Balakrishna Eradi, J.
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 on 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 Section 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/G 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 13-7-1970 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 thearrangement. Ext P-l 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 Pan-chayat, demanding payment. Thereupon, the Panchayat instituted a prosecution against the petitioner by presenting the complaint Ext. P-3 before the Munsiff Magistrate, Ettumanoor purporting to be under the second proviso to Section 74 of the Act. The petitioner has come up to this Court with this writ petition seeking to quash Ext. P-3 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. Section 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 S. R. O. 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 bye-laws made thereunder are due by any person to the Panchayat. may. if there is not 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 question is whether the provisions of Section 74 read 'alone 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. P-l. Tiie answerto 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 Section 74, and. if it is not covered by Section 74. whether it does fall within any of the descriptions of the various classes of outstandings enumerated in the aforementioned rule.
4. The amount payable to the Panchayat by the writ petitioner under the contract evidenced by Ext. P-l is certainly not a cess rate, surcharge or tax imposed under the Act nor is it a fee levied under the Act. Section 75 is not. therefore, attracted to the case. The only question that remains is whether the amount sought to be recovered from the petitioner will fall within the scope of the rule relied on by the 1st respon-dent the terms of which have been re-produced above. In order that the provisions of the said rule should become applicable the amount sought to be recovered must be a sum due to the Panchayat under the Kerala Panchayats Act or any other law, or rules or bye-laws! made thereunder. I am clearly of opin-jon that an amount due to a Panchayat tinder a contract such as Ext. P-l cannot be regarded as a sum due to it either under the Kerala Panchayats Act or any other enactment, or rules, or bye-laws framed under any such enactment. An identical question came up for consideration before the Madras High Court in a very early case reported in Abdul Aseez Sahib v. Cuddapah Municipality. (1903) ILR 26 Madras 475 and it was held by Sir Arnold White. C. J. that money due under a contract entered into with a Municipality whereby the right to collect tolls was farmed out in favour of a person, did not fall within the scope of Section 269 of the Madras District Municipalities Act (Act IV of 1884) since it did not constitute a tax. fee or toll or rent due under that Act. This decision was followed in two subsequent Division Bench rulings of the same High. Court reported in Punya Syamalo in re, AIR 1924 Mad 669. and Mahab Ali Khan v. President, Taluk Board. Kurnool. AIR 1924 Mad 898. In the last case aforementioned Ramesam and Jackson. JJ. observed:
'It has long been recognised law that money due under a contract cannot be summarily recovered by a Municipality in a Magistrate's Court under the old Madras District Municipalities Act IV of 1884. Section 269 ...............The point for determination is whether the wording of Section 221 of Madras Act XIV of 1920. has extended thepower of the local body. Section 269 of Act IV of 1884 was 'all rent, fees, tolls and other payments due to the Municipal Council under the provisions of this Act.' Section 221 of Act XIV of 1920 runs 'any fee. toll, costs, compensation, damages, penalties, charges, expenses or other sums due to a local board under or by virtue of this Act. 'We do not find that this phrase includes sums due under contracts.'
Again, in a recent decision reported in A. Gnanasikhamony v. Palukal Pancha-Vat, AIR 1970 Mad 360, Krishnaswamy Reddy. J.' reiterated the above legal position and held that arrears of kist payable to a Panchayat under a contract by which a contractor had been given the rieht to collect fees cannot be recovered by the Panchayat by distraint or prosecution. The learned Judge held that the expression 'other sums' occurring in Rule 32 of the rules framed under the Madras Fanchayats Act does mot include money due under contract end that even though the Panchayat has power to enter into contracts under Section 8 (3) sums due to the Panchayat under such contract are not recoverable as sums due under the Act or Rules,
5. The same view was expressed by a learned single Judge of the Travan-core-Cochin High Court in the decision reported in Ahmad Hydros v. Alwaye Municipality, AIR 1951 TC 82, with reference to Section 365 of the Travancore District Municipalities Act XXITI of 1116. the wording of which is comprehensive enough to take in all the various types of dues described in Section 74 of the Kerala Panchayats Act end also in the rule framed as per S. R. O. No. 319/62.
6. I am in respectful agreement with the statement of the, law as contained in the decisions aforecited. I accordingly hold that the 1st respondent Panchavat has no jurisdiction to recover the balance amount stated to be due to it under the contract evidenced by Ext. P-l bv launching a criminal prosecution against the petitioner under the second proviso to Section 74 of the Act.
7. In the result, the writ petition is allowed and the criminal urose-cution initiated against the petitioner as per the complaint evidenced by Ext. P-3 will stand quashed. The 2nd respondent will refrain from taking any fur-iher action on the basis of the said complaint. The parties will bear their respective costs.