K S RAJAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The short point involved in the case is whether the 2nd respondent, which is a Panchayat has got the power to realise the arrears of rent by distraint and sale of the petitioner's movables. The short facts are the following: Under a bilateral deed Ext. P1 dated 29-12-1979 the petitioner took on rent the Rest House of the 2nd respondent at Kumily, for a period of 3 years from 1-9-1979 to 31-8-1982 at the monthly rent of Rs. 10,500/-, payable on or before the 15th of every month. One of the terms of Ext. P1 is that the arrears of rent would carry interest at the rate of 12 percent per annum. The other terms of the engagement are not relevant. On 29-1-1981 the Executive Officer issued to the petitioner a demand notice Ext. P2 calling upon him to pay Rs. 1,47,000/- as arrears of rent from January 1980 to February 1981 with interest amounting to Rs. 11, 025/-, 'notice fees of 25 Ps. and Rs. 2.90 being the cost of serving the notice within 15 days and telling him that in default his movables would be attached and sold in accordance with S.74 of the Panchayats Act and Taxation and Appeal Rules (the ''Act" and ''Rules"). The petitioner seeks to set aside Ext. P2 and to restrain the Panchayat from taking any coercive steps for recovery of the amount. He also prays to declare that under S.74 of the Act or R.13 of the Rules no action can be initiated for recovery of the amount. The 2nd respondent represented by its Executive Officer has filed a counter affidavit denying the petitioner's case and asserting its right to realise the amount in terms of Ext. P2.

(2.) R.6(1) of the Kerala Panchayats (Acquisition and Transfer of Immovable Properties) Rules, 1963 provides that a Panchayat may lease out any immovable property belonging to it. Rules regarding demanding amounts due to Panchayats where there is no special provision, 1962 (SRO. No.319/62) reads:

(3.) The principal argument of counsel for the petitioner is that S.74 which is the Section mentioned in Ext. P2 has no application as it applies only to recovery of arrears of cess, rate, surcharge, tax or fees levied under the Act and as the rent under Ext. P1 is not a liability under any of these categories, the 2nd respondent is incompetent to invoke S.74 or the subsidiary R.13. I agree that the rent reserved under Ext. P1 is not a liability of the category mentioned in S.74. But that is not the end of the matter. R.6 of the Panchayats (Acquisition and Transfer of Immovable Properties) Rules empowers the Panchayat to lease out any immovable property. The lease under Ext. P1 is thus a lease granted under the Rules framed under the Panchayat Act. The residuary rule of 1962 already extracted, 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 there is no special provision in the Act, or other law or rules or bye laws for their recovery. The rent under Ext. P1 falls within the scope of this Rule and there is no other special provision applicable. The 2nd respondent was therefore within its competence in issuing the notice Ext. P2 for the distraint of the petitioner's movables. That being so, there is no merit in the writ petition which is accordingly dismissed. In the circumstances, there will be no order as to costs.