High Court of KeralaSingle Judge2017-07-04Partly allowed

S. Raman v. State of Kerala and Kanthalloor Grama Panchayath

Case / Petition Number:Crl.R.P.No.151 of 2003

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K.P. Jyothindranath
Judgment Date: 2017-07-04
Court Decision / Holding: This criminal revision petition is partly allowed. The High Court reduced the fine to Rs.3,000 (from Rs.5,000) and upheld the rest of the conviction and orders. It held that the distraint warrant (Ext.P3) can be validly issued by the Secretary’s empowered officer under Rule 17, and that strict evidence of written delegation need not be elaborately proven, as long as there is prima facie evidence that the Panchayath was unsuccessful in executing the distraint.
Final Disposition: Partly allowed

Parties to the Case

Appellants / Petitioners

S. Raman

Respondents

State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam
M.R. Mohanan, Secretary, Kanthalloor Grama Panchayath, Kanthalloor

Legal Representation & Advocates

Counsels for Petitioners

• Sri S. Gopakumaran Nair (Sr.)
• Sri Sooraj T. Elenickal

Counsels for Respondents

• Public Prosecutor (State counsel)
• Sri. Priya Shanavas

Case Synopsis & Summary

This is a criminal revision petition by S. Raman challenging the concurrent findings of guilt in a case arising from non-payment of river sand license fee for the financial year 1996-97. The Secretary, Kanthalloor Grama Panchayath, filed a complaint under Section 210 of the Kerala Panchayat Raj Act read with Rule 27 of the Kerala Panchayat Raj Act (Taxation and Appeal) Rules, 1996, after Raman allegedly refused to remit Rs.86,327. The trial court directed payment of the amount and imposed a fine of Rs.5,000 with default imprisonment; the Sessions Court upheld the conviction, prompting this revision. The core issue concerns the Secretary’s power to realise the amount by distraint and whether proper delegation and written authorization were present to empower the officer (PW3) to execute the distraint warrant (Ext.P3). Raman contends that Section 184 governs delegation but requires written authorization to empower officers to execute warrants, and that there is no evidence of such delegation, rendering the distraint invalid. The respondents contend that Rule 17 of the Taxation, Levy and Appeal Rules authorises distress by an officer under a Secretary’s special order in writing, and that Ext.P3 suffices. The High Court held that written authorization need not be elaborate; what is required is that the Panchayat was unsuccessful in executing the distraint. The Court reduced the fine from Rs.5,000 to Rs.3,000 and partly allowed the revision petition, with the rest of the conviction upheld.

Provisions of Law Cited

Section 210 of the Kerala Panchayat Raj Act read with Rule 27 of the Kerala Panchayat Raj Act (Taxation and Appeal) Rules, 1996Section 184 of the Panchayath Raj ActRule 17 of the Kerala Panchayath Raj (Taxation, Levy and Appeal) Rules, 1996

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that the conviction and punishment suffer from serious procedural flaws, chiefly the lack of proper delegation and authority to realise the amount by distraint under Section 210. He argues that Section 184 requires a valid delegation to empower officers to execute the distraint warrant, and that there is no evidence of written authorization for PW3 or any other officer. He points to Ext.P3 (the distraint warrant) and Ext.P5–P6 (diary entries and time extensions) as not establishing a proper authorization. Citing Rule 17, he asserts that any officer executing a warrant must operate under a Secretary’s written order, which is absent. He argues that non-compliance should render the prosecution untenable and that a minute re-appreciation of evidence is unwarranted. The aim is to set aside the guilt or, at minimum, reduce the punishment if the conviction stands.

Contentions of Respondents

The respondents submit that the sanctions for distress under a Secretary’s special order in writing are valid under Rule 17, and Ext.P3 suffices to empower the officer to realise the amount. They contend there is no illegality or perversity in proceedings and that the court should not engage in minute scrutiny of the conduct of the distraint. They rely on Pudunagaram Grama Panchayat v. A Saleem (2005 KHC 1344) to support the position that the rules framed under taxation statutes permit such distraint actions, and that the trial court’s cognizance was proper.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Pudunagaram Grama Panchayat v. A Saleem and another	2005 KHC 1344	Positive	Cited to support the proposition that the Secretary’s power to realise amounts by distraint under taxation rules is valid and that the Rules provide for officer empowerment under a Secretary’s written order.

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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 K.P.JYOTHINDRANATH** **TUESDAY, THE 4TH DAY OF JULY 2017/13TH ASHADHA, 1939** **Crl.Rev.Pet.No. 151 of 2003 ( ) --------------------------------** **AGAINST THE JUDGMENT IN CRA 87/1999 of ADDL.SESSIONS COURT (ADHOC)II, THODUPUZHA** **AGAINST THE JUDGMENT IN ST 339/1997 of J.M.F.C.- I, DEVIKULAM** **REVISION PETITIONER/ACCUSED/APPELLANT:** **----------------------------------------** **S.RAMAN, HOUSE NO.1/123, KANTHALLOOR P.O., PERUMALA.** **BY ADVS.SRI.S.GOPAKUMARAN NAIR (SR.) SRI.SOORAJ T.ELENICKAL** **RESPONDENTS/STATE AND COMPLAINANT:** **------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **2. M.R.MOHANAN, SECRETARY, KANTHALLOOR GRAMA PANCHAYATH, KANTHALLOOR** **BY PUBLIC PROSECUTOR SMT.PRIYA SHANAVAS** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K.P.JYOTHINDRANATH, J.** - - - - - - - - - - - - - - - - - - - - - **Crl.R.P.No.151 OF 2003** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4[th] day of July, 2017 ## **ORDER** This criminal revision petition is filed challenging the concurrent finding of guilt by the courts below. The revision petitioner is the accused in S.T.No.339/1997 on the file of the Judicial First Class Magistrate Court, Devikulam. The complaint was filed by the Secretary, Kanthalloor Grama Panchayath, Kanthalloor. 2. The case of the prosecution was that the revision petitioner herein wilfully refused to remit Rs.86,327/- being the bid amount plus sales tax towards licence fee for removing river sand of the financial year 1996-97. Even though distraint notice was issued, it was not fruitful. Hence Panchayath filed complaint under Section 210 of the Kerala Panchayat Raj Act read with Rule 27 of the Kerala Panchayat Raj Act ( Taxation and Appeal) Rules, 1996. The trial court ordered to pay Rs.86,327/- to the Panchayat being the amount due from him and Crl.R.P.No.151/2003 2 sentenced to pay a fine of Rs. 5,000/- with default simple imprisonment for five months. The challenge in appeal was also unsuccessful. Hence this revision. 3. When the revision petition came up for hearing, main argument advanced before this Court is that Section 184 of the Panchayath Raj Act deals with the delegation of the functions of the Secretary. It is the case presented before this court that as per Section 2 10 of the Panchayath Raj Act, it is stated that “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 provided” It is the submission made before this court that as per the said proviso, it is mandate that Secretary of a village panchayath may directly recover by distraint. In this case, PW3 is the person who was examined before the court to show that warrant was tried to be executed. The submission seems to be that, it being the function of a Secretary, Section 184 compliance should be therein i.e as per Section 184 of the Panchayath Raj Act, he can delegate his function only with the permission of the President and Crl.R.P.No.151/2003 3 it can only be an order by writing to any other officer. In this case, there is no such evidence before this Court. He either obtained permission of the President or there is any written authorisation. 4. The second argument advanced before this court is that as per the evidence now before the court, it can be seen that there was articles available in the house which was not actually taken away by PW3 for realisation. If that be so, it cannot be considered as a case where distraint warrant was unsuccessful, but only a case where it was intentionally not executed. If it was intentionally not executed, complaint filed under Section 210 of the Kerala Panchayat Raj Act will be misuse of the procedure and it will not lie. 5. The next argument advanced by the learned counsel is that as per Rule 17 of the Kerala Panchayat Raj ( Taxation, Levy and appeal) Rules, 1996 it can be seen that any officer conferred with the duty to execute a warrant of distraint should be under the special order of the Secretary in writing. That aspect also missing in this case. If that be so, here is a case that all the procedures were violated and the prosecution will fail. Crl.R.P.No.151/2003 4 6. Even though notice was served on the respondents, there was no appearance before the court. Under such circumstances, the learned Public Prosecutor is appointed to act as amicus curiae. Prosecutor submitted before this court that in this case even though there was some doubt regarding the application of taxation and appeal rules framed when Section 71 which was in force, it has been cleared in the decision in **Pudunagaram Grama Panchayat v. A Saleem and another ( 2005 KHC 1344)** . There is no illegality or perversity. A re-appreciation of evidence is not warranted. 7. In this case, the Secretary, Kanthalloor Grama Panchayath is the complainant. He was examined as PW1 before the Court and he deposed that during 1996-97 financial year, the right to collect sand was auctioned and in respect of the same, an agreement was entered into which is marked as Ext.P1. As payment was not made, notice was sent. The demand notice is marked as Ext.P2. Even after receipt of notice, no payment made and according to his evidence, thereafter a distraint warrant was issued and his evidence is that it was entrusted to Sreenivasan Nair who was a Clerk and the distraint warrant is marked Crl.R.P.No.151/2003 5 as Ext.P3. The notice is marked as Ext.P4. The diary entry wherein auction was fixed in favour of the revision petitioner herein was marked as Ext.P5. His request to extent time was marked as Ext.P6. PW3 is the clerk entrusted with the said warrant. His evidence is also to the effect that it was not successful. He categorically deposed before the court that no attachable property was available in the house of the accused. 8. Surely, the main aspect argued before this court is regarding non-compliance of Section 184 of the Panchayat Raj Act. It can be seen that as per the said section it is not covering a duty under Section 210. It is the other functions of the Secretary whereas Section 210 contemplates regarding the authority to realise the amount to the Government. He is entitled to realise it by issuance of distress warrant. Rule 17 of the Kerala Panchayath Raj ( Taxation, Levy and Appeal ) makes it clear. Rule 17 states as follows : “ 17. Power of the officer conferred with duty to execute warrant - Any officer conferred with the duty to execute a warrant of distress under a special Crl.R.P.No.151/2003 6 order of the Secretary in writing, it has reason to believe that any building contains property which is liable to be seized, may,in case it is not possible to obtain entry otherwise even after informing his authority and purpose and making a proper request for entry to execute distress, open or break open any outer or inner door or window or other obstruction in such building or cause the same to be done between sunrise and sunset : Provided that such officer shall not enter or break open the door of any room apportioned for the use of women until three hours, notice of his intention has been given and an opportunity has been given to such women to withdraw.” 9. Thus, in this case it can be seen that warrant which was marked as Ext.P3 is the authorisation for the realization. The further authorization in writing is not necessary. Thus, the points raised by the learned counsel regarding the authority to realize the amount by PW3 is Crl.R.P.No.151/2003 7 found against the revision petitioner. It can be further seen that there need only a prima facie evidence before the court that the Panchayath was unsuccessful in executing the distraint warrant. A minute dissection of what all things done is not necessary to take cognizance of the complaint and proceed. The court need look only whether a distraint warrant was issued to realize the same and it was unsuccessful. If that aspect was apparent, as already stated, a minute dissection is not warranted. There is nothing to interfere with the order of the court to realize the amount due to the Panchayath. 10. The only question is that of the fine amount. The court below awarded a fine of Rs.5,000/-. It is submitted before this court that actually sand was not collected during the said period. Under such circumstances, the default occurred. Considering all the aspects, fine amount is reduced as Rs.3,000/-. With the above modification on the side of fine amount, the revision petition is partly allowed. ## **K.P.JYOTHINDRANATH JUDGE** sv.