E.S.T. Chandrammal vs The Town Panchayat of Pallipat

K.M. Natarajan, J.—The Accused in C.C. No. 225 of 1986 on the file of the Judicial Second Class Magistrate, Tiruttani, has preferred this application under S.482 Crl.P.C. to quash the said proceedings against her.

The respondent herein, namely, the Town Panchayat of Pallipat, Chingleput District, represented by its Executive Officer, has filed a complaint against the petitioner under S.120 and 121 read with S.178 of the Tamilnadu Panchayats Act, on the ground that the petitioner had failed to pay the house tax for the years 1980-81 to 1985-86 and that the distraint has become impracticable. The said complaint has been challenged by the petitioner herein on the ground that the original assessment was Rs. 126 including the library case of Rs. 6 under Assessment No. 1431 and that all of a sudden for the second half of the assessment year 1983-84, the respondent herein revised the house-tax and enhanced the same to Rs. 1,134 including library cess of Rs. 54. Thereafter, she submitted a petition to the respondent for revising the assessment, as the assessment was totally baseless and arbitrary in response to the Special notice, dated 30.11.1983. Thereafter no action was taken on the part of the respondent and the petitioner has not received any intimation about the disposal of the said petition which was acknowledged by the respondent on 2.1.1984. The petitioner also submits that she has not received any notice of demand and that all of a sudden, the only received the summons from the court in respect of the complaint filed by the respondent against her.

Learned Counsel for the petitioner mainly contended that R. 10 of Chapter IV of the Manual on Panchayat Administration (Assessment and Collection, of Taxes), the manner of amendment of assessment books has been dealt and that under R.10(3) in every case in which, between one general revision and another, the executive authority assessed any house for the first time or increases the assessment on any house otherwise than in consequence of a general enhancement of the rates at which the house tax is livable, the Executive Authority shall intimate by a special notice which shall be prepared by the Karnam and signed by the Executive authority to the owner or occupier of such house that a petition for revising the assessment will be considered if it reaches the Panchayat Office within thirty days from the date of service of such notice. Under R. 12, it is provided that the executive authority shall inform the petitioner in writing of the orders passed thereon, immediately after the disposal of a revision petition preferred under R.10(3), and then direct him to pay the amount fixed on revision within 15 days after the date of receipt of such intimation and shall, if necessary, cause the assessment books to be corrected. In this connection, the Learned Counsel for the petitioner drew my attention to the special notice served on the petitioner in this case for enhancement of the tax from Rs. 126 to Rs. 1134 and submitted that no reason has been alleged in the notice for the enhancement. My attention was drawn to the decision in Jayaprakash v. Executive Authority, Tiruthangal Panchayat 1982 I M.L.J 18 wherein it was held that if the special notice does not contain the reasons for enhancement, it cannot be said that the enhancement of the tax has been done in accordance with the provisions of the Act and that the assessment is not valid. Further, the representation made by the petitioner opposing the enhancement should have been considered and disposed of. In this connection, it has to be noted that if there is no valid assessment, the question of paying the tax does not arise and only after the disposal the revision filed under R. 10(3), the assesses Is liable to pay the amount mentioned in the special notice. That such a revision has been sent and it was acknowledged by the executive officer on 2.1.1984 is established by the postal acknowledgment produced by the petitioner and by the copy of the revision petition. So long as the authority has not disposed of the said revision, it cannot be said that the assessment for enhancement of tax has been completed and that the assessee is bound to pay the said tax.

It is submitted by the Learned Counsel for the petitioner that under S.166 of the Tamil Nadu Panchayats Act, the complaint should be filed within 3 months of the commission of the offence. Under R.3 (persons liable to pay house tax) of paragraph 491 (House Tax) in Chapter 4 of the Manual on Panchayat Administration, it is provided that the house tax shall be paid within 30 days or 60 days after the commencement of the half year or year. Under sub-clause (2) of R.3 it is also provided that it the owner of a house fails to pay the whole or any part of the house tax due thereon within 30 days after the commencement of the half year or 60 days after the commencement of the year, the executive authority may, if the said tax has remained unpaid for more than 12 months, require the occupier to pay the amount within a specified period. In this case, the complaint is filed on 30-9-86. It is clear that the prosecution is instituted for non-payment of tax after a lapse of more than 3 months after the commission of the said offence. Hence the complaint itself for the alleged offence is barred by limitation. I find much force in the said contention also.

Next it was submitted by the Learned Counsel that before over a person is proceeded for non payment of tax, certain conditions are to be followed. Under heading "Assessment and Collection of taxes" in Chapter IV of Manual on Panchayat Administration (Part I) at page 333 it is provided that no tax for any year or half years whichever is applicable shall be recovered from any person in the manner laid down in R.26 unless" the bill is served upon such person either within that year or half years whichever it applicable or in the succeeding year of half years whichever is applicable and that the said rule has not been followed and no bill is served on the petitioner for the payment of the above tax during the relevant period. It is brought to my notice that under R.26(1), if the amount of the tax demanded is not paid within 15 days from the service of the bill, for the amount due on account of the tax together with the warrant fee, the executive authority may recover by distraint under his warrant and sale of the movable property of the defaulter. Under S.26(2) it is specifically mentioned that if for any reason the distraint or a sufficient distraint of the defaulter''s property is impracticable, the executive authority may prosecute the defaulter before a magistrate. According to the Learned Counsel for the petitioner, under Appendix A, at page 337, a form of district warrant has been prescribed, in which it is stated that the officer is charge of the execution of the warrant should demand the taxes etc., and on failure to pay, he should distraint the goods and chattels of the assessee, and if the distraint or sufficient distraint cannot be found of the goods and the chattels of the said assessee, the officer named in the warrant should certify the same together with the warrant. In the instant case, such a warrant was not filed and in any event, there is no such certificate to the effect that the distraint or sufficient distraint cannot be found of the goods and the chattels of the assessee. Learned Counsel for the petitioner drew my attention to the decision in P.R.V.R. Veerappa Chettiar Vs. State of Madras and Another, at page 212 wherein it is held that the prosecution would lie only if the distraint is impracticable and that the prosecution should satisfactorily establish that there is a proper service of the bill before ever the prosecution is made. Though the said decision is rendered under the District Municipalities Act, the relevant provisions referred to are analogous to the Panchayat Act. In this ease, the learned Public Prosecutor produced the file relating to the prosecution and it ii noted therein that the distraint proceeding became impracticable only on 2.9.1986 while the complaint is, dated 20.8.1986. As such, before the complaint was launched, there was no attempt to distrain the movables of the petitioner and it was not found impracticable. On this ground alone, in view of the ratio laid down in P.R.V.R. Veerappa Chettiar Vs. State of Madras and Another, the prosecution has to be quashed. Further there is nothing to show that demand notices were served on the petitioner in respect of these half years as contemplated under the rules and the absence of service of demand notices also is fatal to the case of the prosecution. Learned Counsel for the petitioner drew my attention to R.33 at page 336 of the Manual on Panchayat Administration, Part I, wherein It is provided that every person who is prosecuted under sub-R.(2) of R.26 for the non-payment of tax is liable to the amount due by him and to pay a fine not exceeding twice the amount which may be due by him on account of the tax and the warrant fee, if any, and if distraint has taken place, the distraint fee and the expenses incidental to the detention and sale, if any, of the property distained and that the said provisions is in violation of S 179 of the Tamil Nadu Panchayats Act, 1958. R.33 it ultra vlres and in this connection the Learned Counsel relied on the decision in Executive Officer, Wallajabad Town Panchayat v. Somasundaram Chettiar 1973 L.W. (Crl.) 213. In view of the fact that the prosecution is liable to be quashed on the ground that there is no valid enhancement of the tax, that there was no proper service or bill of demand, and that R.25(2) has not been followed before ever the prosecution was launched which is mandatory one, it is needless to go into the ultra vires of R.33 which deals with the imposition of fine. Hence I do not propose to give any finding on this question. For all these reasons, I am of the view that the prosecution against the petitioner is liable to be quashed.

In the result, the petition is allowed and the proceedings against the petitioner in C.C. No. 225 of 1986 on the file of the Judicial Second Class Magistrate, Tiruttani, it hereby quashed.