Kesho Ram Vs. Delhi Administration
[1974] INSC 79 (3 April 1974)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
SARKARIA, RANJIT SINGH
CITATION: 1974 AIR 1158 1974 SCR (3) 827 1974
SCC (4) 509
ACT:
Delhi Municipal Corporation Act 1957--Ss.
154, 155 & 161 read with Secs. 353/332 333 of I.P.C.--Whether seizure and
detention of animal u/s 161 possible without notice u/s. 154 for recovery of
milk tax--If notice optional.
HEADNOTE:
The appellant was convicted u/s 353/332/333
of the Indian Penal Code and was sentenced accordingly. The prosecution case
was that the appellant obstructed 3 inspectors and a peon of the Delhi
Municipal Corporation, when they went to seize the appellants' 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 appellant was that
the attempt to realise the arrears of milk tax and recovery charges was illegal
because no demand noticed under Sec. 154 of the Act was served on the
appellant, and therefore, he had the right of private defence.
The prosecution relied on Sec. 99 Indian
Penal Code which provides that there is no right of private defence against an
act of a public servant, done in good faith under colour of his office, though
that act may not be strictly justifiable by law. Further according to the
prosecution, Sec.
161 of them Act empowered the Inspector of
the Corporation to seize and remove the appellant's buffalo for non-payment of
tax and the section gave them an over-riding power to resort to seize and
detention of the animal. Therefore, according to the prosecution, the appellant
was guilty of the offences charged.
Dismissing the appeal,
HELD : (1) Although the interpretation placed
by the High Court that seizure and detention of a vehicle or an animal is
possible under sec. 161 at any time after the tax has 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 of a rather drastic power of acting without
previous notice to seize any animal' or vehicle at any time after the tax
became, due, and thereby, of seriously injuring even innocent individuals who
may have every intention and the capacity to pay 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 power of seizure to reasonable
limits and fair modes of operation should be preferred. [831 D] Therefore,
although Sec. 161 of the Act can be used 'at any time'. against a defaulter,
yet a defaulter in view of sees.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. [831 F] (ii) The Inspectors were acting honestly in
exercise of the powers delegated' to them, but they had erred in the exercise
of their powers. They, however, cannot be presumed to know that a notice under
sec. 154 must precede any attempt of seizure. Therefore. there was no legal
defect which vitiated their actions. 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 since they acted in an improper manner in
demanding immediate payment, the sentences imposed upon the appellant were
excessive. The sentenced, therefore, were reduced to the period already
undergone by the appellant but the convictions were upheld. The fine imposed
upon the appellant was also set aside.[832 A-C] 828
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 199 of 910.
Appeal by Special leave from the judgment and
order dated the 12th November, 1969 of the Delhi High Court at New Delhi in
Criminal Appeal No. 103 of 1968.
Harbans Singh, for the appellant.
Govind Das, for the respondent.
The Judgment of the Court was delivered by
BEG, J.-The High Court of Delhi had confirmed the conviction ,,of the appellant
under Section 353/332/333 of the Indian Penal , Code, and a sentence 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 belonging to the
appellant in the discharge of 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.
The Main contention on behalf of the
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 Delhi Municipal Corporation Act, 1957 (hereinafter
referred to as 'the Act'), for the payment and recovery of taxes, and, in
particular with the requirements for a notice of demand contained in Section
154 of the Act, was wanting so that he had a right to private defence.
An attempt 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
powers to Inspectors of the Corporation, set that question, at rest. We do 'not
think it could be argued that Section 491 requires the conferment of the
Commissioner's powers upon every Inspector by name. It is enough if there is a
general order, as there is in this case, indicating the class of officers to
whom the Commissioner had delegated his .powers under any section.
We are supported in this view by the case of
Kanwar Singh vs. Delhi Administration.(1) We find that it has not been
contended anywhere that the Inspectors ,did not act under the colour of their
office.
The appellant did not plead, in defence, that
the officers concerned were not known to him as Inspector-, of the Corporation
authorised to collect tax or that they could not show any authority for
performing their duties. Hence, (1) [ 1965] (1) SCR p. 711 829 he prosecution
has relied upon Section 99 of the I.P.C.
which lays town :
"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 attempted 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
appellant had 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 was also
fractured as 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 of Section
99 I.P.C.
will not extend to it. It has, therefore, to
be determined whether there was any such noncompliance with the provisions
relating to the realisation of the tax, in attempting to take away the buffalo
of the appellant, as to amount to want of good faith.
The High Court had accepted 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 "a. any time after the tax has become du.-."
Section 161 of the Act lays down :
" 161 (1 ) If the tax on any vehicle or
animal is not paid, the, instead of proceeding against the defaulter by
distress and 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 person entitled
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
the 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 the charges incurred as aforesaid.
(2) The surplus, if any, remaining after the
application of the sale-proceeds under subsection(1) shall be disposed of in
the manner laid down in sub-sections (6) and (7) of Section 158".
Section 152 provides that a tax levied under
the Act becomes payable "on such dates, in such number of installments and
in such manner as may be determined by bye-laws male in this behalf". tax
on an animal must be deemed to have become due without ',lie need to present a
bill because Section 153 reads as follows :
"153(1) When any 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 830 Provided that no such bill shall be
necessary in the case of (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 fifteen
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 does 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 be in default.
(2) When the person liable for the payment of
any tax is deemed to be in default undersub-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 subsection
(2) shall be recoverable 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 emphasized 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 831 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 recoveries by sale and distress have to be preceded by
notices Id demand. It was pointed out that, even in the case 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 alternative 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 other provisions of the Act, is possible
interpretation, it has 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 capacity to pay 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 seizure 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 them Act, would be a person who
refuses to pay within the period specified in Section 155 of the Act after a
notice of demand under Section 154of the Act. No doubt the demand by notice for
a tax on an animal is optional. But, the option has to be exercised if it is
intended to, invoke the powers contained in Section 161.
We, however, do not think that, in view of
the provisions of Section 99 I.P.C. it 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 honestly
in the exercise of the powers delegated to them by the Commissioner. Their
attempt to recover the tax due, by seizure of the animal, was not entirely
outside the law. All that could be said' was that they had erred, even if
sadly, in the exercise of their powers.
The Inspectors could not be fairly presumed
to know that a notice under Section 154 of the Act must precede any attempt to
seize the 10-L84Sup.C.1.175 832 buffalo as the law has been anything but clear
on a subject on which there has been no previous 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 acted 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 will 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 hereby dismissed.
Appeal dismissed.
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