THE

COMMISSIONER OF INCOME-TAX,

PRADESH, HYDERABAD v.

K. ADINARAYANA MURTY

April 3, 1967

ANI>HRA

(J. C. SHAH, S. M. SIKRI AND V. RAMASWAMI, JJ.J

lndian Income•tax Act, 1922, s. 34-Notice of reasscssme11t issued to assessee in status of individual-Return filed in status of HUF- Appellate Authority ho/di11g that correct starus was HUF-Another notice under s. 34 issued-Assess111ent on return filed in response 10 second notice-Validity of asses.Hnent.

The respondent had two sons. Prior to the assessment year 1954-55 the Income-tax Authorities assemd him as had of a Hindu undivided family.

In 1954-55 the Income-tax Officer held that he was an 'individual' and assessed him accordingly.

Thereafter, having ob'lained sanction from the Commissioner he issued to the respondent a not:ce under s. 34 of the Income-tax Act 1922 in respect of the. year 1949-50 in the status of an individual. A return was filed by the respondent in response to the notice.

However in the appeal relating .to 1954-55 the Appellate Assistant CommiS&ioner held that the correct sta<us of the assesseo was that of a Hindu undivi<)ed family.

The Income-tax Officer then issued another notice under s. 34 to the respondent in respect of 1949·50 in the status of a Hindu undividd family.

On the return filed in response to this second notice the Income-tax Officer made an assessment adding certain "escaped income" to that originally assessed for 1949-50.

In reference, the High Court held that the first of the notices under s. 34 was not ; nvalid in law and consequently the issue of the second notice was illegal and the assessment made in pursuance of it was illegal.

The Revenu• appealed to this Court.

HELD : Under the scheme of the Income-tax Act the 'lndividul' and the 'Hindu undivided family' are treated as separate units of assessment and if a notice under s. 34 of the Act is wrongly issued to the assessee in the status of an 'individual' and not in the correct status of 'Hindu undivided family', the notice is illegal and ultra vires and without jurisdiction.

[39JF-O]

The Income-tax Officer was therefore justified in ignoring the first notice under s. 34 of the Act and the return filed by the assessee in response to that notice and consequently the assessment made by the Income.tax Officer pursuant to the, second notice was a valid assessment.

[391H]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 632 of 1966.

ppeal by special leave from the judgment and order dated April 14, 1964 of the Andhra Pradesh High Court in case referred No. 46 of 1962.

3. Sen, GopaiSingh, S. P. Nayyar and R. N. Sachthey, for the appellant.

H S. T. Desai, B. Parthasarathy and 0. C. Mathur, for the res pondent.

c.I.T. v. AD!NARAYANA (Ramaswam1, J.) 389

A The Judgment of the Court was delivered by

.Ramaswami, J. This appeal is brought, by special leave, fro~ the judgment of the High Court of Andhra Pradesh dated Apnl 14, 1964 in Referred Case No. 46 of 1962.

The respondent, hereinafter called the "assessee" was a Hindu Undivided family consisting of K. Ankineedu and his two sons.

For the assessment year 1!149-50 corresponding to the previous financial year ending March 31, 1949, the assessee submitted a return in response to a notice sent to him. The Income-tax Officer computed h!S total income as Rs. 2,429 /- only which was below the taxable limit and so the assessee was declared not liable to pay

income!~. Subsequent to the assessment, the Income-tax Officer had information that the assessee had done some business as procurement agent for the Government and in this. business he had earned large profits which had escaped assessment. Accordingly he issued a notice under s. 34 of the Income-tax Act, 1922 (hereinaner called the 'Act') on March 22, 1957. In response to the notice the assessee made a return on April 30, 1957.

Prior to the issue of the above notice the Income-tax Officer had taken the view in the assessment made for the year 1954-55 that the correot status of the assessee was not 'Hindu Undivided Family' but his. status was .. individual". In accordance with this view the notice under s. 34 of the Act was issued to the assessee on March 22, 1957 in the status of an 'individual'.

As the proceeaings under this notice were continuing, but before the assessment could be made, the Appellate Assistant Commissioner in the appeal for the assessment year 1954-55 accepted the contention of the assessee and held that the status of the assessee was that of 'Hindu Undivi ed Family' and not 'individual'. Thereafter, the Income-tax Officer

issued a fresh notice under s. 34 on February 12, 1958 which was served on the assessee on the same day.

This notice was issued to assess the income of the assessee as a 'Hindu Undivided Family' fom the procurement business which had escaped .from the original ssessment made on February 10, 1950. A return in pursuance of the second notice was duly filed on February 28 1958 and the a5smnt was ulti_mately made under s. 34 of the 'Act in status of Hmdu Und!Vtded Family' on August 16, 1958. In JS asment, a sum of Rs. 60,000/- was included as the income escapmg from the original assessment.

The assessee preferred dan appeal to the Appellate Assistant Commissioner and co'!ten ed that the roceedings under s. 34 of the Act were not ¥ahd i:ause no not1~ coud be issu; d after the expiry of 8 years ~~: e lose of the preVtous year as distinct from the 'assessconte ar _The Appellate Assistant Commissioner accepted the . r~ 101{!1sed by the assessee and held that the proceeding was mva I .

Income-tax Officer took the matter in appeal before

the Income-tax Appellate Tribunal and claimed that the period of limitation for starting proceedings under s. 34 was to be counted from the end of the 'assessment year' and not from the end of the 'previous year'; The Tribunal accepted his contention and over ruled the view of the Appellate Assistant Commissioner on this point. The assessee also contended that the assessment proceed ing started by the second notice dated February 12, 1958 was bad in Jaw as he had already made a return on April 30, 1957 which was in pursuance of the first notice under s. 34 issued on March 22, 1957. It appears from the statement of the case that the Income-tax Officer was required to disclose the particular notice on which he made the assessment. The Income-tax Officer said that the assessment was based on the second notice. .The Ap

pellate Tribunal took the view that the return filed by the assessee on April 30, 1957 in response to the first notice was not a valid return and the Income-tax Officer was not bound to act upon it.

Accordingly the Appellate Tribunal held that the assessment made under the second notice was legally valid.

Since the Appellate Assistant Commissioner did not deal with the merits of the assessment the Appellate Tril)unal remanded the appeal to the Appellate Assistant Commissioner for being dealt with on merits.

At the instance of the assessee the Appellate Tribunal stated case to the High Court on the following question of Jaw :

"Whether, on the facts and in the circumstances of the case, the assessment in pursuance of the notice issued under s. 34 on 12-2-1958 is a valid assessment?"

The High Court held that tht:. first notice dated March 22, 1957 was not invalid in Jaw and consequently the issue of the second notice on February 12, 1958 was illegal and the assessment made in pursuance of that notice was also illegal. The High Court accordingly answered the question of law in favour of the assessee.

The question presented for determination in this appeal is whether it was competent for the Income-tax Officer to issue the second notice dated February 12, 1958 and continue proceedings thereon ignoring the return already filed by the assessee in pursuance of the first notice under the same section. It was pointed out by Mr.

S. T. Desai on behalf of the assessee that both the notices under s. 34 of the Act were in identical terms and were addressed to the assessee in his name and the issue of the second notice made no difference in its contents to the knowledge of the assessee. It was also contended that the assessee filed his return in the status of 'Hindu Undivided Family' in response to the first notice and the Income-tax Officer ought not to have ignored that return. We are unable to accept the argument put forward on behalf of the assessee as correct. The Income-tax Officer could not have validly acted on the return filed by the assessee in the status of 'Hindu Undivi-

" C.l.T. v. ADINilAYANA (Rama.swami, J.) 391 l J A ded Family' and any assessment made by the Inoomctax Officer on such a retum would have been Invalid in law because the notice under s. 34 had been issued In the status of 'Individual' and sane .... tion of the Commissioner for the issue of a notice under s. 34 was also obtained on that basis. We therefore consider that the Income tax Officer was entitled to ignore the return filed by the assessee .....

B as non est in law. It is not disputed that the Income-tax Officer issued the first notice under s. 34 of the Act on March 22, 1957 to the assessee in the status of 'individual'. The Appellate Tribunal has stated in 3ara 3 of the statement of the case that the Income-tax Officer ha taken the view that the correct status of the assessee was 'individual' and in accordance with that view "a c notice under s. 34 was issued to the assessee as above for making an assessment in the status of 'individual' ". As there was some ambiguity in the statement of the case on this point, we referred to the orltat file of the income-tax proceedings and satisfied ourselves t at the assertion of fact made In the statement of the case is correct. It appears that on February 13, 1957 the Income-tax

D Officer had applied for the sanction of the Commissioner for in ,; stituting proceedings under s. 34(1)(a) of the Act against the assessee to make an assessment in the status of an 'individual' with regard to the procurement agency business. Sanction of the Commissioner was ven to the proposal of the Income-tax Officer and thereafter the st notice under s. 34 of the Act was issued on March 22,

1957. In this state of facts we are of opinion that the proceeding E taken under the first notice under s. 34 of the Act was invalid and ultra vlres. The correct status of the assessee was that of 'Hindu Undivided Family' as was held by the Appellate Assistant Commissioner in the assessment for the year 1954-55 and since the first

notie under s. 34 was issued to the assessee as an 'individual' for _, !llaktng assessment in that status, it is manifest that the proceed.

F mgs taken under that notice were illegal and without jurisdiction.

U'!der the scheme of the Income-tax Act the 'Indi:vidual' and th 'Hmdu Univided .Family' are treated as separate units of assess: :i:nt and 1f .a notice under s. 34 of the Act is wrongly issued to assessee m the status of an 'ind d r d . statu.s of 'Hindu Undivided Family' fu~ ~tic~ mot n the correct

G ceedings talren under that notice e is eg and all prodiction. It was contended by Ma:° 5ui; a r::s. and without juris. _, assessee that the return was filed b th Bl • on behalf of the first '!ot!ce in the character of 'Hinu U 'J~C;"J: m rponse to the subm1ss10n of the return by the assess

11: !VI Family'. But the to the character of the proceedi .ee Will not make any difference

H which must be held to be illeg1:if mluruane of the first notice already stated. We are therefore of~ u !"! Vires for the reasons Officer was legally justified . . he opimon that the Income-tax s. 34 of the Act and the re~8J:f ng the first notice issued under that notice and consequently the Y the assessee in response to assessment made by the Incometax Officer in pursuance of the six; ond notice issued on February 12, 195'8 was a valid assessment.

We accordingly allow this appeal, set aside the judgment of the High Court of Andhra Pradesh dated April 14, 1964 and hold that the question of law referred to the High Court should be answered in the affumatiYe and against the assessee. Thsre will be no order as to costs in this appeal.

G.C.

A ppa/ allowed.

A l - .__

-•

THE COMMISSIONER OF INCOME-TAX, ANDHRA PRADESH, HYDERABAD

K. ADINARAYANA MURTY

C. SHAH

S. M. SIKRI

V. RAMASWAMI, JJ

s. 34

s. 34

s. 34

Income-tax Act 1922

s. 34

s. 34

Income-tax Act

s. 34

s. 34

Sen

GopaiSingh

S. P. Nayyar

R. N. Sachthey

H S. T. Desai

B. Parthasarathy

0. C. Mathur

.Ramaswami

High Court of Andhra Pradesh

s. 34

Income-tax Act, 1922

March 22, 1957

April 30, 1957

s. 34

s. 34

February 12, 1958

s. 34

August 16, 1958

s. 34

s. 34

s. 34

Ap

pellate Tribunal

s. 34

S. T. Desai

s. 34

s. 34

s. 34

s. 34

s. 34

February 13, 1957

s. 34(1)(a)

s. 34

March 22,

1957

s. 34

s. 34

Income-tax Act

s. 34

s. 34

February 12, 195'8

April 14, 1964


COMMISSIONER OF INCOMETAX, MYSORE,

BANGALORE v.

THE

BANGALORE TRANSPORT COMPANY,

LTD.,

BANGALORE April 3, 1967

(J. C. SHAH, S. M. S!KRI AND V. RAMASWAMI, JJ.] Indian Income-tax Act, 1922 (Act 11 of 1922)-Business carrk?d for a part of year, if profits taxah/e- Tbe undertaking and business of the assessee-company were taken over by the Government and the assessee \Vas paid compensation.

The assessee sub mitt~. a return, claiming that it had earned no income from its business, since it was taken over by the Government.

The Income-tax Officer brought to tax a certain sum. disclosed by the assessee's audited accounts as its taxable business income during that part of the year before it closed the business.

This 9rder was upheld by the Assistant Commissioner and the Appellate Tribunal with certain reduction in the amount.

On re ference the High Court answered the question against the Revenue. In appeal to this Court :-

HELD : The assessee was liable to be taxed.

Under S. 10(1) of the Income-tax Act, tax is payable by an assessee under the head "Profits aud gains of business, profession or vocation" in respect of profits or gains of any business, profession or vocation carried on by him.

There is nothing in the Act which supports the assessee's argument that for profits of the business to be taxable, the business must be actively earried on for the whole of the previous year, or till the end of the previous year. Under the ocheme of the Act, whenever an assessee

receives in the course of his business money or money's worth, income embedded therein accrues or arises to him. and becomes subject to an ambulatory charge.

If at the end of the previous year, on making up accounts there is no ovetall income, the charge does not crystallize, because there is no income on which the charge of tax may settle.

[39SF-H] Turner Morrison &; Cotnpany Ltd. v. Co1nn1issioner of Income-ta~ West Bengal, 23, I.T.R. 152, followed. ' Con11nissioner o( lnco1ne-tax, Gujarat v. Ashokhhai Cltimanhhai rt965] 1 S.C.R. 758. explained.

The Depent v.:as not seeking to tax either the whole or any part of e compe!lsation ece1ved by the assessee and the discussion as to what the in ~:11t~~ recivd by assessee was. intended to replace was not relevant prior to its cls':.ree ofehhi.;.r:;~~. w~~'9~~~led or arose to the asses..ee

196~IYIL APPELLAT!! JURISDICTION: Civil Appeal No. 435 of

Feb~~a~9byleJia~ lthav]Jrom the. judgment and order dated Referred Cae No. I~ of e196~ore High Court in Income-tax.

the :pll~::.ai, A. N. Kirpal, S. P. Nayyar and R.H. Dhebar, for

ChaTud. hV .. iswahnath Iyer, K. Rajindr Chaudh11ri d K urz, ior t e respondent. an

 R.

The Judgment of the Court was delivered by

394 SUPllBMB COURT llBPOllTS (1967] 3 S.C.ll,

Shah, J, The Bangalore Transport Company Ltd. hereinafter called 'the Company'-operated a public motor transport service in the town of Bangalore for several years. The Legislature of the State of Mysore enacted the Bangalore Road Transport Service Act, 1956 (Mysore Act VIII of 1956) with a view to provide for the acquisition of the unde.rtaking of the Company. By virtue of s. 3 of the Act the undertaking, assets and documents of the Com pany vested in the Government of Mysore, on October l, 1956, and the Company was paid Rs. 15,50,000/ • as compensation for loss of its undertaking, assets and documents.

In respect of the previous year ending March 31, 1957, the Company submitted a return under the Income-tax Act, claiming that it had earned no income from its business, since its undertak ing and business was taken over by the Government of Mysore on October l, 1956. The Income-tax Officer, Urban Circle, Ban galore, brought to tax Rs. 4,01,954/· disclosed by the Company's audited accounts as its taxable business income. This order was confirmed by the Appellate Assistant Commissioner in appeal. The Income-tax Appellate Tribunal modified the order of assessment and allowed Rs. 97,208/· as development rebate for the previous year and after making certain adjustments brought to tax an amount of Rs. 3,16,439/· as taxable income of the Company in the pre

; ious year.

At the instance of the Company, the following question was submitted by the Appellate Tribunal to the High Court of Mysore under s. 66(1) of the Income'tax Act, 1922 :

"Whether the sum of Rs. 3,16,439/· was income and liable to tax on the assessee for the year 1957-58 ?" The High Court answered the question in the negative. Against that order, this appeal is preferred with special leave.

The High Court was of the opinion that it was for the Revenue to establish that out of Rs. 15,50,000/· received by the Company as compensation for loss of its undertaking, assets and documents, Rs. 3,16,439/· were paid towards profits earned by the Company during the period April 1, 1956 to September 30, 1956. The High Court observed that even if the compensation paid to the Company was .worked out as a multiple of profits earned in one or more years, that circumstance was not sufficient to prove that any compensation or any part thereof was received by the Company in lieu of the profits earned by it, and that the nature of the pay ment was decisive of its character and "not the method of payment or measure". The High Court accordingly held that there was no material on the record from which it could be reasonably held that any portion of the compensation paid reprented replacement of profits earned during April l, 1956 to September 30, 1956. In our judgment the High <:ourt erred in assuming that the hcter of the compensation received by the Company was determmattve of

C.l.T. v. BANGALORE TRANSP. CO. (Shah, J.) 395

the question submitted by tho TribulljlJ. It was tho claim of the Revenue that in the previous year the Company had earned taxable profit amounting to Rs. 3,16,439/- and that profit was subject to tax in the hands of the Company. The Department was not seeking to tax either the whole or any part of the compensation received by the Company and the discussion as to what the compensation received by the Company was intended to replace was not relevant in determining whether the profits which accrued or arose to the Company during the period April 1, 1956 to September 30, 1956 were taxable.

Counsel for the Company conceded that he was unable to support the reasoning adopted by the High Court in recording their answer to the question submitted.

Counsel however contended C that during the previous year no profit had accrued or arisen to the Company, and no profit was received by the Company; therefore the Company incurred no liability to pay tax. Counsel in expounding his theme said that under the Income-tax Act liability to pay

tax arises only at the end of the previous year and not before, and if during the course of the previous year the assessee closes his D business or is compulsorily deprived of his undertaking and assets, and on that account the assessee is unable to carry on his business, in law no profit can arise or accrue to or be received by the assessee even if during a part of the year the assessee has received payments in the course of his business. According to counsel for the Company in order that income from business may become taxable in the hands of the assessee, it must be shown that the business was carried on till the end of the previous year, and if before the conclusion of that year the business is closed, no profit may in law be deemed to accrue to the assessee.

There is no warrant for this argument in the scheme of the Income-tax Act. Under s. 10(1) of the Income-tax Act, 1922, tax is payable by an assessee under the head "Profits and gains -Of business, profession or vocation" in respect of the profit or gains of any business, profession or vocation carried on by him. There is nothing in the Act which supports the argument that for profits of the business to be taxable, the business must be actively carried on for the whole of the previous year, or till the end of th6 previous year. Under the scheme of the Income-tax Act, whenever an assessee receives in the course of his business money or money's worth, income embedded therein accrues or arises to him; and becomes subject to an ambulatory charge. If at the end of the previous year; on making up accounts there is no overall income, the. charge does not crystallize, because there is no income on which the charge of tax may settle.

In Turner Morrison & Company Ltd. v.

CommiSsioner of Income-tax, West-Bengal('), this Court in dealing with a case of a business of selling salt in India observed atp. 160:

(I) 1! l.f.R. Bi.

SUPRBME COURT IUIPORTS

[1967] 3 S.C.R.

''There can . . . . be no question that when the gross sale proceeds were received by the Agents in India tey necessarily received wha.tever income, p_rofits .and ga1?s were lying dormant or hidden or otherwise embedded m them. Of course, if on the taking of accounts it be found that there was no profit during the year then the questi?n of receipt of income, profits and gains would not anse but if there were income, profits and gains, then the proportionate part thereof attributable to the sale proceeds received by the Agents in India were income, profits and gains received by them at the moment the gross sale proceeds were received by them in India and that being the position the. provisions of Section 4(1)(a) were immediately attracted and the income, profits and gains so received became chargeable to tax under Section 3 of the Act." The same principle applies to receipts in the course of business of a transport operator.

The Company carried on the business of a transport operator between April 1, 1956 andSeptember 30, 1956 and the audited accounts of the Company disclosed that embedded in the gross receipts was a net profit of Rs: 4,01,954/- during that period. That profit reduced by outgoings properly allowable in the computation of the total taxable income became subject to a charge to tax.

The total taxable profits may under the scheme of the Act be determined at the end of the previous year : but it does not follow therefrom that to profits earned during the year, the charge of tax does not attach. Assuming that the business of the Company was closed on October 1, 1956 when its undertaking and assets were taken over by the Government of Mysore, it was, for reasons stated earlier, still liable to be taxed in respect of its profits which accrued or were received by the Company prior to the date of the closure of the business.

Counsel for the Company relied upon a recent decision of this Court in Commissioner of Income-tax, Gujarat v.

Ashokbhai Chimanbhai(') and contended that profits of a business which are liable to tax under the Income-tax Act, can only accrue at the end of the previous year and not before. But that case lays down no such proposition.

Under an agreement of partnership, the manager of a Hindu undivided family who was a partner was to

T!eoeivte a share in the profits of the firm.

The accounts of the firm were to be adjusted at the end of every calendar year. Before the expiry of the previous year relevant to the assessment year

I 955-56, there was a partition in the family arid the entire share in the profiis of the firm was, under the partition agreement, nllotted to the managi>r.

The Incoma-tax Officer in proceedings for

(I) (1965} I S.C.R. 758.

C.I.T. v. BANGALullE TRANSP. CO. (Slulh, J.) 397

assessmenr to tax sought to. apportion the pro!i.ts r.ceived by manager between the Undivided family and the IllllllJlger In his indivi.duRI capacity. This Court held that the right to receive the share of profits of the firm for the previous year 1955 arose on the settlement of accounts of the firm, and not before, and on that date the manager alone was the owner of the share of profits and the family had no right therein and it was not liable to be taxed in respect of any part of the income. It is clear on a bare perusal of the statement of facts of that case that no income or profits had accrued to the Hindu unJivided family at any time in the year of account prior to the date of dissolution. It was observed in Ashokbhai Chimanbhars case(') at p. 46 :

"In the gross receipts of a business Clay after day or from tran9action to transaction lies embedded or dormant profit or loss : on such dormant profit or loss undoubtedly taxable profits, if any, of the business will be computed.

But dormant profits cannot be equated with profits charged to tax under sections 3 and 4 of the Income-tax Act.

The concept of accrual of profits of a business involves the determination by the method of accounting at the end of the accounting year or any shorter period determined by law. If profits accrue to the assessee directly from the business the question whether they accrue de die, in diem or at the close of the year of account has at best an academic significance, but when upon ascertainment of profits the right of a person to a share therein is determined, the question assumes practical importnce, for it is only on the right to receive profits or mcome, profits accrue to that person. If there is no right, no profits will be deemed to have accrued."

The Hindu Undivided family became entitled to a share in the profits of the firm only at the end. of every calendar year, and not before. If before that date the nght of the family to a share in the profits was divested, no income accrued or arose to the family.

(~ te pesent case the profits directly arose to the Company de

ze, zn deem, and could be ascertained by the method of accountmg. adopted by the Company at the end of the year or when the busmess was closed.

The question whether the amount of profits assessed were actually shared by the Company within the meanh1g of s. 26(2) of the Indian Income-tax Act does not need consideration. By sub-~.

(2) of. s. 26 where a person carrying on any business, profession or vocahon has been succeeded in such capacity by another person, such pers?n and such other person shall, each be assessed in respect of his actual share, if any, of the income, profits and gain~

(I) (1965] I $.C.R. 7,11.

SUPREME COURT RBPORTS [1967] 3 s.c.R.

af the previous year. The question whether the ptofits:of the Com pany held taxable by the Income-tax Officer represented the actual share of the Company in the profits and gains of the previous year was never raised before the Income-tax Appellate Tribunal and has not been decided. Counsel for the Company merely contended that the amount sought to be charged was not liable to be taxed, because it was not profit of. the Company. Counsel has also not contended before us that for the profits received by the Company the State of Mysore is by virtue of s. 26(2) of the Income-tax Act liable to be taxed.

The answer recorded by the High Court will therefore be discharged and there will be an. answer in the affirmative.

The appeal is allowed. The Company will pay the costs of the Commissioner in this Court and the High Court.

Y.P.

Appeal allowed.

COMMISSIONER OF INCOME-TAX, MYSORE, BANGALORE

THE BANGALORE TRANSPORT COMPANY LTD., BANGALORE

C. SHAH

V. RAMASWAMI, JJ.

Indian Income-tax Act, 1922

S. 10(1)

Income-tax Act

A. N. Kirpal

S. P. Nayyar

R.H. Dhebar

K. Rajindr Chaudh11ri

Shah

Bangalore Transport Company Ltd.

Bangalore

Mysore Act VIII of 1956

s. 3

Government of Mysore

October l, 1956

March 31, 1957

Income-tax Act

High Court of Mysore

s. 66(1)

April 1, 1956

September 30, 1956

s. 10(1)

Income-tax Act, 1922

Income-tax Act

India

Section 4(1)(a)

Section 3

30, 1956

October 1, 1956

Income-tax Act

Ashokbhai Chimanbhars

sections 3 and 4

Income-tax Act

s. 26(2)

Income-tax Act

s. 26

SUPREME COURT RBPORTS [1967] 3 s.c.R.

s. 26(2)

Income-tax Act


NORTHERN INDIA CATERERS PRIVATE LTD., & ANR.

STATE OF PUNJAB AND ANOTHER

April 4, 1967

[K. SUBBA RAO, C.J.,

M. HIDAYATULLAH,

R. S. BACHAWAT,

J, M. SHBLAT AND C. A. VAIDIALINGAM, JJ.)

Punjab Public Premises and Land (Eviction and Rent Recovery) Act (31 of 1959), s. 5-Scope of -If lo/ates Art. 14 of the Constitution.

The respondent-State leased its premises to the appellant for running a hotel and when the lease expired called upon the appellant to hand over vacant possession.

On the appellant failing to do so, the Collector issued a notice under s. 4 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959 requiring , the appellant to show cause why an order of eviction should not be passed under s. 5. The appellant thereupon filed a writ petition in the High Court contending that the Act violated Art. 14 of the Constitution in two ways : (I) that it dillC'riminated between the occupants of public premises and th* of other pretnises; and ( 2) that it discriminated between the occupants of public premises Inter se as the State could arbitrarily proceed against an occupant either under the Act or by way of suit. The High Court dismined the petition holding that the proceeding under the Act is the exclus:ve remedy for ev, iction of un

authorised occupants of public premises, that there was a valid classlfication between the occupiers oI public premises and those of private properties, and that, as the Act was substitutive and not supplemental there waa no question of discrimination between the occupiers of public premises Inter se.

In appeal to this Court, HELD : (I) The Hi$b Court erred in holding that the Act impliedly took away the right of suit by the Government. The Act was only intend ed to provide an additional remedy to the Government which was speedier than the one by way of a suit under the ordinary Jaw of eviction. [ 404G;

411B)

(Per Subba Rao, C. J., Shelat and Vaidialingam, JJ.) : The impugned Act is neither in negative terms nor in such terms which result in negativing the right of the Government as a landlord to sue for eviction under the ordinary law.

Nor is it possible to say that the co-existence of the two sets of provisions relating to eviction under the ordinary law and under the Act, leads to any inconvenience or absurdity. The impugned Act deals with the Government's right to evict the occupants and tenants of public premises, but that fact, by itself would not lead to the inference that the Legislature intended to take away the Government's right to file a suit for eviction. [404C-E]

(Per Hidayatullah and Bachawat, JJ.) : The Act does not create a new right of eviction. It creates an additional remedy for a right existing under the general law and does not repeal the ordinary law giving the remedy of a suit for eviction.

[411CJ

(2) By Full Court : Thre is an intelligible differentia between the two classes of occupiers, namely, occupiers of public property and premises and other occupiers. The classification has a reasonable relation to the object of the Act and does not offend Art. 14. The two classes of PC, cupiers are not similarly situated in that, in the case of public properties and premises, the members of the public have a vital interest in seeing that such properties

and jlremises are freed from encroachment and unauthorised occupation as opeedily as possible;· and the impugned Act has properly devised a special machinery for the speed_y recovery of premises belonging to the Government. [406C-D; 412C-E]

Babu Rao Shantaram More v. The Bombay Housing Board and another, [1954] S.C.R. 572, followed.

(3) (Per Subba Rao, C. J., Shelat and Vaidialingam, JJ.)Section 5 of B the Act confers an additional remedy over and above the remedy by way of suit.

The section violates Art. 14 by providing two alternative remedies to the Government and in leaving it to the unguided discretion of the Collector to resort to one or the other and to pick and choose some of those in occupation of public properties and premises for the application .of the more drastic procedure under s. 5.

[409F-0] Discrimination would result if there are two available procedures one more drastic or prejudicial to the party concerned than the other and which C can be applied at the arbitrary will of the authority.

Assuming that persons in occupation of government properties and premises form a class by themselves as agai.nst tenants. and occupiers of private owned properties and that such classification is justified on the ground that they require a differential treatment in public interest those who fall under that classification are entitled to equal treatment among themselves.

[409B-D] State of West Bengal v. Anwar Ali, [1952] S.C.R. 284, Sura; Mull D Mohta v. A. V. Visvanatha Sastri, [1955] 1 S C.R. 448, Shr.,. Meenakshi "Mills Ltd., Madurai v. A. V. Visvanathan Sastri, [1955] 1 S.C.R. 787 and Banarsi Das v. Cane Commissioner, U.P. (1963] Supp. 2 S.C.R. 7(;1J: A.I.R. 1963 S.C. 1417, followed (Per Hidayatullah and Bachawat, JJ. dissenting) : The, impugned Act makes no unjust discrimnation among the occupants of government properties inter se. it promotes public welfare and is a beneficial measure of E legislation.

[414D-E] The impugned Act is not unfair or oppressive.

The unauthorised occupant has full opportunity of being heard and of producing his evidence before the Collector; he may obtain a review of the Collectors order by an appeal to the Commissioner and in appropriate cases ask for a writ of certiorari from the High Court.

He is not denied equal protection of the laws merely because the Government has the option of proceeding against him either by way of a suit or under the Act. An unauthorised occupant F ha• no C-Ons.itutional right to dictate that the Government should have no choice of proceedings.

The argument based upon the option of the Government to file a suit is unreal) because in practice, the Government is not likely to institute a suit in a case when it can seek rel'ef under the Act.

[4!4B-D]

G 297, 303-304, Seth Banarsi Dass v. Cane Commissioner, U,.P. [1963] Supp. 2 S.C.R. 7(;/J and Arizona Copper Co. v. Hammer, 250 U.S. 400 : 63 L.Ed. 1058, referred to.

Suraj Mull Mohta & Co. v. A. V. Visvanatha Sastri, [1955] I S C.R. 448, 466, explained.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1101 of 1%5.

H Appeal from the judgment and order dated January 22, 1963 of the unjab High Court in Civil Writ No. 16 of 1960.

N. INDIA CATERERS v . . PUNJAB (Shelat, J.) 401

A. K. Sen and Ravinder Narain, for the appellants.

Gopal Singh and R. N. Sachthey, for the respondents.

The Judgment of SUBBA RAo, C.J.,

SHBL~T A!'D VAIDIALINGAM, JJ., was delivered by SHELAT, J. The dissnting Opinion of HIDAYATULLAH and BACHAWAT JJ., was delivered by BACHAWAT, J, Shelat, J. This appeal, by . certificate, is dircted. ag~t the judgment and order of the High Court of Punia~ disllllSSmg e appellants' writ petition which challenged the validity of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, XXXI of 1959.

In or about September, 1953, the State of Punjab leased the "Mount View Hotel" at Chandigarh to the appellants for a period of six years commencing from September 24, 1953 at an annual rent of Rs. 72,000/ subsequently reduced to Rs. 50,000/-. The deed of lease of the said Hotel, however, was drawn up and executed on May 21, 1959. On or about August 27, 1959, the Government offered to sell the said Hotel to the appellants at a price of Rs. 12,00,000/-. Since the appellants did not accept the said offer the same was withdrawn and as the said period of six years had by that time expired, the Government called upon the appellants to hand over vacant possession on or before January 1, 1960. On January 1, 1960, the Estate Officer and Collector, Capital Project, Chandigarh served the appellants with a notice alleging that their occupation of the said Hotel had become unauthorised after December 31, 19 5 9 and required them under s. 4 of the Act to show cause on or before January 11, 1960 as to why an order of eviction should not be passed against them. The appellants, in the meantime, filed the writ petition in the High Court and obtained an interim stay against any order of eviction.

The appellants contended in the High Court (1) that the Act discriminated between the occupants of public premises and those of private property and also discriminated between the former inter se and, therefore, infringed their right of equality before law and equal protection under Art. 14 of the Constitution, (2) that the Act infringed their light to property, ( 3) that the procedure laid down in s. 5 of th\) Act infringed rules of natural justice and ( 4) that the said noth:e was invalid as it did not give ten clear days as required by s. 4(2) (b) of the Act.

The High Court negatived contentions 2, 3 and 4. As regards th~ first contention, it held that as appearing from the preamble, the object and the provisions of the Act, the Act substituted the remedy of the Government of eviction as a landlord under the ordinary law, i.e. that by reason of the Act, the Government could only resort to the remedy under the Act and not by way of a suit for eviction and that the Act impliedly did away with the Government's right to sue under the Civil Prncedure Code in respect of public pro-

SUPRBMB COURT REPORTS 11967] 3 s.c.tt.

perties and premises, that there was a valid classification between the occupiers of pul>lic premises and those of private property and that as the Act was substitutive and not supplemental, there was no question of discrlmination also between the occupiers of public premises inter se.

The High Court, however, agreed that if the Act furnished a 'supplemental' and not a 'substitutive' remedy, the contention as to discrimination would be one of substance.

The reasons for holding that the Act impliedly repealed the ordinary Jaw of eviction in respect of public property and premises were that the Act covered the entire subiect-matter of Jaw relating to eviction, that the two laws could. not haVe been intended to exist simultaneously, that the preamble and the provisions of the Act lent themselves to the deduction that it was intended to substitute the general law of eviction as applicable to public premises, that the object of the Act was to discard the cumbersome procedure under the ordinary law involving delay and to provide a special and speedier remedy and lastly that though the absence of ex_press words of repeal may raise a presumption that the pre-existing law was not repealed that presumption was offset by a comparison of the two laws which demonstrated the legislative intent to supplant the ordinary Jaw.

Counsel for the appellants contended that the conclusions reached by the High Court were erroneous.

Before we proceed to examine them it is necessary to read the relevant provisions of the Act. The objects and reasons given for the enactment of the Act (as quoted by the High Court) were that there was no provision in the Land Revenue Act or in any other Act providing for summary removal of unauthorised encroachments on or occupation of Government and Nazul properties including agricultural lands and residential buildings and sites and for recovery of rent, that the only procedure available to Government was to sue the party concerned in a civil court which was a cumbersome procedure involving delay and that therefore to keep all Government owned lands whether put to agricultural or non-agricultural use free from encroachments and unlawful possessions, it was necessary to provide a speedy machinery. The preamble of the Act declares that the Act was passed to provide for eviction of unauthorised occupants from public premises and for certain incidental matters. Section 3 of the Act provides that a person shall be deemed to be in unauthorised occupation of any public premises, where being a lessee, he has, by reason of the determination of his lease, ceased to be entitled to keep or hold such public premises. Section 4 provides that if the Collector is of opinion that any person is in unauthorised occupation of public premises and that he should be evicted, be shall issue a notice in writing calling upon such person to show cause why an order of eviction should not be passed. The notice shall specify the grourtds on which the

N. INDIA CATERERS v. PUNJAB (Shelat, /,) 403

A order of eviction is proposed to b~ mad~ and require such. person to show cause on or before such date being a date not earber than 1 O days from the date of issue thereof. Section 5 provides that if after considering the cause and the evidence produced by such per son and after giving him reasonable opportunity of being heard, the Collector is satisfied that the public premises are in unauthorised B occupation he 'may make an order of eviction'.

Section 7 em powers. the Collector to recover rent in arrears and assess and re cover damages in respect of public premises as arrears of land revenue.

Section 9 provides an appeal against an order of the Collector under s. 5 or s. 7 before the Commissioner. Section 10 confers finality to the order made by the Collector or the Come missioner and such order cannot be called in question in any suit, application or execution proceedings.

We will first consider the High Court's conclusion as to im plied repeal of the Government's remedy of eviction under the ordinary law.

The rule of construction is that where a statute provides in express terms that its enactment will repeal an earlier D Act by reason of its inconsistency with such earlier Act, the latter may be treated as repealed. Even where the latter Act does not contain such express words, if the co-existence of the. two sets of provisions is destructive of the object with which the latter Act was passed, the Court would treat the earlier provision as impliedly repealed. A latter Act which confers a new right would repeal an earlier right if the fact of the two rights co-existing together pro- E duces inconvenience, for, in such a case it is legitimate to infer that the legislature did not intend such a consequence. If the two Acts are general enactments and the latter of the two is couched in negative terms, the inference would be that the earlier one was impliedly repealed.

Even if the latter sl'dtute is in affirmative terms, it is often found to involve that negative which makes it r fatal to the earlier enactment. Thus s. 40 of the Requirements of Fines and Recoveries Act, 1833, which empowered a married woman to dispose of land by deed which she held in fee, provided she did so with the concurrence of her husband and by deed acknowledged, was held to have been impliedly repealed by the Married Women's Property Act, 1882 which authorised her in general terms to dispose of all real property as if she were a feme G sole(1). But repeal by implication is not generally favoured by courts. Farwell, J. following such disinclination observed in Re.

Chance(') that "if it is possible, it is my duty to read the section as not to effect an implied repeal of the earlier Act". Maxwell on Interpretation of Statutes, 11th Ed., p. 162 remarks : "A sufficient Act ought not to be held to be repealed by implication without some H strong reason. It is a reasonable presumption that the legislature did not intend to keep really contradictory enactments on the

(I) Re. Drummond[IS9111 Ch. 524.

LS Sup C. 1./67-13

(2) 1936 Ch. 266, 27J.

Statute Book, or, on the other hand, to effect so important a measure as the repeal of a law without expressing an intention to do so.

Such an interpretation, therefore, is not to be adopted unless it be inevitable. A reasonable construction which offers an escape from it is more likely to be in consonance with the real intention.'' The well-settled rule of construction is that when the latter enactment is worded in affirmative terms without any negative it does not impliedly repeal the earlier law. "What words'', observed Dr. Lushington, in The India,(') (as quoted in Craies on Statute Law, 6th Ed. 371) "will establish a repeal by implication it is impossible to say from authority or decided cases .... The prior statute would, I conceive, be repealed by implication if its provisions were wholly incompatible with a subsequent one; or if the two statutes together would lead to wholly absurd consequences; or if the entire subject-matter were taken away by the subsequent statute". The impugned Act is neither in negative tenns nor in such terms which result in negativing the right of the Government as a landlord to sue for eviction under the ordinary law. Nor is it possible to say that the co-existence of the two sets of provisions relating to eviction lead to inconvenience or absurdity which the legislature would be presumed not to have intended.

The impugned Act no doubt deals with the Government's right to evict the occupants and tenants of public premises. In that sense it is an Act dealing with a particular subject-matter, but that fact by itself would not lead to the inference that the legislature intended to take away the Government's right to file a suit for eviction. As the reasons and objects, relied on by the High Court, show the legislature intended to provide an additional remedy to the Government, a remedy which it thought was speedier than the one by way of a suit under the ordinary law of eviction. In our view, there is nothing in the Act to warrant the conclusion that it impliedly takes away the right of suit by Government or that, therefore, it is substitutive and not supplemental. Nor is it possible to say that the co-existence of the two remedies would cause such inconvenience or absurdity that the Court would be compelled to infer that the enactment of the Act resulted in an implied deprivation of the Government's right to sue in the ordinary courts. In our view, the High Court with respect was in error in holding that there was an implied repeal only because the two sets of provisions deal with the subject-matter of eviction in respect of public premises.

As aforesaid, the High Court was of the view that if the Act conferred an additional remedy, the contention ~.s to discrimination would have force.

The guarantee of equality before law and equal protection under Art. 14 means that there should be no discrh.?i_?ation between one person and another if as regards the (!) (!8G4) 33 L. J. Adm. 193.

N. INDIA CATERERS v. PUNJAB (Shelat, !.) 405

subject-matter of the legislation, the~ position is the same.

I~ is well-recognised, however, that the legislature has power of mking special laws to attain particular objects and for that puose it has the power of selection or f:la, sifisai?n of pe.rson~ and things upon whiGh such Jaws are to operate. S, tich classification, however, has to be based on some real distinction 'bearing a just and reasonable relation. The two tests laid down by this Court tor a valid classification are that it must be founded on an intelligible differentia which distinguishes those who are grouped together from others and that differentia must have a rational relation to the objects to be achieved by the Act. When, therefore, an enactment is challenged on the ground of discrimination, the Court must first ascertain the object sought to be achieved by the legislature and then a, pply the two tests. If the tests are satisfied, the classification cannot be held to be violative of Art. 14.

In Baburao Shantaram More v. The Bombay Housing Board and another('), section 4 of the Bombay Rents Act, 194 7 which exempted certain public properties from the operation of the Act was challenged on the ground that the exemption caused discrimination between the tenants bf the Housing Board and the rest of the tenants of private properties. This Court upheld the section on the ground that there was an intelligible differentia which distinguished the tenants of the Board from the other tenants and that that differentia had a rational nexus with the object of the Act.

The object of the Act, it ·.vas observed, was to solve the residential accommodation to achieve which the Housing Board was set up.

The Board was not actuated by any profit motive and, therefore, there was no likelihood of its evicting its tenants for the purpose of unduly raising the rents as private landlords were likely to do taking advantage of dearth of accommodation. This Court held that the two classes of tenants were not, therefore, siniilarly situated and were not, by force of circumstances, placed on an equal footing and, therefore, there was no denial of equality before Jaw or of equal protection.

A modern State in a complex and growing society can no longer content itself with performance only of its traditional activities. To meet the manifold and variegated needs of society it has to undertake activities of considerable diversity.

Such activities now-a-days range from supplying the elemental needs of its citizens such as housing, importation and distribution of food and clothes and other such necessities to highly industralised and technocratic projects, which it is said, the State alone can undertake. In such activities its citizens have a vital interest. If a classification is made between those who take advantage of such activities such as accommodation and the rest it may be difficult to say that there is not an intelligible differentia between the two or that there is no relation between such differentia and the object

(I) [1954] S.C.R. 572.

SUPRBMB COURT RBPORTS [1967] 3 s.c.R.

of such legislation. In such cases, if the law .Provides for differential treatment, it is possible to contend that it is JUStifiable on consicilera tion of the circumstances, the object and the policy of such legisla tion though the mere fact that it is a Government-owned activity may not by itself be sufficient.

The objects and reasons of the impugned Act and its preamble indicate that the Act was passeci to provide for eviction of unauthorised occupants from public properties and premises, and to keep such properties free from encroachment and unlawful pos

session and to provide a speedier machinery for that purpose as against the lengthy proceedings under the ordinary law of evic tion involving delay.

The Act no doubt differentiates occupiers of public property and premises from other occupiers. Neverthe less, it is possible to say that there is an intelligible differentia between the two classes of occupiers, that they are not similarly situa ted in that in the case of puolic properties and premises the mem bers of the public have a vital interest and are mterested in seeing that such properties and premises are freed from encroachment and unauthorised occupation as speedily as possible. It is also possi ble to contend that such classification is justified in that it is in the interest of the public that speedy recovery of rents and speedy eviction of unauthorised occupiers is made possible through the instrumentality of a speedier procedure instead of the elaborate procedure by way of suit involving both expense and delay. On these considerations, it may be contended that the segregation of tenants of public properties and premises from the tenants of pri vate property is based on justifiable reason and that such segrega tion has a rational nexus with the object and policy of the Act.

Assuming that such classification is valid, the complaint of the appellants is that s. 5 of the Act makes a discrimination amongst those in occupation of public properties and premises inter se and that such discrimination has no valid basis nor any reasonable nexus with the object of the Act.

Under s. 4, if the Collector is of opinion that any person is in unauthorised occupation of any pub lie premises and that he should be evicted, he has to issue a notice calling upon such person to show cause why an order of eviction should not be made. Under s. 5, if the Collector is satisfied that the public premises are in unauthorised occupation he has the power to make an order of eviction giving reasons therefor. The contention is that the Government thus has two remedies open to it, one under the ordinary law and the other a drastic and more prejudicial remedy under the present Act. The words "the Collector may make an order of eviction" in s. 5 show that the section confers discretion to adopt the procedure under ss. 4 and 5 or not. Section 5 has left it to the discretion of the Collector to make such an order in the case of some of the tenants and nnt to make such an order against others.

Section 5 thus enables the

N. INDIA CATl!R.&llS v. PUNJAB (Shelat, /.) 407

Collector to discriminate against some by exercising his power under s. S and take :iiroceedings by way of a suit against others, both the remedies be111g simultaneously available to the Government. There can be no doubt that if the Collector were to proceed under ss. 4 and S, the remedy is drastic for a mere opinion l-y him that a person is in unauthorised occupation authorises him to issue a show cause notice and his satisfaction under s. 5 is sufficient for him to pass an order of eviction and then to recover under s. 7 rent in arrears and damages which he may assess in respect of such premises as arrears of land revenue. Section 5 does not lay down any guiding principle or policy under which the Collector has to decide in which cases he should follow one or the other procedure and, therefore, the choice is entirely left to his arbitrary will. Consequently, s. 5 by conferring such unguided and absolute discretion manifestly violates the right of equality guaranteed by Art. 14.

It is well-settled that if a law were to provide for differential treatment for amongst persons similarly situated, it violates the equality clause of Art. 14. In the State of West Bengal v. Anwar D Ali,(') s. 5 ofthe W.B. Special Courts Act, 1950 was challenged as infringing Art. 14. The majority judgment held that the procedure laid downfor trial by the Special Courts varied substantially from that laid down for tha trial of offences generally under the Code of Criminal Procedure and that the Act did not classify or lay down any basis for classification of cases which.may be directed to be tried by the Special Courts but left it to. the un- E controlled discretion of the State Government to direct cases which it liked to be tried by the Special Courts .. The language of s. 5(1) vested the State with unrestricted discretion to direct any case or class of cases to be tried by the Special Courts, not a discretion to refer caes.where it is of opinion.that a speedier trial is necessary.

The ma1on~ eld that a .rule of procedure laid down by law comes I' as much ~1thin the purview of Art. 14 as rules of substantive law and that 1t was necessary that all litigants, who are similarly situat~, are able to avail thmslves of the same procedural rights for r7lief and .fo~ defenc~ with hke protection and without discriminati?n.. f 1.t 1s esablished that the P71'SOi; t complaining has been cnminted against as a :esult of leg1slation and denied equal pri- G vileges with others occupying the same position it would be enough to make uch a law violative of Art. 14. In Suraj Mall Mohta v A. V .. Visvanatha Sastri, (2). th~ challenge was to s. 5 ( 4) of th~ Taxation and Income (Investigation Commission) Act 194 7 The C?ntentio!l was that s. 5(4) gave arbitrary power to the Cmmis on o pick and choose the evaders of income-tax as it liked and H Thf e re, rtthh jbth:ction was highly discriminatory in character' f s ou e t sub-s. (4) of s. 5 dealt with the same clas~ o persons who fell within the ambit of s. 34 of the Income-tax

(l} [l952] S.C.R. 284.

(2) [1955] I S.C.R. 448.

SUPRBMB COURT REPORTS [1967] 3 s.c.a.

Act, 1922, that both s. 34 of the Income Tax Act and s. 5(4) of the Investigation Act dealt with persons who had similar characteristics and similar properties, the common characteristics being that they were persons who had not truly disclosed their income and had evaded payment of taxation on income, that the procedure prescribed by the Investigation Act was substantially more prejudicial and more drastic to the assessee than the one under the Income Tax Act and that, therefore, s. 5(4) in so far as it affected persons proceeded against under that sub-section was a piece of discriminatory legislation and offended Art. 14. It appears that after that decision, Parliament amended s. 34 of the Income-tax Act providing for the cases of those very persons who originally fell within the ambit of s. 5(1) of the Investigation Act to be dealt with under the amended s. 34 and under the procedure of the Income-tax Act. As a result of the amendment both categories of . persons, viz., those who came within the ambit of s. 5 ( 1) as well as

those who came within the ambit of s. 34 of the Income-tax Act now formed one class. That being the effect of the amendment, it was urged in Shree Meenakshi Mills Ltd., Madurai v. A. V. Vlsvanatha Sastri(') that assuming thats. 5(1) of the Investigation Act was based on a rational classification that classification had, because of the amendment of s. 34 become void, as the classification which saved it from the mischief of Art. 14 had become ineffective, its distinctive characteristics having disappeared, and that the per- 'sons falling within the class defined in s. 5(1) now belonged to the same class as was dealt with by s. 34 as amended.

This Court accepted the contention and held that as a result of the said amendment s. 34 as amended operated on the same field as s. 5(1) of the Investigation Act, assuming that the latter was based on a rational classification, and that therefore it became void and unenforceable as being discriminatory in character. Similarly, in Banarsi Das v. Cane Commissioner, Uttar Pradesh('), Rule 23 of the U.P. Sugar Factories Rules, 1938 was impeached on the ground that it provided two different procedures either of which could be followed by the Cane Commissioner. Raghubar Dayal, J. who gave a dissenting opinion was of the view that the rule was discriminatory and should, therefore, be struck down as contravening Art. 14. Hidayatullah, J. who spoke for the majority agreed with him on principle that if "it could be said tha~ the rule as framed, allows the Cane Commissioner to discriminate between one party and another then the rule must offend Art. 14". . He, however, construed the rule to mean that the parties, instead of leaving the dispute to the decision of the Commissioner, could go to arbitration with his permission. On this construction, he held that where there are two procedures, one for every one and the other, if the disputants voluntarily agree to follow it, there would be no

(I) [1955] I S.C.R. 787.

(2) A.I.R. 1963 S.C.R. 1417.

N. INDIA CATERERS v. PUNJAB (Bachawat, J.) 409

discrimination because discrimination can only be found to exist if the election is with someone else who can exercise his will arbitrarily. The principle which emerges from these decisions is that discrimination would result if there are two available procedures one more drastic or prejudicial to the party concerned than the other and which can be applied at the arbitrary will of the authority.

Assuming that persons in occupation of Government properties and premises form a class by themselves as against tenants and occupiers of private owned properties and that such classification is justified on the ground that they require a differential treatment in public interest, those who fall under that classification are entitled to equal treatment among themselves. If the ordinary law of the land and the special law provide two different and alternative procedures, one more prejudicial than the other, discrimination must result if it is left to the will of the authority to exercise the more prejudicial against some and not against the rest.

A person who is proceeded against under the more drastic procedure is bound to complain as to why the drastic procedure is exercised against him and not against the others, even though those others are similarly circumstanced. The procedure under s. 5 is obviously more drastic and prejudicial than the one under the Civil Procedure Code where the litigant can get the benefit of a trial by an ordinary court dealing with the ordinary law of the land with the right of appeal, revision, etc., as against the person who is proceeded against under s. 5 of the Act as his case would be disposed of by an executive officer of the Government, whose decision rests on his mere satisfaction, subject no doubt to an appeal but before another executive officer, viz., the Commissioner. There can be no doubt that s. 5 confers an additional remedy over and above the remedy by way of suit and that by providing two alternative remedies to the Government and in leaving it to the unguided discretion of the Collector to resort to one or the other and .to pick and choose some of those in occupation of public properties and premises for the application of the more drastic procedure under s. 5, that section has lent itself open to the charge of discrimination and as being violative of Art. 14. In this view s. 5 must be declared to be void.

In the result, the appeal is allowed. The order of the High Court is set aside and the writ petition filed by the appellants is made absolute with costs.

Bachawat, J. An unauthorised occupant of public premises claims immunity from eviction under the summary procedure of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959 (Punjab Act No. 31 of 1959), on the ground that the Act offends art. 14 of the Constitution. The State of Punjab leased the premises known as Mount View, Chandigarh to the appellant

410 SUPRJ!MB 'COURT lU!POllTS (1967] 3 s.c.R.

upto December 31, 1959 after which the lease was not extended.

On January 1, 1960, the Collector issued a notice under s. 4 of the Act to the appellant to show cause on or before January 11, 1960, why an order of eviction from the premises should not be made against it. On January 7, 1960, the appellant filed a writ petition challenging the vires of the Act. Since then it has successfully defied the law and continued to be in occupation of the premises under the shelter of stay orders and injunctions. The High Court dismissed the writ petition. This appeal has been filed on a certificate granted by the High Court. ·

The object of the impugned Act is to provide a summary procedure for the eviction of unauthorised occupants of public premises without recourse to. the cumbersome procedure of a title suit.

Public premises' means any premises belonging to, or taken on lease or requisitioned by, or on behalf of, the State government, or requisitioned by the competent authority under the Punjab Requisitioning and Acquisition of Immovable Property Act, 1953, and includes any premises belonging to any district board, municipal committee, notified area committee or panchayat [s. 2(d)]. A person deemed to be in unauthorised occupation of any public premises includes where he, being an allottee, lessee or grantee, has, by reason of the determination or cancellation of his allotment, lease or grant in accordance with the terms in that behalf therein contained, ceased, whether before or after the commencement of this Act, to be entitled to occupy or hold such public premises [s. 3(b)].

If the Collector is of the opinion that any persons are in unauthorized occupation of any public premises situate within his jurisdiction and that they should be evicted, he shall issue a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made ( s. 4). If after considering the objection, if any, of the person concerned and giving him a reasonable opportunity of being heard, the Collector is satisfied that the public premises are in unauthorized occupation, he may make an order of eviction for reasons to be recorded therein ( s. 5).

Section 6 provides for disposal of property left on public premises by unauthorized occupants. Section 7 gives the Collector the power to recover rent or damages in respect of public premises as arrears of land revenue. For the purpose of holding any inquiry under the Act, the Collector has the power of summoning witnesses and certain other powers vested in the civil court when trying a suit (s. 8.

An appeal lies from every order of the Collector under ss. 5 and 7 to the Commissioner (. 9. Save as provided in the Act, every order made by the Collector or Commissioner is final and cannot he called in question in any original suit, application or execution proceeding (s. 10). Section 11 prote9ts action taken under the Act in good faith. Section 12 gives power to make rules.

This in short is the scheme of the Act. Its provisions are similar to

N. INDIA CATERERS v. PUNJAB (Bachawat, /.) 411

those of the Public Premises (Eviction of Unauthorized Occupants) Act, 1958, save that an appeal under the Central Act from an. order of the estate officer lies to the district judge.

The High Court found that the Act does not offend arts. !4 and 19(1)(f) of the Constitution. The appellant has now abandoned the attack based on art. l 9(1)(f). Being an unauthorized occupant, it has no right of property in the premises. The High Court repelled the attack based on art. 14 on the ground that the proceeding under the Act is the exclusive remedy for the eviction of unauthorized occupants of public premises. With this reasoning we cannot agree. The Act does not create a new right of eviction. It creates an additional remedy for a right existing under the general law. It does not repeal the law giving the remedy of a suit or bar the jurisdiction of civil courts to try a suit for eviction. The government is at liberty to proceed against the occupant either under the Act or by way of a suit.

The argument for the appellant is that the Act violates art. 14 in two ways, first, that it discriminates between unauthorized occupants of public premisC11 and those of other premises and the class!·

fication of public premises has no reasonable relation to the object of the Act.

Second, that it discriminates between occupants of public premises inter se as the State can arbitrarily proceed against the occupant either under the Act or by way of a suit at its sweet will. The argument must be rejected.

The constitutionnl guarantee of art 14 requires that there shall be no unjust discrimination and all persons shall be treated alike under like circumstances and conditions. The article sustains a rich diversity of laws and permits reasonble classification and differential treatment based on substantial differences having reasonable relation to the object of the legislation, The protection of art. 14 extends to procedural laws, but the legislature may adopt one or more types of procedure for one class of litigation and a different type for another so long as the clnsiiflcation satisfies the test of reasonableness.

Thus without violating nrt, 14, the law may prohibit cross-examination of witnesses in proceedings for externment of undesirable persons, see G11rbacha11 Singh v. State of Bombay and another(1),

Article 14 permit! differential treatment of the government in matters of both substantive law and procedure.

The legislature may reasonably provide a longer period of limitation for suits by the government, see Nav Rattanmal and others v. State of Rajasthan(2), give the government the right of priority in payment of its claims, see Builderr Supply Corporation v. Union of lndia and - --

(1} [19S2] S.C.R. 737, 743-44.

(2) (1962] 2 S.C, R. 324.

others ( 1) and deny the protection of the Rent Act to tenants of premises belonging to the government while extending its protecttion to the government, see Baburao Shantaram More v.

The Bombay Housing Board and another(').

It is settled by our previous decisions that the Revenue Recovery Acts and other Acts creating special tribunals and procedure for .the expeditious recovery of revenue and State dues are in the public interest and do not violate art. 14, see Shri Manna Lal and another v. Collector of Jhalawar and others(•), Nav Rattanmal and others v. State of Rajasthan('), The Collector of Malabar v.

Erimal Ebrahim Hajee('), Purshottam Govindji Ha/ai v. Shree B.

M. Desai, Additional Collector of Bombay and others(•) and Lachhman Das v. State of Punjab and others('). If quick recovery of revenue is in the public interest, expeditious recovery of

State property from which revenue is derived is a fortiori in the public interest.

The impugned Act has properly devised a special machinery for the speedy recovery of premises belonging to the government.

The class of public premises to which the benefit of the impugned Act extends includes premise5 belonging to the district board, municipal committee, notified area committee and panchayat. The classification has reasonable relation to the object of the Act and does not offend art. 14. We have upheld similar classification for the purpose of other Acts, see Baburao Shantaram Mort v. The Bombay Housing Board and another(').

The government has the option of proceeding against an unauthorized occupant of public premises either under the Act or by a civil suit. On the question whether such an option offends art. 14, our decisions upholding the validity of the Revenue Recovery Acts are conclusive.

The Revenue Recovery Acts do not deny the equal protection of the Jaws because the government has the free choice of recovering its revenue either by a suit or by a proceeding under those Acts.

We have struck down harsh, oppressive and unjust laws giving the government an arbitrary power of directing a summary trial of offences by a special criminal court instead of trial by the ordinary courts or of subjecting assessee to the inquisitorial procedure of the Taxation of Income (Investigation Commissioo) Act, 194 7. It is because those laws were harsh, despoti9 and tyrannical that they were struck down. It is remarkable that in Suraj Mall Mohta and Co. v. A. V. Visvanatha Sastri and anothtr( 8 ), the Court said that if there was a provision for reviewing the con-

(!) [196512 S.C.R. 289.

(2) [19541 S.C.R. 572.

(3) [196112 S.C.R. 962,

(4) }1962] 2 S.C.R. 324, 332.

(5) [1957] S.C.R. 970.

(6) (!955] 2 S.C.R. 887.

(8) [19551 I S, C.R. 448 at 466.

N. INDIA CATERERS v. PUNJAB (Bachawat, I.) o&l 3

clusions of the investigation commission when acg both as investigators and judges, the Taxation of Income (Investigation Commission) Act 194 7, might have been sustained.

Even an Act giving the executive an option of sending a case for trial by a special criminal court is not necessarily violative of art. 14, see Kangsari Haldar and anr. v. The State of West Bengal(1). We have upheld an Act empowering an administrative tribunal trying an offence to send the case to a court for trial if the case deserves more severe punishment, see Shanti Prasad Jain v. The Director of Enforcement ( •) .

Without violating art. 14, the law may allow a litigant a free choice of remedies, proceedings and tribunals for the redress of his grievances. The plaintiff may have a choice of claiming specific relief or damages. As dominus litis, he has the option of suing in one of several courts having concurrent jurisdiction, and the defendant cannot insist that he must be sued at a place where he can more conveniently carry on the litigation. The plaintiff may even fix the oriinal and appellate forums on the basJS of his own arbitrary valuation. For a suit on a negotiable instrument, he may instead of choosing the ordinary procedure, adopt the summary procedure of Order XXXVII of the Code of Civil Procedure and shut out the defence altogether unless leave to defend is obtained.

A landlord may evict a tenant by a suit or by a summary proceeding under chapter VII of the Presidency Small Cause Courts Act.

An aggrieved party may be free to choose one of several types of tribunals and modes of proceeding. He may obtain a rectification of the share register by a suit or by an application to the court talcing company matters or by appealing to an administrative tribunal against the refusal of the company to register the transfer of shares.

Instead of filing a suit or a proceeding before an administrative tribunal, a party may at his option obtain quick and effective relief against the government by an application in the writ jurisdiction and by adopting this mode of proceeding may deprive the government of the procedural safeguards available to it in suits and other proceedings.

Likewise, the law may give the government an option of Tecovering its revenue and properties by a suit or by a proceeding before an administrative tribunal.

The law does not violate art. 14 because it gives an aggrieved party the free choice of remedies and proceedings for the redress of his grievances. In Arizona Copper Co. v. Hammer,( 8 ) the U.S.

Supreme Court held that employers were not denied the equal protection of the laws because an employee injured in course of his employment had open to him three avenues of redress under three

(2) [1963] 2 S, C.R. 297, 303-4,

(3) 2SO US 400 : 63 L.Ed. JOSS.

di1ferent laws, each one of which he might puisue at his free choice.

As Pitney J 1 said, "election of remedies is an option very frequently given by the law to a person entitled to an action-an option nor mally exercised to his own advantage as a matter of course."

It is not pretended that the proceeding under the impugned Act is unfair or oppressive. The unauthorised occupant has full opportunity of being heard and of producing his evidence before the Collector. He may obtain a review of the order of the Collector by an appeal to the Commissioner. He may in appropriate cases ask for a writ of certiorari from the High. Court. He is not denied the equal protection of the laws because the government has the option of proceeding against him either by a suit or under the Act. An unauthorised occupant has no constitutional right to dictate that the government should have no choice of proceedings.

The argument based upon the option of the government to file a suit is unreal, because in practice the government is not likely to institute a suit in a case where it can seek relief under the Act.

Article 14 does not require a fanatical approach to the pro blem of equality before the law. It permits a free choice of reme dies for tile redress of grievances. The impugned Act makes no unjust discrimination. It promotes public welfare and is a bene

flc1ent measure of legislation. I.f we strike down the Act, we shall be giving a free charter to unauthorized occupants and to officers

squatting on public premises after they have vacated their offices to continue in occupation for an indefinite time until they are evic ted by dilatory procedure of a title suit. The Act does not suffer from any blemish and we uphold it.

In Seth Banarsi Das v. Cane Commissioner('), the Court upheld a law prescribing two procedures one for every one and the other if the .disputants agree to follow it. The Court did not say that a law cannot allow a choice of procedure to an aggrieved party.

We would accordingly dismiss the appeal with costs.

ORDER

In accordance with the opinion of the majority, the apl'."al is o allowed. The order of the High Court Is set aside and the writ pet!· tlon filed by the appellants Is made absolute with costs.

V.P.S.

(1) [1963] Supp. 2 S.C.R. 760.

NORTHERN INDIA CATERERS PRIVATE LTD.

STATE OF PUNJAB AND ANOTHER

April 4, 1967

K. SUBBA RAO, C.J.

M. HIDAYATULLAH

R. S. BACHAWAT,

J

s. 5

Art. 14

s. 4

s. 5

Art. 14

Subba Rao

Shelat

Vaidialingam

Hidayatullah

Bachawat

Art. 14

Section 5

Art. 14

s. 5

[1955] 1 S C.R. 448

[1955] 1 S.C.R. 787

S. 400

CIVIL APPELLATE JURISDICTION

N. INDIA CATERERS

PUNJAB

A. K. Sen

Ravinder Narain

Gopal Singh

R. N. Sachthey

SUBBA RAo

SHBL~T A!'D VAIDIALINGAM

SHELAT

HIDAYATULLAH

BACHAWAT

High Court of Punia~

State of Punjab

Chandigarh

May 21, 1959

August 27, 1959

January 1, 1960

December 31, 19 5 9

s. 4

January 11, 1960

Art. 14

s. 5

s. 4(2)

Section 3

Section 4

Section 5

Section 7

Section 9

s. 5

s. 7

Section 10

s. 40

Property Act, 1882

Farwell

Maxwell

Lushington

Craies

Art. 14

Art. 14

section 4

SUPRBMB COURT RBPORTS [1967] 3 s.c.

s. 5

s. 4

s. 5

s. 5

ss. 4 and 5

Section 5

Section 5

ss. 4

s. 5

s. 7

Section 5

s. 5

Art. 14

Art. 14

s. 5

Special Courts Act, 1950

Art. 14

Code of Criminal Procedure

s. 5(1)

Art. 14

Art. 14

s. 5

s. 5(4)

s. 5

s. 34

s. 34

s. 5(4)

s. 5(4)

Art. 14

Parliament

s. 34

Income-tax Act

s. 5(1)

s. 34

Income-tax Act

s. 5

s. 34

Income-tax Act

s. 34

Art. 14

s. 5(1)

s. 34

s. 34

s. 5(1)

Sugar Factories Rules, 1938

Raghubar Dayal

Art. 14

Art. 14

s. 5

s. 5

s. 5

s. 5

Art. 14

s. 5

art. 14

SUPRJ!MB 'COURT lU!POllTS (1967]

s. 4

January 7, 1960

s. 2(d)

s. 3(b)

s. 4

s. 5

Section 6

Section 7

s. 8

ss. 5 and 7

s. 10

Section 11

Section 12

art. 14

art. 14

art 14

art. 14

Article 14

art. 14

art. 14

art. 14

1962] 2 S.C.R. 324

art. 14

art. 14

Order XXXVII of the Code

art. 14

Supreme Court

Pitney

Article 14