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2004 DIGILAW 200 (KER)

Peravoor Grama Panchayat v. K. P. Rafi

2004-05-25

K.A.ABDUL GAFOOR

body2004
Judgment :- 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. In 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 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 case, 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 moveable 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. 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. 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 the lease transactions provided in the said rules and form (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 authorizes the Government to frame rules on many matters. They include Clause (xii) and (xvi) of Sub-rule (2) covering acquisition of property and their transfers, including lease and realization of rent.” (Emphasis supplied) The Kerala Panchayat Act, 1960 has been repealed and Kerala Panchayat 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 Act (the new Act) which contains almost 4 sub-sections and 44 clauses in subsection (2). The counsel for the appellant was not able to point out a provision, from any of the said sub-clauses, enabling the Government to make rules for realization 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 New Act. 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 New Act. So the said Division Bench decision does not apply to this case, because in that case it has been found categorically that: “Section 129 of the Kerala Panchayats Act authorizes the Government to frame rules on many matters. They include Clauses (xii) and (xvi) of Sub-rule (2) covering acquisition of property and their Proceedings including the lease and realization of rent.” (Emphasis supplied) No provision in the new Act enabling the Government to make such rules is brought to my notice. Necessarily, thee arises no question of prosecution to recover arrears of rent arising from a lease of the panchayat property. Appeals fail and are accordingly dismissed.