Order.- The accused in S.T.C. No. 78 of 1959 in the Court of the Honorary Special First Class Magistrate, Cannanore, is the revision petitioner. The prosecution was started by the Puzhathi Panchayat under the provisions of the Madras Panchayats Act (X of 1950) for non-payment of profession tax of Re. 1-12 nP. due for the half year ending 31st March, 1959. It was alleged that the tax was not paid in spite of demand and distraint of accused’s property was found impracticable. The accused’s plea was one of not guilty. He was convicted on the strength of the evidence of P.W. 1 the bill collector, that when the distraint warrant was taken to the accused he went away saying that action may be taken against him in Court. He was sentenced to pay a fine of Rs. 5. The only point urged in revision before me is that the prosecution is imcompetent as the evidence in the case does not establish that distraint of the property of the accused was impracticable. The relevant provisions are contained in rule 24(1) and (2) framed, under section 112 of the Act. They are incorporated below: “24. (1) If the amount of the tax demanded is not paid within fifteen days from the service of the bill or the giving of the direction referred to in rule 11, and if the person from whom the tax is due has not shown cause to the satisfaction of the executive authority why it should not be paid, the executive may recover by distraint under his warrant and sale of the immoveable property of the defaulter the amount due on account of the tax together with the warrant fee and the distraint fee and with such further sum as will satisfy the probable charges that will be incurred in connection with the detention and sale of the property so distrained: Provided- (2) If for any reason the distraint or a sufficient distraint of the defaulter’s property is impracticable, the executive authority may prosecute the defaulter before a magistrate.” The rules empower the executive authority to recover the defaulted amount of tax together with the warrant fee and the distraint fee and incidental charges by distraint under his warrant and sale of the immovable property of the defaulter and only when the distraint of the property is found impracticable prosecution is authorised. In this case the only step taken was for P.W. 1 to inform the defaulter that a distraint warrant was issued and because the defaulter failed to pay heed to that information the prosecution was launched straightaway with nothing more. Such action is definitely against the provisions of rule 24. A similar provision is contained in rule 21(2) of Schedule IV of the Madras City Municipalities Act and in the case reported in Venkatarathinamma v. Corporation of Madras1, Somasundaram, J., held that it must be established by evidence that the distraint was impracticable and if the evidence discloses that no attempt was made to find out whether there were any articles of the accused available for being distrained resort to prosecution of the defaulter is not valid. The same provision in the District Municipalities Act (Travancore)(Act IV of 1116) was interpreted in a similar manner in the decision reported in Municipality of Quilon v. P.S. George1. The learned counsel for the respondent Shri Rama Shenoi frankly conceded that the prosecution is not competent and the conviction is to be quashed. It may also be incidentally mentioned that the quantum of fine (Rs. 5) imposed is also in excess of the amount specified in rule 31(1) according to which the fine is not to exceed twice the amount which may be due by the defaulter on account of (a) the tax and warrant fee if any and (b) if any distraint has taken place the distraint fee and expenses incidental to the detention and sale of the property. In this case as no distraint was actually effected, only twice the amount of tax clue viz., Re. 1 and the warrant fee which is found due viz., 12 nP. could be levied as fine. The conviction and sentence are set aside. The fine if levied will be refunded. M.C.M. ----- Revision allowed.