JUDGMENT
K. Sreedharan, J.
1. The complainant, the Executive Officer, Kodakara Panchayat, is the appellant in all these appeals. They are directed against the order of acquittal passed by the Trial Magistrate under Section 255( 1) of the Code of Criminal Procedure. In all these appeals the first respondent, the accused in the case, is the same individual. He was prosecuted on account of his failure in taking licence under Section 96 of the Kerala Panchayats Act (hereinafter referred to as the Act).
2. The accused is a person running a tile factory within the jurisdiction of the Kodakara Panchayat. The Panchayat initiated action under Section 96 of the Act and fixed licence fee for the tile factories in the area. The 1st respondent was directed to take licence in accordance with the bye-laws published by the Panchayat On his failure to take the licence, prosecution was launched against him for the periods from the financial year. 1978-79.
3. The accused, on entering appearance before the Judicial I Class Magistrate’s Court, Irinjalakuda, inter alia, contended that the Panchayat had not taken all the legal steps required for publishing the bye-laws prescribing the licence fee, that there was no previous approval of the Director of; Panchayats to notify the area as one for the use of which licence is required under Section 96 of the Act, that there was no quid pro quo for realising this licence fee and that the prosecution initiated is not maintainable in view of the non-compliance with the provisions contained in Section 74 of the Act. The learned Magistrate found that there is no quid pro quo for realising the licence fee. Basing on this finding, the accused was acquitted in all the cases.
4. The bye-laws published by the Panchayat were produced before the trial Court It prima facie goes to show that it was issued after due compliance with the provisions contained in the Act It had the prior sanction from the Director of Panchayats. The official acts carried on by the Panchayat must be presumed to have been regularly performed. When the regularity in the performance of the act is to be presumed as per Section 114 of the Indian Evidence Act, the burden is upon the person who alleges the violation to establish the same. No evidence in this regard has been led in by the accused.
5. The Panchayat has approached the Court to prosecute the accused on account of his default in taking the licence. The Court where the prosecution is launched is not called upon to sit in judgment over the validity of the bye-laws prescribing the licence and the fee for the same. If the accused had any idea to question the imposition of licence fee, or the notification insisting on his taking a licence for conducting the tile factory in the area specified therein, he ought to have challenged the bye-laws made by the Panchayat in accordance with the provisions of the Act, before the authorities constituted for the said purpose. The accused had not moved any of those authorities challenging the bye-laws imposing the licence fee and making it mandatory for the owners of the the factories to take the licence. The notification prescribing licence by the Panchayat for using the area as a factory site and fixing the fee for the same are not matters open to challenge before the criminal Court where the accused is prosecuted on account of his failure in taking the licence.
6. The question of quid pro quo is not a matter to be agitated before the Court where the owner of the tile factory is prosecuted for his failure to take the licence. But the trial Court took the view that since no special benefit was rendered by the Panchayat to the accused, the accused is not liable to take the licence or to pay the licence fee. This is a wrong understanding of the provisions of Act In City Corpn. of Calicut v. T. Sadasivan , their Lordships of the Supreme Court have stated the law as follows:
7. It is thus well-settled by numerous recent decisions of this Court that the traditional concept in a fee of quid pro quo is undergoing a transformation and that though the fee must have relation to the services rendered, or the advantages conferred, such relation need not be direct, a mere casual relation may be enough. It is not necessary to establish that those who pay the fee must receive direct benefit of the services rendered for which the fee is being paid. If one who is liable to pay receives general benefit from the authority levying the fee the element of service required for collecting fee is satisfied. It is not necessary that the person liable to pay must receive some special benefit or advantage for payment of the fee.
This decision makes it clear that for sustaining the imposition of licence fee it is not necessary for the Panchayat to prove that special services are rendered to the licensees. If the licencees are getting the general services from the Panchayat, which fact is not disputed, then the imposition of the fee has to be sustained. In this view the conclusion arrived at by the trial Court is unsustainable and I overrule the same.
7. Learned Counsel appearing for the accused argues that the prosecution launched by the Panchayat is unsustainable because it is in violation of the provisions contained in Section 74 of the Act. According to him, the prosecution is for realisation of the licence fee. There is no averment in the complaint that the Panchayat had issued distraint warrant to realise the fee by attachment and sale of movable properties belonging to the accused. In the absence of such an averment, it is argued, the Panchayat cannot approach the Court for realising the fee. This argument of the learned Counsel, I am afraid, is not sound. Section 74 deals with the procedure for recovery of tax, cess etc. The prosecution launched in this case is not one for recovery of arrears of tax, cess etc., as contemplated by Section 74, it is one for an offence under Section 96 of the Act. Section 132 read with Schedule IV of the Act makes default in taking licence under Section % an offence. The complaint is filed under Sections % and 98 of the Act and Rules 5, 8 and 10 read with Schedule I of the Kerala Panchayats (Licensing of Dangerous and Offensive Trades and Factories) Rules, 1963.
8. Clause (6) of Section 109 of the Act reads as follows:
Whenever any person is convicted of an offence in respect of the failure to obtain any such licence or permission, the Magistrate shall, in addition to any fine which may be imposed, recover summarily and pay over to the Panchayat the amount of, the fee chargeable for the licence or permission, and may, in his discretion, also recover summarily and pay over to the Panchayat such amount, if any, as he may fix as the costs of the prosecution.
Explanation. – The recovery of the fee for a licence or permission under this sub-section shall not entitle the person convicted to the licence or permission.
The order to enable the Magistrate to pass appropriate orders under the above provision, the Panchayat has detailed the amounts due from the accused by way of licence fee. While convicting the accused, it will be open to the Magistrate to direct the accused to remit the fee chargeable for the licence. The direction that might be passed by the Magistrate cannot be considered to be an order passed under the second proviso to Section 74 of the Act Therefore, the argument that the complaint is not maintainable in view of the absence of the statement that distraint warrant was issued and it was found impracticable to realise the amount, is only to be overruled, and I do so.
9. In view of what has been stated above I hold that the accused is guilty of the offence charged against him. He is convicted for the said offence.
The amount to be realised from the accused by way of licence fee and his liability to pay penalty for the continuous failure have to be quantified under Section 132(2)(c) read with the Schedule of the Act. For the said purpose of quantification I am remitting back these cases to the trial Court. The trial Court, within one month from the date of receipt of the records, will hear the parties on the above question and pass final orders. The appeals are allowed in the above manner.