Sreedharan Pillai vs Abdul Samad and Others

Kader, J.—This appeal filed by V. Sreedharan Pillai, Head Clerk, Kottamkara Panchayat, Kundara, is directed against an order of acquittal passed by the Judicial Magistrate of II Class, Quilon, in a prosecution u/s 74 of the Kerala Panchayats Act read with Rule 26 of the Rules framed under the said Act, alleging that the accused, the first Respondent herein, wilfully defaulted to pay profession tax due to the panchayat for the assessment year 1974-75.

In support of the prosecution, P.W.1, the complainant, and P.W.2, the Bill Collector of the panchayat, were examined and assessment notices, demand notices and other documents including the authorisation letter (Ext. P-1) were marked and proved on the side of the prosecution.

The first Respondent pleaded not guilty. No witness was examined on his side.

The learned Magistrate on a consideration of the entire evidence found that the bill for profession tax as provided under Rule 13 of the Rules has been served in the case on hand, that there was no necessity for service of bill under Rule 2 of the Taxation and Appeal Rules, that notice of the assessment of tax was given to the first Respondent, that the demand notice of the profession tax was received by the first Respondent as evidenced by Ext. P-5 acknowledgment, that even though several notices were issued to the first Respondent he has not raised any objection stating that he was not conducting any business, that the evidence of P.Ws.1 and 2 and Exts. P-2 to P-12 establish that the first Respondent was conducting business and that he has defaulted payment of profession tax. But on the ground that Ext. P-1 authorisation is invalid under law, the trial court found that the complainant P.W.1 was incompetent to file the complaint and that the complaint was therefore not maintainable.

The learned advocate appearing for the Appellant took me through the evidence of P.Ws.1 and 2 and the relevant documents in this case. On a proper reappraisal of the evidence, I find that the conclusions arrived at by the trial court on all the points executing the one relating to the non-maintainability of the complaint are correct and have to be sustained.

It was relying on Gulzar Jan v. Emperor 24 Cri. L.J. 769 and also relying on City Corporation of Trivandrum v. Arunachalam Reddiar 1960 KLT 515 and Municipal Health Officer v. Arthala Tea Estate 1960 KLT 743 that the learned Magistrate held that Ext. P-1 being only a general authorisation without specifying the name of the person to be prosecuted with full particulars is not a proper and valid authorisation under law. Section 119 of the Kerala Panchayats Act reads:

Save as otherwise expressly provided in this Act, no person shall be tried for any offence against this Act or any rule or bye-law made thereunder unless complaint is made by the police, the executive authority or a person expressly authorised in this behalf by the panchayat or executive authority within three months of the commission of the offence; but nothing herein shall affect the provisions of the Code of Criminal Procedure, 1898, in regard to the power of certain Magistrates to take cognizance of offences upon information received or upon their own knowledge or suspicion:

Provided that failure to take out a licence or obtain permission under this Act, shall, for the purpose of this section, be deemed to be a continuing offence until the expiration of the period, if any, for which the licence or permission is required and if no period is specified, complaint may be made at any time within twelve months from the commencement of the offence.

The section deals with three categories of persons who are empowered to prosecute for any offence against the Act or any rule or bye-law made under the Act. A complaint can be made by the police or the executive authority or by a person expressly authorised in this behalf by the panchayat or the executive authority. In Gulzar Jan v. Emperor 1960 KLT 743 it has been observed that the authority to prosecute must contain the full particulars of the person to be prosecuted. This is a decision rendered by Lahore High Court in a case coming under Punjab Municipal Act. But this decision has been overruled by the same High Court in Emperor v. Muhammad Shafi 28 Cri. L.J. 1002. It is surprising how the learned Magistrate found out that Section 346 of the Madras District Municipalities Act came up for interpretation in this case. Evidently the learned Magistrate has not taken care to look into this case.

Section 119 of the Kerala Panchayats Act corresponds to and is almost identical with Section 88 of the Travancore-Cochin Panchayats Act, 1950 which came up for interpretation before this Court in Narayanan Nair v. Eapen 1961 KLT 1004 wherein the decisions in City Corporation of Trivandrum v. Arunachalam Reddiar 1960 KLT 515 and Municipal Health Officer v. Arthala Tea Estate 1960 KLT 743 have bean referred to and discussed. The Division Bench ruling in City Corporation of Trivandrum v. Arunachalam Reddiar 1960 KLT 515 has been distinguished in this case stating that there was nothing in that decision which indicated that the authorisation contemplated could not be in the shape of a general delegation. It was held in this case that Section 88 of the Travancore-Cochin Panchayats Act, 1950, conferred upon the Panchayat the power to delegate generally their authority to make a complaint to their executive officers and it was for that authority to exercise their decision and decide whether in any given case a complaint shall or shall not be made. The decisions u/s 20 of the Prevention of Food Adulteration Act, referred to by the learned Magistrate have no application to the facts of the present case. In Municipal Health Officer v. Arthala Tea Estate 1960 KLT 743 while construing and interpreting Section 20 of the Prevention of Food Adulteration Act, Raman Nayar, J. (as he then was) referred to the decision of the Division Bench in City Corporation of Trivandrum v. Arunachalam Reddiar 1960 KLT 515 and distinguished the same. Section 20 of the Prevention of Food Adulteration Act consists of two or three clauses. The first clause requires that no prosecution for an offence shall be instituted except by, or with the written consent of the State Government or a local authority; while the second clause offers the alternative of the prosecution being instituted by, or with the written consent of a person authorised in that behalf by the State Government or a local authority. While construing these clauses the learned Judge has observed as follows:

What the second clause enables is a general delegation of the power given to the State Government and local authorities under the first clause, and, the words, ''authorised in this behalf appearing in the second clause mean, authorised to institute, or give consent to, any prosecution for an offence under the Act, in other words to exercise the power conferred on the State Government and local authorities by the first clause. They cannot be restricted in their scope by relating them to the words, ''an offence'' appearing at the beginning of the section and saying that the authorisation must be in respect of each offence. For, if that were what the second clause meant then it might as well not have been enacted at all.

It was relying on the decision in City Corporation of Trivandrum v. Arunachalam Reddiar 1960 KLT 515 that a preliminary objection was taken on behalf of the accused in the Arthala Tea Estate''s case (3) that Section 20(1) of the Prevention of Food Adulteration Act does not contemplate a general authorisation. While dealing with this aspect, the learned Judge observed:

This question did not arise for decision in Food Inspector v. Arunachalam Reddiar 1960 KLT 515 the case relied upon by the defence, and was, in fact, not decided, although I am told that it is generally regarded -- If that be so, in my opinion mistakenly regarded -- As authority for the proposition that there can be no general delegation under what I have called the second clause of Section 20(1) of the Act.

It is therefore fairly clear that there is no legal bar for a general authorisation of a person to institute prosecutions against offences u/s 119 of the Kerala Panchayats Act. The decision of the trial court that the complaint filed before it by P.W.1 was incompetent as Ext. P-1 authorisation was improper and invalid is wrong and cannot be sustained. Ext. P-1 has clearly authorised P.W.1 to institute prosecutions for offences under the Act, Rules or Bye-laws framed under the Act, in accordance with Section 119 of the said Act and the same is in order and valid and the complaint filed on the basis of Ext. P-1 is proper, legal and maintainable.

I have already referred to and considered the evidence on the other points in the case. On a due consideration of the evidence, I find no ground to interfere with the findings of the trial court on other points. The prosecution has succeeded in proving all the ingredients of the offence with which the accused was charged beyond any reasonable doubt. The accused is therefore guilty u/s 74 of the Kerala Panchayats Act read with Rule 26 of the Taxation and Appeal Rules framed thereunder.

In the result this appeal is allowed, the order of acquittal of the Respondent passed by the trial court is set aside and the Respondent is convicted u/s 74 of the Kerala Panchayats Act read with Rule 26 of the Taxation and Appeal Rules and sentenced to pay a fine of Rs. 50. He will also in addition pay the amount due from him to the Panchayat by way of the profession tax for the year 1974-75.