IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 372 of 1998()
1. KUTTIATTOOR GRAMA PANCHAYAT
... Petitioner
Vs
1. P.SADIRI
... Respondent
For Petitioner :SRI.R.PARTHASARATHY
For Respondent :SRI.P.SANKARANKUTTY NAIR
The Hon'ble MR. Justice J.B.KOSHY
Dated :22/11/2006
O R D E R
J.B.KOSHY, J.
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CRL.APPEAL.NO.372 OF 1998 (B)
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Dated this the 22nd day of November, 2006
J U D G M E N T
This appeal is filed against the order of acquittal.
According to the complainant accused was the highest bidder
in the auction conducted by the complainant Panchayat
regarding the right to collect sand from Pavannur river for the
period between 28.4.1994 and 31.3.1995. Rs.1,20,000/- was
deposited and agreement was executed on 5.8.1994. The
balance amount has to be paid in six instalments but after
paying two instalments he committed default. It was not able
to be collected. Hence complaint was filed for realising the
amount in view of Rule 26 of the Kerala Panchayath Taxation
and Appeal Rules 1963. Rule 26 deals with the procedure to be
adopted by the Magistrate when defect is committed in paying
tax. The allegation in the complaint noted in paragraph 4 is
as follows:
“The accused is willfully refusing to pay the
licence fee which he had agreed to pay as per the
CRL.APPEAL.372/1998 2
agreement dated 5.8.1994. There is no special
provision under the newly extracted Panchayath Raj
Act or in the other law or Rules or bye-laws made
there under to recover the licence fee due from the
accused. So as per the ‘Rules regarding demanding
amounts due to Panchayath where there is no special
provision, 1962’, the complainant can prosecute the
accused and recover the arrears of licence fee in the
manner provided in the rules for the collection of
taxes under the Act. By demand notice, the accused
committed an offence punishable under Rule 26 of
the Kerala Panchayath Taxation and Appeal Rules
1963. The complainant has got documents and
witnesses to prove the case.”
The complaint itself shows that unlike tax matters there is no
provision in the Act for prosecuting the complaint for realising
dues arising out of contract. Accused has a case that he is not
liable to pay the balance amount as he was prevented from
collecting sand. There is no wilfull default. Whether any
amount is due to Panchayat has to be adjudicated in a civil
court. Admittedly, even if the amount is due to the Panchayat,
that amount is due on the basis of a contract and it will not
come under the purview of Sections 210 and 284 (2) of the
Kerala Panchayat Raj Act or Rule 26 of the Kerala Panchayath
Taxation and Appeal Rules, 1963. Unlike a taxation matter, in
criminal matters accused is only bound to answer charges and
CRL.APPEAL.372/1998 3
allegations as mentioned in paragraph 4 of the complaint is not
maintainable. In this connection I also refer to the decision of
this Court in Thalavoor Grama Panchayat v. Salim (2004
(3) KLT 835) where it was held as follows:
7. Rule making power is as contained in S.254 of
the Panchayat Raj Act, 1994. Sub-s.(i) of S.254
provides that: “The Government may, by notification in
the Gazette, makes rules either prospectively or
retrospectively to carry out all or any purposes of this
Act”. This is the general power. The rule made under
this general power shall be for carrying out any of the
purpose of the Act. As already mentioned above,
under S.210, the Act does not envisage prosecution for
default of bid amount. Therefore, the general rule
making power under Section 254 does not enable to
provide for prosecution to recover bid amount.
Unfortunately the counsel could not point out any item
under sub-r.(2) of S.254 which contains particular
provision enabling the Government to prescribe rules
under the new Act providing for prosecution in case of
default of payment of bid amount.
Apart from the above, in Ext.D1 auction notice it is stated that
sand can be taken only after executing agreement and after
getting written permission. Admittedly, no such written
permission was given and the case of the accused is that
because of the objection raised by the people in the locality
CRL.APPEAL.372/1998 4
and pendency of a writ petition agreement was executed much
later but no written permission as per the auction notice was
given and he was unable to take sand. Even though it was
argued that no such written permission is necessary. Ext.D1
auction notice specifically stated that only after written
permission sand can be taken. In any event, in view of the
above contention it cannot be stated that there is willful
default to attract prosecution proceedings even if the demand
is akin to tax. In the above circumstances, the complaint
was dismissed and accused was acquitted. On going through
the evidence, I am of the view that the view taken by the trial
court is a possible one and no interference is required and
hence this appeal is dismissed.
J.B.KOSHY, JUDGE
prp
J.B.KOSHY, J.
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CRL.APPEAL.NO.372 OF 1998 (B)
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J U D G M E N T
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22nd November, 2006