Panchayat:Repo18/Law Manual Page0278

Distraint can be executed in respect of the movables belonging to the debtor whether it is kept in rented building or in other building - However before launching prosecution it has to be proved that there was impracticability or impossibility in executing the warrant. - Executive Officer v. Abdul Rahiman - 1998 (2) KLT 343.

Building of Panchayat given on lease - Arrears of rent can be recovered not under this Section but under the Rules – The lease is a lease granted under the Rules framed under the Panchayat Act. The Residuary Rule of 1962 regarding demanding amount due to Panchayats empowers the Panchayat to recover inter alia rents and other sums which under the Act or any other law or rules or bye-laws made thereunder are due to the Panchayat, in the manner provided in the rules for the collection of taxes if - 1983 KLT 677 : ILR 1984 (1) Ker.347.

Prosecution for non-payment of tax - Complaint praying that action should be taken under R.26 of Taxation and Appeal Rules - Complaint not specifically averring that failure was wilful or there was wilful restraint - Sustainability - Generally speaking a complaint may allege the facts and disclose necessary ingredients of an offence. There may be cases where all the ingredients are not specifically disclosed, but the compliant may refer to the provision of law which renders the act or omission punishable as an offence. In such cases, the ingredients of the offence are implicit by the specific reference to the provision of law under which the act or omission is rendered punishable as an offence. Therefore the ingredients of the offence under Rule 26 of the Rules, though not specifically mentioned in the complaints, are implicit in the complaints. - Ramaswamy v. Executive Officer – 1981 KLT 97.

Recovery of fee - Element of quid pro quo if necessary - Now a mere casual relationship between the fee and the services may be enough and it is not even necessary to establish that those who pay fee must receive direct benefit of the services rendered. General benefit from the authority e element of service required for collecting the fee. No special benefit to the person making the payment need be established. - Executive Officer v. Velayudhan Nadar – 1988 (2) KLT 138: 1988 (1) KLJ 735. Panchayat (Acquisition And Transfer of Immovable Property) Rules, 1963 (Kerala) — Judicial review can be invoked to ensure that the land is measured out and a survey plan prepared and provided to the Panchayat. The request of the Panchayat to get a plan prepared is quite legal and there is definite failure to discharge the lawful functions of the Revenue Authorities which is revealed from the lethargy on their part to comply with the request of the Panchayat even the primary step necessary for initiating land acquisition. – Sankaranarayanan Nair v. State of Kerala - 2003 (2) KLT SN 65.

Panchayat (Acquisition and Transfer of Immovable Properties) Rules, 1963 - R.6 - Right to continue in possession of the Panchayat shop rooms after specific period - Reasoning that circular will enable the occupant to continue in possession for indefinite period on paying 5% increase in rent cannot be supported. - After the filing of the second appeals, the new Panchayat Raj Act, 1994 and Rules have come into force and the parties will be thereafter governed by the new Act & Rules. - Vadakkencherry Panchayat v. Abdul Jabbar – 2002 (2) KLT 761.

74 [corresponding to S.210 of the Panchayat Raj Act, 1994]– Prosecution only on the failure of the mode prescribed under S.74 - The executive authority can launch the prosecution only on the failure of the mode prescribed under S.74 of the Act. As the second proviso to S.74 postulates criminal prosecution only when distraint of the defaulter's property is found impracticable, the appellant has necessarily to establish that distraint of the property of the accused was found impracticable. - Executive Officer v. Chacko Joseph - 1990 (2) KLT 87.

74 [corresponding to S.210 of the Panchayat Raj Act, 1994]– Prosecution by the Panchayat for realisation of amounts due by way of arrears of rent is maintainable – Rules regarding amounts due to Panchayats where there is no special provisions – Panchayats Taxation and Appeal Rules, 1963 (Kerala), R.13 - Panchayats (Acquisition and Transfer of Immovable Property) Rules, 1963 (Kerala), R.9 - In cases where distraint and sale are allowed and the distraint become impossible under conditions laid down, prosecution is the inevitable consequence. Where distraint is allowed,"prosecution is also permissible. Residuary Rules will have to be read along with the Acquisition and Transfer of Immovable Properties Rules. S.74 of the Kerala Panchayats Act is not end of the matter. Acquisition and Transfer of Immovable Properties Rules, the Residuary Rules and other provisions mentioned above, including the Taxation and Appeal Rules, will have to be read together along with S.74. By the Rules, the contractual obligation get converted into one due under the Rules and recovery by distraint and prosecution is the right of the Panchayat. Rent is now amount due under the Rules intended to be used for the purpose of the Panchayat. It will not be in consonance with the intention of the rule making authority to interpret and limit the scope of 8.74 and the rules in a way to exclude recovery of rent from the provisions of the Act and

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