Kerala High Court
Thalavoor Grama Panchayat vs Salim on 12 August, 2004
Equivalent citations: 2004(3)KLT835
Author: K.A. Abdul Gafoor
Bench: K.A. Abdul Gafoor
JUDGMENT K.A. Abdul Gafoor, J.
1. Secretary of a Panchayat, when the prosecution initiated by him failed, has approached this Court with this appeal. The prosecution initiated by the appellant was because of the default made by the first respondent in not remitting a portion of the bid amount to occupy a meat stall owned by the Panchayat for a particular year. The learned Magistrate found that the Panchayat has not substantiated that the first respondent has committed any offence punishable under Section 210 of the Panchayat Raj Act, 1994, as the Panchayat had not provided the slaughter house facilities and did not even produce the agreement from which the liability to pay the bid amount arises.
2. Assailing the acquittal, it is submitted that, existence of the agreement was admitted by the accused in his statement under Section 313 Cr.P.C. It is submitted that, the notification issued in terms of erstwhile Panchayat Act and the Rules framed there under have been saved in terms of Section 284 (2)(i) of the Kerala Panchayat Raj Act, 1994. Therefore the prosecution was permissible. When the agreement is admitted and no evidence has been produced for payment of the entire amount in terms of the agreement and as the appellant/complainant had substantiated that the distraint could not be successfully taken, the prosecution was maintainable. There is evidence that the accused had committed the offence punishable under Section 210. Section 210 of the Panchayat Raj Act, 1994 provides that:
"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 a defaulter's property is impracticable, the Secretary may prosecute the defaulter before a Magistrate".
It is invoking the power under second proviso of Section 210, the prosecution had been initiated. Necessarily, it can be for recovery of any of the items specifically made mention of under Section 210.
3. The counsel for the appellant submits that the bid amount will come under the rates, made mention of in Section 210. It is impossible to accept this contention because the specific case put forward before the Court below was the default in payment of auction amount. Necessarily, the auction amount will not come under the rates. So, in terms of Section 210 no prosecution can be launched against an incumbent for default of the auction amount. It is submitted that Government of Kerala had issued a notification S.R.O.No. 319/62 in Kerala Gazette dated 13.11.1962 to the following effect.
"All costs, damages, compensation, penalties, charges, 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 manner provided in the rules for the collection of taxes under the said Act".
This enables the Panchayat to initiate prosecution.
4. I am unable to accept this contention as well because 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 there under". 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. 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.
5. This contention cannot be accepted on another count as well. This notification issued in terms of the Panchayat Act, 1960 cannot be said to be saved in terms of Section 284(2) of the Kerala Panchayat Raj Act, 1994. The said provision reads as under:
"Section 284(2):- With effect on, and from the appointed day the Kerala Panchayat Act, 1960 (32 of 1960), the Kerala District Administration Act, 1979 (7 of 1980) and also the provisions relating to Panchayats contained in the Kerala Local Authorities (Constitution and Preparation of Electoral Rolls) Act, 1994 (4 of 1994) shall stand repealed and the following consequences shall ensue, that is to say............
XXX XXX XXX XXX
(i):-- any appointment notification, notice, tax, fee, order, scheme, licence, permission, rule, bye-law, regulation or form made, issued, imposed or granted in respect of the Panchayat area of existing Panchayat under the Kerala Panchayat Act, 1960 and in force immediately before the appointed day shall, in so far as it is not inconsistent with the provisions of this Act continue to be in force as if made, issued, imposed or granted in respect of the corresponding panchayat are of a successor Panchayat under this Act until superseded or modified by any appointment, notification, notice, tax, fee, order, scheme, licence, permission, rule, bye-law, regulation or form made, issued, imposed, or granted under this Act".
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. Section 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.
6. It is true that in the Division Bench decision reported in Suresh v. Executive Officer, 1995 (2) KLT 75, it has been held that a prosecution can be launched if the rules enable such prosecution, even in the absence of enablement of prosecution under any of the items made mention of in Section 74 of the Kerala Panchayat Act (now repealed). Therefore, even if there is no specific provision regarding prosecution for defaulted bid amount in Section 210, because of the said rule, prosecution can be launched, it is submitted.
7. Rule making power is as contained in Section 254 of the Panchayat Raj Act, 1994. Sub-section (i) of Section 254 provides that:
"The Government may, by notification in the Gazette, 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 the purpose of the Act. As already mentioned above, under Section 210, the Act does not envisage prosecution for default of bid amount. Therefore, the general rule making power under Section 254 does not enable to provide for prosecution to recover bid amount. Unfortunately the counsel could not point out any item under Sub-rule (2) of Section 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. 399 dt. 13.11.1992 will be saved. Otherwise it will become inconsistent with the provisions of the Kerala Panchayat Raj Act, 1994. Therefore, the said decision is of no avail for the complainant to substantiate his case in the light of the new enactment.
8. I have already taken a view like this in my judgment dated 25.5.2004 in 2004 (2) KLT 1115 - Crl. A.No. 1082/98 and connected cases filed by another Panchayat.
The acquittal is therefore perfectly justified, even though on different reason. Appeal fails and is dismissed.