Per era v. DharmatUlake
1954Present : Nagallngam S.P.J.
K. V. PERERA, Appellant, and K. A. DHARMATLLLAKE(Assistant Clerk, Teldeniya Town Council), Respondent
S. C. 1,054—M. G. Teldeniya, 10,264
Town Councils Ordinance, No. 3 of 1946—Section 183—Arrears of rates—Procedurefor recovery—Distress warrant—Mast contain necessary particulars—MunicipalCouncils Ordinance, No. 29 of 1947, s. 252—Penal Code, ss. 183, 314.
Whon the Chairman of a Town Council authorises an officer to distrain thegoods of a rate-payer who is in arrears with his rates, the warrant must specifythe name of the defaulter, the description and situation of the properties andthe amount of rate in arrears, as required by section 183 of the Town CouncilsOrdinance read with section 252 of the Municipal Councils Ordinance. Suchparticulars are an essential part of the warrant, and resistance to the executionof a warrant which does not contain the particulars is not punishable undersections 183 and 314 of the Penal Code.
NAGALINGAM S.P. J—Perera v. Dharmatillake
PP.'SAIi from a judgment of the Magistrate’s Court, Teldeniya.
S. C. Ratwatte, for the acoused appellant.
T. B. Dissanayake, for the complainant respondent.
Cur. adv. vult.
November 23, 1954. NaqaUENOAM S.P.J.—
This is an appeal by the appellant from convictions under Sections183"and 314 of the Penal Code. The faots briefly are that the appellantwas in arrears with his rates and the Chairman of the Town Councilauthorised certain of his officers to distrain the property of the appellantto recover the arrears. The case for the prosecution is that when thedistraining officers had seized and were removing a certain quantity oftiles from the appellant’s premises the appellant met them on the high-way and upturned a cart in which the tiles were being transported andassaulted the complainant.
On the facts I see no reason to differ from the view taken by the learnedMagistrate, but a point of law has been raised by the Counsel for theappellant which does not however appear to have been brought to thenotioe of the learned Magistrate. It is, that under Section 183 of theTown Councils Ordinance, No. 3 of 1946, the procedure prescribed for therecovery of arrears of rates is the same as that contained in the MunicipalCounoils Ordinance^where no other method of recovery is specificallyprovided by the Town Councils Ordinance. There are no specific provi-sions in the Town Councils Ordinance and as such the provisions of theMunicipal Counoils Ordinance have to be looked to, to ascertain thenecessary provisions. Section 183 of the Town Councils Ordinanceexpressly refers to Sections 135 to 148 of the Municipal Councils Ordinanceas applicable. The Municipal Councils Ordinance, No. 29 of 1947, replacedthe earlier Ordinance No. 37 of 1943 (Chap. 193) and Section 252 (whichsection is the relevant provision) specifically enacts in Sub-section 2thereof that every warrant shall be in the form contained in the 5thschedule thereto with such variations as circumstances require. Thewarrant, which is the basis for distraining the appellant’s goods, is thedocument P4, but it is deficient in one important respect. It does notspecify the name of the defaulter or the description or the situation ofthe properties or the amount of rate in arrears, which particulars are anessential part of the warrant. It cannot be said that the omission toparticularise these details could be regarded as variations. whioh werenecessitated by special circumstances.
The position therefore is that the warrant does not confer authorityon the distraining officers to seize the property of the appellant. Theevidence of the Chairman of the Town Council lends support to the viewthat no schedule was annexed to the warrant. His statement “ I produce
NAGAIjINGAM S.P.J.—Perera V. Dharmalillake
letter of authority P4 dated 23rd of November, 1953, authorising Kiri-banda to distrain the goods of all defaulters in rates ” supports thecontention of learned Counsel for the appellant that the ■warrant itselfhad no schedule attached to it and that it was left to the distrainingofficers to ascertain who the defaulters were and to proceed to seize thegoods of such persons whom they considered to be in default.
The issue of a warrant for distraining the goode of a rate-payer is aserious act and one which should not be looked upon lightly by theChairman. He must satisfy himself that any particular rate-payer hasdefaulted and ho must particularise the defaulters whose goods are tobe distrained by the distraining officer. In the absence of any suchspecific direction the warrant must be regarded as a nullity and anyperson acting under such illegal and void document hap only to blamehimself. I think the objection is sound and the conviction cannot beallowed to stand. In the circumstances the oonvietion under Sectior314 cannot also stand where the charge under Section 183 fails. Itherefore, set aside the convictions and sentence and acquit the accusedappellant.
K. V. PERERA, Appellant , and K. A. DHARMATILLAKE (Assistant Clerk, Teldeniya To