Paul vs Karthiayani

Govinda Menon, J.—These three appeals arise out of the judgment of the Second Class Magistrate of Mukundapuram in C.C. Nos. 1465, 1466 and 1467 of 1965. The complaints were filed by the Executive Officer, Alagappanagar Panchayat against the respondent (accused) who is common in all these cases under S. 74 of the Kerala Panchayat Act (shortly stated the Act) read with rule 26 of the Taxation and Appeal Rules, 1963 (shortly stated the Rules) and Sch. Vol. 8 (2) of the Act for failure to pay profession tax and willfully preventing distrait. Accused Karthiayani was employed in the Alagappa Textiles and she was assessed to profession tax of rupee one for each of the half years and the profession tax due from her is for the years 1954-55, 55-56 and 56-57. In each of these cases demand notice had been sent earlier and after the coming into force of the Act. Arrear demand notices were issued under Rule 13 of the rules intimating that prosecution would be launched against her if the tax amount was not paid within the period specified in the notice. The accused failed to pay and hence distrait warrant to attach her movables was issued authorizing the panchayat assistant Pw. 2 to execute the warrant. Accused and her husband prevented the execution of the warrant and so Pw. 2 made a report to the effect that the distrait has proved impracticable on account of the obstruction caused by the accused. Again a show cause notice was issued calling upon her to show cause why she should not be prosecuted As no reply was received Pw. 1 the Executive Officer filed the complaints in court. After the examination of the witnesses learned Magistrate acquitted the accused and the correctness of the decisions are challenged in these appeals filed after obtaining special leave. Since there is no decided authority on the questions involved, the cases were referred to the Division Bench and that is how the matter is now before us. As the questions involved are common in these three appeals it would be convenient to dispose of the matter in one common judgment.

Two questions arise for decision; (1) Whether prosecution would lie for arrears of profession tax for these three years; (2) whether the complaints are barred by limitation. It is contended by the learned defense counsel that there is no provision for prosecution in the T.C. Panchayat Act which was in force when the accused committed the default and it is not open now for the panchayat to avail of the special provisions under the new Act which came into force much later. It is true that during these three years it was the T.C. Panchyat Act that was in force. There, the only provision for recovery of arrears of tax is as provided in S. 57 of the Act, which says:

Any arrear of cess, rate, lax or fee imposed under this Act shall be recoverable as an arrear of land revenue under the Revenue Recovery Act for the time being in force.

There was no provision for prosecution of a person who had defaulted in payment of tax. It must be noted here that no period of limitation is prescribed for recovery of land revenue under the provisions of the T.C. Revenue Recovery Act (Act 7/51). It therefore follows that at the time of the commencement of the Act arrears of profession tax was due and legally recoverable from the accused. I am unable to understand how the learned counsel for the accused contends that no tax was due. The claim under the T.C. Panchayat Act for arrears of profession tax cannot be said to be barred, as they could always resort to revenue recovery proceedings for the realization of the arrears as provided under S. 57. Art. 120 of the limitation Act has no application because it refers to civil suits. So the accused does not get any vested right. Under Sch. Vol. 8(2) of the Act which came into force on 20-6-61 all arrears of tax or other payments by way of composition for tax or due for expenses or compensation or otherwise due to the Panchayat at the commencement of this Act may be recovered as if they had accrued under this Act so arrears recoverable under the old Panchayat Act would by virtue of this transitory provision be recoverable as if they were arrears under the new Act.

We may now see S.74 of the Act which came into force on 1-1-62, S.74 reads:

Any arrear of cess, rate surcharge or tax imposed or fees levied under this Act shall be recoverable as an arrear of public revenue, under the law relating to the recovery of arrears of public revenue for the time being in force;

Provided that the executive authority may directly recover by distrait, under his warrant, and sale of movable properties of the defaulter subject to such rules as may be prescribed;

Provided further that, if for any reason the distrait or a sufficient distrait of the defaulter''s property is impracticable, the executive authority may prosecute the defaulters before a Magistrate.

S. 74 therefore, provides for distrait of the movables of the defaulter by the Executive Authority and a right to prosecute the defaulter if the distrait proved to be impracticable.

Reading these two provisions together namely Sch. 5, cl. 8 (2) and S. 74 of the Act it will be seen that the arrears of tax which had fallen due from the accused and which had remained unpaid could be recovered from the accused as if they had accrued under the new Act and for effecting such recovery resort could be had to distrait of movables belonging to the defaulter and prosecuting the defaulter, if distrait proves impracticable. Here the Panchayat issued the distrait warrant and when it was rendered impracticable because, of the obstruction of the accused prosecution has been launched. The right to prosecute ensures to the Panchayat only if the distrait proved ineffective and impracticable.

Now coming to the question of limitation, there are two sections in the new Act which deals with limitations. Of these S. 119 is a general provision which may apply to the prosecution of a person for an offence against this Act or any rule or bye law. S. 117 specifically lays down the limitation for taking any or all of the several modes for recovery of dues such as tax etc. It is this specific section, if at all, which will apply to the prosecution of the accused, but that section came into effect only on 1-4-66 and it cannot therefore be said that there is any bar or limitation.

The next contention raised is based on Art. 20 of the Constitution. The argument is that when the accused committed the default in payment of tax in 1954-55 such default was not an offence under the T.C. Act and therefore she cannot be tried or punished for such default under the provisions of the new Act which came into force long after the default was made. In the period 1954-55 failure to pay tax was an offence. The offence with which the accused is now prosecuted is not for arrears of tax but for continued default in payment and rendering distrait of her movables impracticable by her obstruction. These are the ingredients of the offence for which prosecution is provided under S. 74 of the new Act. The offence contemplated specifically under Rule 26 (1) and (2) of the rules say that the default to pay tax should be willful or that the defaulter willfully prevented distrait or a sufficient distrait. The gravamen of the offence charged against the accused is the continued default in payment of the tax leading to distrait proceedings and the impracticability of distrait and/or willfully preventing such distrait. Here the accused defaulted payment inspite of various notices and rendered the distrait impracticable by willfully obstructing the distrait on 6-5-65 long after the above said provisions of law constituting the offence came into force. Therefore the prosecution and punishment for such an offence do not violate Art. 20 of the Constitution.

Learned counsel brought to our notice the decision in The Public Prosecutor Vs. K.V. Subba Rao and Others, . That was a case where for arrears of sales tax the accused was prosecuted for an offence punishable under R.16 read with Rule 14 A (7) of the Central Sales Tax (Andhra Pradesh) Rules, 1957. There the offence was mere failure to pay the tax. Rule 14A came into force only after the default had been committed and that is the reason why their lordships held that the statute or provision shall be construed to have a retrospective operation and that a judicial trial cannot reach back and make unlawful an act which was not prescribed when it was committed, for that would be an ex post facto law conviction under which is banned by Art. 20 (1) of the Constitution.

Art. 20 (1) of the Constitution reads:

No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

Here the Act constituting the offence was committed only after the law was enacted and therefore we do not think that the decision has any application. For all these reasons the acquittal of the accused cannot be sustained and has to be set aside. In the result the order of acquittal in these cases are set aside. The accused is found guilty in each of these cases under R.26 (1) of the rules and she is sentenced to pay a fine of Rs. 2/- in each of the cases, in default to suffer simple imprisonment for two days. Under R.26 (2) the learned Magistrate will in, addition to fine, recover summarily and pay over to the Panchayat the amounts due from the accused to the Panchayat in respect of arrears of tax in each of these cases.

Appeal are allowed.