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TMI Blog1955 (10) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... different modes of trial in different areas, namely, by 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 had been devised. The first objection formulated by learned counsel for the petitioner must, therefore, be rejected. 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. Appeal dismissed. - W.P.(C) 270 OF 1955 - - - Dated:- 14-10-1955 - Judge(s) : CHANDRASEKHARA AIYAR., JAGANNADHADAS., S. R. DAS., SAYED JAFER IMAM., VIVIAN BOSE JUDGMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 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 aprrehended 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 compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided 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 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 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 sections stand no complaint can be made of infringement of ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ures. The statement to the contrary in the judgment of the Bombay High Court in Shaik Ali Ahmed v. Collector of Bombay 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. Section 46(2) of the Indian Income-tax Act requires the Collector, on receipt of the requisite certificate from the Income-tax Officer, to proceed to recover from the assessee the amount specified in the certificate as if it were an 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... women, from any imprisonment. The Assam Land and Revenue Regulation, 1886 (Reg. 1 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 me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 subsequent 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 Attorney-General'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 and ending with that in Budhan Choudhury and Others v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Taluqdars 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 uni ..... X X X X Extracts X X X X X X X X Extracts X X X X
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