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2004 ICO 1731

2004 (2) KLJ 312

25-05-2004
High Court of Kerala

Crl.A. No. 1082 of 1998

Justice K A Abdul Gafoor

The Secretary Peravoor Grama Panchayat

Vs.

K P Rafi & Ors

Equivalent Citations : ILR 2004 (3) Ker. 265 :: ILR 2004 (2) Ker. SN 112 :: AIR 2005 (NOC) Ker 102 ::
2004 (2) KLJ 312 :: 2004 (2) KLT 1115

Headnotes :-

A. Kerala Panchayat Raj Act, 1994 - Section 210 - Default in payment of rent by the tenant who
occupied the room of Panchayat - Prosecution in terms of Section 210 cannot be invoked for recovery
of arrears of rent. Held: The Kerala Panchayat Act, 1960 has been repealed and Kerala Panchayat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). 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. 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.
(Para 6)

JUDGMENT

K.A. Abdul Gafoor, J.

1. 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.

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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. 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. 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.

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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.

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