Secretary, Mundakkayam Grama Panchayath v. P. C. Babu and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 19TH DAY OF FEBRUARY 2016/30TH MAGHA, 1937** **CRL.A.No. 517 of 2004 ( )** **--------------------------** **AGAINST THE JUDGMENT IN ST 2633/2000 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I,KANJIRAPPALLY DATED 07-02-2003** **APPELLANT(S)/COMPLAINANT:: ------------------------THE SECRETARY, MUNDAKKAYAM GRAMA PANCHAYAT, MUNDAKAYAM.** **BY ADV. SRI.LIJI.J.VADAKEDOM** **RESPONDENT(S)/ACCUSED & STATE::** **-------------------------------** **1. P.C. BABU, KUMPILIKKAL, RPC P.O., MUNDAKAYAM.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. N. SURESH.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.517 of 2004 ---------------------------------------------Dated this the 19[th] day of February, 2016 ## **JUDGMENT** This appeal is preferred by the complainant against the judgment in S.T.No.2633/2000 of Judicial First Class Magistrate-1, Kanjirappally u/s.210 of Kerala Panchayat Raj Act and Rule 27 of the Kerala Panchayat Raj (Taxation and Appeals) Rules 1996. The appellant's case in the trial Court is that the 1st respondent (accused) was the highest bidder in the auction conducted by the Grama Panchayat Mundakayam auctioning the right to collect fees for the use of a clock room-cum-comfort station attached to the bus stand at Mundakayam from 1/4/99 to 31/3/2000. The total bid amount was 1,30,000/- and he failed₹ to pay 32,284/- excluding electric charge, thereby committed₹ the above offence. In the circumstances, a complaint was filed in Crl. Appeal No.517/2004 2 the Judicial First Class Magistrate Court, Kanjirappally. 2. When accused appeared in the trial Court, particulars of offence were read over to him to which he pleaded not guilty. Hence, PW1 and PW2 were examined by the complainant and Exts.P1 to P5(a) were marked as documentary evidence. Exts.D1 and D1(a) were marked in support of the accused. The learned Magistrate acquitted the accused. Being aggrieved by that, the appellant preferred this appeal. 3. Heard both sides. Section 210 of the Panchayat Raj Act reads 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 recverable 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. Section 210, 232 & 236 of the Panchayat Raj Act 1994 is Crl. Appeal No.517/2004 3 corresponding to Section 74 of the Panchayat Act in the matter of default in payment of building tax due to the Panchayat or arrears 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. In such circumstances, Panchayat Secretary can directly recover the amount by distraint warrant and sale of movable properties of the defaulter subject to the rules provided. 4. Here, the allegation is that the 1st respondent was a bidder of a clock room-cum-comfort station Mundakayam Panchayat for a sum of 1,30,000/- excluding the electric₹ charge. Ext.P1 is the auction notice. Ext.P2 is the auction diary. Ext.P3 is the agreement. Ext.P4 is the demand notice. Ext.P5 is the distraint warrant issued by the Secretary and Ext.P5(a) is the report. PW1 the Secretary of the Panchayat deposed that the arrear was due to auction of Panchayat Clock room-cum-comfort station to the accused, allowing him to Crl. Appeal No.517/2004 4 collect fees from 1.4.99 to 31.3.2000. According to him, the warrant could not be executed as there was no movable property in the house of the accused. Ext.P5(a) is the endorsement made by PW2, who was the U.D. Clerk of Mundakayam Panchayat, and he was entrusted to execute the warrant. Here, the due amount is 32,284/-. The amount due₹ is in terms of an agreement between the appellant and the 1st respondent and it is not statutory due leviable as per Section 210 of the Panchayat Raj Act. The amount is due, which arises out of a contract between the appellant and the 1st respondent. 5. This Court in **Thalavoor Grama Panchayat** v. **Salim** [2004(3) KLT 835] held that “the auction amount is not specifically made mention of in the said notification. It will not come even under other sums due “under the Kerala Panchayat Act, 1960 or any other law or rules or bye-laws made thereunder.” Admittedly by the appellant, the amount is due in terms of an agreement entered into with the accused. It is not a statutory due leviable under the Panchayat Act. Crl. Appeal No.517/2004 5 Even going by the complaint itself, the amount due is out of an auction. Necessarily, it arises out of a contract. So the dues for which the prosecution is launched will not come under the purview of the said notification as well. This notification issued in terms of the Panchayat Act, 1960 cannot be said to be saved in terms of S.284(2) of the Kerala Panchayat Raj Act, 1994. This saving clause will save only those provisions in the notification or rules which are not inconsistent with the provisions of the Kerala Panchayat Raj Act, 1994. S.210 does not specifically provide prosecution for default of bid amount. Prosecution on default of bid amount, if made punishable in terms of that notification, it will be inconsistent with the Act . Rule making power is as contained in S.254 of the Panchayat Raj Act, 1994. Sub-s(i) of S.254 provides that “The Government may, by notification in the Gazettee, make rules either prospectively or retrospectively to carry out all or any purposes of this Act.” This is the general power. The rule made under this general power shall be for carrying out any of Crl. Appeal No.517/2004 6 the purpose of the Act. As already mentioned above, under S.210, the Act does not envisage prosecution for default of bid amount. Therefore, the general rule making power under S.254 does not enable to provide for prosecution to recover bid amount. Unfortunately the counsel could not point out any item under sub-r (2) of S.254 which contains particular provision enabling the Government to prescribe rules under the new Act providing for prosecution in case of default of payment of bid amount. Only if there is such provision, the notification issued under SRO No.339 dt. 13.11.1992 will be saved. Otherwise it will become inconsistent with the provisions of the Kerala Panchayat Raj Act, 1994.” Therefore, it is clear that no merit in this appeal and it is dismissed accordingly. ## **P.D. RAJAN, JUDGE.** acd Crl. Appeal No.517/2004 7 Crl. Appeal No.517/2004 8