P.P. Abdul Rahiman v. Special Grade Grama Panchayat, Pattambi & State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **MONDAY, THE 28TH DAY OF MAY 2018 / 7TH JYAISHTA, 1940** **Crl.Rev.Pet.No. 2970 of 2004** **------------------------------------------** **AGAINST THE JUDGMENT IN CRA 11/2001 of ADDITIONAL SESSIONS COURT (ADHOC)-I, PALAKKAD DATED 28-09-2004** **AGAINST THE JUDGMENT IN ST 1889/1998 of J.M.F.C., PATTAMBI DATED 11-12-2000** **REVISION PETITIONER/APPELLANT/ACCUSED :-** **-----------------------------------------** **P.P.ABDUL RAHIMAN, S/O.LATE SAIDALI, AGED 48 YEARS, PANTHAPALAKKAL VEEDU, POST KUDALLUR, PALAKKAD DISTRICT.** **BY ADV SRI.R.SREEHARI** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE :-** **-----------------------------------------------** **1. SPECIAL GRADE GRAMA PANCHAYAT, PATTAMBI REPRESENTED BY ITS SECRETARY, PATTAMBI, PALAKKAD DIST.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SR.PUBLIC PROSECUTOR, SRI. C.M.KAMMAPPU** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-05-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rkj** ## **P.UBAID, J.** ================================ ## **Crl.R.P.No.2970 of 2004** ================================ Dated this the 28[th] day of May, 2018 ## **ORDER** The revision petitioner herein challenges the conviction and sentence against him under Section 210 of the Kerala Panchayat Raj Act (the Act) read with Rule 27 of the Kerala Panchayat Raj (Taxation, Levy and and Appeal) Rules, 1996 (the Rules) in S.T.No.1889 of 1998 of the Judicial First Class Magistrate's Court, Pattambi. He had obtained the right to collect user fee from the Pattambi but stand for the period from 01.04.1997 to 31.03.1998, for an amount of Rs.4,85,110/-, in an auction conducted by the Panchayat. The said right was obtained by him under a contract between him and the Panchayat. For a few months, he remitted the fee promptly, as provided under the contract, but later he committed default. Thus, an amount of Rs.2,02,128/- fell due as arrear from him. When steps for realisation including distress failed, the Panchayat brought prosecution under the proviso to Section 210 of the Act before the trial court, claiming a total amount of Rs.2,17,312.70 inclusive of interest on the amount due. Crl.R.P.No.2970 of 2004 2 2. The accused appeared before the learned Magistrate, and pleaded not guilty when the substance of the accusation was read over and explained to him. He disputed the liability alleged by the prosecution, and contended that the amount as claimed by the Panchayath is not due from him. Three witnesses were examined on the side of the Panchayath during trial, and Exts.P1 to P6 documents were proved. When examined under Section 313 Cr.P.C. also, the accused denied and disputed the prosecution case, and maintained a definite stand that the amount cannot be claimed by way of prosecution under Section 210 of the Act. The accused did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found that the amount as claimed by the Panchayat is due from the accused. Accordingly, he was sentenced to pay an amount of Rs.2,17,313/- by way of license fee due from him with interest, and he was also sentenced to pay a fine of Rs.2,000/-. 3. Aggrieved by the judgment of conviction dated 11.12.2000, the accused approached the Court of Session, Palakkad with Crl.Appeal No.11 of 2001. In appeal, the learned Additional Sessions Judge, Adhoc-I, Palakkad confirmed the finding of the trial court, and the sentence Crl.R.P.No.2970 of 2004 3 including the direction to pay the amount claimed by the Panchayat, by judgment dated 28.09.2004. Now the accused is before this Court in revision, challenging the legality and propriety of the sentence imposed by the courts below. 4. When this revision came up for hearing, the learned counsel for the revision petitioner submitted that the amount allegedly due from the revision petitioner under a contract cannot be recovered by the Panchayat by recourse to a prosecution as authorised under the proviso to Section 210 of the Act because, it is not the tax or cess or fee as meant under the law, that can be recovered by recourse to a prosecution, and that if at all, any amount is due from the accused under the contract executed by him, the Panchayath will have to proceed in civil action, and realise the amount by filing a civil suit. The learned counsel cited a decision of this Court in **Thalavoor Grama Panchayat v. Salim [2004(3) KLT 835],** and also an unreported judgment of this Court dated 30.07.2015 in Crl.Appeal No.695 of 2003. Crl.Appeal No.695 of 2003 is also a case involving identical facts and the accused therein is also the revision petitioner herein. In the said case brought by the Valanchery Grama Panchayath under Section 210 of the Act, he was acquitted by the trial court, and the appeal brought by the Panchayath against the Crl.R.P.No.2970 of 2004 4 ## judgment of acquittal was dismissed by this Court. 5. Section 210 of the Act runs as follows:- ## _**"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 pubic 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."_ 6. The proviso to Section 210 of the Act that authorises prosecution for the recovery of fee, tax, cess, surcharge etc due to the Panchayath, and such dues can be recovered as an arrear of public revenue under the law relating to the recovery of arrears of public revenue. If such recovery procedure failed for any reason, or if distraint of a defaulter's property is impracticable, the Secretary of the Panchayath concerned may prosecute the defaulter before a Magistrate. Section 241 of the Act prescribes the procedure for the enforcement of the provisions of the Act including realisation of fee and other dues. Section 254 of the Act empowers the Government to make rules prospectively or Crl.R.P.No.2970 of 2004 5 retrospectively, by notification in the official gazette, to carry out all or any purposes of the Act. The different subjects on which such rules can be made by the Government are enumerated in Sub Section (2) of Section 254 of the Act. Clause (iv) of Sub Section (2) refers to realisation of any tax or other sum due to a Village Panchayath under the Act, or any other law, or any rules, or bye-laws, by distraint and sale of movable property, or by prosecution before a Magistrate, or by a suit or otherwise. The things or subjects covered by the said clause are tax or other sum due under the Act or any other law or any rules or bye-laws. Amount due under a contract between the Panchayath and an individual is not covered by the said clause (iv) as a subject. 7. In Thalavoor Grama Panchayat's case (cited Supra), this Court held that the amount due under a contract is not a statutory due leviable under the Act because, it is a contractual liability, and that a prosecution as provided under the proviso to Section 210 of the Act is not maintainable. A Division Bench decision of this Court in **Suresh v. Executive Officer [1995(2) KLT 75]** was brought to the notice of the Court during the proceedings in Thalavoor Grama Panchayath's case. But the said decision was distinguished by the learned Single Judge on valid grounds. In Suresh's case Crl.R.P.No.2970 of 2004 6 which arose under the former Kerala Panchayaths Act, 1960, the Division Bench held that rent or other amount due under contracts can also be realised by the Panchayath by recourse to prosecution proceedings as authorised under the Rules made by the Government under Section 129(xv) of the Kerala Panchayath Act. There is no such rule under the present Panchayat Raj Act, and the Government has not made such a rule in exercise of the powers under Section 254 of the Act. The Clause (iv) of Sub Section (2) of Section 254 of the Act covers only the amount of tax etc due under the Act or the Rules framed under the Act. 8. A reading of the first part of Section 210 of the Act will show that what is authorised under Section 210 of the Act is realisation or recovery of arrear of cess, rate, surcharge, tax etc due under the Panchayat Raj Act, and the prosecution authorised before a Magistrate by the proviso is for the realisation of such amount due from a person under the Act or the Rules framed thereunder. 9. No doubt, the amount due from the revision petitioner is the amount due under a contract in between him and the Panchayat. In short, the liability is contractual liability, and not a statutory liability. What is enforceable under Section 210 of the Act, read with Rule 27 of “the Crl.R.P.No.2970 of 2004 7 Rules”, and also Section 254(2)(iv) of the Act is the liability or dues under the Panchayat Raj Act or the Rules framed thereunder or the bye-laws. Contractual liability, or liability to pay rent or fee under a contract is not covered by Section 210 of the Act or the Rules framed thereunder. 10. There is no rule under the present Act authorising realisation of rent or fee or other sum due under contract, in the manner provided for the realisation of tax and other dues. In fact, such a subject is not even covered by Clause (iv), or any other Clause of Sub Section (2) of Section 254 of the Panchayath Raj Act. In short, what can be realised under Section 210 of the Act is only fee or tax or surcharge or other dues payable or due under the Panchayath Raj Act or the Rules framed thereunder, or the bye-law authorised by the Act or the Rules. In short, it must be a statutory liability. Liability under a contract cannot be said to be a statutory liability. When a contractual liability is disputed or denied and the nature of the liability is civil, the actual liability must be assessed and adjudged by the competent civil court. The liability becomes enforceable only when the liability is assessed and adjudged by the competent forum. 11. Rule 27 of the Rules framed by the Government under Sections 210 and 241 of the Act Crl.R.P.No.2970 of 2004 8 authorises the Magistrates concerned to grant the amount of tax, warrant fee, distraint fee, expenses if any, etc due from the accused under the law. There also the amount meant is the amount statutorily due from him under the Act or the Rules or the bye-laws. In the result, the revision petition is allowed. The revision petitioner herein is not found guilty of the offence under Section 210 of the Kerala Panchayat Raj Act (the Act) read with Rule 27 of the Kerala Panchayat Raj (Taxation, Levy and and Appeal) Rules, 1996, and he is acquitted of the said offence in revision. Accordingly, the judgment of conviction against the revision petitioner in S.T.No.1889 of 1998 of the Judicial First Class Magistrate's Court, Pattambi, confirmed in appeal by the Court of Session, Palakkad in Crl.Appeal No.11 of 2001 will stand set aside, and the revision petitioner will stand released from prosecution. Sd/- rkj **P.UBAID, JUDGE**