Padmalayam Suresh vs Executive Officer and Others

M.M. Pareed Pillay, C.J.—Appellant filed O.P. 5625 of 1994 challenging launching of prosecution against him u/s 74 of the Kerala Panchayats Act. Appellant was the successful bidder in the auction during 1992-1993 to remove sand from Kallada river in Thenmala Panchayat (first respondent). He remitted Rs. 30,004/-. He had to remit balance amount of Rs. 31,155.55. As he failed to remit the same, first respondent lodged complaint before the Magistrate''s Court, Punalur u/s 74 of the Act. Challenge in the Original Petition is that the complaint lodged against the petitioner (appellant) cannot be maintained as the amount due to the Panchayat would not come within the purview of Section 74 of the Act. The question that arises for consideration is whether for the amount due to the Panchayat from the appellant he having been allowed the right to collect sand from the river can be prosecuted as a defaulter before a magistrate Contention of the appellant is that the amount due from him will not come within the category of arrear of cess, rate, surcharge or tax imposed or fees levied under the Act and therefore Section 74 cannot be invoked. Counsel contended that the amount due from the appellant to the Panchayat is entirely different from what has been mentioned u/s 74 and so prosecution launched against him does not have any legal basis.

Learned counsel for the first respondent invited our attention to the specific rule regarding demanding amounts due to Panchayats where there is no special provision. The rule 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 bye-laws made thereunder for their recovery be demanded by bill which shall be served on the person concerned and recovered in the mariner provided in the rules for the collection of taxes under the said Act.

The above rule was published in the Kerala Gazette dated 13-11-1962 (SRO. No. 319/62). From the above rule it can be seen that amount due to Panchayat which does not come within the categories specifically mentioned u/s 74 can be recovered in the manner provided for the collection of taxes under the Act. Thus amount due to the Panchayat even though it does not come within, the category of arrear of cess, rate, surcharge or tax or fees levied under the Act can also be recovered in the manner provided in the rules for the collection of taxes under the Act. In other words, the amount due to the Panchayat though not coming within the categories mentioned u/s 74 can also be collected in the manner provided under the Act. Moreover, the rule mentioned above was made under the authority of Section 129 (xvi) and hence it cannot be denied the force of law. Contention of the appellant that amount due from him to the Panchayat is on the basis of a contract entered into between him and the Panchayat and therefore latter can have recourse only to the civil court for realisation of the amount and criminal complaint cannot be lodged against him u/s 74 of the Act is not tenable. The rule has been enacted to obviate the contingency of the Panchayats being driven to the necessity of filing suits to recover amount due to them as a special mode of recovery.

Counsel for the appellant submitted that the appellant had filed Ext. P-5 series representations before the Panchayat and that they were not considered so far. Counsel for the first respondent pointed out that the appellant has filed Ext. R-1(b) representation agreeing to pay the amount in instalments and therefore the belated attempt to circumvent the payment cannot be countenanced. We make it clear that it is open to the appellant to raise all his contentions before the criminal court.

We see no merit in the writ appeal. The writ appeal is dismissed.