Panchayat:Repo18/Law Manual Page0280

can be launched only if the panchayat proved that it was impracticable to realise the amount by a sufficient distraint of the movables of the defaulter. - Executive Officer, Mangalapady Panchayat v. Beepathu - 1969 KLT 45. Prosecution for non-payment of tax against the president of an association of members – Sustainability – The cinema theatre standing in the name of the corporation and the movables therein are properties belonging to the accused though he is not the full owner of the same. He has a definite share in the said properties; and a distraint taken out against the movables in the theatre is a distraint against the properties of the accused. Therefore the prosecution against him is sustainable. – P. K. Thankappan v. Ganapathy lyer - 1967 KLT 309 : ILR 1967 (2) Ker. 160.

Taxation and Appeal Rules, 1963, R.24 - House tax - Prosecution for non-payment - Occupier of the building if liable to be prosecuted when true owner is available – The proviso to R.24 enjoins a complete bar against a prosecution against the occupier for non-payment. So it has to be established by the prosecution that the occupier wilfully prevented distraint being taken against him. The defaulter in the second proviso to S.74 has to be understood as the owner of the building and not the occupier. - Varghese Uthuppu v. P. K. Sreedhara Panicker - 1968 KLT 75.

Prosecution for non-payment of profession tax - General authorisation under S.119 if valid – There is no legal bar for a general authorisation of a person to institute prosecution against offences under S.119. – Sreedharan Pillai v. Abdul Hameed – 1977 KLT 913 : ILR 1978 (1) Ker. 99.

74 [Corresponding to S.210 of the Panchayat Raj Act, 1994]– Rule as per S.R.O. 319/62 in gazette dated 13-11-1962. Amount payable under an agreement for conducting cultural programme in Panchayat Property - Whether can be recovered by resorting to procedure for recovery of tax or cess - The amount payable to the Panchayat under the contract is not a cess, rate, or tax imposed under the Act nor is it a fee levied under the Act. S.74 is not therefore attracted. – Yoosuf v. Kumaranelloor Panchayat - 1973 KLT 145 : 1973 KLJ 357 : 1973 KLR 174 : ILR 1973 (1) Ker. 320 : AIR 1973 Ker. 167. (Overruled in 1992 (1) KLJ 241).

Panchayats (Taxation and Appeal) Rules, 1963, R.26 - Requirements to constitute the offence - Arrears of profession tax under Travancore-Cochin Panchayats Act. 1950 under which its non-payment was not an offence – Prosecution under S.74 if barred by Art.20(1) of Constitution of India - "Continuing offence" – Meaning explained – The obligation to pay the tax subsists. The omission to pay it, which began when the tax first became due, has continued up to now. The act constituting the offence has been continuously committed throughout the period, in other words, it has been committed after S.74 of the Act and R.26 of the Rules, which make it an offence, came into force. There is therefore no question of Art.20(1) of the Constitution coming into to play. – Saidu Muhammed v. Bhanukuttan, Executive Officer, Chavara Panchayat – 1967 KLT 947 FB : ILR 1967 (2) Ker. 705.

74 & 117 Corresponding to S.210 of the Panchayat Raj Act, 1994)- Ambit and scope - Form parts of an integral whole - S.74 validity came into force only when S. 117 was brought into force - Prosecution under S.74 started before S.117 came into force, if sustainable - 5.74 was not in force on 28-9-1965 when the present complaint was laid and the complaint must fail on that ground. – Saidu Muhammed v. Bhanukuttan, Executive Officer, Chavara Panchayat – 1967 KLT 947 FB : ILR 1967 (2) Ker. 705.

74 & 117 [Corresponding to S.210 of the Panchayat Raj Act, 1994] - Ambit and scope - Form parts of an integral whole - Validity of S.74 came into force only when S. 117 was brought into force - Prosecution under S.74 before S.117 came into force, if sustainable. (FB) - Saidu Muhammed v. Bhanukuttan - 1967 KLT SN. P.20.

74 & 129 [Corresponding to S.210 of the Panchayat Raj Act, 1994)- Panchayats (Taxation and Appeal) Rules, 1963, R.26 - If beyond the rule making powers - Validity - One of the purposes of the Act, it cannot be doubted in the face of S.74, is to prosecute defaulters in the payment of tax or other dues, and, since, the Act itself makes no provision in that behalf, we should think that a rule like R.26 of the Rules that defines the offence for which the prosecution is to be laid, and prescribes the penalty therefore, is within the power conferred by the Sub-section. And, in the particular context in which it appears, especially when read along with S.74, we should think that the particular power conferred by Cl.(xvi) of Sub-s.(2) of S. 129 to make rules as to the realisation of any tax or other sum due to a Panchayat by prosecution before a magistrate, includes the power of define the offence for which the prosecution is to be laid and to prescribe the penalty therefor. The words, "as to" are words of very wide import. If the power conferred by the section were to be abused it would be the abuse section itself that would be struck down. - Saidu Muhammed v. Bhanukuttan, Executive Officer, Chavara Panchayat - 1967 KLT 947 FB : ILR 1967 (2) Ker. 705.06