Kesho Ram v. Delhi Administration

Judgment

KESHO RAM DE'LHI ADMlNISTRATION April 3, 1974. [M. H. BEG AND R. S. SARKARIA, JJ.J Dl'lhi }.fu11icipa: Corporation Act 1957-Ss. 154, 155 & 161 read wit/: Secs. 353/332 3330/ l.P.C.-Whet/ler seizure and detention of animal u/s 161 posJible 1ritlzout 11otice 11/s. 154 for recoW.'ry·af mHk tax-If notice Optional. The appellant was convicted u/s 353/332/333 of the Indian Penal Code a.nd was sentenced accordingly. The prosecution case was th:it tlte appellant obstructed 3 inspectors and a peon of the Delhi Municipal Corporation, when they went to seize the appell'ants' ·buffalo in the discharge of their duty to realise the milk tax· from him and struck one of the officers on the nose with the result that it bled and was found fractured. The main contention of the · appeUant was that the attempt to realise the arrears of milk. tax and recovery charges was illegal because no demand notice under Sec. 154 of the Act was served on the appellant, and therefore, he hitd the right of private defence.

The 0 pr~secution relied on Sec. 99 Indian ·Penal Code which provideii that there is no right of priVate defence against an act of a public servant. done in .!?ood faith under colour of his office, though that act may not be strictly justifiable bv law. Further according to the prosecution, Sec. 161 of the Act empowered the Inspector of the Corpo'ration. to, seize and ~n10 ... ·e the appetla.nt's buffalo for non-payment of tax and the sect.Ion gave them an over-riding power to resort to seize and detention of the artimaJ. Therefore, according to the prosecution, the appellant .was guilty of the offences charged. Dismissing the appeal, HELD: (1) AithouJ?h the interpretation placed by the High Court that seizure and detention of a vehicle or an animal is possible under sec.

161 at an\.1ime after the tax. ha~ become due' when read in the light of other provisions of the Act. it has to be remembered that section 161 would become the repository :'.>f a rather· drastic power of .actinp; without previous notice to seizeany animal or vehicle at anv time after 'the tax b~came due. and thereby, of seriously iniurin~ c\'en innocent individuals who mav have every intention and the capacity to par the· demanded tax, but may 'have 'defaulted only by some oversight and may be unable to produce the required money on the spot. It is well settled that out of two possible internationals, the one which confines the content of such oower of seizure to reasonable limits and fair modes of operation should be preferred. [831 DJ Therefore. although Sec. 161 of the Act can be used 'at any time', agaipst a defaulter, yet a defaulter in view of secs.

154 and 155 of the Act would be a person who refuses to pay within a period specified in Sec, 155 of the Act after a notice of demand u/s. 154 of the Act. Although the demand of notice is optional, yet, but the option has to be exercised if it is intended to invoke the powers contained in sec. 161. [8,31 F] (ii) The Inspectors were acting honsetly in exercise of the powen~ delegated to them, but they had erred in the exercise of their PoWers. They, however, cannot be presumed to know that a notiee under sec. 154 must precede any attemot of seizure. Therefore. there waS no legal defect which. vitiated their action<;. Sec. 99, therefore. did confer a protection upon the employees of the Corporation who acted in good faith under_ the colour of their office. But 11ince they acted in an improper manner in demanding immediate payment, the sentences imoosed upon the appellant were oxcessive.

The sentences, therefore, were reduced to the period already undergone by the appellant but the convictions were upheld. The fine imposed upon the appellant \'{as also set aside .. [832 A-CJ 11974) 3 s.c.R. CRIMINAL APPELLATE JuR1so1cno:-i: Criminal Appeal No. 199 of [ l) 10. Appeal by Special leave from the judgment and order dated the l 2ch November, 1969 of the Delhi High Court at New Delhi in Criminal Apeal No. 103 of 1968. Harba11s Singh. for the appellant. (Jovi11d Das, for the respondent. Ihe Judgment of the Court. was delivered by BEG, J.-The High Court or Delhi had confirmcd·tho conviction .. of the appellant under Section 353/332/333 of the Indian Penal Cod~, nnd a sent.~nce of one year's regorous imprisonment on each , count, and also to be fine of Rs. 400/-, and, in default of payment . of fine, to four months further rigorous imprisonment under section . 333 Indian Penal Code. The appellant has come to this Court by grant of special leave.

It was alleged that the appellant had, on 17-3-1967, at 4,30 p.m., in Rameshwar Nagar, obstructed Sarvshri Rattan Singh, Maharaj Singh , and Raghbir Singh, Section Inspectors, and Dunger, a Peon of the Delhi Municipal. Corporation, when they went to seize a buffalo belong • . ing tO the appellant in the discharge or their duty to realise the milk tax from him, and struck Rattan Singh on the nose with the result that it bled and was also fractured. Tho Main contention on behalf of t~c appellant is that the attempt to realize Rs. 153.75 as arrears of milk tax together with Rs. 10/- as recovery charges was illegal, because compliance with the provisions . of the Dolhi Municipal Corporation Act, 1957 (hereinafter referred to as "the Act'), for the payment an:I recovery of taxes, and, in parti- . cular \vith the requirements for.a notice o[ <lcn1and contained in Section 154 of the Act, was wanting so that he ha:I a right to private defrncc.

An at1cmpt was also made to argue that the Inspectors who went to realise the milk tax by seizing the buffalo were not duly empowered by the Commissioner to do so. An order of the Commissioner dated 22-7-1959 under Section 491 of the Act. delegating the Commissioner"s . pow ors to Inspectors of the .corporation, set that question at rest. We do not think it could be areue.d .that Soction 491 requires the conferment of the Coinmissioner·s pO'Ncrs upon every Inspector by name. It is enough if there is a general order, as there is in this case, indicating tb·o class of ofticcrs to whom the Commissioner had delegated his , powers under any section. We arc supported in thio; view by the case . of Ka11war Sing/1 l's. Delhi Adniinistrlltiou. ( 1 We find that it has not been contended anywhere that the Inspectors Jid not act under the colour of their oftice.

The appellant did not plead, in defence. that the officers concerned were not known to him a• ln,pectors of the Corporation authorised to collect tax or that they could not sho\V any authority for perfonning their duties. Hence. 0) [t965] (I) SCR r. 7 «' t I. KESUO RAM v. DELHI ADMN. (Beg, J.) !he prosecution has relied upon Section 99 of the I.P.C. which lays down: "There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or altempted to be done, by a public servant acting in good faith under colour of his office. though that act may not be strictly justifiable by law". On facts found, it has to be assumed that the appdlant haJ objected to the taking of his buffalo, and, as this was of no avail, he had given a blow to Rattan Singh on the ·nose which bled ·and wa5 alio traclUred a• a result.

It is true that, if the act against which a right of private defence is pleaded is not done in good faith ·the protection o'f Section 9P "I.P.C. will not extend to it. It bas, therefore, to be determined whether there was any such non-compliance with the provisions relating to the realisation ot the tax, in attempting to take away ti)e buffalo of the appellant, as to amount to want of good ,faith. The High Court had acceptd the submission on behalf of the prosecution that Section 161 of the Act empowered the Inspectors of"'' the Corporation to seize and remove the appellant's buffalo for nonpayment of the tax as it gave an over-riding power to resort to this method of enforcing payment "at any time after the tax has become due." Section 161 of the Act lay> down : "161(1)

If the tax on any vehicle or animal is not paid, then, instead of proceeding against the defa.uiter by distress am! sale of· his other movable property as hereinbefore provided, the Commissioner may, at any time after the tax has become due, seize and detain the vehicle or animal or both and, if the owner or other p,.son enti:lcd thereto does not within seven days .in respect of a vehicle and two days in respect of an animal from the date of such seizure and detention, claim the same and pay the tax due together with the charges incurred in connection with th~ seizure and detention, the Commissioner may cause the same to be sold and apply the proceeds of the sale or such part thereof as is required in discharge of the sum due and. tho charges incurred as al'oresaid. (2) The surplus, if any, remaining after t_he application of the sale-proceeds under sub-section( 1) shall be disposed of in the manner laid down in sub-sections (6) and (?) of Section 158 ..

Section 152 provides Iha.\ a tax levied under the Act becomes payable "on such dates, in such number of instalments and in such manner as may he determined by bye-hws ma1e in this bchalr'. tax on an animal must be deemed to have become due wi!h()Ut t!1<· need to present a bill because Section 153 reads as follows : "153(1) When anv tax has become due, the Commissioner shall cause to be presented to the person liable for the payment thereof, a bill for the amount due : . [1974] 3 S.C.R. . Provided that no such bill shall be necessary in the case cl:- (a) . a tax on vehicles and animals; (b) a theatre-tax; and (c) a tax on advertisements. (2) Every such bill shall specify the particulars of the tax and the period for which the charge is made". Nevertheless, Section 154 reads as follows : "154(1)

If the amount of the tax for which. a bill has" been presented under Section 153, is not paid within fiftem days from the presentation thereof, or if the tax on vehicles and animals or the theatre-tax or the tax on advertisements is not paid after it has become due, the Commissioner may cause to be served upon the person liable for the payment of the same a ·notice of .demand in the form set forth in the seventh Schedule. (2) For every notice of demand which the Commissioner causes to be served on any person under this Section, a fee · of such amount not exceeding five rupees as may be determined by bye-laws made in this behalf, shall be payable by the said person and shall be included in the cost of recovery"_. Then comes Section 155, which runs as follows : "155(1)

If the person liable for the payment of any tax docs not, within thirty days of the service of the notice of demand under Section 154, pay the sum due and if no appeal is preferred against such tax, he shall be deemed _to b in default. (2) When the person.liable for the payment of any tax · is deemed to be in default under-sub-section ( 1), such sum not exceeding twenty per cent. of the amount of the tax ·as may be determined by the Commissioner may be· recovered from him by way of penalty, in addition to the amount of the tax and the notice-fee payable under sub-section (2) of section 154. (3) The amount due as penalty under sub~section (2) shall be rccoverabl·! as an arrear of tax under this Act." The argument of the learned Counsel for the appellant, based upon the provisions of Section 154 and Section 155 of the Act, is that, unless Section 154 is complied with, so that a notice of -demand is served upon a person from whom tax has become due, be cannot file an· appeal.

It was emphasised that he will "be deemed to be in default" only if the demand is not satisfied within 30 days and _ no appeal is filed against it. It was urged that Section 155 thus, indirectly, provides the meaning of the word "defaulter" as used in Section 161 of the Act. Furthermore, it is contended that, unless a person is a defaulter within the meaning of Section 155 of the Act, no proceeding can be taken against him under Section 161 of the Act. The High USHO RAM .v. DELHI ADMN. (Beg, /.) Court had met this argument by holding that this interpretation would make it unnecessary to have inserted the words in Section 161 "at . any time after the tax has become due". It held that these words are to be given their literal meaning .and due effect. On behalf of the appellant, support was sought from the provisions of Section 156, Section 157, and Section 159 of the Act to contend that r~coveries by sale and distress have to be preceded by notices of demand.

It was pointed out that, even in the caa of recovery of tax from a person likely to leave Delhi soon, Section 159 required a notice of demand, for immediate payment. Hence, it was urged that the procedure laid down for seizure of vehicles and animals in Section 161 of the Act is an alternative only to the procedures of. recovery by distress and sale but does not dispense with the notice required under Section 154 of the Act or else it would become much too. drastic an elternative which could be used arbitrarily.

We, think that, although the interpretation placed by the High Court upon the proVisions of Section 161, read in the light of otfter provisions of the Act, is 'possible interpretation, it bas to be remembered that Section 161 would become the repository of rather drastic power, of acting without previous notice, to seize any animal or vehicle at any time after the tax has become due, and, thereby, of seriously injuring even innocent individuals who may have every intention and the capacity to pa'y the demanded tax, but may have defaulted only by some oversight and may be unable to produce the required money on the spot.

It is well settled that, out of two possible interpretations, the one which confines the content of such power of seiiure to reasonable limits and fair modes of operation should be preferred lest the validity of the provision itself becomes questionable, The provisions of the Act, set out above, are capable, we think, of being reasonably so interpreted as to confine the ambit of power contained in Section 161 of the Act to situations in which the person from whom the tax is to be realized can be deemed to be a defaulter. In other words, although Section 161 can be used "at any time" when the person against whom it is to be used is shown to be a "defaulter". yet a defaulter, in view of. the provisions of Sections 154 and 155 of the Act, would be a person who refuses !O pay within the period specified JD Section 155 of the Act after a noti~ of demand under Section 154 of the Act. No doubt the demand by notice for a tax on an animar is optional.

But, the option has to be exercised if it is intended to invoke the powers contained in Section 161. '!'e, however,. d~ not think that, in .view o: the provisions of Sec!Ion 99. I.P.C, .rt IS enough to hold that there had been no notice of demand in the instant case. The action of the Inspectors did not become vitiated by bad faith simply for that reason. They were acting honestl.Y _in the ~xer~ise of the powers delegated to them by the Comm1ss1oner. Their attempt to recover the tax due by seizure of the animal, was not entirely outside the law, All trat could be said was that they had erred, even if sadly, in the exercise of their powers, 'The Inspectors could not he fairly presumed to know that a notice under Section 154 of the Act must precede any attempt to seize the IO-L84Sup.C.L/75 buffalo as the law has been anything but clear on a subject on which ~ there has been no previpus decision of this Court.

The view of the Delhi High Court supported the view that no legal defect at all vitiated the actions of the Inspectors. As already stated, there was no plea that the Inspectors did not act in a bona fide manner or that they were aware of the defect in the procedure adopted. All that the appellant told them was that he did not have ready money to pay up instantly. He did not refuse to pay. In these circumstances, we think that Section 99 did confer a protection upon the employees of the Corporation who acted in good faith under the colour of their office. But, in as much as they had actrd in an improper manner in demanding immediate payment and tried to seize the animal prematurely under a misconception about the mode of exercise of their powers under Section 161 of the Act, the sentences imposed upon the appellant are excessive. We think that the ends of justice wm be served by maintaining the convictions but reducing the sentences to the period already undergone by the appellant.

Consequently, we set aside the fine imposed upon the appellant and reduce the sentences passed upon him to the period already undergone. With this modification, this appeal is hcrel>y dismissed. s.c. Appeal dismissed.