IPPAGUNTA KOTESWARI Vs. STATE OF A P

JUDGEMENT

(1.) The question arises for consideration in this petition is Whether non-payment of house-tax due to a Gram Panchayat is an offence punishable under the provisions of Andhra Pradesh Panchayat Raj Act, 1994 (for short "the Act") and the rules made thereunder and whether the Magistrate can take cognizance of the offence on the complaint so filed by the Executive Officer/Sarpanch of the Gram Panchayat, as the case may be? When the criminal petition came up for hearing before a learned single Judge of this Court, the learned Judge appears to have been felt that the matter should be decided by a Division Bench and accordingly directed the Registry after obtaining necessary orders from the Honourable Chief Justice matter be listed before a Division Bench. Therefore, the petition thus, listed before us.

(2.) Briefly stated the facts leading to filing of the petition under Section 482 Cr.P.C, are thus: The Sarpanch of Pottepalem Gram Panchayat filed a complaint under Section 70 and 72 r/w 34(2) and 41(1) of Schedule of Andhra Pradesh Gram Panchayats Act, 1964 before the Court of IV Additional Judicial First Class Magistrate, Nellore, alleging that an amount of RS.40176-90 is due from Siri Cold Storage, Pottepalem Village, Nellore Rural Mandal and District towards the house tax on assessment No.525 for the years 1999-2000, 2000-2001 and 2001-2002 Rs. 13392-30 each. A demand notice was served on the petitioner/accused on 26-11-2001 demanding the house tax due, and on failure to pay the house tax within the stipulated time, a warrant was taken on for distraining the property of the accused under Rule 84(1) of Schedule of the A.P. Gram Panchayats Act, 1964. The distraint of defaulters property was found 'impracticable. Thus, the accused willfully omitted to pay the amount of Rs.40176-90 towards house-tax and has committed offences punishable under Section 70 and 72 of the A.P. Gram Panchayats Act, 1964. On filing the above complaint, the learned Magistrate took the case on file under Sections 70 and 72 r/w Rule 34(2) and 41(1) of Schedule of the A.P. Gram Panchayat Act, 1964 and issued process. Questioning taking cognizance of the offence by the Magistrate the petitioner who is the Managing Director of Siri Cold Storage invoked the jurisdiction of this court under Sec. 482 Cr.P.C., for quashing the proceedings pending on the file of the Magistrate contending that Rule 33(1) of the Rules does not make the non-payment of the house tax due to a Gram Panchayat as an offence punishable under the provisions of the Act and rules framed thereunder, therefore the very prosecution launched has no basis. The second respondent-complainant straightway laid charge sheet purporting to it under Secs. 70 and 72 r/w Rule 34(2) and 41(1) of Schedule of the A.P.Gram Panchayat Act,1964. in the absence of any authority under which the Sarpanch himself would have investigated into the non-payment of the house tax by treating the same as an offence, the Magistrate ought not to have taken it on file.

(3.) Sri M.Ravindranath Reddy, learned counsel for the petitioner submits that in the absence of any provision which makes non-payment of house-tax to a Gram Panchayat is a penal offence under the Act or rules framed thereunder, launching prosecution by the Sarpanch is an abuse of process and taking it on file by the Magistrate is not at all sustainable. In support of his submission, the placed reliance on the judgment of this court in K.V.S.S. SAMBHU PRASAD V. E.O. GRAM PANCHAYAT CHINTHAPARRU, W.G.DIST & '2002(1) L.S.211 ANOTHER. He further contends that sub-rule (1) of Rule 26 of the Rules called Rules relating to certain taxes & other lodging of moneys received by the Gram Panchayat and payment of money from the Gram Panchayat Fund issued under G.O.Ms.No.30, PR & RD & R dt. 20-1-1995 (for short "the Rules") provides recourse to recover the amount due towards house-tax by issuing distraint warrant. Section 61 of the Act provides the manner in which house tax can be levied but does not make it penal, unlike Sec.211 which prescribes election offences. By drawing attention to the definition of "offence" under the Code of Criminal Procedure, learned Counsel would contend that unless the same is punishable under law, the Magistrate cannot take cognizance of the offence.