TMI Blog1977 (12) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... and not the Revenue Divisional Officer on whom no such powers have been conferred. He, therefore, submits that the warrant of arrest of the petitioner under section 48 of the Act issued by the Revenue Divisional Officer is illegal and without jurisdiction. It may be noticed that the word "Collector" has not been defined in the Act itself. The learned Public Prosecutor, on the other hand, maintains that the Revenue Divisional Officer has the necessary powers to issue the warrant by virtue of section 3(1) of the Madras Subordinate Collectors and Revenue Malversation (Amendment) Regulation, 1828 (Regulation 7 of 1828). The learned counsel sought to garner great support for his submission from an unreported decision of this Court in W.P. No. 1607 of 1977 dated 11th August, 1977, and another decision of this Court in Gorantla Ramachandra Row v. Doppalapudi Seshaiah[1957] 2 An. W.R. 106. In the latter case, the question that arose was whether the District Collector had powers to revise an order passed by the Revenue Divisional Officer registering a minor for the office of the Village Munsif under the Madras Hereditary Village Offices Act (Act 3 of 1895). The learned Judges held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce for orders as to posting a Full Bench. In pursuance of the abovesaid order of reference the petition came on for hearing before the Full Bench. S. Dasaratharama Reddi and S.R. Ashok, for the petitioner. The Public Prosecutor, for the respondents. JUDGMENT The judgment of the Full Bench was delivered by SAMBASIVA RAO, J.-The question formulated by our learned brothers Chennakesav Reddy and Madhava Rao, JJ., while referring the writ petition to a Full Bench, is: "Whether the Revenue Divisional Officer has jurisdiction to issue a warrant of arrest and detention of a defaulter under section 48 of the Revenue Recovery Act." This is one of the questions which arises in the petition filed seeking a writ of habeas corpus. Though our learned brothers have referred the case itself to a Full Bench, the learned counsel for the petitioner has submitted that besides this question there are many other points which he seeks to urge in the writ petition and therefore requested us to give our opinion on it and remit back the matter to the Division Bench. Acceding to this request, we will now proceed to answer the question. It appears there are arrears of sales tax of an extent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act by virtue of section 3(1) of the Madras Subordinate Collectors and Revenue Malversation (Amendment) Regulation, 1828. The power to arrest and detain a defaulter in payment of arrears is conferred on the Collector under section 48 of the Revenue Recovery Act. That provision is in the following terms: "When arrears of revenue with interest and other charges as aforesaid cannot be liquidated by the sale of the property of the defaulter, or of his surety, and the Collector shall have reason to believe that the defaulter or his surety is wilfully withholding payment of the arrears, or has been guilty of fraudulent conduct in order to evade payment, it shall be lawful for him to cause the arrest and imprisonment of the defaulter, or his surety, not being a female, as hereinafter mentioned; but no person shall be imprisoned on account of an arrear of revenue fora longer period than two years, or for a longer period than six months, if the arrear does not exceed Rs. 500 or for a longer period than three months, if the arrear does not exceed Rs. 50; provided that such imprisonment shall not extinguish the debt due to the State Government by the defaulter or his surety." Section 49 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue Recovery Act maintained through many of its provisions a clear distinction between a "Collector" and "other officer empowered by him". Whenever the District Collector was meant to be referred to, the Act used the simple word "Collector". At the same time, when some power is conferred not only on the Collector but on some other officer whom he could authorise in this behalf, various provisions said so in clear terms. However, section 48, which conferred the power to arrest and detain, deliberately used the word "Collector" and did not add "other officer empowered by him". This would clearly demonstrate the intendment of the Act that only Collectors, that is to say, District Collectors, can order arrest and detention. Otherwise, if the intention were to authorise other officers empowered by the District Collectors, this Act would have said so as it did in several other sections. Since arrest and detention of a person result in serious consequences of grave import to the person concerned, the Act limited the exercise of the power only to the District Collector. The Andhra Pradesh District Collectors' Powers (Delegation) Act, 1961, empowers the State Government to authorise by noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns raised by the learned counsel for the petitioner. On the other hand, Sri Obulapathi Chowdary, the learned Public Prosecutor, maintained that under section 3 of the 1828 Regulation a Subordinate, Deputy or Assistant Collector has the power to exercise within the division under his charge, all the powers given to the Collectors, under any law, be it a Regulation or an Act. The Revenue Recovery Act was passed long after the Regulation of 1828. Therefore, when the word "Collector" was used in section 48 it must be taken as having been used with all its ramifications as stated in section 3 of the 1828 Regulation. There is no express declaration in the Revenue Recovery Act as postulated by section 3 of the 1828 Regulation showing a clear intention that a Subordinate, Deputy or Assistant Collector shall not exercise the power of arrest and detention. There is no express or implied repeal of section 3 of the 1828 Regulation under the 1961 Act. Therefore, a Sub-Collector or an Assistant Collector or a Deputy Collector has the power to order arrest and detention within his own division. Consequently, the impugned order is perfectly valid. We have no hesitation in upholding the argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer to exercise the power of arrest and detention conferred on him under sections 48 and 49 of the Revenue Recovery Act. However, it is one thing to say that a Collector cannot authorise any other officer to exercise the power under section 48 and it is altogether a different matter if some other officer is authorised by a law in force to exercise the powers of the Collector. A Collector may not by himself delegate the powers. In fact no Collector can delegate his powers under section 48. But nothing prevents a law from authorising some other officers also to exercise that power and discharge those functions. For one instance-and this is accepted by the learned counsel for the petitioner as perfectly valid-the Andhra Pradesh District Collectors' Powers (Delegation) Act, 1961, empowers the State Government to delegate the powers of the District Collector to District Revenue Officers. Indeed, the State Government has availed itself of this power of delegation by issuing G.O. Ms. No. 77 dated 22nd January, 1968, delegating the powers of the District Collectors to District Revenue Officers. The Revenue Recovery Act is one of the enactments, which was included in the annexure to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ildars within their respective tahsildaris, certain of the cases cognizable by themselves under Regulation 9 of 1822; and also that petitions of appeal against judgments and orders passed under the same Regulation should be preferred within a limited time, and should be finally decided upon by the Board of Revenue instead of the Governor-in-Council as at present; therefore the Governor-in-Council has enacted this Regulation." It should be noted here that the 1822 Regulation as well as the 1828 Regulation were not only amended but were also extended to the Telangana area by Act 19 of 1968. By virtue of section 4(1) of the said Act 19 of 1958 the words "Subordinate, Deputy and Assistant Collectors" were substituted in the descriptive title and the words "Subordinate and Deputy Collectors". in the preamble of the 1828 Regulation. From the fact that these Regulations were amended by the Andhra Pradesh Legislature by Act 19 of 1968, it would be manifest that the legislature intended the continued operation of these Regulations not only in the areas which originally formed part of the Madras Presidency but also to the Telangana area. It is, therefore, abundantly clear that the Regulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eputies or Assistants shall be regularly submitted to himself before the decision, order or sentence is carried into execution, and to confirm, modify or annul them or issue any further orders in the cases, as he may see fit; or in any particular case to direct that that decision, order or sentence of any of his Subordinates, Deputies or Assistants shall not be carried into execution, and to pass such further orders as he may see fit." It should be noted that once again in section 3 the words "Subordinate. Deputy or Assistant Collector" were substituted in all the three clauses of the section by virtue of section 4 of the said A.P. Act 19 of 1958. Under the first clause, a Subordinate, Deputy or Assistant Collector has power, by virtue of his office, to exercise within the division under his charge all the powers given to Collectors by Regulations then in force or that may be thereafter enacted, unless the contrary is expressly declared in any Regulation. The second clause authorises the Collectors to delegate the powers to Subordinate, Deputy or Assistant Collectors not in-charge of a particular division or to such officers who are in-charge of a particular division beyond the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was thought necessary to authorise the officers in-charge of divisions to exercise the powers of the Collectors. At the same time, care was taken to create controlling and revisional powers in the District Collector. There is another feature worthy of note. This Regulation made by the Governor-in-Council in 1828 was not only amended but was also extended to the Telangana area by the Legislature of Andhra Pradesh by Act 19 of 1958. That is to say, this Regulation, though originally made by the Governor-inCouncil, has received the seal of approval by the Andhra Pradesh State Legislature. It could have enacted a statute on the same lines; instead, it amended the Regulation and extended its operation and application to the Telangana area as well. So much so, there is no doubt that the Regulation of 1828 has all the force of law made by the State Legislature. This takes us to the contention of the petitioner's learned counsel that the power conferred under section 3 of the 1828 Regulation upon a Subordinate, Deputy or Assistant Collector is to exercise the Collector's powers granted only by Regulations and not by any Act of the legislature. Throughout, a distinction has been kept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulation" and subsequently since it was a legislature that could enact, the name "Act" is given to such enactments. But the underlying feature behind "Regulation " and "Act" is the same, i.e., being a law enacted by the legislative body then in existence. When the 1828 Regulation was "enacted" it was the Governor-in-Council which was the legislative body and when the Revenue Recovery Act was "enacted" it was the legislature, which was the legislative body. We, therefore, see no distinction in section 3 between a "Regulation" and an "Act", since both were again enacted by competent legislative bodies. We therefore find that what is contained in the first clause would apply to all Regulations and Acts made by competent legislative bodies. We will now deal with the other contentions of the learned counsel for the petitioner that there is an exception to the exercise of power under clause (1) of section 3 of the 1828 Regulation to the effect that the power cannot be exercised by Subordinate and other Collectors if a contrary intention is expressly declared in any Regulation. We have decided above that "Regulation" occurring in section 3 takes within its ambit "any Act" made by a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a Deputy Collector to exercise all or any of the powers vested by or under any law in the district and may, in like manner, withdraw such authorisation. It must be noted that section 3 of the 1828 Regulation does not provide for withdrawal of the power conferred on the officers mentioned therein. On the other hand, section 3(1) of the Regulation declares that by virtue of the office which they hold, the Subordinate, Deputy or Assistant Collectors shall exercise in their respective divisions all the powers held by the Collector. Such is not the case postulated by the 1961 Act. When the legislature passed the Act of 1961, it has to be taken that it was aware of all the laws in force. Therefore, it can be safely accepted that the Andhra Pradesh Legislature passed the 1961 Act having in mind that the 1828 Regulation was still in force and was in fact amended and extended to the Telangana area also by virtue of Act 19 of 1958. Still the 1961 Act did not make any reference to the 1828 Regulation. Had the legislature intended to declare anything contrary to what is contained in section 3(1) of the Regulation, it should have clearly provided in section 3 that despite the provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulation was still in force. Under that Regulation a Subordinate, Deputy or Assistant Collector can exercise the powers of the District Collector within their divisions. With the full consciousness of this provision section 48 must be taken to have been enacted. In some other provisions, the Collector or some other officer authorised by him in this behalf may exercise the functions and powers under the Revenue Recovery Act. But by virtue of section 3(1) a Subordinate, Deputy or Assistant Collector will have to exercise the Collector's powers by virtue of their own office and not by virtue of any authorisation by the District Collector. The very office they hold confers them with the power to exercise all the authority of the District Collector within their respective divisions. Therefore, conferring all the powers under section 48 of the Revenue Recovery Act will have to be read in the light of section 3 of the 1828 Regulation. We will now refer to the decisions cited before us by Sri Dasaratharama Reddi in support of his above contentions. Reliance was placed on a Division Bench decision of this Court in Ramachandra Row v. Seshaiah[1957] 2 An. W.R. 106. This case arose under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llectors. It was further pointed out that section 3 of that Regulation lays down in unmistakable terms that the proceedings of Subordinate and Assistant Collectors shall be subject to superintendence, control and revision of the Collector. Therefore, the Collector is invested with power, inter aria, to correct a mistake. That being so, it cannot be postulated that when once the orders of a SubCollector or Assistant Collector have been carried into effect, the District Collector will have no authority to revise that order. While coming to this conclusion, the Division Bench relied upon the Full Bench decision of the Madras High Court in Nagarathnammal v. Ibrahim[1955] 2 M.L.J. 49 (F.B.). This decision of the Division Bench patently does not support the contention put forward on behalf of the petitioner. On the other hand, as pointed out above, the Division Bench held that by virtue of section 3 of the 1828 Regulation, the Collector had power to correct the error, if any, committed by the Revenue Divisional Officer. To put it in other words, the Division Bench was prepared to give effect to the provisions of section 3. Further, the question as it is now argued did not arise before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) of Regulation 7 of 1828. It was further held that the power of revision by the District Collector under section 3(3) of that Regulation is confined to the ambit of the provisions of the Revenue Recovery Act, 1864, but cannot extend to collectoral matters or objects alien to the enactment in question. Thus, this Full Bench upheld the revisional powers conferred on the District Collector under section 3(3) of the 1828 Regulation. It was further held that section 3 of that Regulation provides that the Subordinate, Deputy or Assistant Collector shall ex officio have authority to exercise, within the division under his charge, all the powers conferred upon the Collectors under the law then in force or to be enacted in future. This statutory conferment of the power is subject to the important condition that there should be nothing to the contrary expressly declared in such enactment. Consequently, the subordinate officers can exercise ex officio powers of the District Collector by virtue of the said Regulation under Madras Act 3 of 1895. Once again a Division Bench of the Madras High Court held in Periyaswamy Padayachi v. Government of Madras[1969] 82 L.W. 456. that the District Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith or repugnant to the provisions of the then existing statute that the two are incapable of standing together. If it is possible to construe both the provisions harmoniously so as to give effect to both of them, the courts are bound to adopt such a construction. It is always the duty of the courts to reconcile the earlier statute with the later one excepting when there is a repeal. When there has been no express repeal, the indication is that the legislature has treated the earlier law as compatible with the law which is newly made. These principles are enunciated and established more than once in authoritative pronouncements: vide paragraph 709 at page 465 of Vol. 36 of Halsbury's Laws of England, Third Edition. In Municipal Council, Palai v. T.J. Joseph A.I.R. 1963 S.C. 1561., the Supreme Court laid down the following principles. Mudholkar, J., who spoke for the court, laid down in paragraph 9: "It is undoubtedly true that the legislature can exercise the power of repeal by implication. But it is an equally well-settled principle of law that there is a presumption against an implied repeal. Upon the assumption that the legislature enacts laws with a complete knowledge o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of the 1828 Regulation. They can exist side by side without any conflict or inconsistency. That is why while enacting the 1961 Act the State Legislature has not repealed section 3 of the 1828 Regulation. The fields occupied by the two laws are also different. While section 3 of the Regulation. limits its operation to the divisions which are in-charge of a Subordinate, Deputy or Assistant Collector, section 3 of the 1961 Act refers to all or any of the powers vested in the District Collector under any law. That obviously refers to the exercise of the powers by the District Collectors over the entire district. It may also take in within its purview delegation of powers exercisable in parts of the district as well. But that does not affect the ex officio exercise of the District Collector's powers by the Subordinate, Deputy or Assistant Collectors in their respective divisions. Thus while the 1961 Act is a general law, section 3 of the 1828 Regulation is a special law made in respect of exercise of ex officio powers in divisions in-charge of Subordinate, Deputy or Assistant Collectors. There is also another feature to be noted in this connection. The decisions, orders or sentences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are all the contentions advanced before us by Sri Dasaratharama Reddi while trying to persuade us to answer the question posed by the Division Bench in the negative. We are not able to agree with any one of those contentions for the reasons stated above. We, therefore, answer the question by holding that a Revenue Divisional Officer has jurisdiction to issue a warrant of arrest and detention of a defaulter under section 48 of the Revenue Recovery Act (Act 2 of 1864) within the limits of the division over which he has the charge. The question is accordingly answered and the matter is now remitted back to the Division Bench for consideration of the other points and for the final disposal of the writ petition. In pursuance of the above decision of the Full Bench, the writ petition came on for final hearing before a Division Bench consisting of CHENNAKESAV REDDY and MADHAVA RAO, JJ., and the Bench delivered the following judgment on 30th December, 1977. The judgment of the Bench was delivered by CHENNAKESAV REDDY, J.-The petitioner in this writ petition seeks to obtain his enlargement by the issue of a writ of habeas corpus. He was detained and committed to prison in pursuanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a person guilty of fraudulent conduct contemplated by section 48 of the Act. It is further pleaded that the Revenue Divisional Officer, Cuddapah, had no jurisdiction to issue the warrant of arrest under section 48 of the Act and it was only the Collector that could exercise the powers under section 48. In the counter-affidavit filed on behalf of the first respondent, namely, the Revenue Divisional Officer, Cuddapah, it is stated that he was satisfied on going through the report of the Deputy Commissioner, Commercial Taxes, Chittoor, that the petitioner-detenu was guilty of fraudulent conduct in order to evade the payment of taxes due and therefore issued the warrant of arrest on 25th June, 1977, under section 48 of the Act. It is maintained that the warrant of arrest issued by the Revenue Divisional Officer under section 48 of the Act was legal and valid by virtue of section 3(1) of the Madras Regulation 7 of 1828 [The Madras Subordinate Collectors and Revenue Malversation (Amendment) Regulation, 1828]. In the counter-affidavit filed by the Commercial Tax Officer, Cuddapah, the second respondent in the writ petition, it is stated that the demand notice in form B-3 dated 11th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eive it, the revenue due upon his land on or before the day on which it falls due, according to the kistbandi or other engagement, and where no particular day is fixed, then within the time when the payment falls due according to local usage: Provided that except where property is held under a. Sanad-i-Milkiyat-i-istimrar or other similar instrument, it shall be lawful for the Board of Revenue, by notification published in the District Gazette, to alter and fix. from time to time, the amount of the several kists or instalments, and the dates at which they shall respectively become payable. Explanation.-The reference to the District Gazette in this Act, shall in its application to the territories specified in sub-section (1) of section 3 of the States Reorganisation Act, 1956 (Central Act 37 of 1956), be construed as a reference to the Andhra Pradesh Gazette, until a District Gazette is published for the district in the said territories. 4.. Arrear of revenue.-When the whole or portion of a kist shall not be so paid, the amount of the kist or of its unpaid portion shall be deemed to be an arrear of revenue. 5.. Arrear of revenue how recovered.-Whenever revenue may be in arrear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble under the Act.-(1) The tax assessed under this Act and the penalty levied under sub-sections (2), (3) and (4) of section 14 shall be paid by the dealer in such manner, and within such time, not being less than fifteen days from the date of service of the notice of assessment or of the levy of penalty, as may be specified in such notice: Provided that the time-limit of fifteen days for a notice under this subsection shall not apply to casual traders: Provided further that the assessing authority may, for good and sufficient reasons to be recorded in writing, require the dealer to pay the tax assessed or the penalty levied within such time, not being less than seven days from the date of service of the notice of assessment, as may be specified in the notice." The sub-section provides that the tax assessed shall be paid by the dealer in such manner and within such time prescribed therein. The time that shall be prescribed under the sub-section shall not be less than 15 days from the date of service of the notice of assessment. The first proviso, however, provides that casual traders shall not be entitled to the 15 days period mentioned in the sub-section. Under the second pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alogous provisions. The Bombay High Court in Commissioner of Income-tax, Bombay City v. Ramsukh Motilal, Bombay[1955] 27 I.T.R. 54., ruled that a notice under section 34 read with section 22(2) of the Indian Income-tax Act, 1922, calling upon an assessee to submit its return within a period of six days instead of thirty days as required under section 22(2) was clearly illegal. The learned Judges further held that failure to give a notice or a defect in a notice given under section 34 is not a procedural defect but is a failure to comply with a condition precedent to the assumption of jurisdiction. In other words, the learned Judges held that the Income-tax Officer would get jurisdiction to assess under section 34 only after he has given notice as required by that section. This decision of the Bombay High Court was approved by the Supreme Court in Y. Narayana Chetty v. Income-tax Officer, Nellore[1959] 35 I.T.R. 388 (S.C.). The Supreme Court observed: "The notice prescribed by section 34 of the Income-tax Act for the purpose of initiating reassessment proceedings is not a mere procedural requirement: the service of the prescribed notice on the assessee is a condition precedent to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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