O R D E R

This Crl.M.C. is filed by the petitioner challenging the prosecution initiated against him, at the instance of the 2nd respondent who is the Secretary of Irikkoor Grama Panchayath. The prosecution was launched alleging offence under the 2nd proviso to Section 210 of Kerala Panchayath Raj Act, 1994, read with Rule 27 of Kerala Panchayat Raj (Taxation and Appeal) Rules.

2. The basic allegation on which the aforesaid complaint has been submitted by the 1st respondent is that, the petitioner herein has defaulted payment of property tax in respect of the building owned by the petitioner. This Crl.M.C. is filed for quashing all further proceedings pursuant to Annexure-A1 complaint.

3. Heard Sri.Nandagopal S.Kurup, learned counsel for the petitioner, Sri.Sudheer Gopalakrishnan, learned Public Prosecutor for the State and Sri.V.T.Madhavanunni, learned counsel for the 2nd respondent.

4. The main contention put forward by the learned counsel for the petitioner is that, in order to initiate the prosecution under the 2nd proviso to Section 210 of Kerala Panchayath Raj Act, the complainant has to show that they have initiated recovery proceedings and despite such proceedings recovery is impracticable. The violations alleged are that of Section 235AA (1), of Kerala Panchayat Raj Act, Section 203 of Kerala Panchayat Raj Act, read with rule 6(2) of the Kerala Panchayat Raj (Property Tax, Service Tax and Surcharge) Rules, 2011 and Rule 8 of Kerala Panchayat Raj (Taxation & Appeal) Rules. Bringing my attention to Annexure-A1 complaint, it is pointed out that the complaint does not contain any such averments and therefore prosecution is unsustainable. On the other hand, the learned counsel for the 2nd respondent would oppose the aforesaid contention. It is pointed out that Annexure-A2 is the recovery notice issued against the petitioner herein and the same is sufficient for initiating prosecution against the petitioner herein.

5. The question that arises here is whether the prosecution initiated on the basis of Annexure-A1 is legally sustainable or not. The provision invoked for initiation of prosecution is Section 210 of Kerala Panchayath Raj Act, which reads as follows:

"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 the defaulter's property is impracticable, the Secretary may prosecute the defaulter before a Magistrate."

6. From the aforesaid provision, it is evident that the prosecution is contemplated only as a last measure. Before commencing prosecution, the complainant has to initiate recovery proceedings by treating it as arrears of public revenue. As part of such recovery proceedings, the Secretary of Panchayat may directly recover by distraint under his warrant, and sale of movable properties of the defaulter, subject to such rules prescribed in this regard. As per the second proviso, 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.

7. Thus it is clear that, the basic pre-requisite for launching the prosecution are (1), initiation of revenue recovery proceedings and (2) impracticability to realize the amount through the modes of revenue recovery. Since these are the basic requirements for initiating prosecution, unless the steps taken for invoking the revenue recovery and the reasons for impracticability are clearly mentioned in the complaint itself, no prosecution can be launched. In this case, on going through the Annexure-