TOWN MUNICIPAL COUNCIL BUNTWAL v. P. FERNANDEZ — 1983 DIGILAW 314 (KAR)

N. D. VENKATESH, J. ( 1 ) THE petitioner is the Town municipal Council, Buntwal Dakshina kannada District. The respondent is an assessee re-certain properties situated within'the municipal limits of Buntwal ( 2 ) THE Municipal Council filed a complaint in the Court of the Additional Munsiff and J. M. F. C. Buntwal, under S. 147 of the Karnataka municipalities Act, 1964 (the Act) against the respondent alleging that he was a defaulter in the payment of tax; that the distraint of his property was impracticable; and therefore was liable to be proceeded against under the said provision. ( 3 ) THE learned Magistrate, taking cognizance of complaint and following the procedure laid down in the provisions of Chapter XV of the Code of Criminal Procedure, 1973 (the Code) issued process against the accused under S. 204 of the code. During the trial he recorded the statement of one witness, heard the parties concerned, and by his judgment dt. 29-10-1981 dismissed the complaint. This revision is directed against that order. ( 4 ) SUB-SEC. (1) of S. 147 of the act provides that "if, for the any reason, the distraint or a sufficient distraint of the defaulter's property under the foregoing provisions of this Chapter is impracticable, the Municipal Council may prosecute the defaulter before a Magisstrate of the first class. . . . . . . . ". In the case of a defaulter a distress warrant in the form set-forth in Schedule xi will be issued as provided under s. 143 of the Act. Prior to issuing the distress warrant set-forth in Schedule XI a demand notice is contemplated under sub-sec. (3) of S. 142 of the Act and that has to be in the form set- forth in Schedule X of the Act. And prior to the issuance of that notice of demand certain other formalities will have to be complied with by the Municipal Council, and that is laid down in sub-sees. (1) and (2) of s. 142. ( 5 ) 142 (1) says that "when any amount. . . . . . . . shall have become due, the municipal Council shall with the least practicable delay, cause to be presented to the person liable for the payment thereof, a bill for the sum claimed as due". Sub-sec. (1) and (2) of s. 142. ( 5 ) 142 (1) says that "when any amount. . . . . . . . shall have become due, the municipal Council shall with the least practicable delay, cause to be presented to the person liable for the payment thereof, a bill for the sum claimed as due". Sub-sec. (2) thereof further says that every such bill shall specify the particulars contained in clauses (a) and (b) of that sub-section. Chapter III of the Karnataka municipalities Taxation Rules, 1965 (the rules) contains provisions relating to the levy of taxes, preparation of bills etc. R. 19 says that the tax imposed on buildings and lands shall be levied !n two instalments in advance in the months of April and october respectively of every year. As already stated, in the matter of presentation of bill for taxes as to how the municipality has to proceed is highlighted in S. 142 of the Act as to how the bill shall be prepared is stated in Rs. 20 and 21 of the rules. The present Buntwal town was a village Panchayat governed by the karnalaka Village Panchayath and local Boards Act, 1956, Buntwal town was converted into a Municipality, as provided under S. 357 of the Act, on 10-1-1975. The Act also prescribes a period of limitation for prosecution under the Act. S. 278 of the Act says that". . . . . . . . . . . . NO prosecution shall be commenced in respect of any sum due to the Municipal Council. . . . . . . . . . . . after the expiration of a period of three years from the date on which such. . . . . . . . . . . . prosecution might first have been commenced. . . . . . . . . . . . ". Particulars as to the arrears in relation to which the accused is said to have committed default are shown in Schedule-A to the petition. Along with the complaint three documents had been produced and the lists is also furnished in the complaint itself. Thereafter a few more documents also were placed on record and they a remarked (Ex. P-1 to P-5 ). Duplicates of the bills refered to in the particulars furnished in the complaint petition showing the arrears of tax, forms part of the record. Thereafter a few more documents also were placed on record and they a remarked (Ex. P-1 to P-5 ). Duplicates of the bills refered to in the particulars furnished in the complaint petition showing the arrears of tax, forms part of the record. Of other documents of the complainant Ex. P-1 is said to be a copy of the notice sent by it to the assessee as provided under sub sec. (3) of S. 142. Ex. P-4 is the reply given by the accused to the Complainant to the notice referred to above. Ex. P-5 is another such reply in continuation of Ex. P-4. Ex, P-3 is a distress warrant said to have been issued to the assessee and Ex. P-3 (a) is a shara on the reverse of it not executing the distress warrant. 5. Challenging the impugned order Counsel for the complainant argued that the procedure followed by the learned Magistrate terminating the proceeding was contrary to law and, therefore, was liable to be set aside. He also argued that various contentions that had been raised by the accused in the Court belbw were all without any basis and could not have been countenanced in that fashion by that Court. ( 6 ) WHILE supporting the order impugned herein Counsel for the accused submitted that assuming, but not admitting, that the learned magistrate has committed some procedural irregularity in terminating this proceeding, this is not a case in which any interference is called for by this Court. Elaborating this submission he further argued that the prosection was barred by time; that the very averments made in the complaint, besides being vague, also do do not make out any offence in law, that the bills laid including as they do, certain alleged arrears, which ought not to have been included therein, the prosecution started on the basis of such a demand, was wholly void, that the prosecution launched was also void as the procedural requirement, preceding the filing of the complaint, had not been strictly complied with by the complainant ; and that for these reasons the order of the learned Magistrate requires to be sustained. In trying to substantiate his allegation that the complaint suffers from vagueness and multifariousness what he says is that the clubbing, as has been done in the instant case, of arrears of tax of all the years was also impermissible in law. In trying to substantiate his allegation that the complaint suffers from vagueness and multifariousness what he says is that the clubbing, as has been done in the instant case, of arrears of tax of all the years was also impermissible in law. ( 7 ) THERE is no substance in the averment of the Counsel for the accused that the prosecution was barred by time. Within three years from the date of the shara made in the distress warrant that the distraint or a sufficient distraint of the defaulter's property was impracticable the prosecution had been launched. Under s. 278 of the Act no prosecution shall be commenced "after the expiration of a period of three years from the date on which such prosecution might first have been commenced. . . . . . . . ". In the instant case, under sub-sec. (1) of s. 147 of the Amendment Act, prosecution could have been commenced on finding that the distraint or a sufficient distraint of the defaulter's property was impracticable. As already stated that prosecution, having been launched within three years from the date of that shara, it is in time. ( 8 ) IT is a fact that the demand of the Municipality includes arrears of tax of a period prior to 10-1-1975, the date on which this Municipality came into being. As observed' above, the former Village Panchayat of buntwal was converted into a Municipality as provided under S. 357 of the Act. Under Sub-sec, (c) of S. 357 the property of the Village Panchayat including taxes due to it immediately prior to its conversion vest in the Municipal Council as a Municipal fund. If that is so, the Municipality was competent to recover from the accused that amount also. Inclusion of that amount in the demand notice in question cannot, therefore, be assailed as unwarranted in law. But, what is further contended in this connection is that assessee's failure to pay taxes due to the Village panchayat was not punishable under the Karnataka Village Panchayats and Local Boards Act, the law governing the Village Panchayats, and therefore, in the circumstances, the complainant could not have launched a prosecution for recovery of that amount also. It was argued that by doing so the Municipality has violated the mandate of Art. 20 of the Constitution of India. There is also no merit in this contention. It was argued that by doing so the Municipality has violated the mandate of Art. 20 of the Constitution of India. There is also no merit in this contention. Cause of action to prosecute for the arrears of tax due to the Village Panchayath arose only after the Municipality found that it was impracticable to recover that amount now due to it under a distraint warrant issued under the act and, therefore, in the circumstances, it cannot be said that what was not penal when the default was committed is retrospectively treated as an offence. ( 9 ) THERE is also no substance in the contention of the Counsel for the respondent that the prosecution was bad for mis-joinder of charges. Though R. 20 of the Rules says that one bill be issued to one property, s. 21 contains an exception. It says that "if any person is liable for all or any of the said taxes on account of more than one land or building it shall be competent. . . . . . . . . . . . to charge such person In one or several bills as he (the Municipal Commissioner or Chief Officer) think fit". In the instant case the Municipality, though had issued several bills, sent one demand notice as provided under sub-sec. (3) of S. 142 and following it, issued one distress warrant. In the notice of demand particulars of all the various bills are mentioned, and the total sum payable is also mentioned. The cause of action to prosecute arose for the failure on the part of the assessee in not honouring the notice of demand and the impracticablity as found by the Municipal Council in the enforcement of the distress warrant, each being one only, single prosecution is not bad in law. ( 10 ) IF the assesssee had any grievance as to the quantum Of tax levied, the calculations made, etc. , it was open to him to challenge the levy and the demand before an appropriate authority at the relevant point of time. He has not done so. It is not now open to him to question the correctness of the demand notice, Ex. P-l, in the course of this proceeding. , it was open to him to challenge the levy and the demand before an appropriate authority at the relevant point of time. He has not done so. It is not now open to him to question the correctness of the demand notice, Ex. P-l, in the course of this proceeding. ( 11 ) THE order of the Court below cannot be sustained on any pf the aforesaid objections raised on behalf of the accused However, i am not inclined to disturb the order for the following reason : though the main part of sub-sec. (1) of S. 147 says that "if for any reason the distraint or sufficient distraint of the defaulter's property. . . . . . . . . . . . is impracticable, the Municipal council may prosecute the defaulter before a Magistrate of the first class". The proviso to'that sub-section provides that the defaulter committing default in payment of tax if an occupier of a building or land, "shall not be liable to prosecution in respect of any sum recoverable from him unless he has wilfully prevented distraint or sufficient distraint of moveable property found on the building or land (underlining supplied ). As can be seen from Ex. P-3 (a), on the reverse of Ex. P-3, the distress warrant, the warrant was not executed not because the assessee or the defaulter had wilfully prevented distraint or sufficient distraint of a moveable property found on the building or land, but the buildings being in the occupation of lessees moveables belonging to the defaulter were not available therein for attachment. If that is so, the defaulter or the assessee-accused could not have been prosecuted. For the aforesaid reasons, though not for the reasons assigned by the court below, the order of the Court below dismissing the complaint has to remain. ( 12 ) FOR. the reasons aforesaid this petition stands disposed of. --- *** --- .