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PETITIONER: STATE OF KERALA AND OTHERS.

       Vs.

RESPONDENT: C.   M. FRANCIS & CO.

DATE OF JUDGMENT: 12/12/1960

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. KAPUR, J.L. SHAH, J.C.

CITATION:  1961 AIR  617            1961 SCR  (3) 181  CITATOR INFO :  R          1961 SC 619  (28)  RF         1967 SC 295  (60)  RF         1979 SC1588  (14)

ACT: Sales Tax-Recovery of-Remedies open to the  authorities-Code of Criminal Procedure, 1898 (V of 1898, s. 386(1)(b)-Travan- core  Cochin  General Sales Tax Act (XI  Of  1125  Malayalam Era), ss. 13 and 19.

HEADNOTE: The  respondents  were  assessed  to  sales  tax  under  the Travancore Cochin General Sales Tax Act and proceedings were started against them under s. 13 of the Act for the recovery of the arrears of Sales Tax as if they were arrears of  land revenue.   The proceedings were not fruitful.  Thereafter  a prosecution under s.     19   of  the  Act  was   instituted against the partners who pleaded   guilty and the magistrate issued warrants under s. 386(1)(b) of   the Code of Criminal Procedure to the Collector of the District for the  recovery of  the arrears of sales tax as if they were a fine  imposed by  that court.  The authorities again  started  proceedings under  S. 13 of the Act read with Travancore Cochin  Revenue Recovery  Act, 1951, and certain properties  were  attached. The  respondents  urged  that  in  as  much  as  they   were prosecuted  under  s. 19 of the Act and the  magistrate  had issued  warrants, the procedure for recovery under s. 13  of the Act was not available. The  question was whether s. 19 was to be taken  to  prevail over s. 13 of the Act. Held,  that neither of the remedies for recovery of  arrears of  tax  as  laid down by ss. 13 and 19  of  the  Travancore Cochin  General Sales Tax Act was destructive of each  other and  unless  the statute laid down in express  words  or  by necessary  implication that one remedy was to the  exclusion of the other, both the remedies were open to the authorities and they could resort to any one of them at their option. Shankar Sabai v. Din Dial, I.L.R. [1889] 12 All. 409 (F.B.), 418,approved.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 279 of 1959.  Appeal  by special leave from the judgment and order  dated November 18, 1957, of the Kerala High Court in O. P. No.  87 of 1956. A. V. Sayed Muhammad, for the appellants. The respondents did not appear. 182 1960.  December 12.  The Judgment of the Court was delivered by HIDAYATULLAH, J.-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. 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 arrears of land revenue.  It appears that the  pro- ceedings 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. 1.  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." 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. 183 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

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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. 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  timebeing               in force." In dealing with the question, the learned Judges of the High Court felt that s. 13 of the Act was in the 184 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. 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  (1)  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

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absence of any such provision in the (1)  I.L.R. (1889) 12 All- 409 (F.B.), 418. 185 Act,,  both the remedies were open to the  authorities,  and they could resort to any one of them at their option. 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. Appeal allowed.