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2020 DIGILAW 892 (KER)

Mohanlal v. Secretary, Kadakkal Grama Panchayath

2020-10-23

N.ANIL KUMAR

body2020
ORDER : The Secretary, Kadakkal Grama Panchayat, filed a complaint before the Judicial First Class Magistrate Court-II, Kottarakkara under Section 210 of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as, “the New Act”) read with Rule 27 of the Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules, 1996, seeking to prosecute the revision petitioner/accused for the amount due to the Panchayat towards rent. 2. By judgment dated 31.01.2006, the learned magistrate convicted and sentenced the accused to pay a fine of Rs.1,55,000/- and in default of payment of the fine to undergo simple imprisonment for three months. If the fine amount is recovered, an amount of Rs.1,50,000/- shall be paid to the Panchayat as compensation and the balance amount of Rs.5,000/- shall be credited to the Government. This judgment of conviction and sentence was challenged before the Sessions Court in appeal. By its judgment dated 24.08.2006, the learned Third Additional Sessions Judge dismissed the appeal, confirming the conviction and sentence imposed by the trial court. Feeling aggrieved, the revision petitioner/accused is before this Court. 3. Admittedly, the accused was a lessee of the building let out by Kadakkal Grama Panchayat on a monthly rent of Rs.5,210/- and he agreed to pay the rent on the 5th of every month and also agreed to pay interest on arrears of rent. The complainant is the Secretary of the Kadakkal Grama Panchayat. According to him, the accused had to pay in arrears an amount of Rs.1,47,100/- towards rent due to the Panchayat till 01.10.2001 and consequently, he issued a demand notice calling upon the accused to pay the amount with interest. The accused accepted the notice. Since there was no payment as demanded, distraint warrant was issued for sale of the movable properties of the defaulter. However, it was reported that the distraint warrant of the defaulter's property was impractical since he had no properties to be proceeded with. Hence, the complainant filed the complaint on 05.02.2002 before the trial court for prosecution under Section 210 of the New Act read with Rule 27 of the Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules, 1996. 4. On the appearance of the accused, copies of records relied on by the prosecution were served on him. Particulars of the offence were read over to him, to which he pleaded not guilty. 4. On the appearance of the accused, copies of records relied on by the prosecution were served on him. Particulars of the offence were read over to him, to which he pleaded not guilty. When the case came up for evidence, PW1 and PW2 were examined and marked Exts.P1 to P7 on the prosecution side. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure with regard to the incriminating circumstances appearing in the evidence against him. He denied those circumstances and maintained his innocence. However, no defence evidence was adduced. 5. Ext.P1 agreement executed by the accused on 01.04.1999 would inter alia show that the accused was a lessee and he took the building from the Panchayat, agreeing to pay a monthly rent of Rs.5,210/- from 01.04.1999 to 31.03.2000. As per the terms of the agreement, his liability to pay interest on arrears of rent along with electricity charges is admitted. 6. The accused has no case that he has paid the rent to the Panchayat. Exts.P2 and P4 are two demand notices, in which the details of the year, interest and other fees for which the accused is liable to the Panchayat are clearly stated. Ext.P3 is the postal acknowledgment card signed by the accused accepting the notice. Before filing the complaint in court on 15.02.2002, a demand notice for an amount of Rs.1,47,100/- was issued on 01.10.2001. This is seen signed and accepted by the accused by Ext.P6 acknowledgment card. Subsequently, a distraint warrant was issued. PW2 adduced evidence to prove that the distraint warrant was impractical. The accused had no movable property in his possession and, accordingly, the warrant was returned on 27.12.2001. Going by the evidence let in, both the trial court and the appellate court concurrently found that non payment of the amount due to the Panchayat by the accused is willful. 7. Heard Sri. M.T. Suresh Kumar, the learned counsel for the revision petitioner/accused; and Sri. M.S. Breeze, the learned Senior Public Prosecutor for the respondent State. 8. The learned counsel for the revision petitioner/accused submitted that when breach of contract is alleged between the Panchayat and the accused, the proper remedy is to approach the civil court for appropriate relief. 7. Heard Sri. M.T. Suresh Kumar, the learned counsel for the revision petitioner/accused; and Sri. M.S. Breeze, the learned Senior Public Prosecutor for the respondent State. 8. The learned counsel for the revision petitioner/accused submitted that when breach of contract is alleged between the Panchayat and the accused, the proper remedy is to approach the civil court for appropriate relief. Relying on the decision reported in Abdulkhadeer P.A. v. Executive Officer, Kodikulam and Another [ 2016 (1) KHC 581 ], the learned counsel for the revision petitioner submitted that prosecution proceedings are not maintainable on the ground that what is involved is only a contractual liability not coming within the purview of Section 210 of the New Act. 9. Per contra, the learned Senior Public Prosecutor, Sri. M.S. Breeze, submitted that an amount due to the Panchayat, though not coming within the categories mentioned under Section 210 of the New Act, can also be collected in the manner provided under the New Act. In exercise of the Rule making power under Section 129 of the Kerala Panchayats Act, 1960 (hereinafter referred to as, “the Old Act”), the Government framed Rules regarding Demanding of Amounts Due to Panchayat Where There is No Special Provision, 1962, which were published in the Kerala Gazette No.45 dated 13.11.1962 (SRO 319/62). Those Rules were also made under the authority of Section 129 of the Old Act; it has been submitted. The learned Senior Public Prosecutor further submitted that the aforesaid rule was considered by the Division Bench of this Court in Suresh v. Executive Officer [ 1995 (2) KLT 75 ] and approved the special mode of recovery to avoid the contingency of the Panchayat being driven to the necessity of filing a suit for recovery of arrears of rent. 10. The question arising for consideration in this case is as to whether for the amount due to the Panchayat from the accused by way of a rent agreement between the Panchayat and the accused, the accused can be prosecuted as a defaulter before the jurisdictional magistrate in exercise of powers under Section 210 of the New Act. 10. The question arising for consideration in this case is as to whether for the amount due to the Panchayat from the accused by way of a rent agreement between the Panchayat and the accused, the accused can be prosecuted as a defaulter before the jurisdictional magistrate in exercise of powers under Section 210 of the New Act. The contention of the accused is that the amount due from him by way of a contract cannot be levied under Section 210 of the New Act, presumably, for the reason that rent due to the Panchayat does not come within the categories specifically mentioned under Section 210 of the New Act in the manner provided for the collection of taxes under the Act. It is true that Section 210 of the New Act, as such, is applicable only for realisation of cess, rate, surcharge, tax imposed or fees levied under the Act. Section 210 of the New Act will have to be read along with the relevant rules. 11. In Suresh's case (supra), a Division Bench of this Court was concerned with the question as to whether the amount due from the successful bidder in an auction for removal of sand from Kallada river during the period 1992-93 was recoverable under Section 74 of the Old Act. The Division Bench held in paragraph 3 of the judgment as hereunder:- “3. 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 by-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.” 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 under 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 under S.74 can also be collected in the manner provided under the Act. Moreover, the rule mentioned above was made under the authority of S.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 under 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 then as a special mode of recovery.” 12. As held in Suresh's case (supra), the Taxation and Appeal Rules regarding recovery made under the Old Rules are, therefore, applicable to “recovery of rent” even though it will not come directly under the provisions of Section 210 of the New Act. That includes the right for prosecution also. The contention on behalf of the accused is that the breaches complained of are not punishable under the provision of the New Act and the old Rules are not applicable to the New Act. The question, therefore, is, “What is the effect of Section 24 of the General Clauses Act on the repeal of the Old Act by the New Act?”. Whenever an Act is repealed and reenacted, the repealing Act would require saving clauses to preserve the various provisions of the Act, which, if allowed to be obliterated with the repealed Act, would not only destroy the continuity of the objects but work great hardship and injustice. This is avoided by incorporating Section 284 of the New Act. Whenever an Act is repealed and reenacted, the repealing Act would require saving clauses to preserve the various provisions of the Act, which, if allowed to be obliterated with the repealed Act, would not only destroy the continuity of the objects but work great hardship and injustice. This is avoided by incorporating Section 284 of the New Act. Section 284(i) of the New Act reads thus; “(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 Panchayats 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 area 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;” 13. Further, Section 24 of the General Clauses Act, 1897, deals with continuation of orders etc. issued under enactments repealed and reenacted; and the object of the Section is to preserve the continuity of the notifications, orders, schemes, rules, byelaws made or issued under the repealed Act unless they are shown to be inconsistent with the provisions of the reenacted statute. Hence, the provisions of the New Act are required to be understood and interpreted in the light of the provisions of the General Clauses Act including Sections 6 and 24 thereof. In view of the above, the rule formulated in this regard, not being inconsistent with the provisions of the reenacted Act, continues to be in force and be deemed to have been issued under the Act till the aforesaid rule is superseded or withdrawn in accordance with law. 14. It is not disputed that the Old Act was repealed and reenacted with modification as the New Act. A reading of the two Acts would show that it dealt with the same subject matter and except that the New Act has made certain additional provisions, the New Act is substantially the same as the Old one. 14. It is not disputed that the Old Act was repealed and reenacted with modification as the New Act. A reading of the two Acts would show that it dealt with the same subject matter and except that the New Act has made certain additional provisions, the New Act is substantially the same as the Old one. Going by the provisions under the New Act, there is no express provision to the contrary in the New Act, which would make Section 24 of the General Clauses Act inapplicable. Thus, the legal effect of the Section would be that, a Rule, Regulation or a Byelaw made under the repealed Old Act shall continue in force and be deemed to have been made or issued under the New Act. It goes without saying that not only the Rules, Regulations and Byelaws made under the Old Act continue in force but also made to become the Rules, Regulations and Bylaws made or issued under the New Act so that their contravention becomes punishable under Section 210 of the New Act. 15. In Govindankutty C.B. v. State of Kerala and Others [ 2016 (4) KHC 555 ], a Single Bench of this Court had an occasion to consider the validity of the Rule mentioned above in a prosecution under Section 210 of the New Act. This Court has considered the Rule formulated by the Government as per SRO No.319/1962 published in the Kerala Gazette dated 13.11.1962 and held that according to this Rule, all costs, damages, compensation, penalties, charge, fees, expenses, rents and contribution and other sums due to the Panchayat from any person under the Old Act or any other law or rule or bylaw alone can be recovered in the manner provided in Rules for collection of taxes under the said Act. In the case on hand, what is sought to be recovered is rent. However, in Govindankutty's case (supra), a claim for un-liquidated damages or loss arising out of a breach of contract between the Panchayat and a person is sought to be recovered. Thus, it was held that the term “un-liquidated damage or loss” is not coming under the purview of the Rule formulated by the Government by virtue of the SRO cited above. 16. Thus, it was held that the term “un-liquidated damage or loss” is not coming under the purview of the Rule formulated by the Government by virtue of the SRO cited above. 16. In view of the apparent conflict between P.A. Yoosuf v. Kumaranelloor Panchayat [ 1973 KLT 145 ] and K.S. Rajan v. State of Kerala and Another [ 1983 KLT 677 ], the question was considered by a Division Bench of this Court in Executive Officer v. Suresh Babu [ 1992(1) KLT 291 ]. The question that arose for consideration was as to whether the arrears of rent due to the Panchayat could be recovered by resort to Section 74 of the Old Act read with Rule 13 of the Panchayats (Acquisition and Transfer of Immovable Properties) Rules, 1963 (Kerala), and the Rules framed under Section 129 of the Old Act. After considering the conflicting views on the rules, the Division Bench held in paragraph 9 of the judgment thus:- “Rent due to the panchayats under the lease transactions entered into on the basis of the provisions of the Acquisition and Transfer of Immovable Properties Rules, 1963 and the form prescribed thereunder will undoubtedly come under the said Rules. For these matters, there is no other special provision. It can, therefore, be demanded and recovered in the manner provided in the Rules for collection of tax under the Act. Therefore, Section 74 and the Rules regarding recovery of tax under the Act are evidently applicable to recovery of those amounts also. The Taxation and Appeal Rules regarding recovery made under Section 129 Rule with Section 74, particularly Rules 13, 14 and 26 are, therefore, applicable to recovery of rent even though it will not come directly under the provisions of Section 74. That includes the right for prosecution also and the matter is, therefore, clear from the residuary Rules mentioned above. It was not necessary to quote Rules 13 to 26 of the Taxation and Appeal Rules in the residuary Rules or the Rules relating to acquisition and transfer of immovable properties". The Division Bench upheld Rajan's case (supra), holding that the arrears of rent in respect of a building belonging to a Panchayat and given on lease to the accused was recoverable under Section 74 of the Old act and overruled the contra views on Yousaf's case (supra). The Division Bench upheld Rajan's case (supra), holding that the arrears of rent in respect of a building belonging to a Panchayat and given on lease to the accused was recoverable under Section 74 of the Old act and overruled the contra views on Yousaf's case (supra). Needless to say that after the Rules, the contractual obligations get converted into one due under the Rules and recovery by distraint and prosecution is the right of the Panchayat. 17. In Pudunagaram Grama Panchayat v. Saleem [ 2005 (4) KLT 415 ], another Division Bench of this Court held that the prosecution of the defaulter under Section 74 of the Old Act read with Rule 26 of the Old Taxation Rules issued under the Old Act was fully justified. The Division Bench held in paragraphs 19 and 20 of the judgment thus:- “19. It was with the avowed object of endowing the Panchayati Raj Institutions with such powers and authority as may be necessary to enable them to function as units of self-government that the State Legislature enacted the New Act giving meaningful expression to the Constitution (Seventy Third Amendment) Act, 1992. The functional decentralisation brought about by this legislation was to strengthen and not weaken such institutions. Courts while grappling with the rights and duties of these local self government institutions cannot afford to be oblivious of the Constitutional ethos and intendment. Persons who undertake various works under the Panchayats which award the contract for such works in exercise of the powers conferred on them by the statute, cannot be permitted to disown their liabilities towards the Panchayats raising such contentions as have been raised in the present case. 20. In the light of the discussions above, we respectfully overrule the decisions of the learned Single Judge in Peravoor Grama Panchayat's case and Thalavoor Grama Panchayat's case (supra) and we approve and follow the ratio in Suresh Babu's case (supra) and Suresh's case - 1995 (2) KLT 75 ) referred to above.” 18. 20. In the light of the discussions above, we respectfully overrule the decisions of the learned Single Judge in Peravoor Grama Panchayat's case and Thalavoor Grama Panchayat's case (supra) and we approve and follow the ratio in Suresh Babu's case (supra) and Suresh's case - 1995 (2) KLT 75 ) referred to above.” 18. With reference to Abdulkhadeer's case (supra), it is unfortunate that the attention of the learned Single Judge was not drawn in the said case to the relevant old rule or the judgments of the Division Bench in Executive Officer v. Suresh Babu [ 1992 (1) KLT 291 ), Suresh v. Executive Officer [ 1995 (2) KLT 75 ] and Pudunagaram Grama Panchayath v. Saleem, [ 2005 (4) KLT 415 ]. Consideration of judicial decorum and the legal propriety requires that Single Benches should not pronounce decisions of other Division Benches to be wrong. It is a settled principle of law that a Division Bench decision is always binding on a Single Bench unless the same is overruled by a process known to law. Hence, it can be conclusively said that the Abdulkhadeer's case (supra) was rendered per incuriam by altogether failing to take a clear cut rule or earlier binding precedent on identical facts. In Abdulkhadeer's case (supra), the learned Single Judge set aside the order of conviction by placing reliance on the decision reported in Thalavoor Grama Panchayat v. Salim [ 2004 (3) KLT 835 ], which has been overruled by the Division Bench in Pudunagaram's case (supra). 19. The judgment of conviction and sentence passed by the trial court, which has been confirmed in appeal, is legal. Where the judgment of conviction and sentence is legal, neither perverse, nor suffers from any infirmity, this Court is not justified in entering into a different finding arrived at by the two courts below concurrently. Hence, the revision petition is liable to be dismissed. 20. At this juncture, the learned counsel for the revision petitioner submits that the revision petitioner may be given sufficient time to pay the amount. Considering the situation prevailing in the country due to the outbreak of Covid-19 pandemic, this Court is inclined to grant six months time to deposit the fine amount. In the event of failure to deposit the amount within six months, the trial court is at liberty to execute the sentence in accordance with law. Considering the situation prevailing in the country due to the outbreak of Covid-19 pandemic, this Court is inclined to grant six months time to deposit the fine amount. In the event of failure to deposit the amount within six months, the trial court is at liberty to execute the sentence in accordance with law. Resultantly, the revision petition is dismissed, upholding the conviction and sentence rendered by the trial court, which has been confirmed in appeal. Registry is directed to send back the records to the trial court for execution of sentence in accordance with law.