Venkataramana Rao, J.
1. 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.
2. 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 under Section 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 : (1923)45MLJ731 , Krishnan, J., in connection with a prosecution under Section 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.
3. Devadoss, J., cited with approval the above observations of Krishnan, J., with reference to a prosecution under Section 338 of the Chairman, Municipal Council, Chidambaram v. Tirunarayana Aiyangar (1927) 55 M.L.J. 566 : I.L.R. 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.
4. 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 : I.L.R. 51 Mad. 866 and also by Waller and Krishnan Pandalai, JJ., in Raheem Saheb, In re : AIR1929Mad600 , 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.