Criminal Revision Petition No. 2909 of 2008 · Kerala High Court · 2008

M. SASIDHARAN NAMBIAR, J.------------------------------------------ CRL.R.P. NO. 2909 OF 2008 ------------------------------------------Dated this the 16th day of September, 2008O R D E R Petitioner is the accused in ST. 969 of 2004. He wasconvicted and sentenced to pay a fine of Rs.63,631/- and indefault to undergo simple imprisonment for four months for theoffence under Section 210 of Kerala Panchayat Raj Act read withRule 27 of Kerala Panchayat Raj (Taxation and Appeal Rules),1996. Petitioner challenged the conviction and sentence beforeSessions Court, Manjery in Criminal Appeal 62 of 2007.Learned Sessions Judge, on re-appreciation of the judgment,confirmed the conviction and sentence and dismissed theappeal. This revision petition is filed under Section 397 andSection 401 of the Code of Criminal Procedure challenging theconviction and sentence. 2.The complaint was filed by the respondent, Secretaryof Kuttipuram Grama Panchayat, contending that petitioner wasthe highest bidder in the auction conducted by KuttipuramPanchayat for conducting bunk No.120, which was procured bythe petitioner on a monthly rent of Rs.2,400/- and he kept the CRRP2909/082rent in arrears from February 2002 to January 2004 being atotal of Rs.67,600/- and in addition to the arrears of rent, he isliable to pay Rs.6,000/- as penal interest and Re.1/- towardsnotice fee, and Rs.5/- towards warrant fees and Rs.25/- towardsnotice expenses. It is contended that though distress warrantwas issued, the amount could not be realized and thereforepetitioner is liable for conviction under Section 204 of KeralaPanchayat Raj Act. Learned Magistrate on the evidence of PW1to 3 and Ext.P1 to P13 found that petitioner was the successfulbidder and he is liable to pay a monthly rent of Rs.2,400/-towards the rent of bunk No.120 and he failed to pay the rentfrom February 2002 to January 2004 and the Secretary hadauthorized PW2 the Lower Division Clerk to execute the distresswarrant, who could not realize the amount as stated in Ext.P5,and therefore petitioner is liable for punishment as providedunder Section 210 of Kerala Panchayat Raj Act read with Rule27 of Kerala Panchayat Raj (Taxation and Appeal Rules), 1996. 3.The argument of the learned counsel appearing forpetitioner is that under Section 210 of Kerala Panchayat Raj Act,the rent due to the Panchayat cannot be recovered underSection 210 as it relates to arrears of cess, rate, surcharge or CRRP2909/083tax imposed or fees levied under the Act and therefore theconviction of the petitioner for the offence under Section 210 isnot sustainable. It was also argued that the Courts below werenot justified in convicting the petitioner under Section 210,when there is no evidence to prove that the second proviso toSection 210 was complied with. It was argued that PW2 was oninimical terms with petitioner and PW2 did not execute thedistress warrant and from the evidence of PW2 it cannot be saidthat arrears of rent cannot be recovered by distraint andtherefore the conviction and sentence is not sustainable. 4.Learned public prosecutor relying on the DivisionBench decision of this Court in Puthunagaram GramaPanchayat v. A. Saleem and another (2005 (4) ILR Kerala361) submitted that arrears of rent can be recovered as landrevenue and therefore Section 210 of Kerala Panchayat Raj Actcould be invoked for realization of arrears of rent and convictionis perfectly correct. Learned public prosecutor also pointed outthat evidence of PW1 and 2 establish that PW2 was authorizedby PW1 to execute the distraint and second proviso to Section210 is satisfied and therefore the conviction and sentencewarrant no interference. CRRP2909/0845.Section 210 of Kerala Panchayat Raj Act reads:-“Recovery of arrears of tax, cess etc.-- Any arrear of cess, rate, surcharge ortax imposed or fees levied under this Actshall be recoverable as an arrear of publicrevenue under the law relating to therecovery of arrears of public revenue forthe time being in force:Provided that the Secretary of aVillage Panchayat may directly recover bydistraint, under his warrant, and sale ofmovable properties of the defaultersubject to such rules as may be prescribed:Provided further that, if for anyreason the distraint or a sufficientdistraint of the defaulter’s property isimpracticable, the Secretary mayprosecute the defaulter before aMagistrate.” True. The Section only provides for recovery of arrears of cess,rate, surcharge or tax imposed or fees levied under the Act and CRRP2909/085does not specifically provide for recovery of arrears of rent. Butthis aspect was settled by Division Bench of this Court inPuthunagaram Grama Panchayat’s case (supra). In that case theaccused was the highest bidder in the auction held by thePanchayat to conduct the fish market and prosecution waslaunched as provided under Section 74 of the Panchayat Act,1960, which is identical to Section 210 of Kerala Panchayat RajAct. The question considered was whether Section 74 could beinvoked for recovery of arrears of rent. 6.The Division Bench held:“10.The further question would bewhether the arrears of bid amount duefrom the accused/the highest bidder isrecoverable under Sec.74 of the Old Act.Sec. 74 reads as follows:“74.Recovery of arrears of tax, cess, rate,surcharge or tax imposed or fees leviedunder this Act shall be recoverable as anarrear of public revenue under the lawrelating to the recovery of arrears of publicrevenue for the time being in force: CRRP2909/086Provided that the executive authority maydirectly recover by distraint, under hiswarrant, and sale of movable properties ofthe defaulter subject to such rules as maybe prescribed:Provided further that, if for any reason thedistraint or a sufficient distraint of thedefaulter’s property is impracticable, theexecutive authority may prosecute thedefaulters before a Magistrate.” It is true that arrears of bid amount is notexpressly covered by Sec. 74 of the OldAct. But if there is any provision either inthe Old Act or the Rules framedthereunder treating the arrears of bidamount as tax recoverable under the Actor the Rules, then a prosecution underSec. 74 for realisation of the arrears of bidamount would be perfectly justified.There is no dispute that the bid amountdue under Rule 5 is rent and the accused CRRP2909/087was the successful bidder in respect of thetransaction in question. Therefore, thebalance amount due from the accusedwould also be rent due from him to thePanchayat and payable in accordance withRule 22 of the Old Market Rules. Rule 22itself provides that in case of default ofpayment the amount due shall berecovered from the lessee as arrears ofPanchayat tax. A combined reading ofRules 5 and 22 of the Old Market Ruleswill show that the status of the successfulbidder to whom the above right to collectthe market fees has been framed out isthat of a lessee and amounts due from himanswer the description of rent. [See alsoin this connection the decision in InRe.Punya Shyamalo]. By virtue of Rule22, in the event of any default made by thelessee the amount can be recovered fromhim as arrears of Panchayat tax. Arrears CRRP2909/088of Panchayat tax is recoverable under Rule26 of the Kerala Panchayats (Taxation andAppeal) Rules, 1963, (hereinafter referredto as “the Old Taxation Rules”). Thus, byvirtue of the statutory fiction rent orarrears of rent payable by a lessee who isthe successful bidder in respect of amarket would become converted toarrears of tax recoverable under Sec. 74of the Kerala Panchayats Act, 1960.”In view of the Division Bench decision, the contention of thepetitioner that Section 210 cannot be invoked for recovery ofrent can only be rejected. 7.Though it was argued that second proviso to Section210 was not complied with, learned Magistrate and learnedSessions Judge appreciating the evidence of PW1 and PW2found that PW1 had authorized PW2 and PW2 had attempted torealize the amount by executing the distraint unsuccessfully andrecovery of the amount by distraint is impracticable. I do notfind any illegality in that finding of fact. Therefore, courts belowrightly convicted the petitioner for the offence under Section CRRP2909/089210 read with Rule 27 of the Kearala Panchayat Raj (Taxationand Appeal Rules), 1996. Learned Magistrate sentenced thepetitioner only to pay a fine amount which is the amount duefrom him and therefore the sentence also does not warrantinterference. 8.Learned counsel then submitted that petitioner maybe granted time to pay the fine. The arrears of rent was for theperiod 2002-2004. The prosecution was launched in 2004 andconviction was in 2006. Petitioner has already availed sufficienttime. The revision is dismissed. Petitioner is directed to depositthe fine amount within two months from today.M. SASIDHARAN NAMBIAR, JUDGEOkb/-