High Court of KeralaSingle Judge2023-07-27Petition allowed; proceedings quashed; right to...

Dishnet Wireless Limited v. Perambra Grama Panchayath & State of Kerala

Case / Petition Number:CRL.MC NO. 894 OF 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Raja Vijayaraghavan V
Judgment Date: 2023-07-27
Court Decision / Holding: Petition allowed; all further proceedings in S.T. No. 228/2016 before the Judicial Magistrate of First Class, Perambra, are quashed. The petitioner’s right to initiate appropriate proceedings to realize the amount in accordance with law is reserved.
Final Disposition: Petition allowed; proceedings quashed; right to recover the amount preserved.

Parties to the Case

Appellants / Petitioners

DISHNET Wireless Limited

Respondents

Perambra Grama Panchayath, represented by its Secretary
State of Kerala, represented by Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• G. Santhosh Kumar (P)

Counsels for Respondents

• Sri. T.R. Ranjith, Sr. PP

Case Synopsis & Summary

Dishnet Wireless Limited, a telecom infrastructure operator licensed for Cellular Mobile Telephone Services in the Kerala Circle, faced criminal proceedings under Section 210 of the Kerala Panchayat Raj Act, 1994, in S.T. No. 228/2016 before the Judicial Magistrate of First Class, Perambra. The complaint, lodged by Perambra Grama Panchayat through its Secretary under Rule 27 of the Kerala Panchayat Raj (Taxation and Appeal) Rules, 1996, alleges non-payment of arrears amounting to Rs. 5,253 for 2017–2018. The petition contends that prosecution cannot be sustained without strict adherence to statutory provisions, and that the Panchayat did not provide the requisite information in the demand notice under Rule 14. The petitioner’s counsel argued that prosecution should not proceed unless distraint or sufficient distraint of the defaulter’s property is impracticable and the notice includes the mandatory particulars (period, occupation or property, amount, notice fees, due date, and liability). The court examined Section 210, which allows recovery as arrears of public revenue and permits distraint by the Secretary, with a proviso permitting prosecution if distraint is impracticable, and Rule 14 and Rule 15 of the Rules, which govern notice and distraint. It held that there were blatant Rule 14 violations and that the proceedings were abusive; citing a prior identical view in Secretary, Pozhuthana Grama Panchayat v. T.K. Unni Peravan & Anr. The Court quashed the proceedings but reserved the petitioner’s right to recover the amount lawfully.

Provisions of Law Cited

Section 210, Kerala Panchayat Raj Act, 1994Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules, 1996 – Rule 14Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules, 1996 – Rule 15Proviso to Section 60, Code of Civil Procedure, 1908

Legal Doctrines & Maxims

Abuse of process of law

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that initiating prosecution without strict compliance with statutory provisions cannot be sustained. Rule 14 requires a detailed demand notice (period for which tax is imposed, the occupation, the amount, the date from which tax is due, and liability incurred on default). It argues that the notice failed to contain these details, violating the requirements of Rule 14, and that two conditions for prosecution (distraint and its impracticability) were not satisfied, rendering the proceedings abusive.

Contentions of Respondents

The respondents contend that recovery of arrears is recoverable as public revenue, via distraint and, if impracticable, prosecution before a Magistrate under Section 210. They argue that the notice and proceedings are anchored in statutory provisions and that the court should ensure compliance with Rule 14 before approving or disallowing prosecution.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Secretary, Pozhuthana Grama Panchayat v. T.K. Unni Peravan & Anr	2021(1)KLT 72	Positive	The Court notes an identical view in this precedent that compliance with Rule 14 is essential and that prosecution cannot proceed in its absence, supporting the current judgment’s stance.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 27[TH] DAY OF JULY 2023 / 5TH SRAVANA, 1945 CRL.MC NO. 894 OF 2020`** ``` AGAINSTTHEORDERINSTNO.228/2016OFJUDICIALMAGISTRATE OFFIRSTCLASS,PERAMBRA ``` ## **`PETITIONER/ACCUSED :-`** ``` DISHNETWIRELESSLIMITED, REPRESENTEDBYITSCIRCLEHEAD,R.R.ARCADE,VYTILLA P.O.ERNAKULAM,CHENNAINETWORKINFRASTRUCTURELIMITED TOWER,PRABHUTOWER,1STFLOOR,OPPOSITECHENNAISILKS, M.G.ROAD,NORTHEND,ERNAKULAM-682035. ``` ## **`BY ADV G.SANTHOSH KUMAR (P).`** ## **`RESPONDENTS/COMPLAINANT & STATE :-`** - **`1 PERAMBRA GRAMAPANCHAYATH, REP. BY ITS SECRETARY, PREAMBRA P.O. KOZHIKODE, PIN-673 525.`** - **`2 STATE OF KERALA, REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031.`** ## **`BY SRI.T.R.RANJITH, SR.PP`** ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 27.07.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` ``` CRL.MCNO.894OF2020 ``` ``` 2 ``` ## **ORDER** The petitioner herein, M/s Dishnet Wireless Ltd, is a company engaged in delivering passive telecommunication infrastructure service. They have been issued with a license for Cellular Mobile Telephone Services in the Kerala Circle, as is evident from Annexure-A1 Registration Certificate. The petitioner has been arrayed as accused in S.T. No. 228/2016 on the files of the Judicial Magistrate of First Class-I, Perambra. The aforesaid case has been instituted based on a complaint lodged by the Perambra Grama Panchayat, represented by its Secretary under Section 210 of the Kerala Panchayat Raj Act r/w Rule 27 of the Kerala Panchayat Raj (Taxation and Appeal) Rules, 1996. 2. In the complaint, it is stated that the petitioner has failed to remit a sum of Rs.5,253/- being the arrears payable by the petitioner herein to the 1st respondent for the period 2017-2018. It is further stated in the complaint that when the petitioner herein had intentionally defaulted on the payment of arrears of tax, a demand notice was issued to him on 12.03.2018. 3. Sri. G. Santhosh Kumar, the learned counsel appearing for the petitioner, submitted that initiating the prosecution proceeding without complying with the statutory provisions in its letter and spirit cannot be sustained. According to the learned counsel, only in those cases where it ``` CRL.MCNO.894OF2020 ``` ``` 3 ``` is shown that the distraint or sufficient distraint of a defaulter's property is impracticable that the Secretary may venture to prosecute the defaulter before the learned Magistrate. The learned counsel would contend that there is total noncompliance with the provisions of the Kerala Panchayat Raj (Taxation, Levy, and Appeal) Rules, 1996. According to the learned counsel, in terms of the rules, the notice issued under Rule 14 had to contain a statement regarding the period from which the tax is imposed, a description regarding the occupation of the property or institution on which the tax is imposed, the amount of tax, fee of demand notice or cost of notice, the date from which the tax is due and also a statement of the liability incurred on account of default in remitting the amount. None of these details have been furnished in the demand notice issued under Rule 14, contends the learned counsel. 4. I have heard the learned Standing counsel appearing for the Panchayath and have considered the materials on record. 5. The complaint has been filed under Section 210 of the Panchayat Raj Act. It would be apposite to have a look at Section 210 of the Panchayat Raj Act, 1994, which reads as under: "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 ``` CRL.MCNO.894OF2020 ``` ``` 4 ``` 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". (emphasis supplied) 6. The above section speaks about a distraint warrant to be issued to recover the amount and sale of movable property of the defaulter. It goes on further to say that if, for any reason, the distraint or sufficient distraint of a defaulter's property is impracticable, the prosecution may be launched. Therefore, two conditions are essential for prosecution; i) distraint warrant should be issued against the accused and ii) it should be incapable of yielding the result. 7. It will not be out of place here to refer to Rules 14 and 15 of Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules, 1996 which read as follows: "14. Notice to be served before enforcing provisions of distraint.- (1) The Secretary shall, where any tax due from any person has not been remitted on or before the due date, serve upon such person a demand notice requiring him to pay the tax together with notice fee of two rupees and the cost of service of the notice if sent by registered post, within fifteen days from the date of service of notice, before taking the proceedings under Section 210 of the Act. (2) Notice under sub-rule (1) shall be signed by the Secretary and shall contain the following matters,- ``` CRL.MCNO.894OF2020 ``` ``` 5 ``` (a) a statement regarding the period for which the tax is imposed, and description regarding the occupation, property or institution on which the tax is imposed; (b) the amount of tax, fee of demand notice and cost of notice is sent by registered post; (c) the date from which tax is due; and (d) statement of the liability incurred on account of the default in remitting money. ## 8. Rule 15 reads thus: "15. Recovery by distraint.- If the amount due on account of any tax together with the fee of demand notice and the cost of service of the notice is not paid within fifteen days from the date of service of the notice and if the person from whom the tax is due has not shown cause to the satisfaction of the Secretary as to why it should not be remitted, the Secretary may, by distraint under warrant and by sale of the movable property of the defaulter, recover the amount due on account of the tax together with demand notice fee, cost of service of notice, warrant fee including the distraint fee together with such further sum that is sufficient for a meeting the actual expenses for the safe custody and sale of the property so distrained: Provided that movable property described in the proviso to Section 60 of the Code of Civil Procedure, 1908, shall not be distrained. (2) The warrant under sub-rule (1) shall be in Form No.1 appended to these rules and for each such warrant a fee of five rupees shall be levied". 9. As per Rule 14, when an amount is due from a person, and he has not remitted the same on or before the due date, a demand notice calling upon him to pay the amount within 15 days from the date of service of notice, shall be issued to him. Sub Rule (2) stipulates the ``` CRL.MCNO.894OF2020 ``` ``` 6 ``` contents of the notice. Rule 15 says that even after service of notice under Rule 14, the amount is not paid within 15 days thereof, the Secretary of the Panchayat may issue a distraint warrant. The statutory provisions have to be complied with before prosecution proceedings are launched. These provisions are included in the Act and Rules to prevent unnecessary harassment of the alleged defaulter by the institution of prosecution proceedings and cannot be bypassed by the Panchayat. 10. In view of the above, the 1st respondent ought to have scrupulously complied with Rule 14 and ought to have given details regarding the period for which the tax is imposed, a description regarding the occupation, property, or institution on which the tax is imposed, the amount of tax, the fee of demand notice and cost of notice, the date from which tax is due, and also a statement of the liability incurred on account of the default in remitting money. Furthermore, the 1st respondent ought to have alleged that prosecution proceedings were initiated as distraint proceedings were impractical and inefficacious for realising the amount. 11. In the instant case, I find that there are blatant violations of provisions of Rule 14. An identical view was taken by this Court in **Secretary, Pozhuthana Grama Panchayat v. T.K. Unni Peravan & Anr** . [2021(1)KLT 72]. 12. For the aforementioned reasons, I am of the view that the continuance of proceedings as against the petitioner is an abuse of ``` CRL.MCNO.894OF2020 ``` ``` 7 ``` process, and the same cannot be sustained. This petition will stand allowed, and all further proceedings against the petitioner in S.T. No. 228/2016 on the files of the Judicial Magistrate of First Class-I, Permbra, are quashed. Right of the petitioner to initiate appropriate proceedings to realize the amount in accordance with law will stand reserved. Sd/- ## **RAJA VIJAYARAGHAVAN V** **JUDGE** ## **`SMA`** ``` CRL.MCNO.894OF2020 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 894/2020`** ## **`PETITIONER ANNEXURES :-`** |**`ANNEXURE `**|**`A1`**|**`TRUE`** **`COPY`** **`OF`** **`THE`** **`IP-1`**|**`REGISTRATION`**| |---|---|---|---| |||**`CERTIFICATE`** **`ISSUED`** **`BY`**|**`MINISTRY`** **`OF`**| |||**`TELECOMMUNICATION,`** **`GOVERNMENT`**|**`OF`** **`INDIA`** **`IN`**| |||**`FAVOUR OF THE PETITIONER`**|| |**`ANNEXURE `**|**`A2`**|**`TRUE`** **`COPY`** **`OF`** **`THE`** **`BUILDING`**|**`PERMIT`** **`DATED`**| |||**`23.5.2009`** **`ISSUED`** **`BY`** **`THE`** **`1ST`** **`RESPONDENT`**|| |||**`PANCHAYAT`**|| |**`ANNEXURE `**|**`A3`**|**`TRUE COPY OF THE COMPLAINT PREFERRED BY THE`**|| |||**`1ST`** **`RESPONDENT`** **`NUMBERED`** **`AS`** **`S.T`** **`NO`** **`228/2016`**|| |||**`ON`** **`THE`** **`FILES`** **`OF`** **`JUDICIAL`**|**`FIRST`** **`CLASS`**| |||**`MAGISTRATE`** **`COURT-1`** **`PERAMBRA`**|**`ALONG`** **`WITH`**| |||**`SUMMONS.`**|| |**`ANNEXURE `**|**`A4`**|**`TRUE`** **`COPY`** **`OF`** **`THE`** **`INTERIM`**|**`ORDER`** **`DATED`**| |||**`17.1.2020`** **`ISSUED`** **`BY`** **`THIS`** **`HON'BLE`** **`COURT`** **`IN`**|| |||**`CRL.MC NO 431/2020`**||