Decided on January 18,1967



- (1.) Varghese Uthuppu accused in S. T. 1189 of 1965 on the file of the Addl. First Class Magistrate of Muvattupuzha has come up in revision against the conviction and sentence passed on him under R.26 of the Kerala Panchayats (Taxation and Appeal) Rules, 1963 (hereinafter referred to as the Rules) read with S.74 of the Kerala Panchayats Act, 1960 (hereinafter referred to as the Act) for nonpayment of house tax due from building No. 239 in Ward No. 2 of the Kothamangalam Panchayat. He has been sentenced by the learned Magistrate to pay a fine of Rs. 25/-; in default, to undergo simple imprisonment for 7 days.
(2.) One K. A. Kuriakose is the registered owner of the building in respect of which the lax had fallen in arrears; but in the course of the evidence it was revealed that the property actually belonged to one Paily Kuriakose. Ex. D1 is the sale deed dated 21-5-1962 executed to him by the original owners Kotha, Karthiayani and others. Assessment order was passed against K A. Kuriakose since he was shown in the records as the registered owner of the building. Copy of the assessment order is Ext. P1. Accordingly, demand notice was sent to K. A. Kuriakose. On receipt of the demand notice, K. A. Kuriakose wrote to the Panchayat Officer stating that the building in question does not belong to him and it actually belongs to one Paily Kuriakose and requested the Panchayat Officer to cancel the assessment order wrongly passed. Ex. P8 is the copy of the letter. In reply to that, Ex. P9 letter was sent from the Panchayat stating that the matter was being enquired into. Since K A. Kuriakose was residing beyond the limits of the Kothamangalam Panchayat, tax was demanded from his tenant (the revision petitioner) who was occupying the building under a rental arrangement. He was running a rice mill in the building. Since arrears were not cleared by him and since no movables were also available for attachment, prosecution was initiated against him. The prosecution started under these circumstances is being challenged as illegal; firstly for the reason that there is no valid assessment order passed on the owner of the building; and secondly that there are no justifying circumstances to initiate the prosecution against the revision petitioner who is only a tenant. On a careful consideration of the records in the case, I am satisfied that the argument is well founded and that the assessment is improper and the prosecution initiated on the basis of such an assessment has only to be cancelled.
(3.) It is the owner of the building who is primarily responsible for payment of the house tax. In the present case the records clearly show that the building stands in the name of Paily Kuriakose. Ex. D1 sale deed stands in his favour. He was examined as Dw 1 and he stated before court that the building belongs to him and he is answerable for the house tax due from the building; but in spite of that, the assessment order was allowed to remain as it was before, and the recovery proceedings were all taken on the strength of that order. In these circumstances the contention that there is no proper assessment is entitled to great weight. On receipt of the notice from K. A. Kuriakose, the panchayat issued a notice to Paily Kuriakose also; but that will not improve matters since the assessment order continued as such against K. A. Kuriakose and no attempt was made by the Panchayat to modify it. The tax can be demanded from the occupier when the owner of the building resides beyond the jurisdiction of the panchayat and under S.68(5) the tax so paid by the occupier can be recouped by him from the owner; but such a contingency has not arisen in the present case since the true owner was himself available for being proceeded against. Even granting that a situation had arisen justifying coercive steps being taken against the occupier, we are confronted with the further question whether the occupier could be prosecuted for non payment. The proviso to R.24 of the Rules enjoins a complete bar against such prosecutions. Proviso to R.24 reads: "Provided that no occupier shall be liable to prosecution or to a civil suit in respect of any sum recoverable from him under this rule, unless he has wilfully prevented distraint or a sufficient distraint." So it has to be established by the prosecution that the occupier wilfully prevented distraint being taken against him. We have absolutely no evidence to show that anything was done by the occupier to prevent distraint being taken against him. We have already seen that there are no justifying grounds for the initiation of coercive steps against the occupier for recovery of the tax because the owner of the building is available within the Panchayat to be proceeded against. Learned counsel for the respondent stated that the prosecution has been launched not under R.24, but under R.26 read with S.74 second proviso. Second proviso to S.74 of the Act is to the effect that, "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." Here the defaulter has to be understood as the owner of the building and not the occupier and no distraint as such was levied on the property of the owner. R.26 of the Rules would come into play after the prosecution has started. The Rule runs: "Every person who if prosecuted under the second proviso to S.74 of the Act shall be liable ......... to pay a fine" .... This is the punishing section and not the section which gives authority to prosecute The provision that confers authority to prosecute is contained in R.24 and there we have already seen that no prosecution is permissible against the occupier. The present prosecution is hence illegal and the conviction and sentence in the circumstances have to be quashed. The conviction and sentence are hence quashed and the revision petitioner is acquitted. Pine, if realised will be refunded.;

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