SECRETARY THALAVOOR GRAMA PANCHAYAT Vs. SALIM

JUDGEMENT

(1.) SECRETARY of a Panchayat, when the prosecution initiated by him failed, has approached this court with this appeal. The prosecution initiated by the appellant was because of the default made by the first respondent is not remitting a portion of the bid amount to occupay a meat stall owned by the panchayat for a particular year. The learned Magistrate found that the Panchayat has not substantiated that the first respondent has committed any offence punishable under Section 210 of the Panchayat Raj Act 1994, as the panchayat had not provided the slaughter house facilities and did not even produce the agreement from which the liability to pay the bid amount arises.

(2.) ASSAILING the acquittal, it is submitted that, existence of the agreement was admitted by the accused in his statement under section 313 Cr. P. C. It is submitted that, the notification issued in terms of erstwhile Panchayat Act and the Rules framed there under have been served in terms of Section 284 (2) (i) of the Kerala Panchayat Raj Act, 1994. Therefore the prosecution was permissible. When the agreement is admitted and no evidence has been produced for payment of the entire amount in terms of the agreement and as the appellant/complainant had substantiated that the distraint could not be successfully taken, the prosecution was maintainable. There is evidence that the accused had committed the offence punishable under Section 210. Section 210 of the Panchayat Raj Act 1994 provides that; "any arrear of cess, 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 movable 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. " It is invoking the power under second proviso of Section 210, the prosecution had been initiated. Necessarily, it can be for recovery of any of the items specifically made mention of under Section 210.

(3.) THIS contention cannot be accepted on another count as well. THIS notification issued in terms of the Panchayat Act 1960 cannot be said to be saved in terms of Section 284 (2) of the Kerala Panchayat Raj Act, 1994. The said provision reads as under. Sec. 284 (2):- "with effect on, and from the appointed day the Kerala Panchayat Raj Act, 1960 (32 of 1960), the Kerala District administration Act 1979 (7 of 1980) and also the provisions relating to panchayats contained in the Kerala Local Authorities (Constitution and preparation of Electoral Rolls) Act, 1994 (4 of 1994) shall stand repealed and the following consequences shall ensue, that is to say" xxx xxxxx xxxxxxxxxxx (i):- "any appointment notification, notice, tax, fee, order, scheme, licence, permission, rule, bye-law, regulation or form made, issued, imposed or granted in respect of the Panchayat area of existing panchayat under the Kerala Panchayats Act, 1960 and in force immediately before the appointed day shall, in so far as it is not inconsistent with the provisions of this Act continue to be in force as if made, issued, imposed or granted in respect of the corresponding Panchayat are of a successor panchayat under this Act until superseded or modified by any appointment, notification, notice, tax, fee, order, scheme, licence, permission, rule, bye-law, regulation or form made, issued, imposed, or granted under this Act. " THIS saving clause will save only those provisions in the notification or rules which are not inconsistent with the provisions of the kerala Panchayat Raj Act, 1994. Section 210 does not specifically provide prosecution for default of bid amount. Prosecution on default of bid amount, if made punishable in terms of that notification, it will be inconsistent with the act.