Philip A Mullakkal v. The State of Kerala and Others

``` CR ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 23[RD] DAY OF NOVEMBER 2023 / 2ND AGRAHAYANA, 1945 ``` ``` CRL.MC NO. 4129 OF 2014 ``` ``` AGAINST THE ORDER IN ST 1551/2013 OF JUDICIAL MAGISTRATE OF ``` ## **`FIRST CLASS, KUNNAMKULAM`** ## **`PETITIONER/ACCUSED:`** ``` PHILIP A MULLAKKAL, S/O LATE M.P, AIPPUNNY, MULLAKKAL HOUSE, OCEAN DALE, AYYANTHOLE P.O, THRISSUR BY ADVS. SRI.R.S.KALKURA SMT.R.BINDU SRI.HARISH GOPINATH SRI.JOHNSON JOSE PANJIKKARAN SRI.M.S.KALESH SRI.K.KURIAN KOSHY SMT.M.K.LEELAKUMARI SMT.A.V.PRIYA SMT.PRABHA JOSE ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1THE STATE OF KERALA, RERPESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM682031 2THE SECRETARY, AVANOOR GRAMA PANCHAYATH, MEDICAL COLLEGE P.O, THRISSUR 680596 ``` ``` 3THE AVANOOR GRAMA PANCHAYATH, REPRESENTED BY IS SECRETARY, AVANOOR, THRISSUR 680596 BY ADVS. K.M.MUHAMMED HUSSAIN SRI.K.B.GANGESH ``` ## **`OTHER PRESENT:`** ``` SRI HRITHWIK CS, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` 2 Crl.MC 4129/2014 **CR** ## **P. V. KUNHIKRISHNAN, J. ------------------------------------------Crl.M.C.No.4129 of 2014** **------------------------------------------Dated this the 23[rd] day of November, 2023** ## **ORDER** The petitioner is the accused in S.T.No.1551/2013 pending before the Judicial First Class Magistrate Court, Kunnamkulam. It is a private complaint filed by the Avanoor Grama Panchayath under section 210 of the Kerala Panchayath Raj Act, 1994 (for short Act 1994). The case of the complainant is that the accused has not paid the building tax for the building in the industrial unit of the petitioner situated at Velakode Industrial Estate, Thrissur. 2. Annexure-A12 is the complaint filed by the Panchayat against the petitioner. It is the case of the petitioner that, the building is situated in the industrial development plots at Velakode under the auspices of the Department of Industries, Government of Kerala, and have been exempted from payment of building tax. According to the petitioner, as per section 1(2) of the Kerala Panchayat Raj Act, Panchayat has no jurisdiction over the industrial areas. The unamended section 1(2) of the Kerala Panchayat Raj Act, 1994 is extracted herebelow: 3 Crl.MC 4129/2014 ## “1(1)XXXX (2). It extends to the whole of the State of Kerala except the areas which are within the limits of the Cantonments, Nagar Panchayats, Municipal Councils, Municipal Corporations and the Industrial areas of the State.” 3. Subsequently, section 1 of the Act of 1994 was amended with two provisos. It will be better to extract the amended section 1 of the Act. ## **‘1. Short title, extent and commencement** (1) This Act may be called the Kerala Panchayat Raj Act, 1994. (2) It extends to the whole of the State of Kerala except the areas which are within the limits of the Cantonments, Nagar Panchayats, Municipal Councils, Municipal Corporations and the Industrial areas of the State. Provided that the provisions in chapters XXV B, XXV C of this Act shall extent to the areas within the limits of Town Panchayats, Municipal Councils and Municipal Corporations in the State of Kerala. Provided further that the provisions of Chapter XIX of this Act shall extend to the areas declared as industrial areas under the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 4 Crl.MC 4129/2014 ## (3) It shall come into force at once. Provided that Sections 235A to 235Z shall come into force on the 1st day of January, 2006.’ 4. The amendment of Section 1(2) of the Panchayat Raj Act by which the 2[nd] proviso was inserted, was carried out as per the Kerala Panchayat Raj (Amendment) Act, 2014. Section 1(2) of the Amendment Act, 2014 says that the amendment shall be deemed to have come into force on 14[th] day of June, 2010. Annexure-A12 complaint was filed on 29.03.2014. Therefore, it is stated that, in the light of the Amendment Act, the petitioner is liable to pay tax and therefore the prosecution is sustainable under 210 of the Kerala Panchayat Raj Act. 5. Heard counsel for the petitioner and the Public Prosecutor. I also heard the counsel appearing for the Panchayat. 6. The short point raised by the counsel for the petitioner is that the amendment to section 1(2) of the Kerala Panchayat Raj Act with retrospective effect came into force with effect from 28.10.2013. But, it is submitted by the learned counsel that, as per Rule 14 of the Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules, 1996 [for short, ‘the Rules 1996’] a notice under Rule 14 is necessary before 5 Crl.MC 4129/2014 initiating prosecution. It is submitted that, as on the date of notice issued as per the above Rule in this case, there was no amendment of section 1(2) and hence, there is tax exemption. It is also submitted that, a notice issued by the Panchayat cannot be treated as retrospective. But the counsel for the Panchayat submitted that, since the amendment is retrospective, the complaint is maintainable. 7. This Court considered the contention of the petitioner and the counsel appearing for the Panchayat. It is a settled position that making a penal statute retrospective is not possible. This principle is originated from under Article 20(1) of the Constitution of India. This point is considered by the Apex Court also in **Superintendent, Narcotic Control Bureau v. Parash Singh [2008 KHC 6923].** The relevant portion is extracted hereunder: ‘5. it is manifest from Art. 20(1) that it prohibits (1) making an Act for the first time and then making that law retrospective. In other words it is not permissible to create an offence retrospectively (2) the imposition of the penalty may not be higher than what is prescribed in law which was in force at the time of the commission of the offence. It needs to be noted that the validity of Amendment Act was challenged before this Court in Basheer @N. P. Basheer v. State of Kerala, 2004 KHC 540: 2004 (3) SCC 609: 2004 (2) KLT 39: AIR 2004 SC 2757. The validity of the Act was upheld. This Court held 6 Crl.MC 4129/2014 that (a) all cases pending before the Court on 02/10/2001; (b) all cases under investigation as on that date shall be disposed of in accordance with the provisions of the Act as amended by the Amending Act. In State through CBI Delhi v. Gian Singh, 2000 KHC 494: 1999 (9) SCC 312: 2000 (2) KLT SN 20: AIR 1999 SC 3450: 1999 CriLJ 4315: 1999 AIR SCW 3433: JT 1999 (6) SC 575: 1999 (5) Scale 497: 1999 SCC (Cri) 1512: 1999 (8) Supreme 44 it was held with reference to Art.20(1) of the Constitution that it is a fundamental right of every person that he should not be subjected to greater penalty than what the law prescribes and no ex post facto legislation is permissible for escalating the severity of the punishment. But if any subsequent legislation down grades the harshness of the sentence for the same offence, it would be salutary principal for administration of criminal justice to suggest that the said legislative benevolence can be extended to the accused who awaits judicial verdict regarding sentence. The view expressed in Gyan Singh's case (supra) finds support from the case of T. Barai v. Henry Ah Hoe and Another, 1983 (1) SCR 905: AIR 1983 SC 150: 1983 CriLJ 164: 1983 (1) SCC 177: 1983 SCC (Cri) 143. The High Court was not justified in holding that new offence was created. Before the amendment as well as after the amendment the ingredients of S.8 remain same and there was no amendment in this provision. Only punishment for contravention in relation to cannabis plant and cannabis 1.e. S.20 of the Act has been amended by the Amendment Act.’ 7 Crl.MC 4129/2014 For that simple reason itself, the prosecution against the petitioner based on the retrospectivity of an Act is unsustainable. 8. Moreover, Rule 14 of the Rules 1996 says that service of a demand notice is a necessary precondition before taking proceedings under section 210 of the Kerala Panchayat Raj Act. It will be better to extract Rule 14 of Rule 1996. ## **‘Rule 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,- (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 8 Crl.MC 4129/2014 - (d) statement of the liability incurred on account of the default in remitting money.’ 9. As on the date on which Rule 14 notice was issued to the petitioner, admittedly, the petitioner is not liable to pay tax. Issuance of notice under Rule 14 has no retrospectivity. Therefore, even if the tax is payable retrospectively, unless there is notice under Rule 14 informing the petitioner that the tax is payable because of the retrospectivity of the Act 1994, the prosecution is unsustainable. On the basis of the aforesaid grounds also, I am of the considered opinion that Annexure-A12 complaint is unsustainable. Therefore, this Crl.M.C is allowed. All further proceedings against the petitioner in S.T.No.1551/2013 on the file of the Judicial First Class Magistrate Court, Kunnmakulam are quashed. Sd/- ## **P. V. KUNHIKRISHNAN JUDGE** Sbna/ 9 Crl.MC 4129/2014 ## **`APPENDIX OF CRL.MC 4129/2014`** ## `PETITIONER ANNEXURES` - `ANNEXURE A1 TRUE COPY OF THE PARTNERSHIP DEED DATED 25-11-2012 ENTERED INTO BETWEEN THE PERTITIONER AND HIS WIFE` - `ANNEXURE A2 THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE DEPARTMENT OF REGISTRATION DATED 22-11-2013 REGISTERING THE FIRM OCEAN PIPES` - `ANNEXURE A3 TRUE COPY OF THE PROCEEDINGS OF THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, THRISSUR DATED 29-11-2012` - `ANNEXURE A4 TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE SECOND RESPONDENT PANCHAYATH IN RESPECT OF THEBUILDING SITUATED AT THE INDUSTRIAL DEVELOPMENT PLOT BELONGING TO THE PETITIONER BEARING NO 14/149A THE INDUSTRIAL DEVELOPMENT PLOT` - `ANNEXURE A5 TRUE COPY OF THE PERMIT ISSUED BY THE JOINT DIRECTOR OF FACTORI3S ANDBOILERS, GOVERNMENT OF KERALA, ERNAKULAM DATED 19-05-2014 TO THE PETITIONER'S FIRM` - `ANNEXURE A6 TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 12-12-2012 ISSUED BY THE COMMERCIAL TAXES DEPARTMENT, GOVERNMENT OF KERALA TO THE PETITIONER` - `ANNEXURE A7 TRUE COPY OF THE ACKNOWLEDGMENT DATED 22-10-2013 ISSUED BY THE GOVERNMENT OF KERALA TO THE PETITIONER'S FIRM` - `ANNEXURE A8 TRUE COPY OF THEDEMAND NOTICE BEARINGNO A8/79/2014 DATED 07-01-2014 ISSUED BY THE SECOND RESPONDENT` - `ANNEXURE A9 A TRUE COPY OF THE AGENDA FOR THE MEETING TO BE HELD ON 22-01-2014 BY THE DISTRICT COLLECTORISSUED ALONG WITH THE LETTER DATED 18-01-2014 BY THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE TO THE PETITIONER` - `ANNEXURE A10 THE TRUE COPY OF THE MINUTES OF THE METTING DATED 22-01-2014 AT THE COLLECTORATE, THRISSUR AND COPY OF THE SA,E ISSUED TO THE PETITIONER VIDE LETTER DATED 05-02-2014 BY THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE` 10 Crl.MC 4129/2014 ``` THRISSUR ANNEXURE A11TRUE COPY OF THE SUMMONS ISSUED IN S.T 1551 OF 2014 BY THE JUDICIAL IST CLASS MAGISTRATE, KUNNAMKULAM TO THE PETITIONER ANNEXURE A12CERTIFIED COPY OF THE COMPLAINT NO 1 OF 2014 FILED BY THE SECOND RESPONDENT BEFORE THE IST CLASS MAGISTRATE COURT, KUNAMKULAM ```