IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

ND WEDNESDAY, THE 2 DAY OF MARCH 2022 / 11TH PHALGUNA, 1943 CRL.MC NO. 1385 OF 2020 AGAINST THE ORDER/JUDGMENT IN ST 416/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KANNUR PETITIONER/ACCUSED:

KINAKKOOL ABDU SALAM, AGED 59 YEARS, S/O.A.P.MUHAMMAD, JALEESA MANZIL, PATTUVAM, IRIKUR P.O., KANNUR.

BY ADV NANDAGOPAL S.KURUP RESPONDENT/COMPLAINANT:

1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF EKRALA, ERNAKULAM-682 018. 2 SECRETARY, IRIKKUR GRAMA PANCHAYAT, IRIKKUR P.O., KANNUR-670 593.

BY ADVS.

SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI R1 BY SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.03.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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 2^nd respondent, who is the Secretary of Irikkoor Grama Panchayath. The prosecution was launched alleging offence under Section 210 of Kerala Panchayath Raj Act, 1994, read with Rule 27 of Kerala Panchayat Raj (Taxation and Appeal) Rules, 1996, Sub- section 1 of Section 203 of the Kerala Panchayat Raj Act read with Rule 6 (2) of the Kerala Panchayat Building Tax Surcharge Rules, 1996 and Rule 8 of the Kerala Panchayat Raj (Taxation and Appeal) Rules.

2. The basic allegation on which the 1st respondent has submitted the aforesaid complaint is that the petitioner herein had 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.Renjit George, learned Senior Public Prosecutor for the State and Sri.V.T.Madhavanunni, learned counsel for the 2^nd respondent.

4. The main contention put forward by the learned counsel for the petitioner is that, in order to initiate the prosecution under 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 the Annexure-A1 complaint, it is pointed out that the complaint does not contain any such averments and, therefore, the prosecution is unsustainable. On the other hand, the learned counsel for the 2^nd respondent would oppose the aforesaid contention. It is pointed out that Annexure-A2 is the revenue 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 based on Annexure-A1 is legally sustainable or not. The provision invoked for initiation of prosecution is Section 210 of the 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 complain