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2004 DIGILAW 354 (KER)

The Exe. Officer, Sulthan Bathery v. Damodaran

2004-08-03

K.A.ABDUL GAFOOR

body2004
Judgment :- Admittedly, the respondent/accused persons are owners of the building. Further admittedly, they did not pay the tax due in respect of the buildings 3/714, 3/715, 3/716 A to 3/716 L situated in Sulthan Bathery Panchayath. The total amount of tax at the material point of time was Rs.16,240/=. A notice demanding the payment of tax also did not produce any result. A distraint warrant was sought to be executed through PW2. It also failed. It was found that they were residing outside the panchayath. They did not have therefore movables to be distraint. So distraint warrant was returned. It was in the above circumstances the prosecution was launched under Section 74 of the Kerala Panchayat Act, 1960 read with Rule 26 of the Kerala Panchayath Taxation and Appeal Rules. 2. The main point of defence taken in the court below was that no proper distraint warrant had been issued and executed. The court below found that PW2 returned Ext.P3 distraint warrant. Ext.P3(a) endorsement reveals that there was no property in the limit of that panchayath. Therefore, the court below came to the conclusion that "it cannot be said that distraint warrant issued against the accused is impracticable. PWs 1 and 2 have to take steps to execute distraint warrant by sale of movable properties situated outside the limit of the panchayath as per Rules". This is the reason for acquitting the respondents/accused. 3. Section 74 of the Kerala Panchayath Act, 1960 provides that a prosecution can be maintained "if for any reason the distraint or a sufficient distraint of the defaulter's property is impracticable". The first proviso to Section 74 further makes it clear that "executive authority may directly recover by distraint, under his warrant, and sale of moveable properties of the defaulter subject to such rules as may be prescribed." (emphasis supplied) 4. So it shall be a direct distraint of sale by the executive authority himself. It cannot be an indirect recovery through another panchayath or executing through machinery of another panchayath. The executive authority of the concerned panchayath itself has to directly recover the dues by distraint. So it shall be a direct distraint of sale by the executive authority himself. It cannot be an indirect recovery through another panchayath or executing through machinery of another panchayath. The executive authority of the concerned panchayath itself has to directly recover the dues by distraint. PW1, the executive authority had taken steps as is revealed by Ext.P3 to sell properties if any of the defaulters and PW2 who was deputed to execute distraint warrant has clearly stated that within the jurisdiction of the panchayath, as the defaulters were not the residents of that panchayath, the distraint could not be executed. Only if they are residents of the concerned panchayath their moveable properties can be brought to sale. The conclusion of the court below is thus not in confirmity with the statute. The executive authority was not liable in such circumstances to address any other panchayath where the defaulters are living and to execute distraint under the orders of the executive authority of that panchayath. So the only ground on which the accused are acquitted is unsustainable. Necessarily, the prosecution has to succeed. 5. In the aforesaid circumstances it is clear that the accused had willfully omitted to pay tax demanded and are thus guilty. They shall have therefore to pay a fine to the extent of double the amount of tax. In default of payment they shall undergo simple imprisonment for two months. The court below shall take step to execute this order. This appeal is allowed as above.