T GOVINDANKUTTY MENON Vs. TASHILDAR CHITTOOR

JUDGEMENT

(1.) These appeals involve the same question; and the appellant in both these appeals is the same too. The first of these appeals comes up for final hearing, while the second case comes up for admission. The question involved is one regarding the applicability of the decision of the Supreme Court in Northern India Caterers (Private) Ltd. v. State of Punjab ( AIR 1967 SC 1581 ) to the cases before us.

(2.) The appellant was a contractor, who took in auction a few arrack shops undertaking to pay the kists regularly. He failed to make the payments; and the authorities started proceedings against him under the Revenue Recovery Act for collecting the arrears. He then filed a writ petition, which was dismissed by a learned Judge of this Court; and against that he has come up in appeal. (This is the first case). And the result of this appeal will cover the other appeal too.

(3.) The contention raised by the counsel of the appellant, with which we are concerned in the appeal, is that S.28 of the Abkari Act is unconstitutional, since it infringes Art.14 of the Constitution: the contention is that the section confers an unguided power on the Commissioner to choose one of the two modes of collecting the arrears either by way of a suit or by starting proceedings under the Revenue Recovery Act without providing any guideline as to which of the modes is to be applied to which case: this confers an arbitrary power on the Commissioner. The further contention is that S.5 and 7 of the Kerala Revenue Recovery Act are also invalid, because S.5 provides four modes for collecting the arrears leaving the freedom to the Collector to choose one or the other of the four modes and S.7 provides the procedure for the attachment of movables by just showing the demand notice to the defaulter and straightaway attaching: this again arms the Collector with an unguided and arbitrary power. In support of these contentions, the counsel has relied mainly on the decision of the Supreme Court mentioned above and incidentally on a few other decisions of High Courts, which had occasion to consider the effect of the Supreme Court decision.