The legality of distraint and the jurisdiction of issuing a warrant depend on the inclusion of a sum not due and the publication of defaulters' list.

ORDER

Henderson, J. - The question raised in this rule is the legality of a certain distraint. Petitioner 1 was in arrears with his chowkidari tax. The Collecting Panchayet issued a warrant for the realisation of the arrears to the complainant, who is one of the chowkidars. Petitioner 1 refused to pay. The chowkidar then attached two cows and the petitioners forcibly took them away from him. They have been convicted of an offence punishable u/s 186, Penal Code. As the rule raised substantial questions of law, I directed notice to be given to the Crown and Mr. Dutta has appeared to show cause against the rule. It appears that there is enmity between petitioner 1 and the collecting Panchayet. Of course, if the distraint was legally valid, the motive actuating the collecting Panchayet in taking coercive steps is quite irrelevant. The legality of the distraint has been attacked on two grounds : (1) that the warrant includes a sum not due and (2) that the collecting Panchayet has no jurisdiction to issue a warrant without first publishing the defaulters' list. It is conceded that the tax for the second quarter for the year 1349 B. S. was not due. Mr. Dutta contended that inasmuch as the balance was due, the warrant was legal. The real point however is not whether some of the demand was due but whether any of it was not due. Section 27 empowers the collecting Panchayet to issue a warrant for the realisation of the arrears. Clearly a warrant for the realisation of a sum which includes an instalment which is not due is altogether without jurisdiction. In the second place, Mr. Dutta relied upon Section 34 which was enacted to cure irregularities. It lays down that no distress should be deemed to be unlawful on account of any defect or want of form in any proceedings relating to it. While this provision is good enough to cure irregularities, it certainly is not meant to legalise a warrant issued without jurisdiction.

2. The second objection depends upon the provisions of Sections 26 and 27. Section 26 lays down that immediately after the 10th day of each quarter the Panchayet shall prepare a list of defaulters and publish it in some conspicuous part of the village. u/s 30 any person whose name is included in the list may dispute his liability and apply to the District Magistrate for relief. Section 27 authorises the collecting Panchayet to levy the arrears by the distraint and sale of the moveable property of the defaulters. For this purpose, a warrant is to be issued to one of the chowkidars. The question for consideration is whether the publication of the list of defaulters is a condition precedent to the issue of a warrant u/s 27. In my judgment the use of the word "thereupon" in Section 27 is conclusive. As the publication of the list of defaulters is a condition precedent, the Panchayet has no jurisdiction to issue a warrant unless this condition has been fulfilled. The decision in Durga Charan Mali v. Nobin Shandra Sil (98) 25 Cal. 274 is an authority for this proposition. The attempt of the learned Additional District Magistrate to distinguish the case has not been successful. Mr. Dutta however contended that the defect, if any, has been cured by Ex. 1--a notice which was served personally upon petitioner 1. If the defect had been a mere irregularity, I should have held that no prejudice had been caused to the petitioner in view of this notice. This will not however suffice to cure the defect in the jurisdiction. The rule is made absolute, the conviction and sentences are set aside and the fines, if paid, will be refunded.