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1972 DIGILAW 89 (KER)

T. GOVINDANKUTTY MENON v. THE TASHILDAR, CHITTOOR

1972-05-14

G.VISWANATHA.IYER, T.C.RAGHAVAN

body1972
Judgment :- 1. These appeals involve the same question; and the appellant in both these appeals is the same too. The first of these appeals comes up for final hearing, while the second case comes up for admission. The question involved is one regarding the applicability of the decision of the Supreme Court in Northern India Caterers (Private) Ltd. v. State of Punjab (AIR. 1967 SC. 1581) to the cases before us. 2. The appellant was a contractor, who took in auction a few arrack shops undertaking to pay the kists regularly. He failed to make the payments; and the authorities started proceedings against him under the Revenue Recovery Act for collecting the arrears. He then filed a writ petition, which was dismissed by a learned judge of this Court; and against that he has come up in appeal. (This is the first case). And the result of this appeal will cover the other appeal too. 3. The contention raised by the counsel of the appellant, with which we are concerned in the appeal, is that S.28 of the Abkari Act is unconstitutional, since it infringes Art.14 of the Constitution: the contention is that the section confers an unguided power on the Commissioner to choose one of the two modes of collecting the arrears either by way of a suit or by starting proceedings under the Revenue Recovery Act without providing any guideline as to which of the modes is to be applied to which case: this confers an arbitrary power on the Commissioner. The further contention is that S.5 and 7 of the Kerala Revenue Recovery Act are also invalid, because S.5 provides four modes for collecting the arrears leaving the freedom to the Collector to choose one or the other of the four modes and S.7 provides the procedure for the attachment of movables by just showing the demand notice to the defaulter and straightaway attaching: this again arms the Collector with an unguided and arbitrary power. In support of these contentions, the counsel has relied mainly on the decision of the Supreme Court mentioned above and incidentally on a few other decisions of High Courts, which had occasion to consider the effect of the Supreme Court decision. 4. In support of these contentions, the counsel has relied mainly on the decision of the Supreme Court mentioned above and incidentally on a few other decisions of High Courts, which had occasion to consider the effect of the Supreme Court decision. 4. We shall straightaway observe that the second aspect of the objection or the second contention of the counsel of the appellant has not much force, since, in our opinion, the four modes of recovering the arrears are after all, only four methods, of which the creditor or the Government, entitled to collect the arrears, can choose one. For the reason that the Government (the Collector) is entitled to choose one of the modes of realisation, it cannot be stated that S.5 suffers from the disability mentioned above, namely, that it violates Art.14 of the Constitution. And we may also add that, in attaching movables, if the notice is given on a previous occasion and attachment is made after an interval, the purpose of the attachment will itself be lost and the movables will disappear. 5. Now about the first contention. The Supreme Court was considering, in the case cited, the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, the relevant provisions of which have been indicated by the Supreme Court in its majority judgment. Three of the five judges who constituted the Bench took the view that the relevant provision of the said Act offended Art.14 of the Constitution, while the two other learned judges held that the provision was good. In Para.5 of the majority judgment, the purport of the relevant sections is indicated. S.3 of the Act provides that a person shall be deemed to be in unauthorised occupation of any public premises if he, by reason of the determination of his lease, ceases to be entitled to hold such premises, still continues in occupation. S.4 provides that, if the Collector is of opinion that any person is in unauthorised occupation, the Collector shall issue notice calling upon such person to show cause why an order of eviction should not be made. S.4 provides that, if the Collector is of opinion that any person is in unauthorised occupation, the Collector shall issue notice calling upon such person to show cause why an order of eviction should not be made. S.5 of the Act then confers power on the Collector to decide whether the person is in unauthorised occupation; and if he is satisfied that the person is in unauthorised occupation, of course, after giving the person a reasonable opportunity of being heard, then the Collector is entitled to make an order in eviction. S.7 empowers the Collector to recover arrears of rent and also to assess and recover damages in respect of the premises as arrears of land revenue. S.9 provides for an appeal against the order of the Collector, but S.10 states that such order passed by the Collector or the appellate order passed by the Commissioner shall be final and cannot be called in question in any suit. It was in this set up that the validity of S.5 conferring power on the Collector to decide whether a particular person was in unauthorised occupation of public premises and to start proceedings in eviction was questioned. 6. This decision of the Supreme Court has been considered in other cases like Rajendra Prasad Singh v. Union of India (AIR. 1968 Cal. 560) (FB), Raja Ram Verma v. State of U.P. (AIR. 1968 All. 369) (FB), Abdul Rashid Sahib v. The Assistant Engineer (Highways) Kallakurichi (AIR. 1970 Mad 387), The Govt. of A.P. v. Sri. Rayalaseema Village Association, Chakalmarri (AIR. 1971 A.P. 255) and M/s. Prakash Pottery Industries, Chunar v. The District Magistrate, Mirzapur (AIR. 1972 All. 97). We do not think we need go into an elaborate discussion of these decisions of the various High Courts, since, in our opinion, the validity of S.28 of the Abkari Act will depend upon our conclusion whether the recovery under the Revenue Recovery Act is a drastic remedy. 7. S.28 confers power on the Government to recover any moneys due to them by a grantee of a privilege or a favour under the Act, etc. as if they were arrears of land revenue: and the procedure is for the Commissioner to issue a certificate to the Collector and send the same to the latter requesting him to realise the arrears under the Revenue Recovery Act. as if they were arrears of land revenue: and the procedure is for the Commissioner to issue a certificate to the Collector and send the same to the latter requesting him to realise the arrears under the Revenue Recovery Act. The Collector has then to decide as to which of the modes mentioned in S.5 of the Revenue Recovery Act has to be applied. Chapter II of the Revenue Recover Act provides elaborately for the attachment and sale of movable property. Chapter III of the same Act provides for the attachment and sale of immovable property and also for appointing an agent for the management of the defaulter's immovable property as well as for the arrest of the defaulter. Detailed safeguards are provided under these two chapters to protect the rights of the defaulter. S.7, for instance, in Chapter II provides that, when any movable property is to be attached for arrears of public revenue, the Collector or the authorised officer shall furnish the person a demand in writing signed by him. And it is after showing the demand notice to the defaulter that the officer proceeds to attach the movables of the defaulter. Before attachment and even after attachment, the defaulter has the right to pay the amount under protest (S.70) and then even to file a suit (S.81) questioning the attachment and for recovering the amount paid under protest. Elaborate provisions by way of safeguard of the interests of the defaulter are also found in the procedure to be followed after attachment and before sale. The sale cannot take place within 15 days of the service of notice on the defaulter intimating him of the sale. Provisions are also found as to how the sale is to be conducted, how the purchase money is to be paid, etc. S.16, for instance, provides that, if the defaulter tenders payment of the arrears after attachment and before sale of the property, the sale has to be stopped and the property released. Appropriately similar provisions appear regarding the attachment and sale of immovable property as well under Chapter III. As we have already indicated, on the top of all this, the defaulter has a right of suit also questioning the correctness of the attachment either of the movables or of the immovables. Appropriately similar provisions appear regarding the attachment and sale of immovable property as well under Chapter III. As we have already indicated, on the top of all this, the defaulter has a right of suit also questioning the correctness of the attachment either of the movables or of the immovables. In view of all these provisions, it is difficult to hold that the procedure contemplated by the Revenue Recovery Act is stringent as contended by the counsel of the appellant. In fact, the decision of the Supreme Court, on which the appellant's counsel relies, itself indicates that there are decisions of the Supreme Court which have upheld the procedure contemplated by the Revenue Recovery Act (for instance, see Manna Lal v. Collector of Jhalawar AIR. 1961 SC. 828: Lachman Das v. State of Punjab AIR. 1963 SC. 222, etc.) 8. Therefore, it is too late in the day to contend that the provisions of our Revenue Recovery Act are stringent, in the sense the Supreme Court has considered the Punjab Act. The Punjab Act, with which the Supreme Court was dealing, conferred power on the Collector to see whether a particular person was in unauthorised occupation of public premises (in the sense of the deeming in S.3 of the Act) and, if he was satisfied that the person was in unauthorised occupation, the same Collector was given the power to take summary proceedings under the Act to evict the person from the said premises. Under S.28 of the Abkari Act, the Commissioner does not have any such power. He has only to send the certificate to the Collector and the Commissioner exercises no power to realise the arrears from the defaulter. Under the Punjab Act, the order of the Collector or the appellate order of the Commissioner was final; whereas under our Act, the defaulter has a right of suit. Simply because there are two methods of collecting the arrears from the defaulter, it cannot be held that the discretion left to the Collector or to the officer authorised by him to choose one of the methods of collecting the arrears goes against Art.14 of the Constitution. That question will depend, we repeat, upon our conclusion on the other question, viz., whether the relevant provisions of the Revenue Recovery Act are really stringent. 9. That question will depend, we repeat, upon our conclusion on the other question, viz., whether the relevant provisions of the Revenue Recovery Act are really stringent. 9. Since we have held on this question that the provisions of the Revenue Recovery Act are not stringent and since we have also indicated that the procedure contemplated by the Revenue Recovery Act has been upheld by the Supreme Court itself in a series of decisions, we do not think that the decision of the Supreme Court in Northern India Caterers' case applies to these cases. W. A. No. 133 of 1970 is dismissed with costs. 10. The other appeal comes up for admission only and in view of our decision in the earlier case, we dismiss this appeal in limine.