1. This is an application for revision from the conviction of the applicant of an offence under Section 353, Penal Code.
2. It appears from the evidence that the applicant was occupying a house belonging to one Ghorpade in the village of Undavadi, Taluka Baramati, in the Poona District. The Gram Panchayat of the village was entitled to levy a tax of 15 annas under the provisions of the Bombay Village Panchayats Act, 1933, and not knowing the address of the owner of the house who was not living in the village they appear to have issued bills and demand notices directed to the owner but meant for delivery to the applicant.
The applicant refused to accept these bills, whereupon they were affixed to the outer door of the house. Even then the tax was not paid, whereupon on 23-2-1954 when the applicant was about to shift to the adjoining village Anjangaon, which is at a distance of four miles, together with all his belongings, the Gram Panchayat Issued a distress warrant under the provisions of the said Act and authorised the Secretary to recover the dues.
The Secretary and the other officials of the Gram Panchayat approached the applicant as he was on his way to Anjangaon and asked him to pay the amount, but the applicant refused to pay. Thereupon these servants attempted to attach the applicant's belongings. It appears that at that time the wife of the applicant went and sat upon a gunny bag. The applicant hit the secretary and his son bit the secretary's finger. Even so it appears that the Secretary succeeded in attaching the sheep which was following, and after it was, attached, the applicant was allowed to go. The Secretary however lodged a complaint of the offence, under Section 353 and the applicant was then prosecuted in respect of that offence.
3. The applicant's defence was that the warrant in this case was illegal and secondly it couldnot be said that the secretary was acting bonafide in the discharge of his duties. He was entitled, therefore, to resist the attachment of hisgoods, and Section 97, Penal Code, had application. Hewas entitled to defend his property and if in sodefending he used force on the secretary, and if hedid not exceed his right of private defence, hecould not be convicted.
4. Now, it appears in this case that the warrant in this case which was really an order passed by the Gram Panchayat authorising recovery of the tax from the accused was not a legal order. Under Rule 13 of the Rules framed under the Bombay Village Panchayats Act 1953,
'the tax shall be leviable primarily from the actual occupier of the house or land upon which it is assessed, if such occupier is the owner of such house or land. If the land or house is not occupied by the owner himself, the tax be primarily leviable from-
(a) the lessor, if the property is let;
(b) the superior lessor, if the property is sublet;
(c) the person in whom the right to let the same vests if it is unlet;
(d) the person to whom the land or house has been transferred if the owner of the land or house has left the village or cannot otherwise be found.'
It is only on failure to recover any sum due on account of such tax from the person primarily liable that such portion of the sum may be recovered from the occupier of any part of the house in respect of which it is due in the ratio which the Sarpanch decides to be an equitable ratio to the amount of tax assessed on the whole house in the authenticated list.
5. Now, even upon the assumption that the applicant was the occupier he was not the owner of the house or land. Consequently the tax could be levied from the applicant under Clause (c) 6nly in case it could be said that he was the person to whom the right to let had vested. There was no evidence however upon the point.
The only evidence was that the applicant apparently used to manage the property of Ghorpade including the house in question. But right to manage the property does not necessarily include the right to let. Nor can it be said that this was a case in which the property had been transferred to the applicant by the owner.
The use of the word 'transfer' requires that it must be shown that even though the house has an owner another person has got an interest in it which has been obtained by the transferee, for example, by way of a mortgage.
It may also include the person who is a tenant of the property. Nor is there any reason to give that word a meaning, 'the person in actual possession' because as Rule 13 provided
'on failure to recover any sum due on account of such tax from the person primarily liable, such portion of the sum may be recovered from the occupier of any part of the house.'
It appears therefore that when the house is in possession of a tenant or the licensee on failure to recover the sum on account of such tax from the person primarily liable, such sum may be recovered from the person in actual occupation.
In this case whether the property was let or it was unlet, in either case the tax would primarily be recoverable from Ghorpade. It was only when attempts were made to recover the tax from Ghorpade and they had failed that the Gram Panchayat could proceed to recover the tax from the applicant.
Now there was evidence that in this case the Gram Panchayat did not know the address of Ghorpade. There was a difficulty consequently of recovering the tax by attaching Ghorpade's move-able property but there was the house itself available for being proceeded against.
It is conceded that the tax could be recovered from the house, but no attempt was made to recover it from it. The order to recover the tax therefore from the moveable property of the applicant was obviously illegal.
6. In that case, it is obvious in the first instance that Section 353, Penal Code, has no application. Before anybody could be convicted of that section, the public servant must be acting in the discharge of his duties, and if he was acting under an order which is bad, in the sense that it is illegal, then even though he might have been himself unaware of the illegality, that does not make any difference.
In the second instance, the person against whom the public servant is proceeding is entitled to the benefit of Section 97. That was as a matter of fact the view which this Court took in Queen Empress v. Tulsiram 13 Bom 139 (A). In that case a decree passed by the Mamlatdar's Court could not be executed because when an attempt was made to execute the decree it was found that there was no land corresponding with the boundaries set forth in the plaint and that the parties were in joint occupation of the land in dispute. Upon reference to the Collector he directed the Mamlatdar to divide the land in dispute and put the decree holder in possession of his share. When the surveyor went to divide the land he was obstructed by the accused who was thereupon tried and convicted of the offence of voluntarily obstructing a public servant in the discharge of his public function under Section 186, Penal Code.
It was held that as the Collector had no legal authority to issue the order to the surveyor in execution of the Mamlatdar's decree, the surveyor acting under that order was not discharging a public function and the act of the accused was not an offence against Section 186, Penal Code.
Section 99, Penal Code, was relied upon, but this Court held that the Collector's order was entirely ultra vires as to leave no room for the operation of either the first or the second clause of Section 99 Penal Code.
In this case inasmuch as an attempt was made to seize the goods of the applicant under an executive order, which the Gram Panchayat had no power to pass until it had taken certain steps the applicant had a right under Section 97 to resist the seizure of the goods, and inasmuch as the order under which his goods were sought to be attached was ultra vires, there was no room for the operation of either the first or the second clause of Section 99 Penal Code.
It is true of course that in this case the Village Panchayat might have ordered recovery of the tax from the applicant in case they had first made an attempt to recover it from the owner of the house and they Had failed, but that does not seem to me to make any difference.
At the stage at which the proceedings were the village panchayat had no jurisdiction to execute the order against the applicant.
7. The only Question which remains is whether the applicant exceeded his right of private defence. Now, if a public servant is attaching the goods of another under an illegal warrant, that person an ay resist the seizure but he cannot straightway give a blow. If while he is preventing the seizure of the goods an attempt is made to overpower him or the public officer persists in seizing the goods then he may use force.
It appears however in this case from the evidence that attempts were made to resist the seizure because the Secretary himself admitted that the wife of the accused went and sat upon a gunny bag. That was obviously in order to prevent the seizure. Similarly, the son of the applicant bit his finger; that suggests that he must have bitten him when he went and attempted to seize the other goods of the applicant.
It is true that the evidence reads as if immediately the Secretary said that he would seize the goods the applicant gave him 5 or 6 blows; but if we read the evidence as a whole then it would appear that there was first of all an attempt to prevent the seizure of the goods and it was only when subsequently the secretary persisted in seizing the goods that the applicant used force.
8. Coming next to the quantum of force used, there was evidence of the Secretary that he was given 5 or 6 blows, but apart from the bitting there were only two injuries to be found upon the face of the Secretary. They apparently according to the doctor's evidence could be caused by one blow. Even if two blows were given it is not possible to say that the applicant exceeded the right of private defence.
9. The applicant could not consequently be held guilty of the offence under Section 353 either.
10. I set aside his conviction and the sentence of fine passed upon him and direct that if the fine has been paid it should be refunded.
11. Conviction and sentence set aside.