A GNANASIKHAMONY Vs. PALUKAL PANCHAYAT

JUDGEMENT

(1.) THIS petition has been filed by the accused in C. C. No. 15 of 1967 on the file of the Special First Class Magistrate, Kuzhitnurai, against the order of the said magistrate in overruling the preliminary objection raised by him on the "ground that the complaint against him was Incompetent as there was no procedure laid down in Madras Panchayat Act for the recovery of the amount due from him under the contract by way of distraint or prosecution.

(2.) IT is necessary to note the facts very briefly for the purpose of appreciating the point raised by the petitioners: The right of collecting fees from Kannumamood public market in Palukal Panchayat was leased out to the petitioner by the executive" Officer, Palukal Panchayat, and a written agreement was entered into between the Executive officer of the Panchayat on one part and the petitioner on the other on 7th April 1966 by which the petitioner had to pay to the panchayat the kist amount in ten monthly instalments at Rs. 1,370. 50 and the first instalment was to be paid on 31-1-1967. The petitioner defaulted to pay the Instalments and had fallen in arrears to the tune of Rs. 6,320/ -. The Executive Officer therefore, filed a complaint before the special First Class Magistrate, Kuzhithurai alleging that the petitioner had wilfully omitted to remit the market lease amount of Rs. 6. 320/- due to Palukal Panchayat for the year 1966-67 in respect of lease Contract of the Kannumamood Market. It was alleged in the complaint that the petitioner wilfully prevented distraint. The complaint was instituted under CL 22 of Sub-section (2) of Section 178 of the madras Panchayats Act and violation of condition as per para 3 of the agreement executed by the petitioner on 7-4-1966 and also under Notification No. 52 of G. O, ms. No. 1248 dated 26-4-1961.

(3.) THE petitioner raised an objection In the lower Court that the amount due under the contract cannot be recovered In the manner provided in Notification No. 52 of g. O. Ms. No. 1248 dated 25-4-1961 and that, therefore, the prosecution was not maintainable. The learned Magistrate by his Order dated 20-9-1967 overruled his objection by stating that the Panchayat Rules did not mention about any contracting party, but it simply says that any sum due to the Panchayat under the panchayat Act should be recovered by a suit and ultimately held that he can take cognizance of the offence and proceed with the trial.