M C KRISHNAN NAMBIAR Vs. MUNICIPAL PROSECUTOR

JUDGEMENT

(1.) THE petitioner was the Subordinate Judge of Calicut from 1 April, 1934 to 18 June, 1934 and his absence from Calicut during the summer recess from 29 March, 1934, to 4th June, 1934, cannot make any difference. He was holding that appointment till 18 June, 1934, and as pointed out in Veerappa Chettiar V/s. Municipal Council, Palni (1924) 48 M.L.J. 428 : I.L.R. 48 Mad. 476 the test for liability in the case of a person holding an appointment is not personal presence within the Municipality. THEre is therefore no force in the contention that the petitioner was not holding that appointment within the Municipality of Calicut for 60 days, and the decision in Mahadeva Aiyar V/s. Municipal Council, Masulipatam is clearly distinguishable. THE levy of profession-tax was therefore legal and Section 34 of the Elementary Education Act empowers Municipal Councils to levy an education-tax under the head of profession-tax. Section 36 enacts that the education-tax shall be deemed to be an addition to the profession-tax, when it is levied under that head, and it further provides that all the provisions of the Municipalities Act relating to the realisation of such tax shall be applicable. In this case the education-tax was levied under the head of profession-tax, and after assessment by one Municipal Council the assessee cannot escape liability by paying the profession-tax to another Municipality in which education-tax is not levied. He is entitled only to credit for the amount paid to the other Municipal Council and in spite of several reminders the petitioners declined to pay the difference. THE default to pay the amount due was thus wilful, and the prosecutions in respect of sums due to Municipal Councils under the District Municipalities Act are governed by Section 345 and not Section 347 of the Act. THE prosecution was commenced within three years and there is no ground for interference. THE petition is therefore dismissed.