Executive Officer, Kakkodi Panchayat vs Suresh Babu and others

S. Padmanabhan, J.—These two criminal appeals came up before us on reference by one of us (Padmanabhan, J), in view of the conflicting decisions in P. A. Yoosuf v. Kumaranellor Panchayat (1973 K. L. T 145) K. S. Rajan v. State of Kerala and another (1983 K. L. T. 677), Criminal Appeal Nos. 230 and 335 of 1986 as well as Criminal Appeal No. 256 of 1984 on the question whether prosecution by a Panchayat for realisation of amounts due by way of arrears of rent belonging to it is maintainable. In both the cases, the concerned Magistrates, following the decision in Yoosuf''s case (1973 KLT 145), held that prosecution is not maintainable on the ground that what is involved is only a contractual liability, not coming within the purview of Section 74 of the Kerala Panchayats Act. Therefore, the concerned accused were acquitted on that sole ground. These two criminal appeals are by the respective Panchayats.

The decision in Yoosuf''s case (1973 K. L. T. 145) and Rajah''s case (1983 K. L. T. 677) were rendered on original petitions under Article 226 of the Constitution of India. The unreported decisions were pronounced in appeals against acquittals. The first decision followed Yoosuf''s case (1973 K. L. T. 145) and held that the prosecution is not maintainable. The decision in Rajan''s case (1983 K. L. T. 677) was distinguished. In the decision in Criminal Appeal No. 256 of 1984, Rajan''s case was followed and Yoosuf''s case (1973 K. L. T. 145) was distinguished, on the ground that the relevant provisions were not considered therein.

One of the directive principles of State policy enshrined in the Constitution in Article 40 is that the State should take steps to organise village Panchayats and endow them with such power and authority as may be necessary to enable them to function as units of self-Government. That is what the State is endeavouring to achieve by legislations and executive actions in order to enable the panchayats to materialise the values and utility cherished by the framers of the Constitution. Village panchayats throughout the country must be enabled to form worthy and workable units, capable of acting as the backbone of the democratic set up. The powers and autonomy of the village panchayats and their utility to the nation could serve their purpose only if independent resources are made easily available to them. Otherwise, their welfare activities will come to a stand-still at the peril of democracy failing. The main resource of the panchayats is revenue through various sources.

Law''s delays are well-known. Before a civil court, a mala fide litigant could delay the final decision for several years. The difficulties of a litigant really start when he obtains a decree in his favour. The cumbersome procedure in execution may sometimes keep the decree-holder at the mercy of a cantankerous judgment-debtor, who could delay execution to indefinite levels. If a village panchayat or any other local body is equated with an ordinary citizen in the enforcement of rights and left to the necessity of contesting their claims before courts of law, their very existence will be in difficulties. Therefore, in the interpretative process, courts are having the duty to have a progressive and practical outlook bearing in mind the Constitutional directives as well as the aims and objects of the legislature and the rule making bodies in their implementation.

While interpreting the relevant provisions, it is advantageous to bear in mind the policy behind them. The relevant provisions in the Kerala Panchayats Act and the Rules in this respect are intended more for recovery of amounts than for penalisation. Provision for revenue recovery is there. Prosecution is provided u/s 74 and the Rules only if realisation becomes impracticable by distraint and sale of movable properties of the defaulter. Demand notice is provided under Rule 13 of the Taxation and Appeal Rules, 1963. Distraint is provided under Rule 14 only if payment is not made or cause is not shown within the specified time. Wilful omission or wilful prevention of distraint are made conditions precedent under Rule 26. Rule 26(2) of the Taxation and Appeal Rules, 1963 says that on conviction, the magistrate shall, in addition to any fine which may be imposed, recover summarily and pay over to the panchayats the amounts, if any, due under Clauses (a) and (b) of Sub-rule (1); and may, in his discretion also recover summarily and pay such amount as costs of the prosecution. That means that the provision for revenue recovery, demand notice, distraint and prosecution are more intended as easy methods of collection of dues by the panchayats to enable their smooth functioning. These provisions are made not because the panchayat is not having the right of realisation by a suit before the civil court. As Rule 15 of the Taxation and Appeal Rules indicates, the rule making authority was conscious of the remedy by suit. These provisions are therefore, made only because of the awareness that if the panchayats are left to the necessity of the cumbersome process of civil courts including execution, it will be left without funds and the functioning will come to a stand-still. Interpretative process will have to be with this background in mind.

It is true that Section 74 of the Kerala Panchayats Act as such is applicable only for realisation of cess, rate, surcharge, tax imposed or fees levied under the Act. Rents of buildings will not come under any of these categories. Therefore, we will have to look into the other provisions also. Section 74 will have to be read along with the relevant rules.

Section 129 of the Kerala Panchayats Act authorises the Government to frame rules on many matters. They include Clauses (xii) and (xvi) of Sub-rule (2) covering acquisition of property and their transfers, including leases and realisation of rent. In exercise of that power, the Government made ''the Kerala Panchayats (Acquisition and Transfer of Immovable Property) Rules, 1963'', published in Kerala Gazette No. 6 dated 5-2-1963 as per S. R. O. No. 130 of 1963. Rule 6(1) relates to leasing out properties. Form III (a) is provided for that purpose. Rule 9 (2) allows such leases to be by public auction also. Form III (a) under the Rules provides for rent to be reserved. Therefore, rent due under the lease transaction covered by the rules is rent due under the Rule validly made. There is no merit in the contention that these rules are ultra vires of the delegated powers u/s 129. Authority is there u/s 129 (2) (xii) and (xvi). So also, there is no force in the contention that the rules regarding transfer, including leases, only regulate the transfer of property and do not cover anything more. When the rules and the prescribed form for execution of lease deeds specifically provide for realisation of rent, it was not necessary to make any other specific mention in the rules regarding rent. It is a natural corollary. Even then, Rule 9 specifically makes mention of rent. It is therefore, clear that rent due under the lease transactions provided in the said rules and form is rent due under the said rules made in exercise of the powers u/s 129.

By S. R. O. No. 319 of 1962, published in Kerala Gazette No. 45 dated 13-11-1962, the Government made ''rules regarding amounts due to panchayats where there is no special provisions'', 1962. Those rules were also made under the authority of Section 129 and are having the force of law. They 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. Rent due to the panchayats 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. For these matters, there is no other special provision. It can, therefore, be demanded and recovered in the manner provided in the rules for collection of tax under the Act. Therefore, Section 74 and the rules regarding recovery of tax under the Act are evidently applicable to recovery of those amounts also. The Taxation and Appeal Rules regarding recovery made u/s 129 read with Section 74, particularly Rules 13, 14 and 26, are therefore, applicable to recovery of rent even though it will not come directly under the provisions of Section 74. That includes the right for prosecution also and the matter is therefore, clear from the residuary rules mentioned above. It was not necessary to quote Rules 13 to 26 of the Taxation and Appeal Rules in the residuary rules or the rules relating to acquisition and transfer of immovable properties.

Neither Yoosuf''s case (1973 K. L. T 145) nor the decision in Criminal Appeal Nos. 230 and 335 of 1986 considered the Kerala Panchayats (Acquisition and Transfer, of Immovable Properties) Rules, 1963. They considered only Section 74, the residuary rules for demanding amounts due to the panchayats and Rule 26 of the Taxation and Appeal Rules 1963. That is why Yoosuf''s case (1973 K. L. T 145) said in Paragraph 4 that the amount will not come under any of the categories mentioned in the residuary rules. The unreported decisions in Criminal Appeal Nos. 230 and 335 of 1986 distinguished Rajan''s case (1983 K. L. T 677) on a wrong assumption that the decision contemplated only a case of distraint and not of prosecution. Finally the decision said that by no stretch of imagination can Rule 26 of the Taxation and Appeal Rules for prosecution be interpreted to widen the scope of the second proviso to Section 74 so as to include arrears of rent also within its ambit. The decision assumes that, even when the first proviso to Section 74 for distraint and sale is applicable, there could be a contingency in which the second proviso for prosecution cannot be applied. With due respect, it has to be said that the two provisos of Section 74 could only go together. One is supplementary to the other. Distraint and its impracticability are conditions precedent to prosecution u/s 74 as well as under the provisions of the Taxation and Appeal Rules. In cases where distraint and sale are allowed and the distraint becomes impossible under the conditions laid down, prosecution is the inevitable consequence. Where distraint is allowed, prosecution is also permissible. Residuary rules will have to be read along with the Acquisition and Transfer of Immovable Properties Rules. Then only the applicability of the rules and their enforcement on its basis in the manner provided in the rules for collection of taxes under the Act could be understood. Rajan''s case (1983 K. L. T. 677) considered the rules relating to acquisition and transfer of properties, including leases.

Ahemad Hydros v. Alwaye Municipality (A.I. R. 1951 T.C. 82) relied on in Yoosuf''s case (1973 K. L.T. 145), was rendered under the provisions of Section 365 of the Travancore District Municipalities Act. It was a prosecution for recovery of the contract amount of market cess. A. A. Gnanasikhamony Vs. Palukal Panchayat, was rendered under the provisions of the Madras Panchayats Act and Rules, in which the provisions were different. That is the case with the other decisions (Abdul Aseez Sahib v. Cvddapah Municipality - I.L.R 26 Mad 475, Punya Syamalo in re A. I. R 1924 Mad 669, and Mahab Ali Khan v. President Taluk Board, Kurnool - A. I. R 1924 Mad S98) cited in Yoosuf''s case. (1973 K. L. T. 145). None of these statutes contained any provisions similar to those in the Acquisition and Transfer of Immovable Properties Rules which are capable of bringing rent under the purview of the residuary rules so as to make it realisable in the manner provided for collection of taxes in the Act as provided in Section 74 read with the Taxation and Appeal Rules.

As laid down in Rajan''s case (1983 K. L. T. 677), Section 74 of the Kerala Panchayats Act is not the end of the matter. Acquisition and Transfer of Immovable Properties Rules, the residuary rules'' and other provisions mentioned above, including the Taxation and Appeal Rules, will have to be read together along with Section 74. The object of the provisions also will have to be kept in mind.

The object of the residuary rules is to meet the contingency of amounts due to the panchayats not being able to be demanded by a bill and recovered in the manner provided in the rules for collection of taxes under the Act on account of the absence of any special provision in the Act or in other law or in the rules or bye - laws made thereunder for recovery. To meet such a situation, it is provided that even if there is no special provision, all costs, damages, compensation, penalties, charge, fees (other than school fees), expenses, rents, contribution and other sums, which under the Act, or any, other law, or rules, or bye-laws made thereunder are due by any person to the panchayats, it may be demanded by a bill and recovered in the manner provided in the rules for, collection of taxes under the Act. The intention and object are to avoid the contingency of the panchayat being driven to the necessity of filing suits to recover any amount and enabling the special mode of recovery if it is due under any one of the above contingencies, which include amount due under any of the rules also. It was thereafter that the Kerala Panchayats (Acquisition and Transfer of Immovable Properties) Rules, 1963 was made providing for leases of immovable properties for consideration. One of its objects is evidently to make the consideration of the lease recoverable under the provisions of the residuary rules After these rules, when their objects are considered, an interpretation that rent still continues only as a contractual obligation and not one due under the rules, may not be practical and progressive. It will only defeat the purpose of the provisions. By the rules, the contractual obligation get converted into one due under the rules and recovery by distraint and prosecution is the right of the panchayat. That right will not in any way affect one who bona fide wants to make the payment or challenge the liability. On the other hand, it will enable the panchayat to have speedy remedies. Contractual obligations could be legitimately converted into statutory obligations as was done here. Courts should always accept those obligations and accelerate their enforcement. Rent is now amount due under the rules intended to be used for the purposes of the panchayat.

In these circumstances, we do not think that it will be in consonance with the intention of the rule making authority to interpret and limit the scope of Section 74 and the rules in a way to exclude recovery of rent under the Provisions of the Act and Rules. These provisions were introduced for the purpose of enabling the panchayats to recover the amounts, at their option, by the process of distraint and prosecution, without resorting to courts of law. A contrary interpretation may not be conducive to justice and the laudable principles behind the provisions. These two criminal appeals arise from cases in which the prosecutions were legitimately maintainable. The learned magistrates acquitted the accused solely on the ground that the prosecutions are not maintainable. Therefore, the cases must necessarily go back for fresh decision.

Both the criminal appeals are allowed and the acquittals are set aside. It is found that the prosecutions are maintainable. The cases are therefore, remanded to the concerned courts for trial and decision afresh on the merits in accordance with law, subject to what is stated above. The office will transmit the records forthwith.