State of Kerala and Others. v. C. M. Francis & Co.

Hidayatullah J. 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 partner-ship 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 taxis not paid as laid down in that section, the whole of the amount or such pai-t thereof as remains due, may be recovered as if it were an arrear of land revenue. It appears that the pro-ceedings were not fruitful, and a prosMution 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 sen-tenced 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 compe-tent 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. Takll steps for the realisation."

Witrrants under s. 386 (1) (b) of the Code of Crimi-nal Procedure were issued to the Collector of Kot-tayam District for recovery of the arrears of sales tax. The authorities, however, started proceedings again '96• .under s. 13 of the Act read with the provisions of the State of Kera/a Travancore-Cochin Revenue Recovery Act, 1951 (VII and ors. of 1951 ), to recover .the amount as arrears of land re-v. venue, and attached some properties belonging to the c. M. Francis respondents within the jurisdiction of the second and & Co. third appellants, the Tahsildars of Kottayam and H'd - Kanjirappally Taluks. The firm thereupon filed the 11 I ayatu 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 Magis-trate 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 nuder the Code of Civil Procedure.

They, therefore, submitted that tho procedure under s. 19 of the Act was no longer opeu, 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 thou-sand 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."

In dealing with the question, the learned Judges of the High Court felt that s. 13 of the Act was in the 1960 nature of a general law, over which the special proce-

dure prescribed by s. 19 of the Act read with s. 386 of State of Kerala the Code of Criminal Procedure was to prevail. They,

and Ors. however, thought that, since all the processes avail-

v.

M. Francis able under s. 19 of the Act were also available under <So Co. s. 386 of the Code of Criminal Procedure, it was not

necessary to decide what would happen if the pro-Hidayatullah j. ceedings under s. 386 came to nothing. They observ-

ed 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 ta.ken 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 pay-ment 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 Sakai v. Din Dial (')that where the law pro-vides two or more remedies, there is no reason to thinkthat 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 opi-nion, in the absence of any such provision in the

(1) l.L.R. (1889) u All. 409 (F.B.), 418.

Act, both the remedies were open to the authorities, and they could resort to any one of them at their option. State of Kerala

The appeal is allowed, and the judgment of the and Ors. v. High Court set aside. Though the respondents did C. M. Francis not appear, in the circumstances of the case we think <>-Co. we should make an order that the costs shall be paid by them both here and in the High Court. Hidaj1atulla1' Appeal allowe,d.

THE J. K. COTTON SPINNING & WEAVING 1960

MILLS CO., LTD.

December xa. v.

THE STATE OF U'l'TAR PRADESH & ORS.

(P. B. GAJENDRAGADKAR, K. N. WANCHOO and

K. c. DAS GUFTA, JJ.)

Industrial Dispute-Proposed dismissal of workmen-Pending dispute-Permission not sought-Reference to adjudication-Vali-dity of-U. P. Industrial Disputes Act, r947 (U. P. 28 of r947), ss. 3 and 8-Government Order dated March IO, r948, els. 5(a), 23.

Under ss. 3 and 8 of the U. P. Industrial Disputes Act, r947 the Governor issued an Order dated March 10, 1948, making detailed provisions for the settlement of Industrial Disputes.

Clause 5(a) of the Government Order empowered, among others, a recognised association of employers to refer an industrial dis-pute for adjudication to the Conciliation Board. Clause 23 pro-vided that no employer shall discharge or dismiss any workman during the pendency of an inquiry except with the written per-mission of ttie Regional Conciliation Officer, and cl. 26 provided for penalties for contravention oi cl. 23. The appellant proposed to dismiss certain workmen. Though at the time there was a dispute pending inquiry, the appellant did not seek permission under cl. 23 to dismiss the workmen; but the Employers' Associa-tion of Northern India made an application under cl. 5(a) to the Board to adjudicate and give an award that the appellant was entitled to dismi~s the workmen. The workmen contended that the reference under cl. 5(a) was incompetent as the appellant had not first taken proceedings under cl. 23.

Held, that the application under cl. 5(a) of the G. 0. was not

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 0. P. No. 87 of 1956.

A. V. Sayed Muhammad, for the appellants.

The respondents did not appear.

1960. December 12. The Judgment of the Court was delivered by State of Kerala

and Ors. HIDAYATULLAH, J.-This is an appeal with the spe-

v. cial leave of this Court against the J 0udgment of the M. Ft'ancis High' Court of Kerala dated November 18, 1957, &Co. passed in a petition for writ of prohibition under Art.