Krishnaswami Reddy, J.
1. This petition has been filed by the accused in C. C. No. 15 of 1967 on the file of the Special First Class Magistrate, Kuzhitnurai, against the order of the said Magistrate in overruling the preliminary objection raised by him on the 'ground that the complaint against him was Incompetent as there was no procedure laid down in Madras Panchayat Act for the recovery of the amount due from him under the contract by way of distraint or prosecution.
2. It is necessary to note the facts very briefly for the purpose of appreciating the point raised by the petitioners: The right of collecting fees from Kannumamood public market in Palukal Panchayat was leased out to the petitioner by the Executive' Officer, Palukal Panchayat, and a written agreement was entered into between the Executive officer of the Panchayat on one part and the petitioner on the other on 7th April 1966 by which the petitioner had to pay to the panchayat the kist amount in ten monthly instalments at Rs. 1,370.50 and the first instalment was to be paid on 31-1-1967.
The petitioner defaulted to pay the Instalments and had fallen in arrears to the tune of Rs. 6,320/-. The Executive Officer therefore, filed a complaint before the Special First Class Magistrate, Kuzhithurai alleging that the petitioner had wilfully omitted to remit the market lease amount of Rs. 6.320/- due to Palukal Panchayat for the year 1966-67 in respect of lease Contract of the Kannumamood Market. It was alleged in the complaint that the petitioner wilfully prevented distraint. The complaint was instituted under CL 22 of Sub-section (2) of Section 178 of the Madras Panchayats Act and violation of condition as per para 3 of the agreement executed by the petitioner on 7-4-1966 and also under Notification No. 52 of G. O, Ms. No. 1248 dated 26-4-1961.
3. The petitioner raised an objection In the lower Court that the amount due under the contract cannot be recovered In the manner provided in Notification No. 52 of G. O. Ms. No. 1248 dated 25-4-1961 and that, therefore, the prosecution was not maintainable. The learned Magistrate by his Order dated 20-9-1967 overruled his objection by stating that the Panchayat Rules did not mention about any contracting party, but it simply says that any sum due to the Panchayat under the Panchayat Act should be recovered by a suit and ultimately held that he can take cognizance of the offence and proceed with the trial.
4. I sought the assistance of Mr. C. P, Louis, Advocate, to assist the Court as the point involved in this case may in the larger interest affect the rights of parties. The question which has to be considered is whether the Panchayat has got any right to prosecute a person for his failure to pay the Panchayat any amount which he agreed to pay as per the agreement entered into between him and the Panchayat. . It therefore, becomes necessary to note the relevant provisions of the Madras Panchayats Act, 1958 (hereinafter called 'the Act'). The power to enter into contract is provided under Section 8 Sub-section (3) of the Act which is as follows:
'Every Panchayat shall be a body corporate by the name of the village or town specified in the notification issued under Section 3, shall have perpetual succession and a common seal, and, subject to any restriction or qualification imposed by or under this Act or any other law, shall be vested with the capacity of suing or being sued in its corporate name, of acquiring, holding and transferring property, movable or immovable, of entering into contracts and of doing all things necessary, proper or expedient for the purpose for which it is constituted.'
Sub-section (2) of Section 99 of the Act relates to levy of fees in a public market. Sub-section (2) of Section 99 runs thus:
'Subject to such rules as may be prescribed, the Panchayat............may after obtaining the previous written permission of the Inspector, levy any one or more of the following fees in any public market at such rates, not exceeding the maximum rates if any 'prescribed in that behalf as the .................. panchayat may think fit Section 176 of the Act confers power on the Panchayat to farm out collection of fees. It runs thus:--
'No distraint shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any tax or other sum due to a panchayat or panchayat union council under this Act or any rule, by-law, regulation or order made under it after the expiration of a period of 'three years from the date on which distraint might first have been made, a suit might first have been instituted, or prosecution might first have been commenced as the case may be, in respect of such tax or sum.'
Under Section 178(2)(xxii) it is provided as follows:
'The Government shall, in addition to the rule-making powers, conferred on them by any other provisions contained in this Act, have power to make rules generally to carry out the purposes of the Act.
(2) In particular, and without prejudice to the generality of the foregoing power, the Government may make rules-
(xxii) as to the realisation of any tax or other sum due to a panchayat or panchayat union council under this Act or any other law or any rules or by-laws, whether by distraint and sale of movable property, by prosecution before a Magistrate, by a suit, or otherwise.' Under this rule-making power, the Governor of Madras by Notification No. 4 framed rules in respect of assessments and collection of taxes. Rule 24 relates to mode of collection of taxes. Rule 25 relates to distraint and sale of movable property and Rule 25(2) provides for prosecution, if for any reason the distraint or a sufficient distraint of the defaulter's property is impracticable and Rule 32 provides for imposition of fine.
The relevant Rule 32 with which we are now concerned is the Rule relating to the recovery of sums due to the Panchayat other than the taxes, as we are now concerned with the amount due under the contract. In Notification No. 52, the Rule provides as follows:--
'Recovery of sums due to the panchayat: All costs, damages, compensation, penalties, charges,' fees (other than school fees), expenses, rents (not being rents for land and buildings demised by the Panchayat) contributions and other sums which under the Madras Panchayats Act, 1958, or any other law or rules or by-laws made thereunder are due by any person to the Panchayat may, if there is no special provision in the Act or the rules made thereunder for their recovery, be demanded by bills which shall be served on the persons concerned and recovered in the manner provided in the rules for the collection of taxes under the Madras Panchayats Act, 1958.'
This Rule provides that the amounts due under the various heads specified therein could be recovered in the manner provided under the rules for the collection of taxes, namely, by distraint and if distraint becomes impracticable, by prosecution.
5. Now, the question is whether this rule includes the amount due to the Panchayat under a contract between the Panchayat and the third party under any of the heads mentioned therein. It is clear that the specific heads provided therein, namely, costs, damages, compensation, penalties, charges, fees, expenses, rents and contributions would not cover the amounts due under the contract. But the Rule includes 'other sums' also. Can it be said' that the amount due under the contract would come within the item of 'other sums'? It is very significant to note that the Rule does not take in whatever amount due to the Panchayat but limits to the amount due to the Panchayat under law or rules or by-laws made thereunder. The amount due under the contract may be an amount due to the Panchayat but it cannot be said that the said amount is due under the Panchayats Act, or any of the Rules framed thereunder. The Rule does not include specifically the amount due under the contract, In the absence of such a specific provision and with a limitation to the sums due under the Act or any other law or rules or by laws made thereunder, it is clear that the amount due under a contract to the Panchayat is excluded within the purview of this Rule. Otherwise, when a power was conferred on the Panchayat to enter into contract by virtue of Sub-section (3) to Section 8 of the Act, the Notification could have included specifically the amount due under the contract also under this Rule. It is, therefore, evident that the intention was to exclude it within the purview of this rule.
6. In this context, it is worthwhile to note the similar provisions contained in other Acts. Section 387 of the Madras City Municipal Corporation Act, 1919 runs thus:
'Recovery of sums due as taxes All costs, damages, penalties, compensations, charges, fees, rents, expenses, contributions, and other sums which under this Act or any rule, by-law or regulation made thereunder or any other law or under any contract including contract in respect of water-supply or drainage made in accordance with this Act, and the rules, by-laws and regulations are due by any person to the Corporation shall, if there is no special provision in this Act for their recovery, be demanded by bill containing particulars, of the demand and notice of the liability incurred in default of payment and may be recovered in the manner provided by rules 21 and 28 of the rules contained under Part VI of Schedule IV...............'
Rules 21, 28 and 29 of Schedule IV to the said Act contain similar rules as in Notification 52 of the Panchayat Act providing for distraint and prosecution. This section specifically includes in spite of other sums due under the Act or any rule, by-law or regulation made thereunder, the amount due under any contract including a contract in respect of water-supply or drainage made in accordance with this Act and the amount due to the Corporation. The amounts due under the contract are significantly omitted in Notification No. 52 which is under consideration,
Similarly, Section 344 of the MadrasDistrict Municipalities Act, 1920 are inpari materia with Section 387 of the MadrasCity Municipal Corporation Act, 1919,with the exception that this Section doesnot include all contracts as provided underSection 387 of the former but includesonly the amount due under a contract inrespect of water-supply or drainage madeIn accordance with the Act, rules or bylaws made thereunder. This section alsoIncludes the sums due under the contractmentioned therein besides the other sumsdue. In this Act, also, there are provisions which are similar to the provisionsIn the Madras Panchayats Act in respectof the mode of recovery by distraint andby prosecution. It is therefore, clear fromthe provisions of these Acts that wherever the Legislature intended to includethe amount due under the contract alsoto be recovered by the mode of distraintand prosecution, it specifically said so.When there is an omission in thePanchayat Act, the omission must be takento be a deliberate one and that the Legislature did not intend to include the amountdue on the contract,
7. It is significant of note that the Rules framed under the Madras District Boards Act, 1920 and the Madras Village Panchayats Act 1950 are in pari materia with the rules under consideration. The sums due under the contract were not included in these rules. It, therefore, appears that though the Legislature has given power to the Corporation and the District Municipalities to recover the amount due under the contract by following the modes of distraint and prosecution for recovery, yet, in its wisdom, it did not want to confer such power to the District Board, Village Panchayat, Town Panchayat or Panchayat Union to collect any amount due to the, Panchayat under a contract. The Legislature then passed the Madras Panchayats Act, 1958 and the Government framed the Rules thereunder, and followed the pattern provided under the Madras District Boards Act and the Madras Village Panchayats Act though they would have been aware of the provisions of the Madras City Municipal Corporation Act and the Madras District Municipalities Act It Is not necessary to go into the motives of the Legislature of the Government for not following the pattern provided under the Municipal Corporation Act. 1919 and the District Municipalities Act, 1920. The 'absence of the words 'Sums due under any contract to the Panchayat' in the Rules is very significant. It shows that a Panchayat cannot prosecute a per-son who committed default in respect of payments due under the contract to the Panchayat.
8. In the following decisions in respect of the provisions of the District Municipalities Act, 1920, and the Local Boards Act, 1920, it has been held that the words 'other sums' used in the provisions of the said Acts will not include the amount due under the contract.'
9. In Abdul Azees Sahib v. Cuddapah Municipality, ILR(1901) Mad 475 Sir Arnold White, C. J, held that 'money due under a contract entered into with a Municipality for the right to collect tolls in consideration of a money payment does not fall within any of the provisions of Section. 269 of the District Municipalities Act, 1884 and a contractor who fails to pay what is due under such a contract cannot be convicted and, fined under that Section 269 of the District Municipalities Act, 1884 is in pari materia with Section 344 of the District Municipalities Act, 1920.
10. In. Punla Syamalo In re, ILR Mad 381 : AIR 1924 Mad 669 referring to the words used under Section 221 Of the Madras Local Boards Act, 1920, the Court held that the words 'other sums' in that section should be read ejusdem generis with the words preceding therein. The Division Bench found that the amount due under a contract of lease though of the toll cannot be treated as falling within the words of Section 221 of the Local Boards Act and that the sum in question was not payable 'under or by virtue of this Act', but is payable under the contract between the parties,
11. In Mahabab Alli Khan v. President, Taluk Board Kurnool, 84 Ind Cas 325 : AIR 1924 Mad 898(2)) the Division Bench held that money due to a Municipality under a contract cannot be summarily recovered by the Municipality under Section 221 of the Madras Local Boards Act of 1920,
12. In Ahemad Hydros v. Alwaye Municipality, 52 Cri LJ 271 = AIR 1951 Trav Co 82 the Travancore-Cochin High Court, in dealing with Section 365 of the Travancore District Municipalities Act which is in pari materia with Section S69 of the Madras District Municipalities Act held that the amount due under a contract for the collection of market cess will not come under any of the Municipal dues and the prosecution of the Contractor was unsustainable.
13. Thus, it is seen that the Courts have uniformly taken the view that the words 'other sums' due under the Act could not be equated with the amount due under the contract. In the result I find that the Special First Class Magistrate had no jurisdiction to entertain the complaint and the proceedings before him are quashed. The petition is allowed.
14. Before taking leave of this case, Iam bound to express my gratitude to Mr.C, F. Louis, Advocate, who rendered valuable assistance to the Court by makingsubmissions after having carefully madea research of all the relevant Acts andprovisions and the case law on the subject.