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State of Kerala Vs. Othenan Koran Panicker - Court Judgment

LegalCrystal Citation
SubjectCriminal;Property
CourtKerala High Court
Decided On
Case NumberCriminal Appeal No. 100 of 1957
Judge
Reported inAIR1958Ker168; 1958CriLJ760
ActsMadras Revenue Recovery Act, 1864 - Sections 5; Madras General Clauses Act, 1891 - Sections 3(14) and 3(19)
AppellantState of Kerala
RespondentOthenan Koran Panicker
Appellant Advocate M.U. Isaac, Public Prosecutor
Respondent Advocate A. Achuthan Nambiar and; T.P. Kelu Nambiar, Advs.
DispositionAppeal allowed
Excerpt:
- .....appeal against acquittal is whether standing crops are movable property within the meaning of the madras revenue recovery act (act ii of 1864). 2. the accused, a person owning land in the village of kunhimangalam, in the former district of malabur where the madras revenue recovery act is in force, was admittedly in arrear with the revenue to the extent of rs. 16-13-0. the prosecution case is that on the authority of the warrants, exts. p-l and p-2 both dated 16-1-1957, duly issued to him by the tahsildar of cannanore under section 8 of the act, pw 1 the adhikari of the village, attached the crops standing on the accused's land on 23-1-1957. this was after pw 1 had shown the accused the written demand in exts. p-l and p-2 and the accused had declined to pay the money on the ground that.....
Judgment:

Raman Nayar, J.

1. The question raised in this appeal against acquittal is whether standing crops are movable property within the meaning of the Madras Revenue Recovery Act (Act II of 1864).

2. The accused, a person owning land in the village of Kunhimangalam, in the former district of Malabur where the Madras Revenue Recovery Act is in force, was admittedly in arrear with the revenue to the extent of Rs. 16-13-0. The prosecution case is that on the authority of the warrants, Exts. P-l and P-2 both dated 16-1-1957, duly issued to him by the Tahsildar of Cannanore under Section 8 of the Act, PW 1 the Adhikari of the village, attached the crops standing on the accused's land on 23-1-1957. This was after Pw 1 had shown the accused the written demand in Exts. P-l and P-2 and the accused had declined to pay the money on the ground that he had no money with him. The accused also declined to accompany Pw 1 to his land for the purpose of witnessing the attachment.

But soon after the attachment was effected, Ext. P-3, an inventory of the property attached was tendered to the accused, and, on his refusal to accept it, was served by affixture. On 25-1-1957, the accused harvested and removed the attached crops. Pws. 4 and 5, neighbouring land owners, saw this. On getting to know of this, Pw. 1 sent the report, Ext. P-4, to the Revenue Inspector the following day. This report was forwarded through the Tahsildar of Cannanore to PW 8 the Sub-Inspector of Police, Payyanoor who registered a case under Section 379 I. P. C. and proceeded to investigate it. On 27-1-1957, Pw. 8 searched the accused's house and recovered ten bundles of newly harvested sheaves.

3. When questioned under Section 342 of the Crl. Procedure Code the accused denied the attachment and the service of the notice on him. He said that Pws 4 and 5 were giving evidence at the instance of the police but he admitted the seizure of the harvested sheaves from his house and offered no explanation as to how he came by them. He examined no witnesses in his defence.

4. The learned magistrate did not enter into the merits of the case, but held that the alleged attachment by Pw. 1 was unauthorised & illegal in that the warrants Exts. P-l and P-2 authorised him only to attach the movable property of the accused. The Madras Revenue Recovery Act does not define movable property but in. view of the definition in the Madras General Clauses Act, the learned magistrate came to the conclusion that standing crops, being attached to the earth, were immovable and not movable property. The attachment by Pw. 1 being void, the crops remained in the possession of the accused and their removal by him was no offence. In this view, the learned magistrate acquitted the accused.

5. In our view the acquittal is wrong. Strictly speaking what falls for the decision is whether the term, ''movable property', as used in Exts. P-l and P-2 includes standing crops. But since these are orders issued under the Madras Revenue Recovery Act, it follows that the term, 'movable property' occurring in them must be construed in the same manner as in the Act. Now, as we have already observed, the Act contains no definition of movable property. But a study of its provisions makes it quite clear that it uses the term to include standing crops. Section 5 of the Act states that it shall be lawful for the Collector to recover the revenue in arrear by the sale of the defaulter's movable & immovable property or by execution against the person of the defaulter in the manner provided by the Act, Section 8 says that the rules following shall be observed in the seizure & sale of the movable property, & those rules are embodied in Ss. 8 to 24 of the Act.

Sections 25 to 40 of the Act contain the rules for the attachment and sale of immovable property while Sections 48 and 49 deal with execution against the person of the defaulter. Sections 25 to 40, it may be noted, speak only of land and of buildings thereon, and do not refer at all to standing crops. On the other hand Section 11 which occurs among the rules for the seizure & sale of movable property contains special provisions with regard to 'the crops or ungathered products of the land belonging to a defaulter,' and Section 17, which provides for claims to movable property distrained and sold deals also with claims to crops upon the ground. Section 11 moreover speaks of a distrainer attaching crops, and the word 'distraint' is, in legal parlance, used only with reference to the attachment of movable property. It is thus clear that, in the scheme of the Act, standing crops are movable & not immovable property.

6. It is true that Section 3 (19) of the Madras General Clauses Act (1 of 1891) defines movable property as meaning property of every description except immovable property, and that Section 3 (14) defines immovable property to include things attached to the earth. It is also true that in a number of decisions construing these terms as used in statutes which do not themselves define them, standing crops have been held to be immovable property on the strength of these definitions in the Madras General Clauses Act and the similar definitions in the (Central) General Clauses Act (X of 1897). But then the definition in Section 3 of the Madras General Clauses Act, cannot apply in the present case, and the decisions are therefore of little assistance. For, the definitions in Section 3 of the Madras General Clauses Act are under the very terms of that section applicable only to Acts made after the commencement of that Act; and moreover, they are not applicable if there is something repugnant in the subject or context, The Madras General Clauses Act came into force on the 1st January, 1892, whereas the Madras Revenue Recovery Act was made in 1864. And, as we have seen the way in which the latter Act uses the term 'movable property' is repugnant to the definition in the? Madras General Clauses Act.

7. There can be no doubt that if the crops were validly attached and the accused cut and removed them knowing of the attachment, the accused is guilty of an offence under Section 379 I. P. C. The attachment has been proved by the Adhikari, Pw. 1, the Kolkaran, Pw. 7, and by Pws. 2 and 3, persons of the locality, as also by the documents Exts. P-l to P-3; that the accused know of it is proved by the evidence of Pws. 1 and 7; and the removal by the accused has been proved by Pws. 4 and 5. We have gone through the evidence of these witnesses and can discover no reason whatsoever for not accepting it. The undisputed and unexplained possession of the newly harvested sheaves by the accused also goes to prove the removal. The fact that the names of the witnesses are not mentioned in Ext. P-4, the report made by Pw. 1 to the Revenue Inspector in order to inform him of the removal of the attached crop, is no ground for suspecting that the witnesses have been subsequently got up.

8. It is argued that, in effecting the attachment, the provisions of Order XXI, Rule 44 of the Civil Procedure Code have not been complied with. But that provision does not apply to attachments effected under the Revenue Recovery Act. So far as we can see the rules laid down in that Act have been followed and nothing is urged to the contrary.

9. We allow the appeal and convict the accused under Section 379 of the Indian Penal Code. We sentence him to pay a fine of Rs. 50/-, and, in the event of default, to undergo rigorous imprisonment for one month.


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