Panchayat:Repo18/Law Manual Page0279

Rule. These provisions were introduced for the purpose of enabling the Panchayats to recover the amounts, at their option, by the process of distraint and prosecution, without resorting to courts of law. - Executive Officer v. Suresh Babu – 1992 (1) KLT 291: 1991 (1) KLJ 241 [1973 KLT 145, Cri.A. 320 & 335 of 1986 & Crl. A. 256 of 1984 Overruled# 1983 KLT 677 Confirmed].

74 & Panchayats (Taxation and Appeal) Rules 1963 [corresponding to S.210 of the Panchayat Raj Act, 1994) Rule 26 - Omission to pay a liability barred by limitation whether constitutes an offence - Panchayats (Taxation and Appeal) Rules, 1963 (Kerala), R.26 – In order to constitute the omission an offence under Rule 26 read with the second proviso to S.74 it must be of an amount "due by him" and the omission must be "wilful" also. A claim that has become barred by limitation without taking any effective steps for recovery cannot be said to be "due" for the purpose of constituting an omission "wilful" and as such an offence, even though law of limitation only bars the remedy and does not extinguish the right. The question of wilful omission can arise only after demand was made or distraint was attempted. - Executive Officer v. Velayudhan Nadar - 1988 (2) KLT 138 : 1988 (1) KLJ 735.

74, 96 & 109(6) (corresponding to S.210, 232 & 236 of the Panchayat Raj Act, 1994) Prosecution for non-payment of licence fee - Magistrate can direct accused to remit chargeable fee - Absence of statement in the complaint that distraint warrant was issued – Maintainability of complaint - 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 S.74 of the Act. Therefore, the contention 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 not sustainable. – Kodakara Panchayat v. Sukumaran – 1986 KLT 618 : 1986 KLJ 458.

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 Panchayats. It will not be in consonance with the intention of the rule making authority to interpret and limit the scope of S.74 and the Rules in a way to exclude recovery of rent from the provisions of the Acts and Rules. These provisions were introduced for the purpose of enabling the Panchayats to recover the amounts, at their option, by the process of distraint and prosecution, without resorting of courts of law. - Executive Officer v. Suresh Babu - 1992 (1) KLT 291 : 1991 (1) KLJ 241 [1973 KLT 145, Crl.A. 320 & 335 of 1986 & Crl. A. 256 of 1984 Overruled # 1983 KLT 677 Confirmed.]

74 [Corresponding to S.210 of the Panchayat Raj Act, 1994] - Panchayats (Taxation and Appeal) Rules 1963, R.26 - Prosecution for non-payment of dues - At the time when the amount fell due, non-payment not an offence - Prosecution if can be sustained in view of Art.20 of Constitution of India - The case here is one of conviction and sentence, which necessarily implies that an offence has been found committed by the petitioner. Here the act that constitutes an offence within the scope of S.74 of the Kerala Panchayats Act, 1960, is the omission to pay the dues to the Panchayat when it fell due, and that having occurred at a time when it did not constitute an offence, the prosecution laid in this case is under an ex post facto law and as such unwarranted. The prosecution is therefore misconceived. - Muhammed Lubba v. Neelambaran – 1967 KLT 249: 1967 KLJ 403 : AIR 1967 Ker. 155 : ILR 1967 (1) Ker. 110: 1967 KLR 285.

74 (Corresponding to S.210 of the Panchayat Raj Act, 1994] - Panchayats (Taxation and Appeal) Rules, 1963, R.26 - Requirements to constitute the offence - Arrears of profession tax under Travancore-Cochin Panchayats Act, 1950 under which its non-payment was not an offence - Prosecution under S.74 if barred by Art.20 (1) of Constitution of India. (FB) - Saidu Muhammed v. Bhanukuttan – 1967 KLT SN. P.20.

Prosecution before a Magistrate if a means of realisation of tax – The Act regards prosecution before a magistrate as a means of realisation of tax due to a Panchayat. And that indeed is the effect of the prosecution since, on conviction, the magistrate is empowered by sub-rule (2) of R.26 of the Rules to recover summarily, and pay to the Panchayat, the amount due. – Saidu Muhammed v. Bhanukuttan, Executive Officer, Chavara Panchayat - 1967 KLT 947 FB : ILR 1967 (2) Ker. 705.

Prosecution for wilful omission to pay any amount due to the panchayat - Maters to be proved - A prosecution under the Panchayats Act for the wilful omission to pay an amount due to the panchayat

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