Judgment :- 1. The question raised in this writ petition is whether an amount due to a Panchayat under a contract whereby the right to conduct certain cultural programme in a property belonging to the Panchayat was farmed out to the petitioner who was the highest bidder at an auction conducted by the Panchayat, can be recovered by the Panchayat by resorting to the procedure for recovery of taxes, cesses, fees etc. prescribed under S.74 of the Kerala Panchayats Act, 1960 (hereinafter referred to as the Act). 2. The petitioner was granted by the Panchayat the exclusive right to conduct "cultural programmes" in a property belonging to the Panchayat situated in Survey No. 19/6 of Perumayikad Village for a period of three months commencing from 25-7-1970 for a total consideration of Rs, 5.130/-, that being the highest bid amount fetched at a public auction held by the Panchayat for farming out the said right. Out of the aforesaid bid amount the petitioner paid a sum of Rs. 1,710 on 13 71970 and an agreement was executed between the petitioner and one surety on the one part and the Panchayat on the other incorporating the terms of the arrangement. Ext. P1 is a copy of the said agreement. Subsequently, the petitioner committed default in the matter of remitting the balance amount due under the agreement in spite of notice having been issued to him by the Panchayat demanding payment. Thereupon, the Panchayat instituted a prosecution against the petitioner by presenting the complaint Ext P3 before the Munsiff-Magistrate, Ettumannoor purporting to be under the second proviso to S.74 of the Act. The petitioner has come up to this court with this writ petition seeking to quash Ext. P3 and praying also for the issuance of an appropriate writ prohibiting the 2nd respondent the Munsiff-Magistrate, Ettumanoor from proceeding with the trial of the criminal case. 3. S.74 of the Act is in the following terms: "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. Provided further that, if for any reason the distraint or a sufficient distraint of the defaulter's property is impracticable; the executive authority may prosecute the defaulters before a Magistrate." Counsel appearing on behalf of the 1st respondent Panchayat relied also on the following rule framed by the State Government as per SRO. No. 319/62 published in the Kerala Gazette dated 13th November, 1962: "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 byelaws made thereunder are due by any person to the Panchayat; may, if there is no special provision in the Actor 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." The question is whether the provisions of S.74 read along with the aforementioned rule warrant the action taken by the Panchayat in instituting a prosecution against the petitioner for the recovery of the balance amount due under the agreement Ext. P1. The answer to that will depend upon whether the amount that is sought to be recovered by the Panchayat can be regarded as "any arrear of cess, rate, surcharge or tax imposed or fees levied under this Act" which are the only categories of dues that can be recovered under S.74, and, if it is not covered by S.74, whether it doss fall within any of the descriptions of the various class of outstandings enumerated in the aforementioned rule. 4. The amount payable to the Panchayat by the writ petitioner under the contract evidenced by Ext. P1 is certainly not a cess, rate, surcharge or tax imposed under the Act nor is it a fee levied under the Act. S.74 is not, therefore, attracted to the case. The only question that remains is whether the amount sought to be recovered from the petitioner will fall within the scope of the rule relied on by the 1st respondent the terms of which have been reproduced above. S.74 is not, therefore, attracted to the case. The only question that remains is whether the amount sought to be recovered from the petitioner will fall within the scope of the rule relied on by the 1st respondent the terms of which have been reproduced above. In order that the provisions of the said rule should become applicable the amount sought to be recovered must be a sum due to the Panchayat under the Kerala Panchayats Act or any other law, or rules, or byelaws made thereunder. I am clearly of opinion that an amount due to a Panchayat under a contract such as Ext. P1 cannot be regarded as a sura due to it either under the Kerala Panchayats Act or any other enactment, or rules, or bye-laws framed under any such enactment. An idental question came up for consideration before the Madras High Court in a very early case reported in Abdul Aseez Sahib v. Cuddapah Mnnicipality, I. L. R.26 Madras 475 and it was held by Sir Arnold White, C. J. that money due under a contract entered into with a Municipality whereby the right to collect tolls was farmed out in favour of a person, did not fall within the scope S.269 of the Madras District Municipalities Act (Act IV of 1884) since it did not constitute a tax, fee or toll or rent due under that Act. This decision was followed in two subsequent Division Bench rulings of the same High Court reported in Punya Syamalo in re (AIR. 1924 Madras 669) and Mahab Ali Khan v. President Talak Board, Kurnool (AIR, 1924 Madras 898). In the last case aforementioned Ramesain and Jackson, JJ. observed: "It has long been recognised law that money due under a contract cannot be summarily recovered by a Municipality in a Magistrate's court under the old Madras District Municipalities Act IV of 1884,S.269 ... The point for determination is whether the wording of S.221 of Madras Act XIV of 1920, has extended the power of the local body. S.269 of Act IV of 1884 was 'all rent, fees, tolls and other payments due to the Municipal Council under the provisions of this Act.' S.221 of Act XIV of 1920 runs 'any fee, toll; costs, compensation, damages, penalties, charges, expenses or other sums due to a local board under or by virtue of this Act. S.269 of Act IV of 1884 was 'all rent, fees, tolls and other payments due to the Municipal Council under the provisions of this Act.' S.221 of Act XIV of 1920 runs 'any fee, toll; costs, compensation, damages, penalties, charges, expenses or other sums due to a local board under or by virtue of this Act. We do not find that this phrase includes sums due under contracts." Again, in a recent decision reported in A. Gnanasikhamony v. Palukal Panchayat, AIR. 1970 Madras 360, Krishoaswaray Reddy, J. reiterated the above legal position and held that arrears of kist payable to a Panchayat under a contract by which a contractor had been given the right to collect fees cannot be recovered by the Panchayat by distraint or prosecution. The learned judge held that the expression 'other sums' occurring in R.32 of the rules framed under the Madras Panchayats Act does not include money due under contract and that even though the Panchayat has power to enter into contracts under S.8 (3) sums due to the Panchayat under such contract are not recoverable as sums due under the Act or Rules. 5. The same view was expressed by a learned single judge of the Travancore-Cochin High Court in the decision reported in Ahmed Hydros v, Alwaye Municipality (AIR, 1951 TC. 82), with reference to S.365 of the Travancore District Municipalities Act, XXIII of 1116, the wording of which is comprehensive enough to take in all the various types of dues described in S.74 of the Kerala Panchayats Act and also in the rule framed as per SRO. No. 319/62. 6. I am in respectful agreement with the statement of the law as contained in the decisions aforecited. I accordingly hold that the 1st respondent Panchayat has no jurisdiction to recover the balance amount stated to be due to it under the contract evidenced by Ext. P1 by launching a criminal prosecution against the petitioner under the second proviso to S, 74 of the Act. 7. In the result, the writ petition is allowed and the criminal prosecution initiated against the petitioner as per the complaint evidenced by Ext. P3 will stand quashed. The 2nd respondent will refrain from taking any further action on the basis of the said complaint. The parties will bear their respective costs. A. N. K. Allowed.