R W ROSE Vs. DANIEL

JUDGEMENT

(1.) This is an appeal by the Ernakulam Municipality represented by the Commissioner against the order of the District Magistrate, acquitting the respondent, who was prosecuted under S.115 of Act XVIII of 1113 of Cochin read with R.31(2) of the Taxation and Finance Rules.

(2.) The respondent is a resident of the Mulavukad Panchayat and a teacher in the St. Albert's High School, Ernakulam. He was assessed to profession tax of Rs. 4/- for the year 1956-57 and was prosecuted on the allegation that the distraint of property is impracticable. The report to that effect made by Pw. 2 the Revenue Inspector of the Municipality is Ext. P 4. It only says that the defaulter has no movable assets within the town. Admittedly the accused is a resident of Mulavukad and his movables are expected to be there and not in the town where he is employed. R.31(1) of the Taxation and Finance Rules enables the Executive Authority to recover by distraint and sale of the movable property of the defaulter the amount due on account of tax and sub-r.(2) authorises prosecution only if for any reason the distraint or a sufficient distraint of the defaulter's property is impracticable. The Rules specify the procedure to be followed in effecting distraint and enjoin that no distraint shall be made if the tax and fee are paid on demand and also that the sale of the property seized is to be effected only if the property seized is not redeemed by the payment of the tax and fee within seven days. R.35 provides for the distraint of the movable property of a defaulter under R.31 wherever it may be found within the Cochin State and the succeeding rules prescribe the procedure to be adopted.

(3.) The only point urged on behalf of the Municipality is that R.35 sub clause (1) is only an enabling provision and the Executive Authority is not bound to order distraint of movables outside the Municipal limits.