IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 15TH MARCH 2010 / 24TH PHALGUNA 1931 Crl.MC.No. 2922 of 2006() ------------------------- ST.1948/2006 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... PETITIONER(S): --------------- K.G.USHA, THRIKKAYIL MADAM, NETTOOR, MARADU, KOCHI. BY ADV. SRI.P.K.RAVISANKAR RESPONDENT(S): --------------- 1. M.MOHAMMAD ASHRAF, SECRETARY, MARADU GRAMA PANCHAYATH, MARADU, KOCHI. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.B.JAYASURYA SRI.S.SHANAVAS KHAN FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------------------------------- Crl.M.C.No. 2922 of 2006 ------------------------------------------- Dated this the 15th day of March, 2010 ORDER Petition filed by petitioner to quash Annexure-A1 complaint. 2. A private complaint was filed by first respondent herein against petitioner under Section 210 of the Kerala Panchayat Raj Act, 1994 ('the Act' for short). The allegation is that petitioner, being the owner of the land, in which certain flats were constructed, failed to pay tax which are due in respect of the flats. It is alleged that petitioner is the owner of flat nos.184 I, K, O, H1, O1, 185 D, E, 185 A, B, C. 3. Learned counsel for petitioner submitted that the prosecution is premature and hence proceedings are liable to be quashed, since respondent-Panchayat has not taken steps to comply with the provision contained in the proviso to Section 210 of the Act. As per Section 210 , “any arrear of tax imposed shall be recoverable as an arrear of public revenue”. But as per the first proviso, “the Secretary of a Crl.M.C.No. 2922 of 2006 2 Village Panchayat will 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 also provides that,“if any reason the distraint or a sufficient distraint of a defaulter's property is impracticable, the Secretary may prosecute the defaulter before a Magistrate”. 4. Therefore, it is argued that the Panchayat can attach and sell the property and realise the amount, but no such attempts were made. According to petitioner, he is not the owner of flat. The petitioner is not owning any of the apartments in the multi-storied building, it is submitted. It is also pointed out that as per the receipt Annexure-A3 the amounts stated to be part of the amount due is already paid in respect of building No.X/184 I . But the prosecution is in respect of the amount which is already paid as per Annexure-III also, as seen from Annexure-A1 revenue recovery demand notice and the attachment warrant. Crl.M.C.No. 2922 of 2006 3 Therefore, the prosecution is illegal, it is contended. 5. It is also pointed out that Annexure-A2 letter is issued to the Assistant Executive Engineer and Secretary of the Panchayat. Petitioner has informed that he has only singed the applications for electric connection as the owner of the land but the allottees of the apartments have occupied the respective apartments. They did not apply for the change of name with the Electricity Board and local authority and hence it continues to stand in the petitioner's name. Petitioner also informed that she may not be liable for any dues, if any, made by the occupants by way of building tax. The petitioner had also requested to take steps to recover the amount from the respective owners. 6. Learned counsel for respondent submitted that petitioner has not furnished the details of the flat owners. It is also submitted that in the complaint itself, it is stated that all the steps for realisation of amount due were taken and it was found that it was impracticable to recover the amount Crl.M.C.No. 2922 of 2006 4 by attaching the property of the accused. Therefore, there is no violation of Section 210 of the Act, it is submitted. 7. On hearing both sides, I find that a prosecution can be launched under Section 210 against the defaulter only after compliance of the legal formalities in the proviso to Section 210. As per the first proviso, 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. As per the second proviso to Section 210, the Secretary may prosecute the defaulter before a Magistrate only if for any reason the distraint or a sufficient distraint of a defaulter's properties is impracticable. 8. But, there are only bare allegations in the complaint A1 which is in printed form that the distraint or a sufficient distraint of a defaulter's properties was impracticable. Learned counsel for respondent fairly conceded that steps were not completed, as required in the proviso to Section Crl.M.C.No. 2922 of 2006 5 210, though an attachment was ordered and a demand notice was also issued. In the above circumstances, I find that in the absence of making effort to recover the dues as stated in the first proviso and in the absence of finding that the distraint or sufficient distraint on defaulters property is impracticable, petitioner cannot be prosecuted for offence under Section 210 of the Act. 9. There is no record to show that after issuance of the attachment warrant and the demand notice, steps were taken to recover the dues as per a warrant and that steps were futile or impracticable. In the above circumstances, complaint is liable to be quashed, since prosecution based on Annexure-A1 will be illegal. Learned counsel for respondent-Panchayat submitted that respondent is still at liberty to initiate proceedings against the defaulter for non payment of the dues and hence the right of the respondent to take steps as per Section 210 of the Act may not be affected by any order passed in these proceedings. Crl.M.C.No. 2922 of 2006 6 10. On hearing both sides, I make it that disposal of this appeal will not stand in the way of respondent proceeding against defaulter, in accordance with law. The question whether petitioner is the defaulter or the person who occupied the apartment or the person who are liable to pay the arrears and whether there are defaulters are matters to be looked into by the Panchayat. But, there is no sufficient ground to proceed against petitioner on the basis of Annexure A1 complaint. Hence, in the interest of justice, it can be quashed. 11. In the result, the following order is passed. 1) Annexure-A1 complaint is hereby quashed. 2) Petitioner shall not be proceeded against, on the basis of Annexure-A1 complaint. Petition is allowed. K.Hema, Judge cms