Sainul Abdeen v. The Secretary, Pudunagaram Grama Panchayath and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 29TH DAY OF NOVEMBER 2012/8TH AGRAHAYANA 1934** **Crl.Rev.Pet.No. 2927 of 2004 (A)** **-------------------------------CRA.303/2002 of II ADDL.D.C. & SESSIONS COURT,PALAKKAD ST.1866/1998 of J.M.F.C.,CHITTUR** **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **-----------------------------------------** **SAINUL ABDEEN, S/O.ASSAN MOHAMMED, THEKKETHIVATTARAM, PUDUNAGARAM, CHITTUR.** **BY ADVS.SRI.P.VIJAYA BHANU** **SRI.PRASUN.S SRI. SHARATH** ## **COMPLAINANT(S)/COMPLAINANT AND STATE::** **--------------------------------------** **1. THE SECRETARY, PUDUNAGARAM GRAMA PANCHAYATH.** **2. STATE OF KERALA, REP. BY THE** - **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.G.HARIHARAN, SC, PANCHAYATH BY PUBLIC PROSECUTOR SRI. ROY THOMAS** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ds** ## **N.K.BALAKRISHNAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No. 2927 OF 2004** **- - - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 29[th] day of November, 2012** ## **O R D E R** This revision is directed against the concurrent verdict of conviction and sentence passed against the petitioner for offence under section 210 of the Kerala Panchayat Raj Act. The complaint was filed by the Secretary, Pudunagaram Grama Panchayat. 2. The allegation is that an agreement was entered into between the accused and the Panchayat as per which the petitioner was authorized to collect fee from the fish market from that Panchayat. According to the complainant, the accused became a defaulter in payment of installment due to the Panchayat. Hence, revenue recovery proceedings were initiated against him. It did not fructify. Hence, attachment warrant was issued. That also bore no fruit. Revenue recovery proceedings were initiated. Pursuant to which also, recovery could not be effected. Distraint warrant Crl.R.P.No.2927/2004 -2- was issued which also was found impracticable. Hence, the complaint was filed as per the second proviso of section 210 of the Act. 3. Excluding the amounts covered by six installments which were remitted by the petitioner for which receipts were issued, the balance amount payable was Rs. 27,857/-. It includes the ground fee (Rs.25,768/-), the interest (Rs.2,075) and the notice charge and warrant fee (Rs. 14). The secretary (complainant) was examined as PW1 and the clerk, who attempted to execute the distraint warrant, was examined as PW2. Exts.P1 to P6 were marked. The learned Magistrate found that there is evidence to show that the complainant had attempted to recover the amount by distraint. The contentions raised by the accused that fee could not be collected by him and that no agreement was executed etc. were found untenable. The reason suggested by the accused for non payment of the tax was found unacceptable. Thus, the petitioner was found guilty and Crl.R.P.No.2927/2004 -3- convicted. He was sentenced to pay Rs.1,000/- as fine and also to pay Rs. 30,000/- as compensation payable to the complainant/Panchayat. 4. The appeal filed by the petitioner was dismissed by the learned Sessions Judge after reappraisal of the evidence. 5. Sri. Sarath, learned counsel for the petitioner has argued at length contending that there is no evidence to show that the distraint was impracticable. He also relied upon a decision in **Executive Officer v. Abdul Rahiman [1998 (2) KLT 343]** in support of his submission that only in case the distraint under the seal of the authority could not be executed, the Panchayat authority can seek their remedy of criminal prosecution. According to the learned counsel, in this case, though the door of the house was seen locked, PW2 did not make any further attempt to effect distraint. Thus, according to Mr. Sarath, there is no evidence to show that there was impracticability or impossibility in executing Crl.R.P.No.2927/2004 -4- the warrant. 6. The complainant is not represented by any counsel. Though the name of one advocate is seen in the cause list, that counsel has not turned up to argue the matter. I have gone through the judgments of the trial court and also of the appellate court. Besides, I have also gone through the oral evidence of Pws 1 and 2 and also the documents produced by the complainant to find whether the distraint was taken by PW2 to execute the same. There is evidence to show that the revenue recovery proceedings were earlier initiated against the accused. The amount due to the Panchayat could not be realized. 7. The contention raised by the accused before the courts below was that the accused was not liable to pay fee as shown in the complaint. It was contented that there was a civil case between the petitioner and the Panchayat but no such document was produced. That case remained in the realm of suggestion alone. Similarly, it was contended that Crl.R.P.No.2927/2004 -5- by the defence that the market was in a dilapidated condition and so the petitioner could not collect the fee so as to remit the balance installments. That also was not accepted by the courts below since, no evidence on that point was adduced. 8. Ext.P3 is the agreement. Exts. P2(b) and P2(c) the acknowledgment cards for having received demand notices issued from the Panchayat would show that the demand notices were properly sent. Since the amount due was not paid, the revenue recovery proceedings were initiated. Exts. P5 and P6 would show that amount towards two installments were paid by him. The petitioner had remitted the amount up to six installments and it was the balance amount that was due. 9. The contention that no agreement was executed by the petitioner was rightly turned down by the courts below. From the documentary and oral evidence, it is proved that the amount as shown in the complaint was due Crl.R.P.No.2927/2004 -6- from the accused. The evidence given by PW2 would clearly show that the distraint was issued by the Panchayat to recover the balance amount, but it was found impracticable and impossible since, the door of the residential house of the accused was found locked. The provisions of the Panchayat Raj Act do not empower the officer to break the lock of the residential house to take away the house hold articles for realization of the fee payable by the licensee. Therefore, the argument advanced by the learned counsel relying on the decision in **Executive Officer v. Abdul Rahiman [1998 (2) KLT 343]** is unacceptable. ## 10. Section 210 of the Panchayat Raj Act reads: “ 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 the defaulter subject to such rules as may be Crl.R.P.No.2927/2004 -7- 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.” 11. Rule 23 of Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules, 1996 deals with the levy of fees on distraint. Rule 27 deals with prosecution to be launched and the fine that can be imposed by the learned Magistrate. Rule 27 reads: ## “ **Magistrate to recover tax, warrant fee** **etc.-** (1) Any person subjected to prosecution under the second proviso to Section 210, if proved to the satisfaction of the Magistrate to have wilfully defaulted payment of the amount due or have wilfully obstructed the distraint or sufficient distraint, shall be liable to pay,- (a) the tax and warrant fee if any; and (b) the distraint fee, if distraint has taken place, the expenses, if any, incurred on account of the detention and sale of the property distrained and fine not exceeding twice the amount that is due from him. (2) Whenever any person is convicted Crl.R.P.No.2927/2004 -8- of an offence under sub-rule (1), the Magistrate shall, in addition to any fine which may be imposed, by summary disposal recover amounts, if any,due under the items specified in clauses (a) and (b) of sub-rule (1) and also recover such amounts as may be fixed by him, if any, as costs of the prosecution proceedings and pay the same to the Panchayat.” 12. It is true that the learned Magistrate did not refer to Rule 27 or section 210 of the Kerala Panchayat Raj Act. But that does not affect the concurrent verdict of conviction and sentence passed by the courts below. Rule 27(2) empowers the Magistrate to impose fine and in addition to the same order, recovery of such amount as may be fixed by him which would include the defaulted amount, the distraint fee, warrant fee, the expenses etc. Since the learned Magistrate directed recovery of Rs.30,000/- as the amount payable to the Panchayat (the amount defaulted by the petitioner as warrant fee, distraint fee etc.) and a further sum of Rs.1,000/- as fine, I find no reason to interfere with Crl.R.P.No.2927/2004 -9- the same. In the result, this Crl.R.P. is dismissed. The petitioner is granted two months time to remit the amount. **Sd/N.K.BALAKRISHNAN, JUDGE.** ds ## **//TRUE COPY//** **P.A. TO JUDGE**