Mangleshwari Prasad vs Sheonath Prasad

Agarwala, J.—The petitioner is the tax-daroga of the Gaya Municipality. Holding No. 125 in Ward No. 2, within the limits of the Municipality of Gaya, being in arrears of municipal tax a warrant was issued to the tax-daroga directing him to realize the amount due and to pay it to the municipality. The tax-daroga complained that when he went to execute the warrant at holding No. 125, opposite party, Sheonath Prasad, was in occupation and the latter obstructed the seizure of the moveable property found on the premises. He went to the nearest police station to obtain the assistance of the police but as the opposite party promised to pay the tax in the course of the day, the police took no action in the matter. The opposite party did not pay the tax as promised with the result that a com-plaint of obstruction was made against him. The first Court convicted the opposite party u/s 186, Penal Code, and sentenced him to pay a fine of Rupees 75. On appeal the learned Sessions Judge has set aside the conviction and sentence. In the view of the learned Sessions Judge, the warrant issued in this case did not authorize the seizure of property not belonging to the defaulting tax-payer and, in any case there was no obstruction by Sheonath. It should be mentioned that the owner of holding No. 125 is one Sarjoo Prasad but the opposite party, Sheonath Prasad, uses the premises for his business purposes.

The first question that arises is with regard to the construction of the warrant, but before I come to that, I propose to refer to Section 124, Bihar and Orissa Municipal Act of 1922, which authorizes the commissioners of a municipality to realize arrears of taxes

by distress or sale of any moveable property belonging to the defaulter wherever found or of any moveable property belonging to any other person, within the holding in respect of which such defaulter is liable to such tax.

It is not disputed that by reason of this provision the moveable property of Sheonath Prasad found on the premises was liable to be seized and sold if a warrant had been legally issued by the municipality for that purpose as be was in occupation of the premises at the time that it was sought to execute the warrant. Section 125 of the Act, however, provides that "every warrant of distress and sale u/s 124 shall be in the prescribed form." The word "prescribed" is defined by Section 3(22) as meaning ''prescribed by rules made by the Provincial Government under this Act''. As so frequently happens, the rule-making authority has not prescribed the form to be used for a warrant of distress u/s 124. That omission has led learned Counsel for the opposite party to contend that the tax cannot be realized by the issue of any warrant. I am unable to accept that contention. If the Provincial Government had prescribed a form of warrant the municipality would have been obliged to use that form; but the mere fact that no form has been prescribed does not mean that the municipality is debarred from realizing the tax at all or that it is not to realize it by a warrant of distress although by Section 124 it has been authorized to do so.

The next question is whether the warrant issued in this ease did authorize the seizure and sale of the property of any one but Sarjoo Prasad, owner of holding No. 125. The warrant is directed to the tax-daroga of the the municipality and the material portion of it is in these words:

This is to authorize you to distrain the moveable property of the said warrantee wherever may be found within the municipality...or moveable property...which may be found within the holding specified in the margin....

The learned Sessions Judge has held that the latter Clause does not authorise the seizure of moveable property belonging to any one other than the defaulter by reason of the omission to state specifically after the words "moveable property" in that Clause the words "of any other person." The form is as badly drafted as it is possible for a legal form to be; but, in my opinion, the construction of it by the learned Sessions Judge is not justified. Section 124 distinctly authorises the municipality to realise its dues not only by seizure of moveable property of the defaulter wherever found within the municipal limits but also of any moveable property of any other person found on the premises in respect of which a default has occurred, and it is clear that if the warrant issued were intended to apply only to the property of the defaulter Clause (2) referred to above was entirely unnecessary in view of the fact that Clause (1) authorises the distraint of the moveable property of the defaulter wherever found within the municipality. That would inevitably include the property of the defaulter found on the premises in respect of which the default occurred; so, if it was contended to confine the seizure to the property of the defaulter only, the second Clause was entirely unnecessary. It was suggested that the last sentence in the warrant indicated that all that was to be seized was the property of the defaulter himself. That sentence is: "If distress cannot be made of sufficient property of the said warrantee you are to certify the same to us in returning the warrant." It was pointed out that the tax-daroga to whom the warrant was addressed was not required to certify in case the property of anybody other than the defaulter seized on the premises was insufficient to satisfy the municipal demands. The argument is ingenious; but whatever reason the municipality may have for requiring a certificate in a case when the defaulter''s own property is insufficient to pay the municipal dues, the omission to require such a certificate in the case of property seized on the premises in respect of which the default occurred and belonging to a person other than the defaulter cannot affect the operative part of the warrant if the language of that part is sufficiently clear, which, as I have already indicated, is, in my opinion, the case.

With regard to the learned Judge''s finding that there was no obstruction by Sheonath Prasad to the execution of the warrant it is to be observed that this finding is based on the impression of the learned Judge that the tax-daroga, who went to the police station for assistance after the alleged obstruction omitted to state to the police officer that he had been obstructed. The learned Sessions Judge regards that as an indication that there was no obstruction. The learned Judge, however, lost sight of the fact that Sheonath Prasad laid an information at the thana stating that he has been abused and molested by the municipal officers and that they had falsely charged him with having "obstructed them in the execution of the warrant." A certified copy of that information was admitted without objection and although it is inadmissible for the purpose of proving the truth of its contents it was admissible for proving that it was alleged that the police had been informed of the alleged obstruction. The learned Sessions Judge also referred to the statement of the tax-daroga in cross-examination that the Sub-Inspector had stated before a Magistrate who made a preliminary inquiry in the present case that he had not been informed about the obstruction. This evidence was inadmissible as hearsay as the Sub-Inspector was not examined at the trial. The learned Sessions Judge has also referred to a supposed conflict in the evidence of two witnesses called by the prosecution and has discredited the evidence of witness 5 who is a medical practitioner and who deposed in favour of the prosecution case, on the ground that this witness had denied that a prostitute occupied the top-floor of the premises in which he has his dispensary.

In point of fact, while one witness said that the prostitute occupied the "top-floor" of the premises another witness on whose testimony the learned Judge relies for the purpose of contradicting witness 1 merely stated that the prostitute was living in the "upper floor" of the premises in which the dispensary is. As this building has three storey''s, it is clear that there is no contradiction between the witnesses in this respect. In view of these matters in regard to which the learned Sessions Judge misdirected himself, and in view of his misconstruing the warrant, it is necessary that the order of the learned Sessions Judge be set aside and this case go back to him to be reheard in the light of the observations above made.