Decided on September 29,1952



- (1.) THIS is an application under Article 228 of the Constitution of India, for issuing a writ of mandamus restraining the respondents and their officers from proceeding to act under the provisions of the Madias Revenue Recovery Act 2 of 1864 in respect of the rice mill belonging to the petitioner. The petitioner was a wholesale dealer under the Madras Rice Ration Scheme in Cholavaram firka for a period of one year from October 1949 to October 1950. During that period he became indebted to the Provincial Government in respect of rice, milo and wheat supplied to him in a sum of about Rs. 25000. The licence was not renewed for the year 1950-51. He alleged in the affidavit that he had paid over nearly. Rs. 11000. It is represented to me that the balance of the amount due to the Government was also paid off. If the debt had been discharged in full, the Government would no doubt drop the proceedings. But I shall proceed with this application on the basis of the allegations made in the affidavit. To realise the amount due, the Tahsildar as an officer empowered on this behalf was bringing the mill and its machinery to sale' under the provisions of the madras Revenue Recovery Act. The petitioner alleging that Section 52 of the same act, which confers a power on the Government to recover the said amounts due through the machinery of the Revenue Recovery Act is constitutionally bad, filed the aforesaid writ for restraining the respondents from bringing the mill to sale.
(2.) SECTION 52, Madras Revenue Recovery Act, reads: "all arrears of revenue other than land revenue to the Provincial government, all advances made by the Provincial Government for cultivation or other purposes connected with the revenue, and all fees or other dues payable by any person to or on behalf of the village servants employed In revenue or police duties, and all cesses lawfully imposed upon land, and all sums due to the Provincial Government including compensation for any loss or damage sustained by them In consequence of a breach of the contract may be recovered in the same manner as arrears of land revenue under the provisions of this Act, unless the the recovery thereof shall have been or may hereafter be otherwise specially provided for. "
(3.) THE impugned clause of the section, namely, "and all sums due to the Provincial Government including compensation for any loss or damage sustained by them in consequence of a breach of contract". has been inserted in the section by Act 15 of 1939. This clause is alleged to be inconsistent with Article 14 of the Constitution of India and therefore is void. Article 14 says: "the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. " I had more than one occasion to consider the scops of this article. In South India bank Ltd. v. Pichuthayyappan. Writ Petn. No. 296 of 1951: (A), after noticing the various cases cited at the Bar I summarised the law as follows: "all persons are equal before the law is fundamental of every civilised constitution. Equality before law is a negative concept, equal protection of laws is a positive one. The former declares that every one is equal before law, that no one can claim special privileges and that all classes are equally subjected to the ordinary Jaw of the land; the latter postulates an equal protection of law alike in the same situation and under like circumstances. No discrimination can be made either in the privileges conferred or in the liabilities imposed. It has also been held -- for without that apparently just laws may in their application be So abused as to subvert the fundamental concept of equality before law -- that the law should be applied by public authority without arbitrariness or discrimination. The law though apparently fair but contains inherent possibilities for discrimination and arbitrary action, is in itself bad. But these propositions conceived in the interests of the public, if logically stretched too far, may not achieve the high purpose behind them. In a society of unequal basic structure it is well nigh impossible to make laws suitable in their application to all the persons alike. So a reasonable classification is not only permitted but is necessary if society should progress. But such a classification cannot be arbitrary but must be based upon difference pertinent to the subject in respect of, and the purpose for which, it is made. " To this statement, in Writ Petn. No. 568 of 1952 (B), I added the following passage of Professor Willis. "if any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed and that one, who assails a classification, must carry the burden of showing that it does not rest upon any reasonable basis. " Both the learned counsel appearing for the parties argued their cases on the basis of the aforesaid Statement of law. The contention of the learned counsel for the petitioner may be briefly stated thus. The sums payable to the Government are amounts payable in respect of commercial transactions which are similar to those that are entered into between two persons. The clause makes an unreasonable discrimination between the Government and a person other than the Government. In the case of the Government, they can decide for themselves whether and what amount is due from the other party. They can recover that amount by resorting to the coercive process under the Revenue Recovery Act. In the case of any other person, he flies a suit for the ascertainment of the amount due, obtains a decree and executes that decree through Court. This discrimination in favour of the State and against other persons which enables the State to decide its own cause and recover the amount by summary procedure offends the principle of equal protection of the laws enshrined in Article 14 of the Constitution. Alternatively, it is contended that the operation of the impugned clause should be confined at least to admitted debts.;

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