High Court of KeralaSingle Judge2008-05-29Revision petition dismissed; conviction and sen...

Mohan s/o Kutty v. Secretary, Payyoli Grama Panchayat and State of Kerala

Case / Petition Number:Crl.R.P.No.569 of 2001

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.K. Basheer, J.
Judgment Date: 2008-05-29
Court Decision / Holding: Revision petition dismissed; conviction and sentence upheld; the accused remains liable for the fine and amounts as directed by the trial court and affirmed by the Sessions Court.
Final Disposition: Revision petition dismissed; conviction and sentence upheld.

Parties to the Case

Appellants / Petitioners

Mohan s/o Kutty

Respondents

The Secretary, Payyoli Grama Panchayat
State of Kerala, rep. by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri Sunny Mathew

Counsels for Respondents

• Sri C. Valsalan (for R1)
• Sri P.A. Salim, Public Prosecutor (for State)

Case Synopsis & Summary

Mohan s/o Kutty, the revision petitioner, was prosecuted for defaulting to remit the balance bid amount for the right to collect sand from a river bed within Payyoli Grama Panchayat limits. He had bid Rs 30,200 in an auction for sand extraction during 1993-94 but failed to deposit the remaining Rs 4,650 after demand, resulting in a total claim of Rs 5,377 including interest and costs. The Judicial Magistrate convicted him under Section 210 of the Kerala Panchayat Raj Act, 1994 and sentenced him to pay a fine of Rs 5,500, with Rs 5,377 to be paid to the complainant; in default, he would undergo three months’ simple imprisonment. The Sessions Court confirmed the conviction on appeal, and the matter reached this High Court revision petition. The petitioner argued that no offence is defined in the Act for such a default and that there were no rules enabling prosecution for non-payment of civil dues; thus civil recovery via civil process should be pursued. The High Court, drawing on three Division Bench decisions (Suresh v. Executive Officer; Pudunagaram Grama Panchayat v. Saleem; Executive Officer v. Suresh Babu), held that the rules under Section 129 of the 1960 Act (and the corresponding Section 254 of the 1994 Act) have the force of law, allowing recovery of dues by the rules for tax collection, including rents and sums due under the Act. It also noted that lease-related rent provisions and the 1963 Acquisition and Transfer of Immovable Property Rules apply. Consequently, the petitioner’s prosecution under Section 210 was valid. The revision petition was dismissed, upholding the conviction and sentence.

Provisions of Law Cited

Section 210, Kerala Panchayat Raj Act, 1994Section 129, Kerala Panchayat Act, 1960Section 254, Kerala Panchayat Raj Act, 1994Acquisition and Transfer of Immovable Property Rules, 1963Section 284, Kerala Panchayat Raj Act, 1994

Legal Doctrines & Maxims

Rules framed under Section 129/254 have the force of law.
In the absence of a specific provision, dues to a Panchayat may be recovered by a bill and as per the tax collection rules under the Act.
Rent and other sums due to Panchayats under lease or property rules can fall under these recovery rules.

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioner contends that the Act does not define an offence for non-payment of the balance bid amount, no rules exist to prosecute a defaulter, and civil recovery should be pursued through civil courts; at best, there is no lawful foundation to prosecute under Section 210.

Contentions of Respondents

Sustains the validity of recovery provisions under the Act via rules framed under Section 129/254; relies on Division Bench authority that such rules have force of law and permit recovery of dues including rents and other sums due to Panchayats; argues that default in payment of dues falls within the scope of those rules and Section 210 prosecutions are justified.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Suresh v. Executive Officer	1995 (2) KLT 75	Positive	Division Bench held that rules under Section 129/254 have the force of law and enable recovery of dues, supporting prosecution under Section 210.
Pudunagaram Grama Panchayat v. Saleem	2005 (4) KLT 415	Positive	Division Bench affirmed that rules enable recovery of dues, reinforcing the ability to prosecute under the Act.
Executive Officer v. Suresh Babu	1992 (1) KLT 291	Positive	Authority recognizing force of the recovery rules under the Act for dues payable to Panchayats.
Peravoor Grama Panchayat v. Rafi	2004 (2) KLT 1115	Overruled	Single Judge’s view in Rafi regarding non-recoverability was not upheld by the Division Bench; Rafi’s proposition not good law in light of DB decisions.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE A.K.BASHEER** **THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930** **Crl.Rev.Pet.No. 569 of 2001()** **----------------------------------------** **CRA.259/1997 of SESSIONS COURT, KOZHIKOE ST.90/1995 of JUDL.MAGISTRATE OF FIRST CLASS, PAYYOLI** **....................** ## **REVN. PETITIONER: APPELLANT/ ACCUSED** **----------------------------** **MOHAN, S/O. KUTTY, KOLLAKKUNNUMMAL HOUSE, IRINGAL AMSOM AND DESOM OF QUILANDY TALUK.** **BY ADV. SRI.SUNNY MATHEW** ## **RESPONDENTS: RESPONDENT/ COMPLAINANT AND STAT** **-----------------------** **1. THE SECRETARY, PAYYOLI GRAMA PANCHAYAT.** **2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **ADV. SRI.C.VALSALAN FOR R1 BY PUBLIC PROSECUTOR SRI.P.A.SALIM** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ORDER ON CRL.MP. NO.2736/2001 IN CRL.RP. NO.569/2001** ## **DISMISSED** ## **29.05.2008** **SD/- A.K.BASHEER, JUDGE** _**/**_ **TRUE COPY/** **P.A. TO JUDGE** ## **tss** ## **A.K.BASHEER, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.569 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of May 2008 ## **ORDER** Petitioner was prosecuted by the Secretary of Payyoli Grama Panchayat under Section 210 of the Kerala Panchayat Raj Act, 1994 on the allegation that he had failed to remit the balance bid amount for the right to collect sand from the river bed situated within the limits of the Panchayat during the year 1993-94. According to the complainant, the accused was the successful bidder for the right to remove sand from the river. The accused had bid in the auction successfully for an amount of Rs.30,200/-. He had failed to remit the balance sum of Rs.4,650/- inspite of demand and other coercive steps. The said amount swelled to Rs.5,377/- including interest, cost of notice, etc. Hence the complaint. 2. The Secretary of the Panchayat was examined as PW1 and the upper division clerk of the Panchayat was examined as PW2. Exts.P1 to P9 were marked on the side of the complainant. 3. The learned Magistrate, after considering the oral and Crl.R.P.No.569 OF 2007 :: 2 :: documentary evidence on record, found that the accused was guilty under Section 210 of the Act and accordingly he was convicted and sentenced to pay a fine of Rs.5,500/-. It was further directed that Rs.5,377/- out of the fine amount shall be paid to the complainant. In default of payment of fine, the petitioner/accused was directed to undergo simple imprisonment for three months. 4. The above order of conviction and sentence was confirmed in appeal by the Session court. Hence, this revision petition. 5. It is primarily contended by learned counsel for the petitioner that the Act does not contain any provision defining the offence as alleged by the Panchayat. It is also contended that no rules have been framed for prosecuting a defaulter, if he fails to remit the alleged dues. According to the learned counsel the alleged balance due from the petitioner being only a civil liability, the Panchayat ought to have recovered the same by due process of law through the civil court. At any rate, petitioner could not have been prosecuted under Section 210 of the Act, it is Crl.R.P.No.569 OF 2007 :: 3 :: contended. 6. But the issue raised by the petitioner has been settled by this court in at least three Division Bench judgments **Suresh v. Executive Officer (1995 (2) KLT 75), Pudunagaram Grama Panchayat v. Saleem [2005 (4) KLT 415], Executive Officer v. Suresh Babu [1992 (1) KLT 291]** . It has been held that the Rules made under the authority of Section 129 of the Panchayat Act, 1960 (corresponding to Section 254 of the new Act) are having the force of law and those rules provide that all costs, damages, compensation etc. including rents and other sums due under the Act or any other law or rules or bye-laws made thereunder, and due from any person to the Panchayats, may, if there is no special provision in the Act or Rules, etc. be demanded by a bill and recovered in the manner provided in the rules for collection of tax under the Act. It is further held that rent due to the Pnachayats under the lease transactions entered into on the basis of the provisions of the Acquisition and Transfer of Immovable Properties Rules, 1963 and the form prescribed thereunder will undoubtedly come under the said rules. Crl.R.P.No.569 OF 2007 :: 4 :: 7. The Division Bench in **Pudunagaram Grama Panchayat (supra)** followed the decision of the Division Bench in **Executive Officer v. Suresh Babu [1992 (1) KLT 291]** . It was noticed by the Division Bench that in view of the provisions contained in Section 284 of the New Act, the rules framed in Kerala Panchayats (Acquisition and Transfer of Immovable Property, 1963) enabling recovery of arrears of rent, even in the absence of any corresponding rule or provision enabling such recovery under the new Act, was perfectly valid. The Division Bench held that the view taken by the learned Single Judge in **Peravoor Grama Panchayat v. Rafi [2004 (2) KLT 1115]** was not good law. 8. In this context, it may be noticed that the learned Single Judge in **Rafi's case (supra)** had held that the rent payable in terms of an agreement executed between the parties cannot be recovered in the absence of rules framed under Section 254 of the Act. It was also held that the defaulter cannot be prosecuted under Section 210 of the Act in the absence of any rule framed under Section 254. In view of the dicta laid down in the three Crl.R.P.No.569 OF 2007 :: 5 :: Division Bench judgments mentioned above, I am afraid that the contention raised by the petitioner cannot be accepted. The dues payable by the petitioner will squarely come under the rules referred to above. Petitioner having committed default in payment of the dues, was liable to be prosecuted under Section 210 of the Act. Therefore, in my view, the courts below were justified in holding the petitioner guilty. There is no merit in the revision petition. It is accordingly dismissed. **(A.K.BASHEER, JUDGE)** jes Crl.R.P.No.569 OF 2007 :: 6 :: **A.K.BASHEER, J.** - - - - - - - - - - - - - - - - - - - - - - - **Crl.R.P.No.569 OF 2001** - - - - - - - - - - - - - - - - - - - - - - - **ORDER** **Dated 29[th] May 2008**