P.R.V.R. Veerappa Chettiar vs State of Madras and Another

N. Krishnaswamy Reddy, J.—The revision petitioner was convicted under Rules 30 (2) and 36 of Schedule IV of the District Municipalities

Act, 1920 (hereinafter called ''the Act'') for alleged wilful default of payment of property tax due from him and was sentenced to pay a fine of Rs.

20 and was further directed to pay the house tax of Rs. 600-86P., by the Sub-Magistrate, Karaikudi in C.C.No. 1657 of 1966. On appeal, the

District Magistrate, Ramanathapuram at Devakottai, confirmed the conviction and sentence.

The learned Counsel appearing for the petitioner raised two points, namely, that the prosecution was not maintainable as it was barred by

limitation in respect of the alleged default of payment of property tax for the first half year 1963-64 and secondly, that in respect of the prosecution

for the second half year, the procedure prescribed in Rule 29 of the Act in that, the notice required under that Rule was not proved to have been

served and that, therefore, the prosecution for the second half year was also not maintainable.

To appreciate the contentions of the learned Counsel, the following relevant facts and the appropriate provisions of the Act have to be

considered.

The revision petitioner is the owner of house No. 72 P in Ward 12, Amman Sannadhi Street, Karaikudi. He has to pay Rs. 300-37 P. as

property tax to the Karaikudi Municipality for each half year. It is the case of the prosecution that for both the half years of 1963-64, he has not

paid the tax amounting to Rs. 600-86 P. The demand notice as required under Rule 29 of the Act was served on the petitioner on 25th July, 1963

for the first half year and the demand notice for the second half year was served on 14th February, 1964. Since the revision petitioner did not pay

the arrears in spite of demand notices, the Commissioner issued warrant to the Revenue Inspector to distraint the moveable properties belonging to

the petitioner. On 10th May, 1966, the Revenue Inspector proceeded to the house of the petitioner to distrain his moveable properties. Since the

petitioner prevented him from distraining the movables, the Revenue Inspector sought the assistance of the Police and a Police Constable was

deputed for his assistance. As the petitioner again obstructed him, he felt it was unsafe to proceed with the distraint as there would be breach of the

peace and so he came back without effecting the distraint. In the result, it was found that the distraint had become impracticable and hence the

prosecution was instituted on nth May, 1966 for wilful default of payment of property tax for the first and second half years of 1963-64. On these

facts, it will be necessary to note the relevant provisions of the Act.

u/s 86 of the Act, the Property Tax shall be levied every half year and shall be paid by the owner of the assessed premises within thirty days

after the commencement of the half year. So, under this section, the petitioner should have paid the amount due for the first half year within 1st,

May, 1963 and the amount due for the second half year within 1st November, 1963. If the amount is not paid within the time, the said amount can

be recovered either by filing a suit or instituting distraint proceedings or prosecution in a criminal Court. Section 345 of the Act provides limitation

for recovery of dues and it reads thus:

No distraint shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any sum due to the Municipal council

under this Act after the expiration of a period of three years from the date on which distraint might first have been made, a suit might first have been

instituted, or prosecution might first have been commenced, as the case may be, in respect of such sum.

We are now concerned with the prosecution provided u/s 345. The prosecution must be instituted in respect of the sum due, within three years

from the date on which prosecution might first have been commenced. The question that arises for consideration is as to when in the present case,

the prosecution might have been instituted or in other words, what is the first date on which the complaint can be filed before a Magistrate in

respect of the amount due.

It is clear from Rule 30 (2) that prosecution cannot be instituted against the defaulter unless it was found that the distraint of the defaulter''s

property is impracticable. So, the condition precedent for instituting prosecution after the amount has become due is the commencement of distraint

proceedings and consequent finding that such distraint is impracticable. To commence distraint proceedings, it is necessary under Rule 29 that a bill

shall be served on the person from whom the amount is due and such bill shall be signed by the executive authority and shall contain a statement of

the period and a description of the location of property for which the tax is charged and a notice of the liability incurred in default of payment.

Under Rule 30 (1), if the amount due is not paid within fifteen days from the service of the bill, the amount can be recovered by distraint and sale of

the movable property of the defaulter under the warrant of the Executive Authority. It is, therefore, clear that after the amount is due and after the

bill has been served, the Executive Authority shall wait for fifteen days and if the amount due is not paid within that time, the distraint proceedings

can be taken. The practicability or otherwise of the distraint proceedings has to be considered only after the expiry of fifteen days after the service

of the bill on the defaulter. As already noted, the institution of the prosecution depends upon the impracticability of distraint proceedings. As such,

the first date on which the prosecution can be instituted in respect of the alleged wilful default must be necessarily after fifteen days after the bill was

served, when only the distraint could be made and when a finding in respect of the impracticability of distraint proceedings can also be made.

Then again, it will depend upon the question as to when the distraint might first have been made as stated in Section 345 of the Act. Can it be

said that, after the amount became due, say in this case, the 1st May, 1963 for the first half year, the executive authority could take distraint

proceedings at any time, within a period of three years, and, if so, whether the prosecution has to be commenced after the proceedings for distraint

are taken? If the answer is in the affirmative, then it will lead to this position, namely, that the distraint proceedings could be taken after giving due

notice, as required under Rule 29, even on the last day before the expiry of three years, if that were so, the prosecution could be instituted within

three years after such distraint proceedings are taken and if such distraint became impracticable. The result will be that in such case, before six

years from the date of the amount due, the prosecution can be instituted. I do not think that that is the intention of the Legislature. To me, the

words found in Section 345 namely, "" a period of three years from the date on which distraint might first have been made "" appear to be the date

when it is possible to take distraint proceedings. If the amount becomes due on 1st May, 1963 for the first half year, under Rule 29, a bill can be

served on the date the amount had become due and distraint proceedings can be taken after 15 days after the service of the notice. The possibility

of instituting distraint proceedings in such a case will arise on 16th May itself. That is the date which must be taken as the date on which the

distraint might for the first time be made. If this position is accepted, in this case the notice as required under Rule 29 must have been issued on 2nd

May, 1963 and it could have been found whether the distraint was impracticable or not on 16th May, 1963, namely, 15 days after the service of

the notice or even if a reasonable margin is given for actual service of the bill, that time taken for service may be taken into consideration for the

commencement of the period of limitation. Even taking the extreme view against the prosecution that the finding of impracticability for the first time

at least should have been given for the first half year on 16th or 17th May, 1963 the prosecution would be within time, as the complaint was filed

on nth May, 1966, within three years of the date when the prosecution might first have been commenced. 1, therefore, hold that the prosecution in

respect of the first half year was within time and it is not barred by limitation.

In respect of the second point raised with regard to the second year that the notice contemplated under Rule 29 was not duly served, I do not

find any substance in it. The finding of the lower Courts is that notices under Rule 29 were served on both the petitioners, on 25th July, 1963 for

the first half of 1963-64 and, on 14th February, 1964, for the second half of 1963-64. But the revision petitioner has denied the tender of these

notices to him and stated that there was enmity between the Municipality and himself and that because of that enmity, the distraint proceedings,

were taken without serving notice, This contention of the petitioner was negatived by the lower Courts, and, in my opinion, rightly. The method of

serving notices is provided u/s 331 of the Act. One of the modes provided there, is by giving or tendering the notice to the person concerned. This

was what was done in this case. In fact, it is the case of the prosecution that when distraint proceedings were actually taken on 10th May, 1963,

the petitioner was present and he successfully prevented the offers from completing the distraint proceedings. There is nothing to show that he

protested to the distraint proceedings being taken on the ground that no prior notice was given to him. I, therefore, find this point also against the

petitioner.

In the result, the revision petition is dismissed.