PRABHAKARAN NAIR Vs. DAMODARAN

JUDGEMENT

(1.) The Shertalai Municipality has filed this appeal against the order passed by the First Class Magistrate of Shertalai acquitting the accused who was prosecuted for failure to pay property tax for the two half years in 1957-58. S.80 of the Travancore District Municipalities Act, Act XXIII of 1116 authorises the imposition of property tax. Admittedly the accused owned a building which was assessed to property tax and he was paying property tax on that building. His case is that he stopped his business and the building had been demolished prior to 1957-58 and as such he is not bound to pay the property tax. S.88(2) (a) says that if any building in a Municipality is demolished or destroyed, the owner shall, until notice thereof is given to the Executive Authority, be liable for the payment of the property tax. The accused gave notice by Ext. P. 1 petition on 15-2-1958 and remission has since been granted. Until notice is given the accused cannot claim the benefit of remission even though the building would not have been in existence. In view of this clear provision of law I am unable to appreciate the observation of the Magistrate that it would not be fair to realise tax from the accused for a building which was admittedly not in existence. The duty of the Magistrate is only to administer law as it stands. The learned counsel did not try to support the acquittal on this ground, but contended that the prosecution has not proved that there was wilful default. Demand notice was duly served on the accused and the tax was not paid. He was again informed by Ext. P. 3 that he had to pay the tax for the year 1957-58 but the assessment would be cancelled from the next year onwards. Still he did not pay and distraint proceedings had to be taken, when it was found that distraint was impracticable the Municipality has prosecuted him. It cannot, therefore, be contended that there is no wilful default. The point was not taken in the Trial Court. The acquittal is unjustified and has to be set aside. 1 find the accused guilty as charged and convict him and sentence him to pay a fine of Rs. 5/- and in default to undergo simple imprisonment for two days. There will also be a direction to recover summarily and to pay over to the Municipality the sum of Rs. 9.50, the property tax claimed. Appeal is allowed.