Kerala High Court
Peravoor Grama Panchayat vs Rafi on 25 May, 2004
Equivalent citations: 2004(2)KLT1115
Author: K.A. Abdul Gafoor
Bench: K.A. Abdul Gafoor
JUDGMENT K.A. Abdul Gafoor, J.
1. The Secretary of the Peravoor Grama Panchayat initiated prosecution proceedings against the respondents in these appeals, as they committed default in payment of rent of the buildings occupied by them, based on an agreement between the parties. The buildings were leased out to them by the Panchayat. Steps were taken to recover the defaulted rent arrears issuing distress warrant, but failed. Therefore, prosecution was initiated in terms of Section 210 of the Kerala Panchayat Raj Act. It ended in acquittal. Therefore, these appeals.
2. It is contended by the appellant that if the tenants of the Panchayat had defaulted payment of rent in respect of the building taken by them from the Panchayat, prosecution can be launched on failure of the distraint efforts, placing reliance on the second proviso to the said section. The Kerala Panchayat (Acquisition and Transport of Immovable Property) Rules, 1963 enable leasing out of the property of the Panchayat and recovery of the arrears of rent. In such circumstances, the court below ought to have found that the respondents had committed the offences, rather than acquitting them, the appellant submits.
3. Section 210 of the Act reads as follows:
"Any arrear of the 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 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 of a sufficient distraint of defaulter's property is impracticable, the Secretary may prosecute the defaulter before a Magistrate."
The prosecution in terms of the second proviso is permissible only in respect of "any arrear of cess rate, surcharge or tax imposed or fees levied under" the Act:
4. The rent payable is in terms of the agreement executed between the parties and not something imposed by or levied under the Act. But, it is submitted that a Division Bench of this Court in the decision reported in Executive Officer v. Suresh Babu (1992 (1) KLT 291) had held that rent due under lease transactions provided in the said rules and from (sic) is rent due under the said rules made in exercise of the powers under Section 129". Necessarily, that dictum shall have to be followed in this case as Section 74 of the Kerala Panchayat Act, 1960 was almost similar in words as contained in Section 210 of the Kerala Panchayat Raj Act and as the Kerala Panchayats (Acquisition and Transfer of Immovable Property) Rules, 1963 are also made applicable.
5. This contention may sound good. But on an examination of the real dictum contained in the said judgment with reference to the rule making power given to Government under Section 254 of the present Act, the position may differ.
6. The Division Bench in Executive Officer v. Suresh Babu (cited supra) held as follows:
"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 aquisition of property and their transfers, including lease and realisation of rent".
The Kerala Panchayats Act, 1960 has been repealed and Kerala Panchayat Raj Act has come into force. The arrears in question had fallen due after the new Act has been enforced. The rule making power is conferred by Section 254 of the Kerala Panchayat Raj Act (the new Act) which contains almost 4 sub-sections and 44 clauses in Sub-section (2). The counsel for the appellant was not able to put out a provision, from any of the said sub-clause, enabling the Government to make rules for realisation of rent. In such circumstances, it cannot be said that the arrears of rent arising out of lease agreement is "anything due under the Act" or under the rules to launch a prosecution in terms of the second proviso to Section 210 of the Act. So the said Division Bench decision does not apply to this case, because in that case it has been found categorically that:
"S. 129 of the Kerala Panchayat Act authorises the Government to frame rules on many matters. They include Clauses (xii) and (xvi) of sub-rule (2) covering aquisition of property and their proceedings including the lease and realisation of rent."
No provision in the new Act enabling the Government to make such rules is brought to my notice.
Necessarily, there arises no question of prosecution to recover arrears of rent arising from a lease of the panchayat property. Appeals fail and are accordingly dismissed.