DORAISWAMY GOUNDER Vs. STATE OF MADRAS

JUDGEMENT

(1.) THE above Second Appeal has been referred to us by Kailasam J., as the question of maintainability of the suit against the State as a result of the judgment of the Supreme Court in Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh, raised by the standing counsel for income -tax is one of importance. The facts giving rise to the above Second Appeal are as follows The plaintiff is the appellant. The suit is for recovery of Rs. 3, 500 as damages. The plaintiff's case is that he and his brother, Chenraya, as members of a joint Hindu family, owned 12 acres of land and a terraced house, and were cultivating 14 acres of land on lease for five years before the suit, their lessors being Ramachandran and Krishnan, sons of Gengu Reddy. The Tahsildar of Tiruppathur caused No. 1 demand notice issued to the village munsif of Kurizalapattu to realise the income -tax arrears to the extent of Rs. 2, 449.09 due to Government by Gengu Reddy. Gengu Reddy died in or about 1961, leaving behind his aforesaid sons as heirs. A notice was issued to the legal heirs for payment of the said arrears of their father. In spite of their contention that there was a partition in their family in 1950 and that they were not liable for any such arrears, the sugarcane crops raised by the plaintiff as lessee of Ramachandran and Krishnan on land belonging to Gengu Reddy were attached for recovery of the income -tax arrears. The plaintiff (lessee) filed an objection petition before the Tahsildar, Tiruppathur, stating that he was a lessee from Ramachandran and Krishnan (sons of Gengu Reddy), that the crops raised by him could not be attached for recovery of the income -tax arrears due by Gengu Reddy. The attached crops were on an extent of 3.16 acres in S. Nos. 385/2, 386/1, 387, 388 and 386/3 in Kurizalapattu, originally belonging to Gengu Reddy. The attachment was effected on January 25, 1962, and the crops were guarded by the Talayari or the village during which time there was a theft of part of the attached crop. On a report by the village munsif relating to the theft and under the direction of the Tahsildar a criminal complaint was lodged with the Alangayam police that the plaintiff committed an offence of theft by removing the attached sugarcane crops. The plaintiff was charge -sheeted for theft before the Sub -Magistrate, Vaniyambadi. The case was transferred to the file of the Sub -Magistrate, Tirupattur, and the plaintiff was convicted. The plaintiff preferred Criminal Appeal No. 200 of 1962 before the Sub -Divisional Magistrate, Tirupattur, who allowed the appeal. Thereupon, the plaintiff filed the above suit claiming damages under the following heads : (1)Rs.750 towards payment of his counsel fee and conveyance charge for defending in the criminal case, (2) Rs.250 for obtaining certified copies, for procuring the attendance of witnesses and for his travelling and boarding charges, (3) Rs. 500 as damages for loss of prestige, humiliation and mental anguish due to the criminal proceedings, and (4) Rs. 2, 000 being the value of sugarcane crops which he could not reap on account of the illegal attachment and thereby suffered loss to the extent. In all a sum of Rs. 3, 500 was claimed by the plaintiff from the State of Madras represented by the District Collector of North ArcotThe defendant filed a written statement contending as follows : Gengu Reddy died on September 2, 1961. For recovery of income -tax of Rs. 3937.61, Gengu Reddy was served with the assessment notices even prior to 1954 but only a portion was paid. On March 11, 1955, a certificate was issued to the Collector of North Arcot under section 46(2) of the Income -tax Act for realisation of the arrears. The Collector thereupon initiated proceedings for recovery of the arrears as per the provisions of the Madras Revenue Recovery Act, 1894. After giving credit to certain realisations, the balance due was Rs. 2, 449.09 for which the Tahsildar issued No. 1 demand notice to the village munsif, Kurizalapattu, for attachment of crops standing, in S.F. No. 386/1, 385/2, 387 and 388/1 belonging to the defaulter and leased to plaintiff. The attachment was duly effected. As the village headman believed that the plaintiff illegally removed, harvested and crushed the sugarcane crops under attachment, he gave a complaint on March 3, 1962, to the sub -inspector of police and reported the matter to the Tahsildar. The police filed a charge -sheet against the plaintiff under section 379, Indian Penal Code, and the plaintiff was convicted for the offence by the trial Magistrate. The plaintiff and his brother, Chenraya, preferred a claim petition dated February 3, 1962, before the Sub -Collector, Tirupattur, for cancellation of the said attachment. The Sub -Collector dismissed the petition on July 19, 1962. The attachment thus duly effected was valid and binding on the plaintiff and on the heirs of Gengu Reddy. The defendant was not aware of the alleged, partition between Gengu Reddy and his sons. Even if such a partition had existed, it was created only nominally and collusively to defeat the claim of the income -tax department. The said lands belonged to the defaulting assessee on the date of the attachment. The heirs of Gengu Reddy are liable to pay the income -tax arrears as universal donees and representatives of the defaulter. The Tahsildar and the headman acted legally as public servants in due discharge of their official duty. There was reasonable and probable cause for launching the criminal case. There was no malice on their part. The income -tax authority and Chenraya are necessary parties to the suit and the suit is bad for non -joinder of parties. The plantiff, not having filed a suit to set aside the claim order passed by the Sub -Collector, is estopped from filing the present suit. The suit is not maintainable and is barred by limitation. The suit is also barred under section 59 of the Madras Revenue Recovery Act not having been filed within six months from the date of the attachment or the order of the Collector dismissing the plaintiff's claim. The provisions of section 80, Civil Procedure Code, have not been complied with and the plaintiff is not entitled to any of the reliefs claimedThe trial court found that the suit not having been filed within six months from the order of the Sub -Collector, dated July 19, 1962, held that the suit was barred under section 59 of the Revenue Recovery Act. The trial court also found that attachment of the crops was legal, valid and binding on the plaintiff and that the plaintiff was estopped from filing the present suit, as no suit was filed to set aside the order of dismissal of the claim. The trial court further found that the plaintiff was not prosecuted without reasonable and probable cause and that there was no malice. On other issues the trial court upheld the plaintiff's contentions. In the result the trial court dismissed the suit. The plaintiff filed A.S. No. 6 of 1966 to the Subordinate judge, Tirupattur. The learned judge held that the Tahsildar had jurisdiction to proceed under the Revenue Recovery Act in pursuance of the certificate issued under section 46(2) of the Indian Income -tax Act, 1922, against the assets of Gengu Reddy in the hands of his legal representatives, that the partition set up between Gengu Reddy and his sons was not true and was not binding on the Government, that the crops standing on the land were liable to be attached for arrears of income -tax due from Gengu Reddy, that the plaintiff is estopped from questioning the attachment, and that the present suit is barred by limitation. The learned judge further found that the plaintiff has not proved that the revenue authorities had acted with malice or that the plaintiff was prosecuted without reasonable and probable cause and with malice. In the result, the appeal was dismissed. The plaintiff has filed the above Second Appeal Shri T. S. Subramaniam, the learned counsel for the appellant, raised before us the following contentions

(2.) WE shall now take up the first question In order to appreciate the contention raised we have to recapitulate the English law on the matter and the background under which the constitutional provisions commencing from 1858 came to be enacted

(3.) EVERY person shall have the same remedies against the Secretary of State in Council as he might have had against the East India Company if the Government of India Act, 1858, and this Act had not been passed.