SHYNA.M vs THE KEEZHALLUR GRAMA PANCHAYAT

1.Petitioner is the accused in S.T.634/2012. It

is pending in the Judicial First Class

Magistrate court, Mattannur. The petitioner is

prosecuted under section 210 of the Kerala

Panchayat Raj Act (for short the Act) read with

rule 27 of the Kerala Panchayat Raj (Taxation,

Levy and Appeal) Rules, 1996 (for short 1996

Rules). She seeks to invoke the jurisdiction of

the High Court under section 482 of the Cr.P.C

to quash the proceedings in S.T.634/2012.

2.Heard the learned counsel for the parties

including the learned Public Prosecutor.

3.A room in a building belonging to the 1st

respondent panchayat is/was in the occupation

of the petitioner. Annex-A2 is a copy of the

lease agreement. Rent is Rs.8,500/- per month.

The panchayat issued annex-A3 notice alleging

the rent to be in arrears. The demand was

Rs.94,377/-. The petitioner preferred an appeal

under section 276 of the Act against annex-A3

notice. The appeal was dismissed. The

petitioner then approached the Ombudsman for

Local Self Government Institutions. The learned

Ombudsman accepted the contention of the

panchayat that the grievances of the petitioner

were purely civil in nature. The learned

Ombudsman as per annex-A7 order dismissed the

original petition filed by the petitioner. She

was directed to approach the appropriate forum.

She is now before this court to get the

criminal prosecution against her quashed under

section 482 of the Cr.P.C.

4.The petitioner disputes the liability to pay

the amount demanded in annex-A3 notice. Her

contentions go as under : The panchayat did not

provide amenities such as electricity, water

supply et cetera. Tiles were not fixed at the

joints of the roof to prevent leak during

rains. The toilet was without a door. A tap was

fitted in the toilet, but there was no water

supply. The petitioner herself got the room

electrified. She obtained permit from the

Pollution Control Board. She erected machinery

for starting a bottle manufacturing unit. But

the panchayat did not issue the necessary

licence. The machinery began to rust since the

same could not be operated. The petitioner

therefore met the secretary of the panchayat on

5.4.2011 to surrender the key of the room, but

the secretary refused to receive the key. The

room remains locked since 5.4.2011. The

petitioner did not apply to renew the lease.

But she is asked to pay rent even for the

period during which she did not occupy the

room.

5.The grievances voiced by the petitioner as

narrated above are matters for evidence. She

may have to go for a civil suit to redress her

such grievances. If such matters are in the

realm of her defence in the criminal

prosecution against her, she may agitate those

matters in that proceedings. The contentions of

the petitioner so far considered in this order

are not sufficient to quash the proceedings in

S.T 634/2012.

6.Annex-A1 is the certified copy of the complaint

filed by the 1st respondent before the learned

Magistrate. The Magistrate is requested to

recover an amount of Rs.94,377/- from the

petitioner. The relevant provisions to be

considered are section 210 of the Act and rule

27 of 1996 Rules.

7.Section 210 of the Act provides that any

arrears of cess, rate, surcharge or tax imposed

or fees levied under the 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. The first proviso to section 210 permits

the secretary of a village panchayat to

directly recover by distraint, under his

warrant, and sale of movable properties of the

defaulter subject to such rules as may be

prescribed. The second proviso to section 210

is applicable when for any reason the distraint

or a sufficient distraint of the defaulter''s

property is impracticable. In that event the

secretary may prosecute the defaulter before a

Magistrate. Thus, the secretary can prosecute

the defaulter before a Magistrate only if, for

any reason, the distraint or sufficient

distraint of the defaulter''s property is

impracticable.

8.Rule 27 of 1996 Rules reads thus :

(1) Any person subjected to prosecution under the second proviso to Section 210, if proved to the satisfaction of the Magistrate to have wilfully defaulted payment of the amount due or have wilfully obstructed the distraint or sufficient distraint, shall be liable to pay -

(a) the tax and warrant fee if any; and

(b) the distraint fee, if distraint has taken place, the expenses, if any, incurred on account of the detention and sale of the property distrained and fine not exceeding twice the amount that is due from him.

(2) Whenever any person is convicted of an offence under sub-rule (1), the Magistrate shall, in addition to any fine

which may be imposed, by summary disposal recover amounts, if any, due under the items specified in clauses (a) and (b) of sub-rule (1) and also recover such amounts as may be fixed by him, if any, as costs of the prosecution proceedings and pay the same to the panchayat.

9.The words "any person subjected to prosecution

under the second proviso to section 210 " used

in rule 27 (1) of 1996 Rules are important.

Those words indicate that rule 27 itself is

applicable only if the distraint or a

sufficient distraint of the defaulter''s

property is impracticable for any reason. The

1st respondent stated in annex-A1 complaint that

the distraint of the property of the petitioner

was impracticable. It is alleged therein that

it was because the petitioner had removed the

machinery and other articles of hers from the

premises let out to her by the panchayat. The

allegation may be true or may not be true. The

correctness or otherwise of the allegation is a

matter for evidence. The impracticability noted

in annex-A1 complaint cannot be assessed at

this stage or in a proceedings under section

482 of the Cr.P.C. Therefore the proceedings  against the petitioner cannot be quashed.

10.The learned counsel for the petitioner relied

on three decisions of this court. The decisions

are (i) Executive Officer v. Chacko Joseph

(1990 KHC 337), (ii) Executive Officer v. Abdul

Rahiman (1998 KHC 373) and (iii) Chengannur

Municipality v. Samuel P. Mathew (2002 KHC

496). Those decisions were rendered in appeals.

This court in those cases did not accept the

evidence of the prosecuting agency that the

distraint was impracticable. The reported

decisions are helpful to the petitioner only if

the 1st respondent fails at the trial to prove

the impracticability. The petitioner will have

to wait till then.

11.The Crl.M.C is without any merit. It deserves

dismissal. Dismissed.