Appeal No 279 of 1959
Appeal by special leave from the judgment and order dated November 18 1957 of the Kerala High Court in O P No 87 of 1956
A V Sayed Muhammad for the appellants
The respondents did not appear
182 1960
December 12
The Judgment of the Court was delivered by HIDAYATULLAH J
This is an appeal with the special leave of this Court against the judgment of the High Court of Kerala dated November 18 1957 passed in a petition for writ of prohibition under article 226 of the Constitution
The State of Kerala and the Tahsildars of Kottayam and Kanjirappally Taluks are the appellants and CM Francis  Co a partnership firm is the first respondent and the partners of the firm are the remaining respondents
The respondents were doing business in hill produce like pepper ginger betelnuts etc and were assessed to sales tax under the Travancore Cochin General Sales Tax Act XI of 1125 referred to as the Act for the years 1950 to 1954
The respondents have to pay a sum of Rs 101716 4 3 as tax
In 1954 proceedings were started against them under section 13 of the Act which provides that if the tax is not paid as laid down in that section the whole of the amount or such part thereof as remains due may be recovered as if it were an arrears of land revenue
It appears that the pro ceedings were not fruitful and a prosecution under section 19 of the Act was instituted against the partners in the Court of the First Class Magistrate Ponkunnam
Respondents 2 to 5 pleaded guilty and the Magistrate passed an order on October 18 1955 as follows The sentence or other final order A 1 to 4 sentenced to pay a fine of Rs 50 each and in default to undergo section 1
for one month each
A 1 to 4 admit that they failed to pay on demand by the competent authority a sum of Rs 101716 4 3 due from them as sales tax for the years 1950 to 1954
This amount will be realised from A 1 to 4 jointly or severally individually or collectively under the provisions of the Cr
PC for realisation of criminal fines as if it were a fine imposed by this court on each accused individually and all of them together
Take steps for the realisation
 Warrants under section 386 1 b of the Code of Criminal Procedure were issued to the Collector of Kottayam District for recovery of the arrears of sales tax
183 The authorities however started proceedings again under section 13 of the Act read with the provisions of the Travancore Cochin Revenue Recovery Act 1951 VII of 1951 to recover the amount as arrears of land revenue and attached some properties belonging to the respondents within the jurisdiction of the second and third appellants the Tahsildars of Kottayam and Kanjirappally Taluks
The firm thereupon filed the petition under article 226 of the Constitution for a writ of prohibition or other order or direction to the effect that the proceedings for realisation of the arrears under the Revenue Recovery Act be quashed
In the petition the respondents urged that inasmuch as they were prosecuted under section 19 of the Act and the Magistrate had issued warrants the procedure for recovery under section 13 was not available
They contended that under section 386 of the Code of Criminal Procedure the warrant is to be deemed to be a decree and has to be executed according to civil process applicable to the execution of decrees under the Code of Civil Procedure
They therefore submitted that the procedure under section 19 of the Act was no longer open and could not be proceeded with
Section 19 of the Act so far as it is material reads as follows Any person who    b fails to pay within the time allowed any tax assessed on him under this Act or dfraudulently evades the payment of any tax assessed on him  shall on conviction by a Magistrate of the first class be liable to a fine which may extend to one thousand rupees and in the case of a conviction under clause b d the Magistrate shall specify in the order the tax which the person convicted has failed or evaded to pay and the tax so specified shall be recoverable as if it were a fine under the Code of Criminal Procedure for the timebeing in force
 In dealing with the question the learned Judges of the High Court felt that section 13 of the Act was in the 184 nature of a general law over which the special procedure prescribed by section 19 of the Act read with section 386 of the Code of Criminal Procedure was to prevail
They however thought that since all the processes available under section 19 of the Act were also available under section 386 of the Code of Criminal Procedure it was not necessary to decide what would happen if the proceedings under section 386 came to nothing
They observed that if the question arose they would consider it
The writ of prohibition was granted by the High Court
The respondents did not appear in this Court
We have heard learned counsel for the appellants who has drawn our attention to all the relevant provisions of the law
The question which arises is whether section 19 must be taken to prevail over section 13 of the Act
Both the sections lay down the mode for recovery of arrears of tax and as has already been noticed by the High Court lead to the application of the process for recovery by attachment and sale of movable and immovable properties belonging to the tax evader
It cannot be said that one proceeding is more general than the other because there is much that is common between them in so far as the mode of recovery is concerned
Section 19 in addition to recovery of the amount gives the power to the Magistrate to convict and sentence the offender to fine or in default of payment of fine to imprisonment
In our opinion neither of the remedies for recovery is destructive of the other because if two remedies are open both can be resorted to at the option of the authorities recovering the amount
It was observed by Mahmood J in Shankar Sahai vs Din Dial 1 that where the law provides two or more remedies there is no reason to think that one debars the other and therefore both must be understood to remain open to him who claims a remedy
Unless the statute in express words or by necessary implication laid down that one remedy was to the exclusion of the other the observations of Mahmood J quoted above must apply
In our opinion in the absence of any such provision in the 1 ILR 1889 12 All 409 FB 418
185 Act both the remedies were open to the authorities and they could resort to any one of them at their option
The appeal is allowed and the judgment of the High Court set aside
Though the respondents did not appear in the circumstances of the case we think we should make an order that the costs shall be paid by them both here and in the High Court
Appeal allowed


Summary:
The respondents were assessed to sales tax under the Travancore Cochin General Sales Tax Act and proceedings were started against them under section 13 of the Act for the recovery of the arrears of Sales Tax as if they were arrears of land revenue
The proceedings were not fruitful
Thereafter a prosecution under section 19 of the Act was instituted against the partners who pleaded guilty and the magistrate issued warrants under section 3861b of the Code of Criminal Procedure to the Collector of the District for the recovery of the arrears of sales tax as if they were a fine imposed by that court
The authorities again started proceedings under section 13 of the Act read with Travancore Cochin Revenue Recovery Act 1951 and certain properties were attached
The respondents urged that in as much as they were prosecuted under section 19 of the Act and the magistrate had issued warrants the procedure for recovery under section 13 of the Act was not available
The question was whether section 19 was to be taken to prevail over section 13 of the Act
Held that neither of the remedies for recovery of arrears of tax as laid down by sections 13 and 19 of the Travancore Cochin General Sales Tax Act was destructive of each other and unless the statute laid down in express words or by necessary implication that one remedy was to the exclusion of the other both the remedies were open to the authorities and they could resort to any one of them at their option
Shankar Sabai vs Din Dial ILR 1889 12 All 409 FB 418approved