GTL Infrastructure Limited v. Kunnathoor Grama Panchayat and State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 11[TH] DAY OF AUGUST 2023 / 20TH SRAVANA, 1945`** ## **`CRL.MC NO. 9157 OF 2022`** ## **`ST 1250/2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS , SASTHAMCOTTA`** ## **`PETITIONER:`** ``` THEMANAGER,GTLINFRASTRUCTURELIMITED AGED46YEARS 1STFLOOR,PRABHUTOWER,OPPOSITECHENNAISILKS, - M.G.ROADNORTHEND,ERNAKULAM,PIN682035 ``` ``` BYADVG.SANTHOSHKUMAR(P). ``` ## **`RESPONDENTS:`** ``` 1KUNNATHOORGRAMAPANCH - KUNNATHOOREASTP.O.,KOLLAM,PIN690540 2STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR,HIGHCOURTOF - KERALA,PIN682031 ``` ``` BYADVSasithMR ``` ``` SMT.NIMAJACOB,PUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 11.08.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No.9157 of 2022 2 ## **ORDER** The petitioner herein, M/s GTL Infrastructure 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.1250/2022 on the files of the Judicial Magistrate of First Class, Sasthamcotta. The aforesaid case has been instituted based on a complaint lodged by the Kunnathoor 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.10,740/- being the arrears payable by the petitioner herein to the 1st respondent for the period covering 2021-2022. 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 is Crl.M.C No.9157 of 2022 3 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 Crl.M.C No.9157 of 2022 4 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". (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 Crl.M.C No.9157 of 2022 5 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,- - (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. Crl.M.C No.9157 of 2022 6 (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 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 Crl.M.C No.9157 of 2022 7 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 process and the same cannot be sustained. This petition will stand allowed, and all further proceedings in S.T. No.1250/2022 on the files of the Judicial Magistrate of First Class, Sasthamcotta, 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** ## **`IAP`** Crl.M.C No.9157 of 2022 8 ## **`APPENDIX OF CRL.MC 9157/2022`** ``` PETITIONERANNEXURES ``` |`Annexure-A1`|`TRUE COPY OF THE IP-I REGISTRATION`| |---|---| ||`CERTIFICATE ISSUED BY MINISTRY OF`| ||`TELECOMMUNICATIONS, GOVERNMENT OF INDIA IN`| ||`FAVOUR OF THE PETITIONER.`| |`Annexure-A2`|`TRUE COPY OF THE BUILDING PERMIT DATED`| ||`03/12/2008 ISSUED BY THE 1ST RESPONDENT`| ||`PANCHAYAT.`| |`Annexure-A3`|`TRUE COPY OF THE COMPLAINT PREFERRED BY THE`| ||`1ST RESPONDENT NUMBERED AS S.T.NO:1250/2022`| ||`PENDING ON THE FILES OF J.F.C.M,`| ||`SASTHAMCOTTA.`| |`Annexure-A4`|`TRUE COPY OF THE INTERIM ORDER DATED`| ||`31/05/2022 IN CRL.M.A.NO.1/2022 IN`| ||`CRL.M.C.NO.2881/2022.`| |`Annexure-A5`|`TRUE COPY OF THE JUDGMENT DATED 02/03/2022`| ||`IN CRL.M.C. NO.1385/2020.`|