K.S. Rajan vs The State of Kerala and Others

Balagangadharan Nair, J.—The short point involved in the case is whether the 2nd Respondent, which is a Panchayat has got the power to realise the arrears of rent by distraint and sale of the Petitioner''s movables. The short facts are the following : Under a bilateral deed Ext. P-1, dated 29th December 1979 the Petitioner took on rent the Rest House of the 2nd Respondent at Kumily, for a period of 3 years from 1st September 1979 to 31st August 1982 at the monthly rent of Rs. 10,500, payable on or before the 15th of every month. One of the terms of Ext. P-1 is that the arrears of rent would carry interest at the rate of 12 per cent per annum. The other terms of the engagement are not relevant. On 29th January 1981 the Executive Officer issued the Petitioner a demand notice Ext. P-2 calling upon him to pay Rs. 1,47,000 as arrears of rent from January 1980 to February 1981 with interest amounting to Rs. 11,025, notice fees of 25 Ps. and Rs. 2.90 being the cost of serving the notice within 15 days and telling him that in default his movables would be attached and sold in accordance with Section 74 of the Panchayat Act and Rules (the " Act" and " Rules"). The Petitioner seeks to set aside Ext. P-2 and to restrain the Panchayat from taking any coercive steps for recovery of the amount. He also prays to declare that u/s 74 of the Act or Rule 13 of the Rules no action can be initiated for recovery of the amount. The 2nd Respondent represented by its Executive Officer has filed a counter-affidavit denying the Petitioner''s case and asserting its right to realise the amount in terms of Ext. P-2.

Rule 6(1) of the Kerala Panchayats (Acquisition and Transfer of Immovable Properties) Rules, 1963 provides that a Panchayat may lease out any immovable property belonging to it. Rules regarding demanding amounts due to Panchayats where there is no special provision, 1962 (S.R.O. No. 319/62) reads:

All costs damages, compensation, penalties, charge, fees (other than school fees), expenses, rents, contributions and other sums which under the Kerala Panchayats Act, 1960 (Act 32 of 1960) or any other law or rules or bye-laws made thereunder are due by any person to the Panchayat, may, if there is no special provision in the Act or in the other law or in the rules or byelaws made thereunder for their recovery be demanded by bill which shall be served on the person concerned and recovered in the manner provided in the rules for the collection of taxes under the said Act.

Section 74 provides:

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 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:

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Rule 13 of the Taxation and Appeal Rules provides that where any tax due from any person is not paid on or before the due date, the Executive Authority should, before taking any steps to proceed u/s 74 serve upon him a notice of demand. It also lays down the contents of the notice. Rule 14 deals with recovery of the amount by distraint if the notice is not complied with.

The principal argument of counsel for the Petitioner is that Section 74 which is the section mentioned in Ext. P-2 has no application as it applies only to recovery of arrears of cess, rate, surcharge, tax or fees levied under the Act and as the rent under Ext. P-1 is not a liability under any of those categories, the 2nd Respondent is incompetent to invoke Section 74 or the subsidiary Rule 13. I agree that the rent reserved under Ext. P-1 is not a liability of the category mentioned in Section 74. But that is not the end of the matter. Rule 6 of the Panchayats (Acquisition and Transfer of Immovable Properties) Rules empowers the Panchayat to lease out any immovable property. The lease under Ext. P-1 is thus a lease granted under the rules framed under the Panchayat Act. The residuary rule of 1962 already extracted, empowers the Panchayat to recover inter alia rents and other sums which under the Act or any other law or rules or bye-laws made thereunder are due to the Panchayat, in the manner provided in the rules for the collection of taxes if there is no special provision in the Act, or other law or rules or bye-laws for their recovery. The rent under Ext. P-1 falls within the scope of this rule and there is no other special provision applicable. The 2nd Respondent was therefore within its competence in issuing the notice Ext. P-2 for the distraint of the Petitioner''s movables. That being so, there is no merit in the writ petition which is accordingly dismissed. In the circumstances, there will be no order as to costs.