K.C. Kuruvilla v. Ruby Disilva and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 26TH DAY OF JULY 2017/4TH SRAVANA, 1939** **Crl.Rev.Pet.No. 1163 of 2002 (C) ---------------------------------** **AGAINST THE JUDGMENT IN CRA 251/1999 of ADDL.DISTRICT COURT,KOTTAYAM DATED 05-06-2002** ## **REVISION PETITIONER/APPELLANT-ACCUSED:** **----------------------------------------** **K.C.KURUVILLA, S/O CHANDY** **KUZHIMALAYIL, BRAHMANGALAM KARA, CHEMPU VILLAGE,, BRAHMAMANGALAM P.O.** **BY ADV.SRI.S.EASWARAN ADV.SRI.AUGUSTINE M.A.** **RESPONDENTS/RESPONDENTS-COMPLAINANT:** **--------------------------------------** **1. RUBY DISILVA, SECRETARY VELLOOR GRAMA PANCHAYAT, MAVELLOOR P.O.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR.** **BY PUBLIC PROSECUTOR SMT.PRIYA SHANAVAZ R1 BY ADV. SRI.K.S.MENON** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **“CR”** ## **K.P.JYOTHINDRANATH, J.** - - - - - - - - - - - - - - - - - - - - - ## **Crl.R.P.No.1163 OF 2002** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of July, 2017 ## **ORDER** This revision petition is filed by the accused in S.T.No.663/1997 on the file of the Court of Judicial First Class Magistrate, Vaikom. He was prosecuted under Section 210 of the Kerala Panchayat Raj Act read with Kerala Panchayat (Taxation and Appeal) Rules. He was convicted and sentenced to pay arrears of Rs.3,14,111/- and warrant fee of Rs.5/- and also to pay a fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months. He challenged the judgment of conviction and direction of the Magistrate before the Sessions Court, which was also not successful. 2. The facts necessary for consideration of this revision petition is as follows : Crl.R.P.No.1163/2002 2 The right to collect and remove sand from two areas commencing from Mannukuzhi part to Thimili bridge in Moovattupuzha river which flows through Velloor Grama Panchayat for the financial year 1996-97 ( from 20/09/1996 to 31/03/1997) was auctioned and the right was given to the revision petitioner herein for the rate of Rs.1,26,000/- and for Rs.3,81,000/as per Exts.P1 and P2. The petitioner herein defaulted payment and a sum of Rs.3,40,111/- fell due. A demand notice was issued. But the revision petitioner failed to remit the same and thereafter distraint warrant was issued to recover the arrears. That was also not successful. Thereon, the revision petitioner herein was prosecuted by filing a complaint under Section 210 of the Kerala Panchayat Raj Act. The prosecution altogether examined two witnesses and Exts.P1 to P6 marked. After appreciating the evidence, the accused was directed to pay the amounts as referred above. The appeal filed was also not successful. 3. When the revision petition came up for hearing, the Crl.R.P.No.1163/2002 3 learned counsel for the revision petitioner Sri.Augustine M.A. vehemently argued before this court that here is a case where the courts below erred in passing the judgment of conviction. The appreciation of evidence by the courts below is also not correct. It is also submitted that as per the dictum laid down by this Court in **Govindankutty C.B. v. State of Kerala and others (2016 (4) KHC 555)** , it can be seen that contractual obligation or violation of the contract will not be coming under the purview of Section 210 of the Kerala Panchayat Raj Act. The essence of the submission is that when there is a contract in between a party and the Panchayat and when there is a violation and further when the liability has to be quantified, then the Panchayat will not be entitled to prosecute the defaulter under Section 210 of the Kerala Panchayat Raj Act. In **Govindankutty's** case (supra), the court considered a similar question wherein Panchayat gave the right to conduct ferry service between Chittoor and Mulampally. In respect of the same, there was an agreement with the petitioner therein and the concerned Crl.R.P.No.1163/2002 4 Panchayat similar to Exts.P1 and P2, in this case. In that case also there was default in the payment of the amount due, to the Panchayat. As in this case, when there was amount due, the Panchayat cancelled the right and reauctioned the right. Thus evaluating the facts in that case, the court came to a conclusion that the question to be considered is whether the claim for unliquidated damages or loss arising out of breach of contract between the Panchayat and the person can be recovered by the Panchayat without adjudication, invoking revenue recovery proceedings under Section 210 of the Panchayat Raj Act or Rules framed by the Government as per SRO 319/1962. 4. It is the submission that after considering all relevant aspects and further considering the dictum laid down by this Court in **Pudunagaram Grama Panchayat v. A Saleem and another ( 2005 KHC 1344)** and differentiating the facts therein, it was held that a proceeding under Section 210 of the Kerala Panchayat Raj Act is not possible. It is relevant to note that in **Pudunagaram** Crl.R.P.No.1163/2002 5 **Grama Panchayat's** case (supra), the Division Bench considered the fact that whether the amount due by giving the right to conduct the market can be enforced under Section 210 of the Kerala Panchayat Raj Act. Considering the rules framed therein, in respect of markets auctioned, the Division Bench held that, that can be proceeded under Section 210 of the Kerala Panchayat Raj Act. The distinguishing feature in this case is that such a rule is not available. When such a rule is not available, general principles alone need be looked into and when there is no specific rule regarding auctioning of right to collect the sand, then it can be only considered as an unquantified damage which cannot be executed under Section 210 of the Kerala Panchayat Raj Act. When Section 210 of the Kerala Panchayat Raj Act is not applicable, as held by this Court in **Govindan's** case (supra), then it can be held that both the lower courts erred in the judgments and the revision petition will lie and the illegality committed by the courts below has to be corrected by this Court. Crl.R.P.No.1163/2002 6 5. The learned Public Prosecutor Smt.Priya Shanavas assisted the court to dispose of the revision petition on merit. The submission made by the learned Public Prosecutor is that Section 210 of the Kerala Panchayat Raj Act is a provision incorporated in the Panchayat Raj Act for recovery of arrears of tax, cess etc. to the local Government. In this respect, when the local Government/Panchayat determines the amount payable, as long as it is not challenged before the appropriate forum, it cannot be resisted during the execution process. It is the simple submission made before this court that the procedure/prosecuting the defaulter before the Magistrate is for recovery of the dues to the Panchayat. When Panchayat issues a recovery notice, it cannot be termed as unquantified amount. When Panchayat got the right to recover the said amount by issuing the distraint warrant and sale of movable property of the defaulter, by no stretch of imagination, it can be said that prosecution under Section 210 will not lie. It is the submission that any amount payable to the Panchayat can be Crl.R.P.No.1163/2002 7 recovered by invoking Section 210 of the Kerala Panchayat Raj Act. 6. After hearing the learned counsel, I perused the records and evidence in this case. In this case, there is no dispute regarding the fact that the revision petitioner entered into Exts.P1 and P2 contract with the Panchayat. The main argument advanced before this court is as already highlighted, that Section 210 of the Kerala Panchayat Raj Act is not applicable. In this case, the right of collecting sand from the river banks which lies within the Panchayat was auctioned. 7. Section 218 of the Kerala Panchayat Raj Act reads as follows : “218: **Vesting of water course, springs, reservoirs, etc. in Village Panchayats** - (1) Notwithstanding anything contained in the Kerala Land Conservancy Act, 1957 ( 8 of 1958) or in any other law for the time being in force, all public water courses ( other than rivers passing through more areas, Crl.R.P.No.1163/2002 8 than the Panchayat area which the Government may, by notification in the Gazette, specify), the beds and banks of rivers, streams, irrigation and drainage channels, canals, lakes, back waters and water courses and all standing and flowing water, springs, reservoirs, tanks, cisterns, fountains, wells, kappus, chals, stand pipes and other water works including those used by the public to such an extent as to give a prescriptive right to their use whether existing at the commencement of this Act or afterwards made, laid or erected and whether made, laid or erected at the cost of the Panchayat or otherwise, and also any adjacent land, not being private property appertaining thereto shall stand transferred to, and vest absolutely in the Village Panchayat : Provided that nothing contained in this sub-section shall apply to any work which is, or is connected with, a work or irrigation or to any adjacent land appertaining to any such work. (2) Subject to the provisions of this Act, all rights and liabilities of the Government in relation to the water course, springs, Crl.R.P.No.1163/2002 9 reservoirs, tanks, cisterns, fountains, wells kappus, chals, stand pipes and other water works vested in the Village Panchayat under sub-section (1) shall from the date of such vesting, be the rights and liabilities of the Village Panchayat. (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), the Government may, by notification in the Gazette, assume the administration of any public source of water supply and public land adjacent and appertaining thereto after consulting the Village Panchayat and giving due regard to its objection, if any. (4) It shall not be lawful for any person to remove or appropriate for himself, any tree, earth, sand, metal, laterite, limeshell or such other articles of value as may be notified by the Village Panchayat from any land which is transferred to or vested in the Village Panchayat, under this Act, whether a poramboke or not, except under and in accordance with the terms and conditions of a permit issued by the Village Panchayat in this Crl.R.P.No.1163/2002 10 behalf and on payment of such fees and compensation at the rate determined, by the Village Panchayat.” 8. Section 171 of the Kerala Panchayat Raj Act states as ## follows : ## “171. **Vesting of community property** **or income in Village Panchayats** - Any property or income which by custom belongs to or has been administered for the benefits of, the villagers in common, or the holders in common of village land generally or of lands of a particular description or of lands under a particular source of petty irrigation shall vest in the Village Panchayat to be administered by it for the benefit of the villagers or holders aforesaid.” 9. Thus, it can be seen that the right to collect the sand in the banks or beds is the property of the Panchayat. By virtue of Section 171 read with Section 218 of the Kerala Panchayat Raj Act, the right to collect sand was auctioned by the Panchayat to the revision petitioner herein. By virtue of Section 171, it can be Crl.R.P.No.1163/2002 11 further seen that the income that can be generated from therein by custom is also vested with the Panchayat. 10. By Section 210 of the Kerala Panchayat Raj Act states as follows : ## “ **Section 210. Recovery of arrears of tax,** **cess etc.** - 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 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. It can be further seen that it embrazes not only arrears of cess, tax etc. but also “ rate”. The meaning of the word “rate” Crl.R.P.No.1163/2002 12 as given in OXFORD Disctionary is as given below : “ a fixed or appropriate charge or cost or value” 12. Thus, it can be seen that the right to collect sand was given for a value which will come under the word “ rate” given under Section 210 of the Kerala Panchayat Raj Act. It is a rate and afterwards there is default and the local Government fixed the amount due and a notice was issued. When it was under the process of recovery through criminal court, the revision petitioner cannot say that it is an unliquidated damage and as such Section 210 of the Kerala Panchayat Raj Act cannot be invoked. Surely, the grounds that can be taken in a proceeding under Article 226 or 227 of the Constitution of India is different and distinct from that of in a criminal revision petition. When the party got any dispute regarding the assessment, the party has to challenge it before the appropriate forum and not before the criminal court through which by law the amount can be recovered. A criminal court cannot look into the procedure adopted by the Panchayath to arrive at the Crl.R.P.No.1163/2002 13 amount due to the complainant. The court can only look whether prima facie the requirement to take cognizance is complied with. It is to be remembered that first there is a distraint warrant and only thereafter a proceeding under Section 210 of the Kerala Panchayat Raj Act will lie. The court will be looking only whether there was earlier distraint warrant issued and whether it became unsuccessful. When that procedure is followed, a person cannot come before the court and say that I got no liability to pay. Thus, it can be seen that there is no merit in the revision petition. Accordingly, the revision petition is dismissed. At this juncture, the learned counsel for the revision petitioner requested for some breathing time for payment of the amount due. The revision petitioner is given five months' time from the date of receipt of a copy of this judgment for making the payment. **K.P.JYOTHINDRANATH JUDGE** Crl.R.P.No.1163/2002 14 sv.