The main legal point established in the judgment is that the issuance of a distraint warrant is not mandatory as a condition precedent for initiating prosecution under Section 210 of the Kerala Panchayat Raj Act, 1994.

JUDGMENT :

P. SOMARAJAN, J.

1. The issue is pertaining to initiation of prosecution under Section 210 of the Kerala Panchayat Raj Act, 1994 (for short, ‘the new Act’) in accordance with Rule 27 of Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules 1996 (for short ‘the new Rules’). Initially, an order was passed convicting the accused and levying fine in accordance with the mandate under Rule 27 of the new Rules. In appeal, it was set aside and remanded back to the trial Magistrate. The trial Magistrate then again found the accused guilty and convicted and imposed a fine of Rs. 2,05,447/- in default to undergo simple imprisonment for two months, against which an appeal was preferred. In appeal, the first appellate court set aside the order of conviction and acquitted the accused. It is against that order of acquittal, the Panchayat, the defacto complainant, came up in appeal.

2. Prima-facie, it appears that the first appellate court has exercised its jurisdiction in violation of the settled principles of law and it is evident from the mere perusal of the impugned judgment. The trial Magistrate had relied on the legal position settled by two Division Bench of this Court in Executive Officer vs. Suresh Babu, 1992 (1) KLT 291 and Suresh vs. Executive Officer, 1995 (2) KLT 75 while rendering a judgment of conviction, but the first appellate court did not even refer or take note of the abovesaid two decisions relied on by the trial court, but passed an order of acquittal. It is the duty of the first appellate court to refer the decisions relied on by the trial court especially when the judgment is set aside.

3. The order of acquittal was passed by the first appellate court on the sole reason that no distraint proceedings were initiated before the initiation of prosecution under Section 210 of the Kerala Panchayat Raj Act (the new Act) and found that the prosecution is vitiated.

4. Going by the legal position settled in the abovesaid two decisions - Suresh Babu’s case and Suresh’s case (supra), it is clear that the decisions were rendered based on the old Act and Rules viz. Kerala Panchayat Act, 1960 (for short the old Act) and Panchayats (Taxation and Appeal) Rules, 1963 (Kerala) (for short, the old Rules), which were subsequently substituted by the new enactment viz. Kerala Panchayat Raj Act, 1994 and Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules 1996. The corresponding provision of Section 74 of the Old Act is Section 210 of the new Act. Both the provisions are pari materia except the substitution of word in the second proviso - “the Secretary” instead of “the executive authority”. In fact, “executive authority” stands for the “Secretary” as far as the new legislation is concerned.

5. Section 210 of the new Act, which is pari materia with that of Section 74 of the old Act is extracted below for reference:

“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. Like wise, Rule 27 of the Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules, 1996 was inserted for recovery of tax, warrant fee etc. by issuance of distraint. In the old Rules, provisions were also incorporated in Rules 13 and 14 to recover such amount by issuance of distraint. Rule 27 of the new Rules is the provision dealing with the procedure to be adopted in a prosecution under the second proviso to Section 210 of the Act, which is also extracted