M K CHACKO Vs. KOTTAYAM MUNICIPALITY

JUDGEMENT

(1.) The legality of the proceedings in Summary Trial No. 88 of 1125 on the file of the Bench Magistrate's Court at Kottayam is the question raised in this Revision Petition. The accused in that case is the revision petitioner. For the non payment of the professional tax due from him for the year 1121 to the Kottayam Municipality, the said prosecution was launched against him by the Municipality under clause 2 of R.31 of Schedule II of the Travancore District Municipalities Act (Act XXIII of 1116). The majority of the Magistrates who took part in the proceedings held that the prosecution had succeeded in establishing a case against the accused and accordingly he was convicted of the offence charged against him and sentenced to pay a fine of Rs. 90/- inclusive of the professional tax of Rs. 77 Chs. 4 found to be due from him to the Municipality. In default of payment of the fine, the accused was directed to undergo simple imprisonment for a period of 15 days. On behalf of the revision petitioner the legality of this conviction and sentence is challenged on two grounds viz., (1) that the prosecution itself was launched after the expiry of the period prescribed for the same and (2) that the conditions necessary to sustain a prosecution of this kind have not been satisfied in the present case.

(2.) The question of limitation may be considered first. Ss.366 and 368 of the District Municipalities Act are the two sections having a bearing on this question. S.366 states that:

(3.) The argument advanced on behalf of the respondents is that S.368 applies only to offences pure and simple committed against the provisions of the District Municipalities Act or of any rule or bye law made under it, while S.366 does not relate to any such offence but applies only to the non payment of a sum due to the Municipality. Even though there is considerable force in this argument it is difficult to accept the position that S.366 does not contemplate any offence at all. That section prescribes three remedies for recovery of the amount due from an individual to the Municipality. One such remedy is the distraint and sale, in a summary manner, of the movable properties of the defaulter. The second remedy is to institute a regular suit for recovery of the defaulted amount. The third remedy is to prosecute the defaulter in a criminal court. A maximum period of three years is prescribed by the section for the commencement of proceedings in furtherance of the relief under all these three different categories, such period being computed from the date on which the proceedings could have been commenced. The provision made in the section to launch a prosecution in a criminal court against the defaulter, necessarily implies that for the purpose of such a prosecution this particular statute has made the default in the payment of the amount due to the Municipality as an offence punishable under law. This is made clear by clause 2 of R.31 of Sch. II and also by R.38 of the same Schedule in the Act. Clause 2 of R.31 states that: