Decided on March 20,1968



- (1.) Two illegalities or irregularities in the order of the Trial Court have been pointed out in this reference by the Sessions Judge.
(2.) The first is that the arrears of property tax mentioned in the complaint was Rs. 490.83 p., whereas the actual amount due was only Rs. 445.04 p. The Sessions Judge seems to think that this mistake has gone to the root of the matter, and has therefore, vitiated the prosecution. When the mistake was discovered by the municipality, an application was made for amending the complaint; and after hearing both sides, the complaint was amended also. I fail to see how this mistake has gone to the root of the matter and thus vitiated the prosecution. Evidently, the Sessions Judge has lost sight of S.398 of the Kerala Municipalities Act of 1960, wherein it is provided, inter alia, that no charge imposed under the authority of the Act shall be impeached or affected by reason of any clerical error or by reason of any mistake in respect of the amount charged, provided that the provisions of the Act have been in substance and effect complied with. There is no doubt that the provisions of the Act have in substance been complied with in this case. I may point out that no prejudice has also been caused to the respondent as a result of this mistake which has been corrected by the amendment. It may further be noted that the respondent took an adjournment on the first hearing date to pay the amount; and if she paid the correct amount and pointed out he mistake, the prosecution would have even been withdrawn. Instead of that, she decided to contest the case.
(3.) The next irregularity or illegality pointed out by the Sessions Judge is that the municipality did not make efforts to see whether the respondent had movables within the municipality or outside, which could have been distrained before the prosecution was started. In support of this position, the Sessions Judge has relied on two decisions of this Court by Anna Chandy J. in R. W. Rose v. Daniel ( 1963 KLT 10 ) and Municipal Council, Makara (Mavelikara) v. Abraham ( 1964 KLT SN 13 ). The first case was under the Cochin Municipalities Act; and therefore, that decision cannot straightaway be applied to the present case. The second case appears to be under the Kerala Municipalities Act. But, that decision does not contain any reasoning: it appears to have merely followed the earlier decision of the same Judge. R.36 of the Taxation and Finance Rules in Schedule 2 of the Act lays down that the property of a person in default under sub-r.1 of R.32 may be distrained, wherever it may be found within the municipality. (Schedule 2 has been made part of the Act by S.150 of the Act). This rule clearly shows that the distraint in be effected only of movables found within the municipality It is also only reasonable to think that this power must be confined to the boundaries of the particular municipality; and it does not appeal to reason that the Trivandrum Municipality at the south must go and attach the movables within the Kasaragod Municipality on the north! (I am not expressing any opinion whether the position is really different under the Cochin Act and whether there is any rule there similar to R.36 of the Kerala Act. At any rate, the position under the Kerala Act is obviously clear.) Therefore, there was no responsibility on the part of the municipality to have made enquiries to see whether the respondent had movables outside the municipality. The only responsibility was to see whether the respondent had movables within the municipality and distrain them; and if the municipality launched the prosecution without being satisfied that the respondent had no movables within the municipality to be distrained, the prosecution would have to be quashed.;

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