acting honestly in exercise of  the powers  delegated’  to  them,  but they  had  erred  in  the exercise of their powers.  They, however, cannot be presumed to  know  that  a notice under sec.  154  must  precede  any attempt  of seizure.  Therefore. there was no  legal  defect which  vitiated  their  actions.  Sec.  99,  therefore,  did confer  a protection upon the employees of  the  Corporation who  acted in good faith under the colour of  their  office. But  since  they acted in an improper  manner  in  demanding immediate payment, the sentences imposed upon the  appellant were  excessive.  The sentenced, therefore, were reduced  to the  period  already  undergone by  the  appellant  but  the convictions   were  upheld.   The  fine  imposed  upon   the appellant was also set aside.[832 A-C] 828

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 199 of 910. Appeal  by Special leave from the judgment and  order  dated the 12th November, 1969 of the Delhi High Court at New Delhi in Criminal Appeal No. 103 of 1968. Harbans Singh, for the appellant. Govind Das, for the respondent. The Judgment of the Court was delivered by BEG, J.-The High Court of Delhi had confirmed the conviction ,,of  the appellant under Section 353/332/333 of the  Indian Penal  ,  Code,  and  a  sentence  of  one  year’s  regorous imprisonment  on  each ,count, _and also to be fine  of  Rs. 400/-, and, in default of payment ",of fine, to four  months further rigorous imprisonment under section 333 Indian Penal Code.   The  appellant has come to this Court by  ,grant  of special leave. It was alleged that the appellant had, on 17-3-1967, at 4,30 p.m., in Rameshwar Nagar, obstructed Sarvshri Rattan  Singh, Maharaj  Singh ;and Raghbir Singh, Section  Inspectors,  and Dunger, a Peon of the Delhi Municipal Corporation, when they went  to seize a buffalo belonging to the appellant  in  the discharge  of their duty to, realise the milk tax from  him, and struck Rattan Singh on the nose with the result that  it bled and was also fractured. The  Main contention on behalf of the appellant is that  the attempt  to  realize  Rs.  153.75 as  arrears  of  milk  tax together  with  Rs.  10/ as recovery  charges  was  illegal, because   compliance  with  the  provisions  of  the   Delhi Municipal Corporation Act, 1957 (hereinafter referred to  as ’the  Act’), for the payment and recovery of taxes, and,  in particular  with  the requirements for a  notice  of  demand contained in Section 154 of the Act, was wanting so that  he

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had a right to private defence. An  attempt was also made to argue that the  Inspectors  who went to realise the milk tax by seizing the buffalo were not duly  empowered ,by the Commissioner to do so.  An order  of the  Commissioner dated 22-7-1959 under Section 491  of  the Act,  delegating the Commissioner’s powers to Inspectors  of the  Corporation,  set that question, at rest.  We  do  ’not think it could be argued that Section 491 requires the  con- ferment of the Commissioner’s powers upon every Inspector by name.  It is enough if there is a general order, as there is in  this case, indicating the class of officers to whom  the Commissioner  had delegated his .powers under  any  section. We  are supported in this view by the case of  Kanwar  Singh vs.  Delhi Administration.(1) We  find  that it has not been contended anywhere  that  the Inspectors  ,did not act under the colour of  their  office. The  appellant did not plead, in defence, that the  officers concerned  were  not  known to him  as  Inspector-,  of  the Corporation authorised to collect tax or that they could not show any authority for performing their duties.  Hence, (1)  [ 1965] (1) SCR p. 711                             829 he  prosecution  has relied upon Section 99  of  the  I.P.C. which lays town :               "There is no right of private defence  against               an  act  which does not reasonably  cause  the               apprehension of death or of grievous hurt,  if               done,  or attempted to be done, by  a.  public               servant  acting in good faith under colour  of               his  office,  though  that  act  may  not   be               strictly justifiable by law".               On facts found, it has to be assumed that  the               appellant  had objected to the taking  of  his               buffalo, and, as this was of no avail, he  had               given a blow to Rattan Singh on the nose which               bled  and was also fractured as a result.   It               is true that, if the act against which a right               of  private defence is pleaded is not done  in               good faith the protection of Section 99 I.P.C.               will not extend to it.  It has, therefore,  to               be determined whether there was any such  non-               compliance with the provisions relating to the               realisation of the tax, in attempting to  take               away  the  buffalo  of the  appellant,  as  to               amount to want of good faith.               The High Court had accepted the submission  on               behalf of the Prosecution that Section 161  of               the  Act  empowered  the  Inspectors  of   the               Corporation   to   seize   and   remove    the               appellant’s buffalo for nonpayment of the  tax               as  it gave an over-riding power to resort  to               this method of enforcing payment "a. any  time               after the tax has become du.-." Section 161 of               the Act lays down :                "  161  (1  ) If the tax on  any  vehicle  or               animal is not paid, the, instead of proceeding               against the defaulter by distress and sale  of               his  other  movable property  as  hereinbefore               provided,  the Commissioner may, at  any  time               after the tax has become due, seize and detain               the  vehicle  or animal or both  and,  if  the               owner  or other person entitled  thereto  does               not within seven days in respect of a  vehicle               and two days in respect of an animal from  the               date of such seizure and detention, claim  the

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             same  and  pay the tax due together  with  the               charges   incurred  in  connection  with   the               seizure  and detention, the  Commissioner  may               cause  the  same  to be  sold  and  apply  the               proceeds  of the sale or such part thereof  as               is  required in discharge of the sum  due  and               the charges incurred as aforesaid.               (2)   The surplus, if any, remaining after the                             application  of  the sale-proceeds  un der  sub-               section(1) shall be disposed of in the  manner               laid  down  in  sub-sections (6)  and  (7)  of               Section 158".               Section  152 provides that a tax levied  under               the  Act  becomes payable "on such  dates,  in               such number of instalments and in such  manner               as may be determined by bye-laws male in  this               behalf".  tax on an animal must be  deemed  to               have become due without ’,lie need to  present               a bill because Section 153 reads as follows :               "153(1)  When  any  tax has  become  due,  the               Commissioner  shall cause to be  presented  to               the  person liable for the payment thereof,  a               bill for the amount due                830               Provided that no such bill shall be  necessary               in the case of               (a)   a tax on vehicles and animals;               (b)   a theatre-tax; and               (c)   a tax on advertisements.               (2)   Every   such  bill  shall  specify   the               particulars  of  the tax and  the  period  for               which the charge is made".               Nevertheless, Section 154 reads as follows :               " 154(1) If the amount of the tax for which  a               bill has been presented under Section 153,  is               not   paid  within  fifteen  days   from   the               presentation   thereof,  or  if  the  tax   on               vehicles and animals or the theatre-tax or the               tax on advertisements is not paid after it has               become  due, the Commissioner may cause to  be               served upon the person liable for the  payment               of the same a notice of demand in the form set               forth in the seventh Schedule.               (2)   For  every  notice of demand  which  the               Commissioner causes to be served on any person               under  this Section, a fee of such amount  not               exceeding five rupees as may be determined  by               bye-laws made in this behalf, shall be payable               by  the said person and shall be  included  in               the  cost  of recovery".  Then  comes  Section               155, which runs as follows :               "155(1)  If the person liable for the  payment               of any tax does not, within thirty days of the               service of the notice of demand under  Section               154,  pay  the  sum due and if  no  appeal  is               preferred against such tax, he shall be deemed                             to be in default.               (2)   When  the person liable for the  payment               of  any tax is deemed to be in default  under-               sub-section (1), such sum not exceeding twenty               per  cent. of the amount of the tax as may  be               determined   by   the  Commissioner   may   be               recovered  from  him  by way  of  penalty,  in               addition  to  the amount of the  tax  and  the

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             notice-fee  payable under sub-section  (2)  of               section    154.               (3)   The  amount  due as penalty  under  sub-               section (2) shall be recoverable as an  arrear               of tax under this Act." The argument of the learned Counsel for the appellant, based upon  the provisions of Section 154 and Section 155  of  the Act, is that, unless Section 154 is complied with, so that a notice  of demand is served upon a person from whom tax  has become  due,  be cannot file an appeal.  It  was  emphasized that he will "be deemed to be in default" only if the demand is  not  satisfied  within 30 days and no  appeal  is  filed against it.  It was urged that Section 155 thus, indirectly, provides  the  meaning of the word "defaulter"  as  used  in Section. 161 of the Act.  Furthermore, it is contended that, unless a person is a defaulter within the meaning of Section 155 of the Act, no proceeding can be taken against him under Section 161 of the Act.  The High 831 Court   had   met  this  argument  by  holding   that   this interpretation  would make it unnecessary to. have  inserted the  words  in Section 161 "at any time after  the  tax  has become due".  It held that these words are to be given their literal meaning and due effect. On  behalf  of the appellant, support was  sought  from  the provisions .of Section 156, Section 157, and Section 159  of the Act to contend that recoveries by sale and distress have to  be  preceded by notices Id demand.  It was  pointed  out that,  even  in the case of recovery of tax  from  a  person likely to leave Delhi soon, Section 159 required a notice of demand for immediate payment.  Hence, it was urged that  the procedure  laid down for seizure of vehicles and animals  in Section  161  of  the  Act is an  alternative  only  to  the procedures  of  recovery by distress and sale but  does  not dispense  with the notice required under Section 154 of  the Act or else it would become much too drastic.an  alternative which could be used arbitrarily We  think, that, ’although the interpretation placed by  the High  Court upon the provisions of Section 161, read in  the light   of  other  provisions  of  the  Act,   is   possible interpretation,  it  has to be remembered that  Section  161 would  become  the repository of rather  drastic  power,  of acting  without  previous  notice, to seize  any  animal  or vehicle  at  any  time after the tax has  become  due,  and, thereby, of seriously injuring even innocent individuals who may  have every intention and capacity to pay  the  demanded tax, but may have defaulted only .’by some oversight and may be unable to produce the required money on the spot.  It  is well settled that, out of two possible interpretations,  the one  which confines the content of such power of seizure  to reasonable  limits  and fair modes of  operation  should  be preferred lest the validity of the provision itself  becomes questionable.  The provisions of the Act, set out above, are capable, we think, of being reasonably so interpreted as  to confine  the ambit of power contained in Section 161 of  the Act  to situations in which the person from whom the tax  is to  be realized can be deemed to be a defaulter.   In  other words,  although Section 161 can be used "at any time"  when the  person against whom it is to be used is shown to  be  a "defaulter",  yet a defaulter, in view of the provisions  of Sections  154  and 155 of them Act, would be  a  person  who refuses to pay within the period specified in Section 155 of the  Act  after a notice of demand under Section  154of  the Act.   No doubt the demand by notice for a tax on an  animal is  optional.  But, the option has to be exercised if it  is

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intended to, invoke the powers contained in Section 161. We, however, do not think that, in view of the provisions of Section  99 I.P.C. it is enough to hold that there had  been no notice of’ demand in the instant case.  The action of the Inspectors  did not become vitiated by bad faith simply  for that  reason.  They were acting honestly in the exercise  of the  powers  delegated to them by the  Commissioner.   Their attempt  to recover the tax due, by seizure of  the  animal, was  not entirely outside the law.  All that could be  said’ was  that they had erred, even if sadly, in the exercise  of their powers. The  Inspectors could not be fairly presumed to know that  a notice under Section 154 of the Act must precede any attempt to seize the 10-L84Sup.C.1.175 832 buffalo as the law has been anything but clear on a  subject on which there has been no previous decision of this  Court. The view of the Delhi High Court supported the view that  no legal defect at all vitiated the actions of the  Inspectors. As already stated, there was no plea that the Inspectors did not  act in a bona fide manner or that they were .-aware  of the defect in the procedure adopted.  All that the appellant told  them  was that he did not have ready money to  pay  up instantly.    He   did  not  refuse  to   pay.    In   these circumstances,  we  think  that  Section  99  did  confer  a protection  upon the employees of the Corporation who  acted in good faith under the colour of their office.  But, in  as much  as they had acted in an improper manner  in  demanding immediate payment and tried to seize the animal  prematurely under  ,a misconception about the mode of exercise of  their powers under .Section 161 of the Act, the sentences  imposed upon the appellant are excessive. We  think  that  the  ends of  justice  will  be  served  by maintaining the .,convictions but reducing the sentences  to the    period   already   undergone   by   the    appellant. Consequently,  we  set  aside  the  fine  imposed  upon  the appellant  and reduce the sentences passed upon him  to  the period  already  undergone.  With  this  modification,  this appeal is hereby dismissed. Appeal dismissed. 833