The main legal point established in the judgment is that the amount due to the Panchayat, even if not falling under the specific categories mentioned in S.74, can be recovered in the manner provided for the collection of taxes under the Act, as per the rule made under the authority of S.129(xvi).

Pareed Pillay,C.J.

Appellant filed O.P.5625 of 1994 challenging launching of prosecution against him under S.74 of the Kerala Panchayats Act. Appellant was the successful bidder in the auction during 1992-1993 to remove sand from Kallada river in Thenmala Panchayat (first respondent), He remitted Rs. 30,004/-. He had to remit balance amount of Rs. 31,155.55. As he failed to remit the same, first respondent lodged complaint before the Magistrate's Court, Punalur under S.74 of the Act. Challenge in the Original Petition is that the complaint lodged against the petitioner (appellant) cannot be maintained as the amount due to thePanchayat would not come within the purview of S.74 of the Act.

2. The question that arises for consideration is whether for the amount due to the Panchayat from the appellant he having been allowed the right to collect sand from the river can he prosecuted as a defaulter before a magistrate. Contention of the appellant is that the amount due from him will not come within the category of arrear of cess, rate, surcharge or tax imposed or fees levied under the Act and therefore S.74 cannot be invoked. Counsel contended that the amount due from the appellant to the Panchayat is entirely different from what has been mentioned under S.74 and so prosecution launched against him does not have any legal basis.

3. Learned counsel for the first respondent invited our attention to (he specific rule regarding demanding amounts due to Panchayats where there is no special provision. The rule reads.

"All costs, damages, compensation, penalties, charge, tees (other than school tecs), expenses, rents, contributions and other sums which under the Kerala Panchayats Act, 1960 (Act 32 of 1960) or any other law or rules or bye-laws made thereunder are due by any person to the Panchayal, may, if there is no special provision in the Act or in the other-law or in the rules or bye-laws made thereunder for their recovery be demanded by bill which shall be served on the person concerned and recovered in the manner provided in the rules for the collection of taxes under the said Act."

The above rule was published in the Kerala Gazette dated 13-11-1962 (SRO.No.3 i 9/ 62). From the above rule it can be seen that amount due to Panchayat which does not come within the categories specifically mentioned under S.74 can be recovered in the manner provided for the collection of taxes under the Act. Thus amount due to the Panchayal even though it does not come within the category of arrear of cess, rate, surcharge or tax or fees levied under the Act can also be recovered in the manner provided in the rules for the collection of taxes under the Act, In other words, (he amount due to the Panchayal though not coming within the categories mentioned under S.74 can also be collected in the manner provided under the Act. Moreover, the rule mentioned above was made under the authority of S.129(xvi) and hence it cannot be denied the force of law. Contention of the appellant that amount due from him to the Panchayat is on the basis of a contract entered into between him and the Panchayat and therefore latter can have recourse only to the court for realistion of the amount and criminal complaint cannot be lodged against him under S.74 of the act is not tenable. The rule has been enacted to obviate the contingency of the Panchayats being uu, necessity of filing suits to recover amount due to them as a special mode of recovery.

4. Counsel for the appellant submitted that the appellant had filed Ext. P5 series representations before the Panchayat and that they were not considered so tar. Counsel for the first respondent pointed out of that the appellant has filed Ext. Rl-(b) representation agreeing to pay the amount in instalments and therefore the belated attempt to circumvent the payment cannot he Countenanced. We make it clear that, it is open to the appellant to raise all his contentions before the criminal court.