Yoosuf s/o Hamza v. Kuttippuram Grama Panchayath and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 -----------------------------CRA.62/2007 OF SESSIONS COURT, MANJERI. ST.969/2004 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR .................... ## REVN. PETITIONER/APPELLANT/ACCUSED: YOOSUF S/O.HAMZA, KOOTTILUNGAL HOUSE, BY ADV. SRI.V.V.ASOKAN SRI.P.P.RAMACHANDRAN ## RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: KUTTIPPURAM GRAMA PANCHAYATH, 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SR. AMJAT ALI FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/09/2008, THE COURT ON THE SAME DAY PASSED THE ## **M. SASIDHARAN NAMBIAR, J.** ------------------------------------------ ## CRL.R.P. NO. 2909 OF 2008 -----------------------------------------Dated this the 16[th] day of September, 2008 ## **O R D E R** Petitioner is the accused in ST. 969 of 2004. He was convicted and sentenced to pay a fine of Rs.63,631/- and in default to undergo simple imprisonment for four months for the offence under Section 210 of Kerala Panchayat Raj Act read with Rule 27 of Kerala Panchayat Raj (Taxation and Appeal Rules), 1996. Petitioner challenged the conviction and sentence before Sessions Court, Manjery in Criminal Appeal 62 of 2007. Learned Sessions Judge, on re-appreciation of the judgment, confirmed the conviction and sentence and dismissed the appeal. This revision petition is filed under Section 397 and Section 401 of the Code of Criminal Procedure challenging the conviction and sentence. 2. The complaint was filed by the respondent, Secretary of Kuttipuram Grama Panchayat, contending that petitioner was the highest bidder in the auction conducted by Kuttipuram Panchayat for conducting bunk No.120, which was procured by the petitioner on a monthly rent of Rs.2,400/- and he kept the 2 CRRP2909/08 rent in arrears from February 2002 to January 2004 being a total of Rs.67,600/- and in addition to the arrears of rent, he is liable to pay Rs.6,000/- as penal interest and Re.1/- towards notice fee, and Rs.5/- towards warrant fees and Rs.25/- towards notice expenses. It is contended that though distress warrant was issued, the amount could not be realized and therefore petitioner is liable for conviction under Section 204 of Kerala Panchayat Raj Act. Learned Magistrate on the evidence of PW1 to 3 and Ext.P1 to P13 found that petitioner was the successful bidder and he is liable to pay a monthly rent of Rs.2,400/towards the rent of bunk No.120 and he failed to pay the rent from February 2002 to January 2004 and the Secretary had authorized PW2 the Lower Division Clerk to execute the distress warrant, who could not realize the amount as stated in Ext.P5, and therefore petitioner is liable for punishment as provided under Section 210 of Kerala Panchayat Raj Act read with Rule 27 of Kerala Panchayat Raj (Taxation and Appeal Rules), 1996. 3. The argument of the learned counsel appearing for petitioner is that under Section 210 of Kerala Panchayat Raj Act, the rent due to the Panchayat cannot be recovered under Section 210 as it relates to arrears of cess, rate, surcharge or 3 CRRP2909/08 tax imposed or fees levied under the Act and therefore the conviction of the petitioner for the offence under Section 210 is not sustainable. It was also argued that the Courts below were not justified in convicting the petitioner under Section 210, when there is no evidence to prove that the second proviso to Section 210 was complied with. It was argued that PW2 was on inimical terms with petitioner and PW2 did not execute the distress warrant and from the evidence of PW2 it cannot be said that arrears of rent cannot be recovered by distraint and therefore the conviction and sentence is not sustainable. 4. Learned public prosecutor relying on the Division Bench decision of this Court in **Puthunagaram Grama Panchayat v. A. Saleem and another (2005 (4) ILR Kerala 361)** submitted that arrears of rent can be recovered as land revenue and therefore Section 210 of Kerala Panchayat Raj Act could be invoked for realization of arrears of rent and conviction is perfectly correct. Learned public prosecutor also pointed out that evidence of PW1 and 2 establish that PW2 was authorized by PW1 to execute the distraint and second proviso to Section 210 is satisfied and therefore the conviction and sentence warrant no interference. 4 CRRP2909/08 5. Section 210 of Kerala Panchayat Raj Act reads:“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 the defaulter’s property is impracticable, the Secretary may prosecute the defaulter before a Magistrate.” True. The Section only provides for recovery of arrears of cess, rate, surcharge or tax imposed or fees levied under the Act and 5 CRRP2909/08 does not specifically provide for recovery of arrears of rent. But this aspect was settled by Division Bench of this Court in Puthunagaram Grama Panchayat’s case (supra). In that case the accused was the highest bidder in the auction held by the Panchayat to conduct the fish market and prosecution was launched as provided under Section 74 of the Panchayat Act, 1960, which is identical to Section 210 of Kerala Panchayat Raj Act. The question considered was whether Section 74 could be invoked for recovery of arrears of rent. 6. The Division Bench held: - “10. The further question would be whether the arrears of bid amount due from the accused/the highest bidder is recoverable under Sec.74 of the Old Act. Sec. 74 reads as follows: - “74. Recovery of arrears of tax, 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: 6 CRRP2909/08 Provided that the executive authority 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 the defaulter’s property is impracticable, the executive authority may prosecute the defaulters before a Magistrate.” It is true that arrears of bid amount is not expressly covered by Sec. 74 of the Old Act. But if there is any provision either in the Old Act or the Rules framed thereunder treating the arrears of bid amount as tax recoverable under the Act or the Rules, then a prosecution under Sec. 74 for realisation of the arrears of bid amount would be perfectly justified. There is no dispute that the bid amount due under Rule 5 is rent and the accused 7 CRRP2909/08 was the successful bidder in respect of the transaction in question. Therefore, the balance amount due from the accused would also be rent due from him to the Panchayat and payable in accordance with Rule 22 of the Old Market Rules. Rule 22 itself provides that in case of default of payment the amount due shall be recovered from the lessee as arrears of Panchayat tax. A combined reading of Rules 5 and 22 of the Old Market Rules will show that the status of the successful bidder to whom the above right to collect the market fees has been framed out is that of a lessee and amounts due from him answer the description of rent. [See also in this connection the decision in **In Re.Punya Shyamalo** ]. By virtue of Rule 22, in the event of any default made by the lessee the amount can be recovered from him as arrears of Panchayat tax. Arrears 8 CRRP2909/08 of Panchayat tax is recoverable under Rule 26 of the Kerala Panchayats (Taxation and Appeal) Rules, 1963, (hereinafter referred to as “the Old Taxation Rules”). Thus, by virtue of the statutory fiction rent or arrears of rent payable by a lessee who is the successful bidder in respect of a market would become converted to arrears of tax recoverable under Sec. 74 of the Kerala Panchayats Act, 1960.” In view of the Division Bench decision, the contention of the petitioner that Section 210 cannot be invoked for recovery of rent can only be rejected. 7. Though it was argued that second proviso to Section 210 was not complied with, learned Magistrate and learned Sessions Judge appreciating the evidence of PW1 and PW2 found that PW1 had authorized PW2 and PW2 had attempted to realize the amount by executing the distraint unsuccessfully and recovery of the amount by distraint is impracticable. I do not find any illegality in that finding of fact. Therefore, courts below rightly convicted the petitioner for the offence under Section 9 CRRP2909/08 210 read with Rule 27 of the Kearala Panchayat Raj (Taxation and Appeal Rules), 1996. Learned Magistrate sentenced the petitioner only to pay a fine amount which is the amount due from him and therefore the sentence also does not warrant interference. 8. Learned counsel then submitted that petitioner may be granted time to pay the fine. The arrears of rent was for the period 2002-2004. The prosecution was launched in 2004 and conviction was in 2006. Petitioner has already availed sufficient time. The revision is dismissed. Petitioner is directed to deposit the fine amount within two months from today. ## **M. SASIDHARAN NAMBIAR, JUDGE** Okb/-