Money due under a contract cannot be summarily recovered under S.74 of the Kerala Panchayats Act, 1960.

1. The question raised in this writ petition is whether an amount due to a Panchayat under a contract whereby the right to conduct certain cultural programme in a property belonging to the Panchayat was farmed out to the petitioner who was the highest bidder at an auction conducted by the Panchayat, can be recovered by the Panchayat by resorting to the procedure for recovery of taxes, cesses, fees etc. prescribed under S.74 of the Kerala Panchayats Act, 1960 (hereinafter referred to as the Act).

2. The petitioner was granted by the Panchayat the exclusive right to conduct "cultural programmes" in a property belonging to the Panchayat situated in Survey No. 19/6 of Perumayikad Village for a period of three months commencing from 25-7-1970 for a total consideration of Rs, 5.130/-, that being the highest bid amount fetched at a public auction held by the Panchayat for farming out the said right. Out of the aforesaid bid amount the petitioner paid a sum of Rs. 1,710 on 13 71970 and an agreement was executed between the petitioner and one surety on the one part and the Panchayat on the other incorporating the terms of the arrangement. Ext. P1 is a copy of the said agreement. Subsequently, the petitioner committed default in the matter of remitting the balance amount due under the agreement in spite of notice having been issued to him by the Panchayat demanding payment. Thereupon, the Panchayat instituted a prosecution against the petitioner by presenting the complaint Ext P3 before the Munsiff-Magistrate, Ettumannoor purporting to be under the second proviso to S.74 of the Act. The petitioner has come up to this court with this writ petition seeking to quash Ext. P3 and praying also for the issuance of an appropriate writ prohibiting the 2nd respondent the Munsiff-Magistrate, Ettumanoor from proceeding with the trial of the criminal case.

3. S.74 of the Act is in the following terms:

"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 executive authority 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 the defaulter's property is impracticable; the executive authority may prosecute the defaulters before a Magistrate."

Counsel appearing on behalf of the 1st respondent Panchayat relied also on the following rule framed by the State Government as per SRO. No. 319/62 published in the Kerala Gazette dated 13th November, 1962:

"All costs, damages; compensation; penalties; charges, fees (other than school fees) expenses, rents, contributions and other sums which under the Kerala Panchayats Act; 1960 (Act 32 of 1960) or any other law or rules or byelaws made thereunder are due by any person to the Panchayat; may, if there is no special provision in the Actor in the other law or in the rules or byelaws 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 question is whether the provisions of S.74 read along with the aforementioned rule warrant the action taken by the Panchayat in instituting a prosecution against the petitioner for the recovery of the balance amount due under the agreement Ext. P1. The answer to that will depend upon whether the amount that is sought to be recovered by the Panchayat can be regarded as "any arrear of cess, rate, surcharge or tax imposed or fees levied under this Act" which are the only categories of dues that can be recovered under S.74, and, if it is not covered by S.74, whether it doss fall within any of the descriptions of the various class of outstandings enumerated in the aforeme