T.S. Ramaswami Aiyangar, Property guardian and manager of the estate of Lunatic Thenammal vs The Sivakasi Municipality

Venkataramana Rao, J.—This Criminal Revision Case arises out of a reference made by the Sessions Judge of Ramnad in regard to a

prosecution for non-payment of profession tax under the District Municipalities Act Vol 1920. One Mr. T.S. Ramaswamy Aiyangar was

prosecuted as the property guardian and manager of the estate of a lunatic Thenammal for non-payment of an alleged profession tax under r. 30,

Clause 2 of Schedule 4 of the District Municipalities Act.

The case for the prosecution is that the said lunatic Thenammal was residing within the limits of the Sivakasi Municipality, that profession tax was

payable in respect of the income alleged to have been received by her and T. Section Rama-swami Aiyangar who is representing her estate ought

to pay the said tax. Under Rule 19(1) he was asked to submit a return showing the income. He submitted a return stating that he was not liable to

pay the profession tax on the ground that he was not residing within the local limits of the Municipality and even otherwise the property tax in

respect of the estate has been paid and in any event profession tax could not be levied. But the Municipal Council overruled his objection and

instituted this prosecution. He raised the same defence before the Sub-Masristrate of Virudhunaerar but he overruled his defence and convicted

him. This conviction was confirmed by the Joint Magistrate of Sivakasi. Revision was preferred against the said order to the Sessions Judge of

Ramnad who was of opinion that it was open to him to raise the said defence, but however referred the matter to us u/s 438, Criminal Procedure

Code. Two questions fall to be decided, namely, (1) whether it is open to the accused in a prosecution under Rule 30, Clause 2 of Schedule 4 of

the District Municipalities Act to plead that the tax is not leviable; and (2) whether it is not incumbent upon the prosecution to establish affirmatively

that the tax is payable and the defaulter committed default in payment of the tax and an offence has been committed. Ordinarily where a person is

prosecuted for any criminal offence it is incumbent upon the prosecution to affirmatively prove that an offence has been committed and if prima

facie proof has been let in by the prosecution, it is open to the accused to plead and prove that he has not committed any offence. The fact that the

prosecution has been launched under the provisions of a special Act would not displace this elementary rule unless there are provisions in the said

Act to the contrary. So far as we have been able to see, there is nothing in the provisions of the District Municipalities Act which would relieve the

prosecution of the onus of proving that an offence has been committed or negativing the right of the accused to plead that he has not committed any

offence. Mr. Sitarama Rao has not been able to show us any provision excepting Rule 28 of Schedule 4. So far as that rule is concerned, it only

states that where an assessment has not been objected to or on objection the assessment has been confirmed, it is treated as final. But the said

finality is only for the purpose of the Act and it has been held that the said finality would not prevent a person from impeaching the legality or

validity of the assessment in a Civil Court. So far as the right of the Municipality to levy any tax is concerned, they must strictly conform to the

provisions of the Act. If they do not do so, they have no right to enforce the tax. In fact Section 354 says that a charge can be validly imposed if

the provisions of the Act are substantially complied with. If not there is no jurisdiction to levy it. The imposition of a tax on a person not taxable

under the Act would be a substantial disregard of the provisions of the Act and in a suit for refund of the tax it is open to a person to prove that he

is not taxable under the Act, We do not see why a different principle should apply in the case of a criminal prosecution and how a person can be

convicted of a criminal offence for non-payment of a sum which he is not legally liable to pay. If Mr. Sitarama Rao''s argument is to be pushed to

its logical conclusion, it comes to this, that when once the Municipality imposes an assessment it becomes final; the assessee must pay the tax and

then go to a Civil Court and in the meanwhile if he is prosecuted criminally he must undergo punishment even though ultimately the Civil Court may

give him redress. It will be a sorry state of affairs if such were to be the state of the law. But there is nothing in the provisions of the District

Municipalities Act to countenance such a proposition as is contended for by Mr. Sitarama Rao. There is clear authority for the view that we are

now taking. In Smith, In Re: A.E. Smith, , Krishnan, J., in connection with a prosecution u/s 288 of the Madras City Municipal Act made the

following observations:

There is finally an argument used by the Magistrate in support of his judgment, namely, that, as the accused did not go to the Standing Committee

and seek redress before them, it should be taken as settled that the accused is bound to pay the tax imposed upon him, that it has become final

under the law and that the Magistrate could not question its legality. I am unable to agree with this view because the accused is being prosecuted

for an offence for non-payment of the license fee and he is entitled to say that he is not bound to pay it. There is no kind of estoppel in a criminal

case as the Magistrate seems to think. The prosecution must establish affirmatively to his satisfaction that the tax was payable and that there was a

default in payment of the tax. The fact that the accused did not appeal to the Standing Committee cannot be treated as in any way preventing him

from raising the plea before the Criminal Court, where he is sought to be convicted of an offence by the prosecutor.

Devadoss, J., cited with approval the above observations of Krishnan, J., with reference to a prosecution u/s 338 of the Chairman, Municipal

Council, Chidambaram v. Tirunarayana Aiyangar (1927) 55 M.L.J. 566 : ILR 51 Mad. 876

In order to sustain a conviction it must be shown that the accused violated a legal order which a public servant or a statutory body was authorised

under the law to pass. I have no hesitation in holding that, where an act is ultra vires, a statutory body, whether it be of the Chairman or of the

whole council, the Court, which is asked to convict a person for the violation of the order of the statutory body, is not prevented from considering

the legality of the order.

We may also observe that this is the view taken by Phillips and Madhavan Nair, JJ., in Gopayya, In re (1927) 55 M.L.J. 27 : ILR 51 Mad. 866

and also by Waller and Krishnan Pandalai, JJ., in Raheem Saheb, In Re: A. Raheem Saheb, , with reference to Section 221 of the Madras Local

Boards Act. In our opinion this is the correct view. We are therefore clearly of the opinion that it is incumbent upon the prosecution to establish

affirmatively that the profession tax was legally leviable from the accused and it is also open to the accused to plead and prove that he is not liable

to pay the tax and therefore he is not liable to be prosecuted under Rule 30, Clause 2 of Schedule 4 of the District Municipalities Act. But none of

the Magistrates have gone into the matter on the merits. However having regard to the triviality of the amount involved in this case, we do not think

this is a fit case for sending the case back for retrial. We therefore quash the conviction and the sentence, and acquit the accused.