Prosecution in tax matters under the Kerala Panchayat Raj Act requires prior issuance of a distraint warrant.

O R D E R

The petitioner is the accused in S.T. No.

250/2018 on the file of the Court of the Judicial First Class Magistrate-I, Kasaragod (‘Trial Court’ for short), which has been registered on the basis of a private complaint filed by the first respondent alleging the commission of an offence punishable under Section 210 of the Kerala Panchayat Raj Act (‘Act’, for short) read with Section 27 of the Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules.

2. The gist of the allegation in Annexure A3 complaint is that; the petitioner had erected two mobile towers, its shelters and its equipments in the property belonging to a person, which is situated within the territorial limits of the first respondent Panchayat. However, the petitioner failed to pay Rs.1,00,893/- towards arrears of tax payable to the first respondents for the period from 2013-2014, 2014-2015, 2015-2016, 2016-2017 and 2017-2018. Thus, the petitioner has committed the above offence.

3. I have heard the learned counsel appearing for the petitioner, the learned Standing Counsel for the first respondent and the learned Public Prosecutor.

4. The learned counsel for the petitioner submits that, even if the allegations in Annexure A3 private complaint are taken on their face value, the same would not attract the offence alleged against the petitioner. He relies on Annexures A4 and A5 orders passed by this Court in identical matters, wherein this Court has held that, unless the statutory remedies available to the first respondent under Section 210 of the Act are exhausted, a prosecution cannot be launched. It was without resorting to the above course for recovery of the alleged arrears as contemplated under Section 210 of the Act, that the prosecution has been launched, which is premature and unsustainable in law. Therefore, the petitioner may be given the benefit of the law laid down in Annexures A4 and A5 orders, and the entire proceedings may be quashed.

5. The learned Standing Counsel for the first respondent and the learned Public Prosecutor oppose the Crl.M.C. They submit that there is no legal bar for the first respondent to independently prosecute the complaint against the petitioner. This Court may not embark upon a mini trial and terminate the prosecution due to the alternative statutory remedy. Hence, the Crl.M.C. may be dismissed.

6. The principle contention of the petitioner is that, in view of Section 210 of the Act, the first respondent ought to have first taken steps to issue a distraint warrant for recovery of the money before initiating the prosecution.

7. In the above context, it is profitable to refer to Section 210 of the Act, which reads as follows:

"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".

8. A plain reading of the above section unambiguously reveals that a distraint warrant has to be issued to the defaulter to recover the arrears payable to the Panchayat. It is only when the recovery proceedings become futile, a criminal prosecution can be launched.

9. The two cardinal conditions for initiating a prosecuti