14 October 1955
Supreme Court


Case number: Writ Petition (Civil) 270 of 1955






DATE OF JUDGMENT: 14/10/1955


CITATION:  1956 AIR   20            1955 SCR  (2) 887

ACT: Constitution of India, Arts. 13(1), 14, 21-Indian Income Tax Act  1922 (Act XI of 1922), s. 46(2)-Whether  offends  Arts. 13(1),  14 & 21 of the Constitution-Bombay Land Revenue  Act 1876 (Bombay Act II of 1876)-Whether offends Art. 14 of  the Constitution.

HEADNOTE: The assesses carrying on business in the City of Bombay  was assessed to income-tax for the years 1943-44 to 1947-48  and 1951-52  by the Income-tax Officer C-1 Ward Bombay.  As  the assessee  did  not  pay the income-tax  due  the  Income-tax Officer issued in April 1951 to the Additional Collector  of Bombay  a recovery certificate under s. 46(2) of the  Indian Income-tax  Act,  1922.   In February  1954  the  Additional Collector  issued a notice of demand and as no  payment  was made  he  attached the good will and tenancy rights  of  the assessee’s  premises by a warrant of attachment  dated  24th March 1954, 888 A  sale  was held in February 1955.  The sale  proceeds  not being sufficient to satisfy the assessed tax the  Additional Collector  issued  a notice under s. 13 of the  Bombay  City Land  Revenue  Act, 1876 requiring the  assessee  to  appear before  him and show cause why he should not be  apprehended and  confined  to civil prison in satisfaction of  the  said certified  demand.  In default of assessee’s appearance  and showing  cause a warrant for his arrest was issued under  s. 13  of  the  Bombay  Act, II of 1876  and  he  was  actually arrested  on  1st July 1955.  An application to  the  Bombay High Court under Art. 226 of the Constitution for a writ  in the  nature  of  a  writ  of  habeas  corpus  having  proved unsuccessful, an application under Art. 32 was filed in  the Supreme Court for the same relief.  Two main points urged on behalf of the assessee were: (a)  that s. 46(2) of the Indian Income-tax Act under  which the  Income-tax Officer issued the recovery  certificate  to the  Additional Collector of Bombay was void, under Art.  13 (1) of the Constitution in that it offended Art. 21 and Art.



14 of the Constitution; (b)that  s. 13 of the Bombay Land Revenue Act, 1876  (Bombay Act II of 1876) under which the warrant of arrest was issued by the Additional Collector was void under Art. 13(1) of the Constitution  as  the same was repugnant to Art. 14  of  the Constitution. Held  (as  regards  a) (1) that there was  no  violation  of fundamental  rights  under  Art.  21  of  the   Constitution inasmuch  as s. 13 of the Bombay Act II of 1876 under  which warrant of arrest was issued for the recovery of the  demand certified  under  s.  46(2) of  the  Indian  Income-tax  Act constituted  a procedure established by law.  Both s. 13  of Bombay Act II of 1876 and s. 46 of the Indian Income-tax Act under which action had been taken against the assessee  were not  void and therefore no question of violation  of  funda- mental rights under Art. 21 could arise at all) (ii)the  contention that s. 46(2) of the  Indian  Income-tax Act  provides for two different and alternative  methods  of recovery  of  the dues and clothes the  Collector  with  the unfettered  and  unguided power to apply either of  the  two methods inasmuch as it enables the Collector at his will  to discriminate  between  two  defaulters  who  are   similarly situated  and thus violates the equal protection  clause  of the  Constitution was without force because sub-section  (2) of  s. 46 does not prescribe two different procedures.   The proviso  enacted therein does not indicate a  different  and alternative mode of recovery of the certified amount of  tax but only confers additional powers on the Collector for  the better  and more effective application of the only  mode  of recovery authorised by the body of sub-section (2) of s.  46 and  therefore there was no question of possibility of  dis- crimination at all; (iii)the  further  contention that s. 46(2)  of  the  Indian Incometax  Act violates the equal protection clause  of  the Constitution  and has thus become void under Art. 14 of  the Constitution  as s. 46(2) required the Collector,on  receipt of the requisite certificate from 889 the  Income-tax Officer, to recover the amount specified  in the certificate as if it were an arrear of the land  revenue and there are different laws adopted by different States for the   recovery   of  land  revenues  and   thus   there   is discrimination  on  the ground that defaulters  are  treated differently  in different States is also without  force  be- cause   discrimination  complained  of  is   a   permissible classification  and  does not offend the  fundamental  right guaranteed  by  Art. 14 as the grouping  of  the  income-tax defaulters in separate categories on classes State-wise is a territorial classification which is based on an intelligible differentia  and there is a reasonable nexus or  co-relation between the basis of classification and the object sought to be  achieved  by  the Income-tax Act.   The  fact  that  the income-tax  demand  is  a  Union  public  demand  makes   no difference in the legal position. Held,  (as regards b) that the contention that s. 13 of  the Bombay  Act  II of 1876 became unconstitutional  under  Art. 13(1)  of the Constitution in that the procedure  prescribed by  s.  13  of the Bombay Act II of 1876  in  respect  of  a defaulter  residing  in the City of Bombay was  harsher  and more  drastic than the procedure laid down in s. 157 of  the Bombay  Act  V of 1879 in respect of  a  defaulter  residing outside  the City of Bombay was without force because s.  13 of the Bombay Act II of 1876 was amended on 8th October 1954 and  a new law laid down a law similar to the law laid  down by  s. 157 of the Bombay Act V of 1879 and thus the vice  of



unconstitutionality ’if any’ was removed. State  of  Punjab v. Ajaib Singh &  Another  ([1953]  S.C.R. 254),  Shaik Ali Ahmed v. Collector of Bombay  (I.L.R.  1950 Bom.  150),  Chiranjit Lal Chowdhury v. The Union  of  India ([1950] S.C.R. 869), Budhan Choudhry and others v. The State of  Bihar ([1955] 1 S.C.R. 1045), Middleton v.  Texas  Power and Light Company (249 U. S.,152), Bowman v. Lewis (101 U.S. 22;  25  L.Ed. 689), The State of Rajasthan v.  Rao  Manohar Singhji ([1954] S.C.R. 996), Bhikaji Narayan Dhakras v.  The State of Madhya Pradesh, Nagpur and Another ([1965] 2 S.C.R. 589)  and Erimmal Ebrahim Hajee v. The Collector of  Malabar ([1954] 26 I.T.R. 509), referred to.

JUDGMENT: ORIGINAL JURISDICTION: Petition No. 270 of 1955. Under Article 32 of the Constitution of India for a Writ  in the nature of Habeas Corpus. Hemendra Shah, J. B. Dadachanji and Rajinder Narain, for the petitioner. M.   C. Setalvad, Attorney-General of India, C. K. Daphtary, Solicitor-General of India, (B.  Sen and R. H. Dhebar,  with them) for the respondent No. 1. 890 1955    October 14. DAS  ACTG.  C. J.-This rule was issued on a  petition  filed under  article  32  of the Constitution  by  one  Purshottam Govindji  Halai,  a  citizen  of  India,  calling  upon  the respondents to show cause why a writ in the nature of a writ of  habeas  corpus  should  not  be  issued  by  this  Court directing the Superintendent, House of Correction,  Byculla, being the second respondent herein., to produce before  this Court   one  Govindji  Deoji  Halai,  the  father   of   the petitioner, who is also a citizen of India., for the purpose of being released forthwith. The facts which are not in dispute may be shortly stated  as follows.    The  said  Govindji  Deoji  Halai   (hereinafter referred  to as the "assessee") is the sole proprietor of  a business  carried  on under the name and style  of  Indestro Sales  and Service Co. at No. 50-52, Lohar Chawl  Street  in the City of Bombay.  Two private limited companies,  namely, Indestro  India Ltd., and Indestro Eastern Ltd., also  carry on  business and have their respective offices in  the  same premises.  The assessee is said to have some connection with the two companies the nature of which, however, is not quite clear  on  the  record before us.  In  respect  of  his  own business of Indestro Sales and Service Co., the assessee was assessed  to income-tax for the years 1943-44  to  1947-1948 and  1951-1952  by the Third Income-tax Officer,  C-1  Ward, Bombay, at and for Rs. 40,178-4-0.  The assessee not  having paid up the assessed amount of tax the Income-tax Officer on the  10th April 1951 issued to the’ Additional Collector  of Bombay, the first respondent herein, a recovery  certificate ,under section 46(2) of the Income-tax Act.  It may here  be mentioned that the Indestro Eastern, Ltd., was also assessed to  income-tax  at  and  for Rs.  1,92,000  and  a  recovery certificate was also issued by the Income-tax Officer to the Additional Collector of Bombay. On the 1st February, 1954 the Additional Collector issued  a notice of demand on the assessee for payment of the assessed amount of tax.  No payment 891 having  been  made, the Additional  Collector  attached  the goodwill  and  tenancy  rights in the  said  premises  by  a



warrant  of attachment issued on the 24th March  1954.   The sale proclamation was issued on the 15th January 1955.   The sale was held on the 25th February 1955 fetching a price  of Rs. 33,000 and it was confirmed on the 30th March 1955.  The sale  proceeds not being sufficient to satisfy the  assessed tax  the Additional Collector on the 7th June 1955 issued  a notice under section 13 of the Bombay City Land Revenue Act, 1876, requiring the assessee to appear before him in  person on  the 16th June 1955 and show cause why he, the  assessee, should  not  be apprehended and confined to  civil  jail  in satisfaction of the said certified demand.  The assessee did not  appear in person on the appointed day but on  the  next day, the 17th June 1955, an Advocate acting on behalf of the assessee   wrote  a  letter  to  the  Additional   Collector purporting  to  show cause why the assessee  should  not  be arrested  and sent to the civil jail.  The  contentions  put forward  on  behalf  of the assessee  not  being  considered satisfactory the Additional Collector on the 30th June  1955 issued  a  warrant  for the arrest  of  the  assessee  under section  13 of the Bombay City Land Revenue Act, 1876.   The assessee was actually arrested on the 1st July 1955. On the 8th July 1955 an application was made by the  present petitioner  to  the  Bombay High  Court  under  article  226 complaining  of the arrest of his father, the assessee,  and praying for a writ in the nature of a writ of habeas  corpus for the production and release of the assessee.  A rule  was issued  by the High Court but eventually on the 24th  August 1955 the High Court (Chagla, C.J. and Desai, J.)  discharged the  rule.   No application was made to the High  Court  for leave to appeal to this Court from the decision of that High Court but on the 2nd September 1955 the present petition was filed in this Court under article 32 of the Constitution for the  relief  hereinbefore mentioned.  On the  7th  September 1955  a  rule  was issued by this  Court  on  that  petition subject  to the question of its maintainability in  view  of the dismissal by the 113 892 High  Court of the petition under article 226 from which  no leave  to appeal to this Court had been sought or  obtained. The rule has now come up before us for hearing.  In the view we  have  taken about the merits of the petition it  is  not necessary   for   us  to  consider  the  question   of   its maintainability  after the dismissal of the  petition  under article 226 or to make any pronouncement, on this  occasion, on the scope and ambit of article 32 of the Constitution  in that situation. The  principal  contentions urged by  the  learned  Advocate appearing for the petitioner are as follows, namely,- (a)  that  section 46(2) of the Indian Income-tax Act  under which the Income-tax Officer issued the recovery certificate to the Additional Collector of Bombay is void under  article 13(1)  of the Constitution in that the same offends  article 22(1)   and   (2),  article  21  and  article  14   of   the Constitution; (b)  that  section 13 of the Bombay City Land  Revenue  Act, 1876  under  which the warrant of arrest was issued  by  the Additional  Collector  is void under article 13 (1)  of  the Constitution  as the same is repugnant to article 14 of  the Constitution. We  proceed to deal with the objections seriatim.  Re.  (a): Section 46(2) of the Indian Income-tax Act which is impugned before us runs as follows:--- "46. (1)......................................... (2)  The  Income-tax Officer may forward to the Collector  a



certificate  under  his signature specifying the  amount  of arrears due from an assessee, and the Collector, on  receipt of  such  certificate, shall proceed to  recover  from  such assessee  the  amount  specified therein as if  it  were  an arrear of land revenue: Provided  that without prejudice to any other powers of  the Collector  in  this  behalf, he shall  for  the  purpose  of recovering  the said amount have the powers which under  the Code of Civil Procedure, 1908 (Act V of 1908), a Civil Court has for the purpose of the recovery of an amount due under a decree. The first objection to   the above sub-section is that it 893 contravenes the fundamental rights guaranteed by clauses (1) and  (2)  of article 22.  In view of the  decision  of  this Court  in  the State of Punjab v. Ajaib Singh  &  Another(1) this  objection has not been pressed before us and  we  need say no more about it. The second objection to section 46(2) of the Indian  Income- tax  Act is that it is violative of article 21.  Article  21 guarantees that no person shall be deprived of his  personal liberty  except in accordance with procedure established  by law.   In  this case the assessee has been arrested  and  is being  detained in jail in execution of a warrant of  arrest issued under section 13 of the Bombay City Land Revenue Act, 1876 for the recovery of the demand certified under  section 46(2)  of the Indian Income-tax Act.  As long as those  sec- tions  stand  no complaint can be made  of  infringement  of article  21, for those two sections constitute  a  procedure established  by law.  It is only if those sections are  void that  the  question of violation of  the  fundamental  right under  article 21 can arise at all.  We have, therefore,  to pass  on to the third objection to section 46(2) founded  on article  14  of  the  Constitution  which  alone  has   been strenuously insisted on before us by learned counsel for the petitioner. Article  14 is invoked in two ways.  It is pointed out  that the first part of section 46(2) provides that the Collector, on  receipt  of a certificate from the  Income-tax  Officer, shall  proceed to recover from the defaulting  assessee  the amount  specified  therein as if it were an arrear  of  land revenue.   It  is  next said that the proviso  to  the  sub- section  invests the Collector with all the powers  a  Civil Court has under the Code of Civil Procedure for the  purpose of  the  recovery of the amount due under a decree.   It  is submitted that section 46(2) provides for two different  and alternative methods of recovery of the dues and clothes  the Collector with the power to apply either of the two methods, that  is  to  say, he may issue a warrant  of  arrest  under section 13 of the Bombay City Land Revenue Act, 1876 against one  defaulter and keep him in detention for a period  which may (1)  [1953] S.C.R. 254. 894 work  out  to  be much longer than six  months  and  he  may proceed  against another defaulter under the Code  of  Civil Procedure  and arrest and detain him for the maximum  period of  six months.  The powers that are thus conferred  on  the Collector  by section 46(2) are unfettered and unguided  and enable  the Collector, at his will, to discriminate  between two  defaulters  who  are  similarly  situated  and  thereby violate  the behests of the equal protection clause  of  the Constitution.  This argument appears to us to be founded  on a  misapprehension about the true meaning of section  46(2). On a proper reading, that subsection does not prescribe  two



alternative  modes of procedure at all.  All that  the  sub- section directs the Collector to do is to proceed to recover the  certified  amount  as  if it were  an  arrear  of  land revenue,  that  is  to say, he is  to  adopt  the  procedure prescribed  by  the  appropriate law of his  State  for  the recovery of land revenue and that in thus proceeding he  is, under the proviso, to have all the powers a Civil Court  has under  the  Code.  The sub-section does  not  prescribe  two separate  procedures.  The statement to the contrary in  the judgment  of  the Bombay High Court in Shaik  Ali  Ahmed  v. Collector of Bombay(1) does not appear to us to be  correct. In our opinion the proviso does not indicate a different and alternative mode of recovery of the certified amount of  tax but only confers additional powers on the Collector for  the better  and more effective application of the only  mode  of recovery  authorised  by  the body  of  sub-section  (2)  of section  46.  Viewed in this light, there is no question  of the possibility of any discrimination at all.  This part  of the argument cannot, therefore, be accepted. The  other  way  in which the protection of  article  14  is invoked is founded on a comparison of the provisions of  the different  laws  adopted  by the different  States  for  the recovery  of  land  revenue.   Section46(2)  of  the  Indian Income-tax  Act  requires the Collector, on receipt  of  the requisite certificate from the Incometax Officer, to proceed to  recover  from the assessee the amount specified  in  the certificate as if it were an (1)  I.L.R. [1950] Bom. 150, 155. 895 arrear of land revenue.  This means that the Collector  must take  such  proceedings  as he would have done  if  he  were engaged in recovering land revenue.  Thus a Collector in the City of Bombay in recovering the certified amount of income- tax  must proceed under Ejection 13 of the Bombay City  Land Revenue  Act,  1876 (Bombay Act II of 1876) and  arrest  and detain him far the period therein mentioned which, prior  to the 8th October 1954, might have worked out to a period much longer  than six months.  On the other hand, the  defaulting assessee in all other parts of the State of Bombay has to be proceeded  against  under  section 157 of  the  Bombay  Land Revenue  Code,  1879 (Bombay Act V of 1879) under  which  he cannot  be detained for more than the period limited by  the Code  of  Civil Procedure for the detention of  a  judgment- debtor  in  execution  of a decree for an  equal  amount  of money.   So, even in one State there were two procedures  to which  defaulting assessees could be subjected according  as they were in or outside the City of Bombay.  A Collector  in the  State of Madras in recovering the certified  amount  of income-tax  has  to proceed under section 48 of  the  Madras Revenue  Recovery Act, 1864 (Madras Act II of  1864).   When the  Collector  finds that the certified  amount  cannot  be liquidated  by  the sale of the property of  the  defaulting assessee  and the Collector has reason to believe  that  the defaulter is wilfully withholding payment or has been guilty of  fraudulent  conduct  in  order  to  evade  payment,  the Collector  may,  under  section 48 of that  Act,  cause  the arrest  and  imprisonment  of the  defaulter,  not  being  a female.   But  that section goes on to say  that  no  person shall  be imprisoned for a longer period than two  years  or for  a longer period than six months if the arrear does  not exceed  Rs. 500 or for a longer period than three months  if the  arrear  does not exceed Rs. 50.  A  Collector  in  West Bengal proceeding to recover the certified amount under  the Bengal Public Demands Recovery Act, 1913 (Bengal Act III  of 1913)  cannot,  under  section 31 of that  Act,  direct  the



detention of the defaulting assessee in prison for more than six months if the amount is more 896 than Rs. 50 or in other cases for more than six weeks.   The defaulter  in  the Punjab cannot, under section  69  of  the Punjab Land Revenue Act, 1887 (Punjab Act XXVII of 1887), be kept in civil jail for more than one month.  Section 148  of the  U.  P. Land Revenue Act) 1901 (U.P. Act  III  of  1901) limits  the period of detention to 15 days and also  exempts many   persons,   e.g.  Talukdars  and   women,   from   any imprisonment.   The Assam Land and Revenue Regulation,  1886 (Reg.  I of 1886) does not insist on imprisonment at all.  A cursory  perusal  of the provisions of  the  different  Acts referred  to above will at once show that in the  matter  of recovery  of  arrears of land revenue the  different  States have prescribed different machinery, some obviously  harsher than  others.   The  argument is  that  income-tax  being  a subject  with respect to which the Union alone may make  law and  the recovery of it being the Union responsibility,  the machinery for the recovery of income-tax should be framed on a  uniform all-India basis, for to the Union all  defaulters who may not pay up the Union demand are similarly  situated; but  the Indian Income-tax Act by section  46(2)  authorises the Collectors in different States to adopt machinery  which differs from State to State, so that defaulters are  treated differently  in  different States.  The contention  is  that section 46(2) which sanctions such discrimination is clearly violative of the equal protection clause of the Constitution and has, therefore, become void under article 13 (1). The  learned Attorney-General appearing for the  respondents seeks  to meet the aforesaid argument in two ways.   In  the first place, he urges that the impugned sub-section does not by itself make any discrimination.  All that it says is that the certified amount of income-tax is to be recovered as  if it  were an arrear of land revenue and there  its  operation ends.  In recovering the certified demand the Collector  has to  have  recourse  to the machinery available  to  him  for enforcing  a  demand  for arrears of land  revenue  but  the provisions of the State laws which prescribe that  machinery are not incorporated in section 46(2). 897 If  the  State laws are discriminatory that vice  cannot  be imputed to section 46(2). There  is  good deal to be said on either side.   The  State laws prescribe the procedure for the recovery of arrears  of land  revenue  only  and  they are  not,  in  terms  and  by themselves, concerned at all with the recovery of income-tax demand.That machinery is  made available for the  purpose of recovery of income-tax by virtue only of section46(2) of the Indian Income-tax Act.     In the matter of  recovery of income-tax the Collectors adopt theprocedure laid down by the State laws, not because the State laws enjoin them to do  so but because section 46(2) directs them to do so.   In other words, it is section 46(2) which tells the  Collectors of  Madras to follow the procedure under section 48  of  the Madras Revenue Recovery Act, 1864 as if those provisions are set out in the Indian Income-tax Act in extenso and it tells the  Collectors of all other States to adopt  the  procedure prescribed  by  their own State laws as  if  the  provisions prescribing that procedure were set out in that section.  In such a situation it is a plausible argument to say that  all the provisions of all the State laws are, mutatis  mutandis, to be read into section 46 (2) and that, therefore, if there be  any vice of discrimination in the State laws  that  vice cannot  but be regarded as having crept into section  46(2).



On  the other hand, to hold that all the provisions  of  all the State laws for recovery of arrears of land revenue  have been  referentially  incorporated in section  46(2)  of  the Indian Income-tax Act will lead us into difficulties.   Will the  subsequent  amendments  of  the  State  laws  be   also incorporated in section 46(2)?  Section 46(2) of the  Indian Income-tax  Act having incorporated the State laws  as  they then stood, how can any State Legislature which has no power to  make any law with respect to income-tax alter  or  amend section  46(2)?   Are  the State  laws  as  incorporated  in section  46(2) at the time it was enacted to be  treated  as crystallised  and to be applied by the Collectors,  although the  State laws for the recovery of arrears of land  revenue may be materially altered by sub- 898 sequent  amendment?  These are some of the  questions  which will have to be answered before we can come to a decision on this  point.  In the view we take of the second part of  the learned   AttorneyGeneral’s  argument  to  which  we   shall presently  refer it is not necessary for us to  express  any opinion on this part of his argument. The learned Attorney-General then argues that assuming  that section  46(2)  by incorporating the  different  State  laws which  are  not  uniform  has  become  discriminatory   such discrimination  is  permissible  and  does  not  offend  the fundamental  right guaranteed by article 14.  This  argument appears to us to be well ,founded. The  meaning,  scope and effect of the article  in  question have  been explained by this Court in a series of  decisions beginning with that in Chiranjit Lal Chowdhury v. The  Union of  India(1)  and ending with that in Budhan  Chowdhury  and others  v. The State of Bihar(1).  The following passage  in the  unanimous  judgment  of  the Full  Court  in  the  last mentioned  case  at  p. 1049  briefly  summarises  the  true intendment of the constitutional provision:- "...................................   It   is   now   well- established that while article 14 forbids class legislation, it  does  not  forbid  reasonable  classification  for   the purposes  of  legislation.  In order, however, to  pass  the test  of permissible classification two conditions  must  be fulfilled,  namely,  (i)  that the  classification  must  be founded  on an intelligible differentia which  distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have  a rational relation to the object sought to be achieved by the statute  in question.  The classification may be founded  on different  bases;  namely,  geographical,  or  according  to objects  or occupations or the like.  What is  necessary  is that   there   must  be  a  nexus  between  the   basis   of classification   and   the   object   of   the   Act   under consideration.  It is also well-established by the decisions of this Court (1)  [1950) S.C.R. 869. (2)  [1955] 1 S.C.R. 1045. 899 that  article  14  condemns discrimination  not  only  by  a substantive law but also by a law of procedure". The  respective  contentions  now  put  forward  as  to  the validity or otherwise of section 46(2) of the Indian Income- tax Act have to be judged in the light of the principles  so laid down by the Full Court. The Indian Income-tax Act imposes a liability on persons who are  amenable  to it to pay the tax assessed  against  them. The assessed amount is a public demand of the Union and  has to be recovered, if not voluntarily paid up.  The  assessees



are  scattered  all over the Union and machinery has  to  be devised for that purpose.  On looking round the Union  finds that there is machinery in every State for recovery of  land revenues which are State demands.  Each State in its  wisdom has devised a machinery which it has considered  appropriate and suitable for the recovery of its own public demand.   As was  said  by the Supreme Court of America in  Middleton  v. Texas Power and Light Company(1)- "There   is   a  strong  presumption  that   a   legislature understands  and correctly appreciates the needs of its  own people, that its laws are directed to problems made manifest by  experience and that its discriminations are  based  upon adequate grounds". It is conceded that each State is well within its rights  to devise its own machinery for the recovery of its own  public demand  and  that  no  person belonging  to  one  State  can complain  that  the law of his State is more  rigorous  than that of the neighbouring state.  The reason is obvious,  for the people of one State are not similarly situated as people of  another State.  Their needs, as understood by their  own Legislature, are different from those of the people of other States.   If  in the matter of recovery of arrears  of  land revenue defaulters of one State cannot complain of denial of equal protection of the laws on the ground of the difference in the modes of recovery prevailing in other States, can  it be  said to be unreasonable for the Union to adopt, for  the recovery of its public demand from defaulters of each State, the same mode of recovery (1)  249 U.S. 152, 157. 114 900 of  public  demand  prevailing  in  that  State?   Here  the defaulters are classified on a territorial, or  geographical basis  and  this basis of classification has  precisely  the same correlation to the object of the Indian Income-tax  Act as  it  has to the object of the  different  Public  Demands Recovery  Acts.  The objects of the two Acts in this  behalf are  in pari materia and the same considerations must  apply to both.  People of each State are familiar with and used to the  coercive processes which each State finds it  necessary to  impose  on  its own people for the  recovery  of  public demand  and  there can be no hardship  and  consequently  no objection  to their being put to the same processes for  the recovery of the public demand of the Union.  The grouping of the  income-tax  defaulters  into  separate  categories   or classes Statewise is certainly a territorial  classification which  is  based  on an  intelligible  differentia  and  the subjection,  for  the  purposes  of  the  recovery  of   the certified  demand, of each of such classes of defaulters  to the  same coercive process devised by their own State, on  a consideration of local needs, for the recovery of their  own public demands, cannot be regarded as bereft of a reasonable nexus or correlation between the basis of classification and the  object sought to be achieved by the  Indian  Income-tax Act any more than it can be so regarded with respect to  the respective State laws.  The fact that the income-tax  demand is a Union public demand appears to us to make no difference in the legal position. The  Indian  Income-tax Act classifies people  into  various groups  for the purpose of imposing the tax and  taxes  them differently,  e.g.,  insurance  companies  which  are  taxed differently  from an ordinary business concern and  in  some cases  exempts  them altogether,  e.g.,  agriculturists  and persons  with income below a certain level.  There  can,  on the same principle, be no objection to people of a  backward



area who may be in need of aid in the shape of tax remission to be exempted from ’taxation either wholly or in part.   If this is right when a question of imposition is concerned, it cannot be wrong when the matter is one of recovery.  The two together make up the full measure of the 901 burden  and if it is permissible to vary the burden  at  one end it must be equally valid to vary it at the other for the same or similar reasons. It  is said that the income-tax demand being a Union  demand there  should be uniformity in the punishment to  be,  meted out  to  defaulters and it can be done  easily  by  suitably amending section 46(2) so as to provide for the detention of all  defaulters  for  the same period in all  cases  in  all States.   In  the  first place, it is a  fallacy  to  regard arrest  and  detention.  of a defaulter  who  fails  to  pay income-tax as a punishment or penalty for an offence.  It is a coercive process for recovery of public demand by  putting pressure  on the defaulter.  The defaulter can  get  himself released  by  paying up the dues.  In the  next  place,  the Court  is only concerned to interpret the law and, if it  is valid, to apply the law as it finds it and not to enter upon a  discussion  as  to what the law  should  be.   The  whole problem before us is whether the apparent discrimination can be  supported on the basis of a permissible  classification. The  case  of Bowman v. Lewis(1) is in point.   We  do  not, however,  find  it necessary to express any opinion  on  the extreme contention urged by the learned Attorney-General, on the  authority  of that decision, that  a  mere  territorial classification,  by  itself and without  anything  else,  is enough  to place the law beyond the operation of  the  equal protection  clause.   Indeed,  in  that  very  case  it  was recognised  that  it  was not  impossible  that  a  distinct territorial establishment and jurisdiction might be intended as  or  might have the effect of  discrimination  against  a particular  race  or class where such race or  class  should happen  to  be the principal occupants  of  the  disfavoured area.  For the purposes of this case it will suffice to  say that    the    discrimination   complained   of    is    not unconstitutional for the simple reason that the impugned law is based on a territorial classification having a reasonable nexus  or correlation between that basis  of  classification and  the  object  sought to be achieved  by  the  Act.   Our decision in The State of Rajasthan v. Rao Manohar Singhji(2) which is relied on by learned counsel for the petitioner  is easily (1) 101 U.S. 22; 25 L. Ed. 989. (2) [1954] S.C.R. 996. 902 distinguishable on facts for, the law impugned in that  case for the first time imposed certain disabilities on Jagirdars of  a  certain area of the State and there was  no  evidence that  those  Jagirdars were in any way  different  from  the Jagirdars  of the other areas of the State.  In the  present case  the classification has been made Statewise and  it  is clear that in the matter of payment of public demands of the States  the  people of different States  are  not  similarly situated  and  their own States have imposed  on  them  such coercive  processes as the circumstances and needs  of  each State require.  The law impugned before us has only adopted, for  its  own purpose, the same coercive process  which  was devised  by  the  States for their own  purposes  which  are closely  akin or similar to the purpose of the  Union.   The same  or similar considerations apply to both cases.   There is  the  same or similar correlation between  the  basis  of



classification  and the object sought to be achieved by  the Indian  Incometax Act.  To deny this power to the  Union  on constitutional grounds urged before us will lead us to  hold that  no  new  offence created by law can  be  made  triable according to the procedure laid down in the Code of Criminal Procedure, for that Code sanctions different modes of  trial in  different areas, namely, by a Section 30  Magistrate  in some areas, by the Sessions Judge with assessors in  certain areas and by the Sessions Judge with jurors in other  areas. Adoption  of an existing machinery devised for a  particular purpose  cannot, if there be no vice of  unconstitutionality in the machinery render it unconstitutional if it is made to subserve  a purpose closely akin or similar to  the  purpose for  which  it  bad  been  devised.   The  first   objection formulated  by  learned  counsel for  the  petitioner  must, therefore, be rejected. Re.  (b).-As  already  stated  under  section  46  (2),  the Collector, on receipt of the certificate from the Income-tax Officer,  has to proceed to recover the certified demand  as if  it were an arrear of land revenue.  This means that  the Collector  of  a  particular  place has  to  take  steps  as indicated  in  the  State law relating to  the  recovery  of arrears of land revenue.  As already stated, in the State of Bombay there are two 903 statutes  regulating  the  procedure  for  the  recovery  of arrears  of land revenue according as the defaulter  resides in the City of Bombay or in any other area within the  State of Bombay.  Section 13 of the Bombay City Land Revenue  Act, 1876  applies to the City of Bombay and section 157  of  the Bombay  Land Revenue Code, 1879 applies to the rest  of  the State.  Prior to the 8th October 1954 the portion of section 13  of  the  Bombay City Land Revenue  Act,  1876  which  is relevant for our present purpose was as follows: "If the sale  of the defaulter’s property shall not  produce satisfaction  of  the  demand, it shall be  lawful  for  the Collector to cause him to be apprehended and confined in the civil  jail under the rules in force at the  Presidency  for the confinement of debtors, for which purpose a  certificate of  demand  under the Collector’s signature  sent  with  the defaulter shall be the sheriff’s sufficient warrant, equally with the usual legal process in ordinary cases of arrest  in execution of judgment for debt: Provided, however, that such imprisonment shall cease at any time  upon payment of the sum due, and that it shall  in  no case exceed one day for each rupee of the said sum". Section  157  of the Bombay Land Revenue  Code,  1879  which provides  for  the  arrest and detention  of  the  defaulter residing  outside the City of Bombay Contains the  following proviso:- "Provided   that   no  defaulter  shall   be   detained   in imprisonment  for a longer period than the time  limited  by law  in  the case of the execution of a decree of  a  Civil- Court  for a debt equal in amount to the arrear  of  revenue due by such defaulter". A cursory perusal of the two sections will show at once that the  procedure prescribed by section 13 of the  Bombay  City Land  Revenue Act, 1876 for the recovery of arrears of  land revenue was harsher and more drastic than the procedure laid down in section 157 of the Bombay Land Revenue Code, 1879 in that  a  defaulter residing in the City of Bombay  could  be kept  in detention for a day for every rupee of the  arrears which  might considerably exceed the maximum period  of  six months which is the period 904



limited by the Code of Civil Procedure for the detention  of a  judgment-debtor in civil jail.  The argument is  that  on the advent of the Constitution section 13 of the Bombay City Land  Revenue Act, 1876 became void under article  13(1)  in that  it denied to the Bombay defaulter equality before  the law  in  comparison with the defaulter outside the  City  of Bombay,  for  he could be detained for a  longer  period  of time.   In  the view we have taken, it is not  necessary  to express any opinion whether the discrimination brought about by  the  two  sections was supportable on the  ground  of  a reasonable     classification    based    on     territorial considerations  so  as  not  to  offend  the  constitutional inhibition.  Assuming, then, but not deciding, that  section 13  of  the  Bombay  City  Land  Revenue  Act,  1876  became inconsistent  with  the  fundamental  right  guaranteed   by article 14 and, therefore, became void to the extent of such inconsistency,  it  was not, as recently explained  by  this Court  in  Bhikaji Narayan Dhakras v. The  State  of  Madhya Pradesh, Nagpur and Another(1), obliterated from the statute book  for all times or for all purposes or for  all  people. The effect of article 13(1) is that the law could not  stand in the way of the enjoyment of fundamental rights.  The  law was  not  dead.   Further, the law was amended  on  the  8th October,  1954 when the proviso to section 13  quoted  above was replaced by the following proviso:- "Provided  that  such imprisonment shall cease at  any  time upon payment of the sum due and that it shall in no case exceed- (i)  A  period of six months when the sum due is  more  than Rs. 50; and (ii)A period of six weeks in any other case." This  amendment is nothing less than an enactment of  a  new provision.   It lays down a new law which is similar to  the law  laid  down by section 157 of the  Bombay  Land  Revenue Code, 1879.  Therefore, the disparity that prevailed between the  original proviso to section 13 of the Bombay City  Land Revenue  Act,  1876 and the proviso to section  157  of  the Bombay Land Revenue Code,, 1879 is now removed, The (1)  [1955] 2 S.C.R. 589.   905 disparity  between  the two provisions  as  they  originally stood being thus eliminated, the vice of unconstitutionality is  also  removed  and section 13 of the  Bombay  City  Land Revenue  Act, 1876, as it now stands, cannot be assailed  as repugnant to article 14 of the Constitution. It was faintly suggested that as the assessment  proceedings had been started and the certificate had been issued by  the Income-tax Officer to the Additional Collector of Bombay and the  Additional  Collector  issued a notice  of  demand  and actually attached the properties prior to the amendment, the assessee  must  be governed by section 13 as  it  originally stood  and  not by it as subsequently amended.   We  do  not think there is any substance in this contention.  It is true that the warrant of attachment of the property was issued on the 24th March 1954 but the sale proclamation was issued and the sale was actually held after the date of amendment.  The defaulting  assessee  might have paid up the dues  in  which case  there  would have been no occasion for sale.   It  is, therefore, his default that occasioned the sale.  Again, the sale  proceeds  might  have been  sufficient  to  cover  the certified  demand,, in which case there would have  been  no occasion  for  the issue of warrant for his arrest.   It  is only  after the sale proceeds were found to be  insufficient to  satisfy the assessed amount and the assessee  failed  to pay  up the balance that the question of the arrest  of  the



defaulter  arose.  By that time section 13 had been  amended and  the warrant of arrest was issued on the 7th June  1955, that is to say, long after the amendment of the section.  In our opinion, the second ground urged by the learned  counsel must also be negatived. We may mention that our attention was drawn to the  decision of  the Madras High Court in Erimmal Ebrahim Hajee,  v.  The Collector  of Malabar(1) but learned counsel could not  rely upon it as an authority as it was itself under appeal before this Court. The  result,  therefore., is that this application  must  be dismissed. (1)  [1954] 26 I.T.R. 509. 906 CHANDRASEKHARA  AIYAR  J. I agree rather  reluctantly.   The reluctance is not because there is anything in the reasoning of  the judgment pronounced just now by my Lord  which  does not appear to be sound but because I am not happy about  the result. We have to face and accept wholly different consequences for non-payment of income-tax according as the assessee  belongs to  one State or another.  The nature of the tax is one  and the  same, and it is levied under a single Central Act,  and yet  the ultimate coercive processes for recovery differ  in nature  and  extent  between State and State.   We  have  to attribute to the legislature a rational classification based on  geographical  areas, the susceptibilities of  people  in those areas, and their reactions to the adoption of  methods of  recovery.  For arrest and detention, wilful  default  or fraudulent  conduct is required in Madras.  In Assam,  there can  be  no imprisonment at all.  The periods  of  detention vary between Bengal, U.P. and the Punjab.  Taluqdars in U.P. are  completely  exempt.  Are we to assume  that  people  in Madras are more amenable and generally ready and willing  to pay as compared with those in Bombay who are a tenacious lot and  must  be  subjected to a longer  process  of  detentive coercion?   Are  the Talaqdars in U.P.  exempt  from  arrest because   of  possible  political  repercussions   if   such influential  persons are subjected to such treatment?   What is the rationale in providing different periods of detention for Bengal and the Punjab? We must be in a position to postulate some reasonable  basis for  the  differentiation and we cannot get away  from  this necessity  by  vague  references’  to  the  wisdom  of   the legislature  or by indulging in pure speculation as to  what might have been at the back of its mind.  Speaking  broadly, for  the enforcement of the levy of a central tax  like  the Income-tax-  there  should be uniformity  of  procedure  and identity  of consequences from non-payment.   The  machinery for  recovery might be different between the several  States but the defaulting assessees must be put on the same footing as regards the penalties. But the law as it now stands can be supported on the grounds mentioned by my Lord and I do not propose to differ. 907