Decided on December 12,1960



Hidayatullah, J. - (1.)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 Art. 226 of the Constitution. The State of Kerala and the Tahsildars of Kottayam and Kanjirappally Taluks are the appellants, C. M. Francis and Co., a partnership first, is the firm respondent, and the partners of the firm are the remaining respondents.
(2.)The respondents were doing business in hill produce like pepper, ginger, betelnuts, etc., and were assessed to sales tax under the Travencore-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. 1,01,716-4-3 as tax. In 1954, proceedings were started against them under S. 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 arrear of land revenue. It appears that the proceedings were not fruitful, and a prosecution under S. 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 S. I. for one month each. A 1 to 4 admit that they failed to pay on demand by the competent authority, a sum of Rs. 1,01,716-4-3 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, individuals or collectively under the provisions of the Cr. P. C. 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."

(3.)Warrants under S. 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. The authorities, however, started proceedings again under S. 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 Art. 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 S. 19 of the Act and the Magistrate had issued warrants the procedure for recovery under S. 13 was not available. They contended that under S. 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 S.19 of the Act was no longer open, and could not be proceeded with.

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