B. Musthafa v. IriKoor Grama Panchayath & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 21ST DAY OF FEBRUARY 2012/2ND PHALGUNA 1933** ## **Crl.Rev.Pet.No. 44 of 2012 ( )** **-----------------------------CRA.6/2003 of ADDL. SESSIONS COURT (ADHOC I), THALASSERY STC.1281/2000 of JUDICIAL FIRST CLASS MAGISTRATE COURT II, KANNUR** **.......** **REVISION PETITIONER(S):APPELLANT/ACCUSED:** **---------------------------------------------------------------------------** **B.MUSTHAFA,S/O.AHAMMED KUTTY, NARATH, TALIPARAMBA.** **BY ADVS.SRI.P.M.PAREETH SRI.MOHAMMED SHAMEEL** ## **RESPONDENTS/RESPONDENT/COMPLAINANT(S):** **---------------------------------------------------------------------------** ## **1. IRIKOOR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,** **HIGH COURT OF KERALA, ERNAKULAM - 31.** **R1 BY ADV.SRI.P.NARAYANAN** **R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **CRRP.NO.44/2012** ## **APPENDIX** ## **PETITIONERS' ANNEXURE:** **ANNEX.A1: COPY OF THE MEDICAL CERTIFICATE DTD. 21/11/11 ISSUED BY DR. R.NAJASRINU, R.M.O., K.L.I.C. HOSPITAL, KAMBIL. RESPONDENT'S ANNEXURES: N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **P.BHAVADASAN, J.** ---------------------------------------------------Cr.RP No.44 of 2012-A ---------------------------------------------------Dated this the 21[st] day of February 2012 ## Order Under challenge is the concurrent findings of the courts below that the petitioner is liable to be prosecuted for the offence punishable under Section 210 of the Kerala Panchayat Raj Act read Rule 27 of the Kerala Panchayat Raj (Taxation and Appeal) Rules, 1996, for having failed to remit a portion of the licence fee payable by him. He was convicted and sentenced to pay a fine of Rs.2,000/- and also to pay Rs.1,23,312/towards the licence fee payable to the panchayat and in default, to undergo simple imprisonment for a period of two months. In appeal, the sentence was partly modified. The appellant was directed to pay a sum of Rs.1,02,790/- and in all other respects, the sentence passed by the trial court was confirmed. Cr.RP 44/12 2 2. It is not in dispute that the petitioner was the highest bidder for collection of sand from the river extending from Vattakkunnu to Chedicheri for the year 1999-2000, in an auction conducted by the panchayat. He bid for a total amount of Rs.1,88,100/-. Out of the said amount, Rs.94,050/- was paid by him, but he failed to remit the balance amount of Rs.94,050/-. The attempt of the panchayat to realise the defaulted amount by way of distress proceedings failed to achieve its purpose and therefore, a complaint was filed. 3. Cognizance of the offence was taken by the trial court. On appearance of the accused, the necessary formalities were complied with. The particulars of the offence were read over to the accused to which he pleaded not guilty and claimed to be tried. The complainant, therefore, examined Pws 1 to 5 and had Exts.P1 to P5. After close of the complainant's 3 Cr.RP 44/12 evidence, the accused was questioned under Section 313 of Cr.P.C. He admitted that he had obtained the licence for collecting sand from the river extending from Vattakkunnu to Chedicheri for the year 1999-2000. He also admitted that he committed default in paying the licence fee of Rs.94,050/-. The accused further admitted that the licence fee payable by him was Rs.1,88,100/- and that the auction was conducted on 20.04.1999. He further admitted that since the accused was the highest bidder, the panchayat issued the licence in his favour and he was intimated about the same. His contention was that Ext.P1 is not the original agreement and the earlier agreement has not been produced. Further, the accused took the stand that the could not collect sand for the relevant period as he could not receive permission from the Mining and Geology Department for the same. He also contended 4 Cr.RP 44/12 that he had not obtained notice from the panchayat regarding issue of distress warrant against him. However, the accused chose to adduce no evidence. 4. Both the courts below, on an appreciation of the evidence in the case, came to the conclusion that there was default on the part of the accused to pay the amount as demanded by the panchayat and there was no justifiable reason for him not to do so. The reasons urged by him for non-payment of the balance amount of licence fee were found to be untenable and accordingly, he was found guilty of the above said offence. Therefore, he was convicted and sentenced as already mentioned. 5. In this revision petition, the learned counsel for the revision petitioner raised the following points : - 1)The notification regarding the auction was not produced. 5 Cr.RP 44/12 2)The earlier agreement to Ext.P1 was not produced. 3)Going by Rule 27 of the Kerala Panchayat Raj ((Taxation and Appeal) Rules 1996, unless it is found that the petitioner has wilfully defaulted to pay the amount, he cannot be found to be guilty. 4)He was not given any registered notice by the panchayat regarding issue of distress warrant against him. Apart from the fact that none of the above contentions is tenable, there is no such plea in the memorandum of revision petition. The court below also repelled the contention raised by the revision petitioner that the panchayat cannot resort to prosecution under S.210 of the Panchayat Raj Act to realise the amount. 6. In order to ensure that no illegality or impropriety has been committed by the courts below, the judgments of both the courts below were perused. Cr.RP 44/12 6 Even though the accused had a case that there was an earlier agreement prior to Ext.P1 and that was not adduced before court. Both the courts below have found that distress proceedings were initiated against the accused and he was also issued with notice. That is a finding of fact based on evidence in the case. It is not shown to be erroneous or perverse. In the light of the fact that the accused refused to receive notice, it follows that he has defaulted in payment of the balance licence fee payable by him. Both the courts below have considered all the aspects in considerable detail and have come to the conclusion that the accused has defaulted in making payment of the amount due to the panchayat. Being a finding of fact, that does not call for interference under the revisional jurisdiction. 7. The learned counsel relied on the decision in **Anandan.K. v. State of Kerala** (2009(4) KLT 1002) Cr.RP 44/12 7 wherein it is held as follows : “15. The reliance placed by the learned Government Pleader as well as the learned counsel for the 6[th] respondent (in the case filed by the secured creditor) on **Suresh v. Executive Officer** (1995 (2) KLT 75), appears to be rather misconceived. Referring to the relevant provision of the “Act” as it existed earlier, it was made clear by the Division Bench therein that the amount due to the panchayat though will not come within the category as mentioned in Section 74, ti can be collected in the manner as provided under the Act. The above observation itself shows that the amount due to the panchayat will not come within the category of Section 74. That apart, what is provided is only the ' Cr.RP 44/12 8 application' of the mode of recovery and procedure, invoking the provisions under the Kerala Revenue Recovery Act, which will not transform the so called 'dues' as 'public revenue due to land'. This is more so, when the alleged extent of liability of the 6[th] respondent yet to be fixed. In view of the undisputed fact that no quantification was ever made with notice to the petitioner and that the Revenue Recovery proceedings initiated against the said respondent (who is the petitioner in WP(C) No.34242/2006) as per Exts.P3 and P4 have already been set aside by this court in the foregoing paragraphs.” Based on the above decision, it is contended that S.210 cannot be made applicable to the facts of this case. Cr.RP 44/12 9 ## 8. In the decision in **Pudunagaram Grama Panchayat v. Saleem** (2005(4) KLT 415), it has been held as follows : 18. In _Peravoor Grama Panchayat v. Rafi_ 2004 (2) KLT 1150 (supra) a learned single Judge of this Court was confronted with the question as to whether the rent payable in terms of the agreement executed between the defaulter and the Panchayat could be levied by recourse to S.210 of the New Act which corresponds to S.74 of the Old Act. On the view that there was no provision in the New Act enabling the Government to make rules corresponding to Clauses (xxii) and (xvi) of sub-s.2 of S.129 of the Old Act, the learned Judge was of the view that such amounts were not recoverable by resort to S.210 of the New Act. The decision of the Division Bench reported in _Suresh Babu’s_ case Cr.RP 44/12 10 was distinguished on the ground that, that decision was rendered for recovery of the amounts due under the Kerala Panchayaths (Acquisition and Transfer of Immovable Property) Rules, 1963 enabling the leasing out of the property of the Panchayat and recovery of arrears of rent whereas there was no corresponding rule or provision enabling the recovery of the amounts in question under the New Act. With due respect, we find that as a matter of fact there is a corresponding provision in Clause (xxxvii) of sub S.2 of S.254 of the New Act which is in _pari materia_ with clause (xvi) of sub-s.2 of S.129 of the Old Act. This enabling provision was not brought to the notice of the learned Single Judge who decided _Peravoor Grama Panchayat’s_ case. It is true that in exercise of the enabling provision referred to above and corresponding to the Kerala Cr.RP 44/12 11 Panchayats (Acquisition and Transfer of Immovable Property) Rules, 1963 rules have not yet been framed under the New Act. But by virtue of the saving provisions under S.284 of the New Act the aforesaid Rules of 1963 framed under the Old Act will continue to hold the field until the New Rules are framed by the State Government. In _**Thalavoor Grama Panchayat v. Salim**_ (supra), the question arose before the very same learned Judge who decided _Peravoor Panchayat’s_ case as to whether the bid amount in respect of a meat stall due to the Panchayat could be recovered by resort to S.210 of the New Act. The substantive provision in the New Act pertaining to the meat stall is S.229. Clause (xvi) of sub-s.2 of S.254 of the New Act is the enabling provision which gives power to the State Government to frame Rules in respect of Cr.RP 44/12 12 slaughter houses and meat stalls. In exercise of the said power the Kerala Panchayat Raj (Slaughter Houses and Meat Stalls) Rules, 1996 have been issued and which have come into force with effect from 16-7-2002. Until 16-7-2002 it was the corresponding Rule namely, The Kerala Panchayats (Slaughter Houses and Meat Stalls) Rules, 1964 issued in exercise of the power under clause (xxvii) of sub s.2 of S.129 of the Old Act that was in force. The substantive provision in the Old Act pertaining to slaughter houses and meat stalls is to be located under Ss.93 to 95 of the Old Act. Thus, it was without noticing these aspects of the matter that the learned Single Judge decided _Thalavoor Grama Panchayath’s_ case holding _inter-alia_ that the amounts due to the Panchayat was not a statutory due leviable under the New Act but was one arising under a contract and not Cr.RP 44/12 13 - recoverable by resort to S.210 of the New Act. In - fact, the said view taken by the learned Single Judge is in consonance with the decision of the Madras High Court in _In Re Punya’s_ case and _Mohabab Alli’s_ case which were specifically dissented from by the Division Bench in _Suresh Babu’s_ case. What has been disapproved has been resurrected. With due respect, we find ourselves unable to agree with the ratio in _Peravoor Grama Panchayat’s_ case and _Thalavoor Grama Panchayat’s_ case rendered without noticing the existence of the rules framed under the Old Act as well as the enabling provision in the New Act coupled with the subsequent framing of rules also under the New Act.” Apart from the fact that there is only a passing reference to Section 210 of the Kerala Panchayat Raj Act, the Division Cr.RP 44/12 14 Bench decision in **Pudunagaram Grama Panchayat v. Saleem** (supra) is not seen referred to in the decision in **Anandan.K. v. State of Kerala** (supra). In the light of the principle contained in the decision in **Pudunagaram Grama Panchayat v. Saleem** (supra), it is very clear that the panchayat is empowered to realise the balance licence fee invoking Section 210 of the Kerala Panchayat Raj Act. The result is that this revision petition is devoid of any merits and it is liable to be dismissed. I do so. ## **P.Bhavadasan, Judge** sta Cr.RP 44/12 15