Shyna M v Keezhallur Grama Panchayat and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.M.BABU WEDNESDAY, THE 15TH DAY OF FEBRUARY 2017/26TH MAGHA, 1938 Crl.MC.No. 1263 of 2014 --------------------------ST 634/2012 of J.M.F.C.,MATTANNUR PETITIONER(S)/ACCUSED: ---------------------------------- SHYNA.M, AGED 35 YEARS, W/O.SUJITH, RESIDING AT 'KRISHNA', KARINKALKUZHI, KOLACHERY, TALIPARAMBA TALUK, KANNUR DISTRICT-670601. BY ADVS.SRI.ABRAHAM K.JOHN SRI.P.K.BALAKRISHNAN SMT.C.G.ARUNDHATHI RESPONDENT(S)/COMPLAINANT: -------------------------- ## 1. THE KEEZHALLUR GRAMA PANCHAYAT EDAYANNUR P.O., KANNUR DISTRICT, PIN-670595, REPRESENTED BY ITS SECRETARY. ## 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031. R1 BY SRI.M.SASINDRAN R2 BY PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 1.12.2016, THE COURT ON 15-02-2017 PASSED THE FOLLOWING: Crl.MC.No. 1263 of 2014 --------------------------- ## APPENDIX ANNEXURES ----------------------- ANNEXURE A1: CERTIFIED COPY OF THE COMPLAINT FILED BY R1 BEFORE JFCM , MATTANNUR. ANNEXURE A2: PHOTOCOPY OF THE LICENSE AGREEMENT DATED 24-6-2010. ANNEXURE A3: PHOTOCOPY OF REGISTETED NOTICE DT.18-2-12 ISSUED BY R1 TO THE PETITIONER. ANNEXURE A4: PHOTOCOPY OF APPEAL MEMORANDUM FILED BY THE PETITIONER BEFORE THE DIRECTOR BOARD OF THE PANCHAYAT. ANNEXURE A5: PHOTOCOPY OF PETITION UNDER THE RIGHT TO INFORMATION ACT THROUGH ADVOCATE P.AJAYAKUMAR DT. 8-9-12. ANNEXURE A6: PHOTOCOPY COPY OF REPLY DT.19-10-2012 OF R1. ANNEXURE A7: PHOTOCOPY OF THE ORDER DT.10-10-2012 HONOURABLE OMBUDSMAN IN OP 1454/2012. //True copy// P.S to Judge ## **A.M.BABU, J.** - - - - - - - - - - - - - - - - - - - - ## Crl.M.C.1263 of 2014 - - - - - - - - - - - - - - - - Dated : 15[th] February, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.Petitioner is the accused in S.T.634/2012. It is pending in the Judicial First Class Magistrate court, Mattannur. The petitioner is prosecuted under section 210 of the Kerala Panchayat Raj Act (for short the Act) read with rule 27 of the Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules, 1996 (for short 1996 Rules). She seeks to invoke the jurisdiction of the High Court under section 482 of the Cr.P.C to quash the proceedings in S.T.634/2012. - 2.Heard the learned counsel for the parties including the learned Public Prosecutor. - 3.A room in a building belonging to the 1[st] respondent panchayat is/was in the occupation of the petitioner. Annex-A2 is a copy of the lease agreement. Rent is Rs.8,500/- per month. The panchayat issued annex-A3 notice alleging **Crl.M.C.1263/14** 2 the rent to be in arrears. The demand was Rs.94,377/-. The petitioner preferred an appeal under section 276 of the Act against annex-A3 notice. The appeal was dismissed. The petitioner then approached the Ombudsman for Local Self Government Institutions. The learned Ombudsman accepted the contention of the panchayat that the grievances of the petitioner were purely civil in nature. The learned Ombudsman as per annex-A7 order dismissed the original petition filed by the petitioner. She was directed to approach the appropriate forum. She is now before this court to get the criminal prosecution against her quashed under section 482 of the Cr.P.C. - 4.The petitioner disputes the liability to pay the amount demanded in annex-A3 notice. Her contentions go as under : The panchayat did not provide amenities such as electricity, water supply et cetera. Tiles were not fixed at the joints of the roof to prevent leak during rains. The toilet was without a door. A tap was **Crl.M.C.1263/14** 3 fitted in the toilet, but there was no water supply. The petitioner herself got the room electrified. She obtained permit from the Pollution Control Board. She erected machinery for starting a bottle manufacturing unit. But the panchayat did not issue the necessary licence. The machinery began to rust since the same could not be operated. The petitioner therefore met the secretary of the panchayat on 5.4.2011 to surrender the key of the room, but the secretary refused to receive the key. The room remains locked since 5.4.2011. The petitioner did not apply to renew the lease. But she is asked to pay rent even for the period during which she did not occupy the room. - 5.The grievances voiced by the petitioner as narrated above are matters for evidence. She may have to go for a civil suit to redress her such grievances. If such matters are in the realm of her defence in the criminal prosecution against her, she may agitate those **Crl.M.C.1263/14** 4 matters in that proceedings. The contentions of the petitioner so far considered in this order are not sufficient to quash the proceedings in S.T 634/2012. 6.Annex-A1 is the certified copy of the complaint filed by the 1[st] respondent before the learned Magistrate. The Magistrate is requested to recover an amount of Rs.94,377/- from the petitioner. The relevant provisions to be considered are section 210 of the Act and rule 27 of 1996 Rules. 7.Section 210 of the Act provides that any arrears of cess, rate, surcharge or tax imposed or fees levied under the 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. The first proviso to section 210 permits the secretary of a village panchayat to directly recover by distraint, under his warrant, and sale of movable properties of the **Crl.M.C.1263/14** **==> picture [7 x 9] intentionally omitted <==** defaulter subject to such rules as may be prescribed. The second proviso to section 210 is applicable when for any reason the distraint or a sufficient distraint of the defaulter's property is impracticable. In that event the secretary may prosecute the defaulter before a Magistrate. Thus, the secretary can prosecute the defaulter before a Magistrate only if, for any reason, the distraint or sufficient distraint of the defaulter's property is impracticable. ## 8.Rule 27 of 1996 Rules reads thus : (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 of an offence under sub-rule (1), the Magistrate shall, in addition to any fine **Crl.M.C.1263/14** 6 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. 9.The words “any person subjected to prosecution under the second proviso to section 210” used in rule 27 (1) of 1996 Rules are important. Those words indicate that rule 27 itself is applicable only if the distraint or a sufficient distraint of the defaulter's property is impracticable for any reason. The 1[st] respondent stated in annex-A1 complaint that the distraint of the property of the petitioner was impracticable. It is alleged therein that it was because the petitioner had removed the machinery and other articles of hers from the premises let out to her by the panchayat. The allegation may be true or may not be true. The correctness or otherwise of the allegation is a matter for evidence. The impracticability noted in annex-A1 complaint cannot be assessed at this stage or in a proceedings under section 482 of the Cr.P.C. Therefore the proceedings **Crl.M.C.1263/14** 7 ## against the petitioner cannot be quashed. - 10.The learned counsel for the petitioner relied on three decisions of this court. The decisions are (i) Executive Officer v. Chacko Joseph (1990 KHC 337), (ii) Executive Officer v. Abdul Rahiman (1998 KHC 373) and (iii) Chengannur Municipality v. Samuel P. Mathew (2002 KHC 496). Those decisions were rendered in appeals. This court in those cases did not accept the evidence of the prosecuting agency that the distraint was impracticable. The reported decisions are helpful to the petitioner only if the 1[st] respondent fails at the trial to prove the impracticability. The petitioner will have to wait till then. 11.The Crl.M.C is without any merit. It deserves dismissal. Dismissed. **Sd/-** **A.M.BABU Judge** Mrcs/13.2.2017