ORDER :

The petitioner herein, M/s GTL Infrastructure Ltd, is a company engaged in delivering passive telecommunication infrastructure service. They have been issued with a license for Cellular Mobile Telephone Services in the Kerala Circle, as is evident from Annexure-A1 Registration Certificate. The petitioner has been arrayed as accused in S.T. No.1250/2022 on the files of the Judicial Magistrate of First Class, Sasthamcotta. The aforesaid case has been instituted based on a complaint lodged by the Kunnathoor Grama Panchayat, represented by its Secretary under Section 210 of the Kerala Panchayat Raj Act r/w Rule 27 of the Kerala Panchayat Raj (Taxation and Appeal) Rules, 1996.

2. In the complaint, it is stated that the petitioner has failed to remit a sum of Rs.10,740/- being the arrears payable by the petitioner herein to the 1st respondent for the period covering 2021-2022.

3. Sri. G. Santhosh Kumar, the learned counsel appearing for the petitioner, submitted that initiating the prosecution proceeding without complying with the statutory provisions in its letter and spirit cannot be sustained. According to the learned counsel, only in those cases where it is shown that the distraint or sufficient distraint of a defaulter's property is impracticable that the Secretary may venture to prosecute the defaulter before the learned Magistrate. The learned counsel would contend that there is total noncompliance with the provisions of the Kerala Panchayat Raj (Taxation, Levy, and Appeal) Rules, 1996. According to the learned counsel, in terms of the rules, the notice issued under Rule 14 had to contain a statement regarding the period from which the tax is imposed, a description regarding the occupation of the property or institution on which the tax is imposed, the amount of tax, fee of demand notice or cost of notice, the date from which the tax is due and also a statement of the liability incurred on account of default in remitting the amount. None of these details have been furnished in the demand notice issued under Rule 14, contends the learned counsel.

4. I have heard the learned Standing counsel appearing for the Panchayath and have considered the materials on record.

5. The complaint has been filed under Section 210 of the Panchayat Raj Act. It would be apposite to have a look at Section 210 of the Panchayat Raj Act, 1994, which reads as under:

"210. Recovery of arrears of tax, cess etc.- Any arrear of cess, rate, surcharge or tax imposed or fees levied under this Act shall be recoverable as an arrear of public revenue under the law relating to the recovery of arrears of public revenue for the time being in force:

Provided that the Secretary of a Village Panchayat may directly recover by distraint, under his warrant, and sale of movable properties of the defaulter subject to such rules as may be prescribed:

Provided further that, if for any reason the distraint or a sufficient distraint of a defaulter's property is impracticable, the Secretary may prosecute the defaulter before a Magistrate".

(emphasis supplied)

6. The above section speaks about a distraint warrant to be issued to recover the amount and sale of movable property of the defaulter. It goes on further to say that if, for any reason, the distraint or sufficient distraint of a defaulter's property is impracticable, the prosecution may be launched. Therefore, two conditions are essential for prosecution;

i) distraint warrant should be issued against the accused and

ii) it should be incapable of yielding the result.

7. It will not be out of place here to refer to Rules 14 and 15 of Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules, 1996 which read as follows:

"14. Notice to be served before enforcing provisions of distraint.-

(1) The Secretary shall, where any tax due from any person has not been remitted on or before the due date, serve upon such person a demand notice requiring him to pay the tax together with notice fee of two rupees and the cost of service of the noti