The main legal point established in the judgment is that R.3 of the Kerala Panchayats (Trial of Offences by Magistrates) R.1964, which prescribed the class of Magistrates by whom offences under the Act shall be tried, was valid and not repugnant to the provisions of the Criminal Procedure Code or S.119 of the Act.

1. These two cases have come before us pursuant to an order of reference made by our learned brother Sadasivan J. The question arising for decision relates to the validity of R.3 of the Kerala Panchayats (Trial of Offences by Magistrates) R.1964, as it sood before its recent amendment as per Notification G. O. Ms. 440/67/DD dated 14121967.

2. We shall briefly state the circumstances under which the above references have been made. S.74 of the Kerala Panchayats Act, 1960 (hereinafter referred to as the Act) provides for the recovery of arrear of tax, cess etc. due to a Panchayat; and prosecution of the defaulter before a Magistrate is one of the modes provided thereunder. S.129 of the Act contains the rule-making power of the Government; and S.129 (2), clause xxxix reads as follows:

129 (2). In particular and Without prejudice to the generality of the foregoing power, the Government may make rules

xx x x

(xxxix) as to the class of Magistrates by whom offences against this Act shall be tried;"

The Kerala Panchayats (Trial of Offences by Magistrates) Rules, 1964 (hereinafter referred to as the Rules) were made by the Government in exercise of the aforesaid power. R.3 of the Rubs, as it originally stood, read as follows:

"All offence against the Act or the Rules or bye-laws framed thereunder shall be tried by a Magistrate of Second Class."

Most of the offences under the Act and the several rules made thereunder are according to the Second Schedule of the Criminal Procedure Code, triable by any Magistrate; and there are no offences which cannot be tried by a Magistrate of the Second Class.

3. there are District Magistrates, Sub-Divisional Magistrates and Magistrates of the First and Second Classes in this State; and the State Government have defined the local areas within which such persons may exercise their powers. There are some local areas in the State for which the Government have not appointed any Second Class Magistrate, but only a First Class Magistrate. This is because under the third schedule to the Criminal Procedure Code, a First Class Magistrate has all the ordinary powers of a Second Class Magistrate, and there may not be sufficient work for both a First Class Magistrate and a Second Class Magistrate to function in the same local area. Then the First Class Magistrate would take cognisance of and try also Second Class offences committed within his local limits. Accordingly, complaints in respect of offences under the Act or the rules made thereunder committed within the local limits of a First Class Magistrate, in respect of which there is no Second Class Magistrate, used to be filed before the First Class Magistrate; and he would take cognisance of the same and try and dispose of them. The question was raised before, this Court in Viswanathan v. Akathethara Panchayat 1967 KLT. 314 whether, in view of R.3 of the Rules, a First Class Magistrate was competent to try an offence under the Act. That case was decided by one of us; and it was held therein on the authority of the decision of the Supreme Court in State of U. P. v. Sabir Ali AIR. 1964 SC. 1673 that such offences are triable only by a Second Class Magistrate, and that a First class Magistrate was not competent to try them. Apparently, it was on the basis of this decision that R.3 was amended on 14121967 by adding the following proviso thereto:

"Provided that in the case of a Panchayat the area of which does not fall within the jurisdiction of any Second Class Magistrate, such offences shall be iried by a Magistrate of the First Class having jurisdiction over the Panchayat area."

4. These references arise out of two complaints which the the Executive Officer of Nediyiruppu Panchayat filed before the Sub-Divisional Magistrate, Malapuram, against two persons for failure to take out licenses under S.96 of the Act for conducting their respective trades within that Panchayat. The learned Magistrate took cognisance of the offence, tried the cases and convicted and sen