IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 10TH JUNE 2008 / 20TH JYAISHTA 1930 CRP.No. 769 of 2004() --------------------- AS.371/2000 of ADDL.DISTRICT COURT, THRISSUR OS.394/1998 of MUNSIFF COURT,CHAVAKKAD .................... REVN. PETITIONER: RESPONDENT/PLAINTIFF: --------------------------------------- SANKARANARAYANAN, S/O. CHULLIPARAMBIL KARAPPAN, RETIRED TEACHER, ENGANDIYOOR AMSOM DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.N.J.JOHNSON RESPONDENTS: PETITIONER/DEFENDANT: ---------------------------------- ENGANDIYOOR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, PANCHAYATH OFFICE, ENGANDIYOOR, CHAVAKKAD, TRISSUR DISTRICT. BY ADV. SRI.RAJIT FOR R1 SRI.M.PREMCHAND FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON 10/06/2008 PASSED THE FOLLOWING: ORDER IN I.A.NO. 1862 OF 2004 IN C.R.P NO. 769 OF 2004 DISMISSED 10.06.2008 SD/- HARUN-UL-RASHID, JUDGE HARUN-UL-RASHID, J. ------------------------------------------ C.R.P No.769 of 2004 ------------------------------------------- Dated this the 10th day of June 2008 ORDER The revision petitioner herein is the plaintiff in O.S. 394/1998 on the file of the Munsiff Court Chavakkad, The defendant is the Engandiyoor Grama Panchayat, Thrissur District. The suit was filed for realisation of money. The suit was decreed by the trial court which was reversed in appeal by the lower appellate court. Hence this revision. The parties herein are arrayed as plaintiff and defendant as in the above suit. . 2. The plaintiff is the owner of a building situated within the territorial area of the Grama Panchayath . In the demand notice issued by the Panchayath it is stated that the plaintiff has to remit building tax of Rs. 1071/- with 5% of the said amount as library Cess. The plaintiff has sent the building tax of Rs, 1071/- alone as per a cheque to the defendant Panchayath on 28.2.1996. The plaintiff maintained the stand that since there is no liability to pay the library Cess under the Provisions of the Kerala Panchayath Raj Act he has no liability to pay the amount as demanded by way of library Cess . 3. In the written statement filed by the defendant Grama Panchayath it is interalia stated that since the plaintiff has not paid the Library Cess along with the building tax, they have kept the amount in C.R.P No. 769 of 2004 -2- deposit. The defendant also contended that the plaintiff is not entitled to get back the deposit amount, since the plaintiff has not paid the building tax and library Cess for the period 1995-96 4. Before the trial court the plaintiff adduced oral and documentary evidence. PW1 was examined and Exts A1 to A3 were marked on the side of the plaintiff. DW1 was examined and Ext B1 was also marked on the side of the defendant. According to the defendant Grama Panchayahth the amount payable by the plaintiff is Rs. 1,134/- for the period 1995-96 The amount includes building tax for the relevant period plus 5% of the said amount as library Cess. The plaintiff contended that since the Grama Panchayath has not received the amount sent by him as building tax for the year 1995-96, he is entitled to get back that amount . 5. It is not in dispute that the plaintiff has sent the amount of Rs. 1071/- to the defendant Grama Panchayahth. though the demand was Rs. 1,134/-. Since the plaintiff failed to remit the building tax as demanded by the Panchayath, they filed S.T. No. 1938/1996 before the Judicial First Class Magistrate's Court, Chavakkad for prosecuting the plaintiff. It is admitted by both sides that the said case was dismissed by the Magistrate's Court. Since there was no appeal filed against the C.R.P No. 769 of 2004 -3- said decision of the learned Magistrate, the decision has become final The trial court took the view that since the prosecution proceedings initiated by the Grama Panchayath against the plaintiff has already dismissed, the defendant Grama Panchayath is bound to return the amount in deposit. For the said reason the trial court decreed the suit allowing the plaintiff to realise the amount which he had paid, with 12% interest from the date of suit till realsation. 6. The Grama Panchayath filed A.S. No. 371/2000 before the District Judge Thrissur. Before the lower appellate court also the plaintiff maintained the syand that he is not liable to pay the library cess since it does not form part of the building tax payable by him under the Kerala Panchayath Raj Act. The defendant brought to the attention of the learned Judge, Section 48(1) of the Kerala Public Library Act 1989 which empowers the Panchayath to recover amounts towards library cess in addition to the building tax payable by the building and property owners. It was also stated by the defendant that a notification was issued by the Government for the recovery of the above amount. The learned judge however noted that fact that under the Public Library Act 1989, all the Panchayaths and Municipalities shall recover the library cess along with the building tax collected in the form of surcharge at the rate of 5 paise per rupee. C.R.P No. 769 of 2004 -4- 7. The lower appellate court also examined the documents produced beforeit viz. Order issued by Secretary to Government regarding recover of library cess under the Public Libraries Act 1989 and the circular issued by the Secretary of Kerala State Library Council etc. 8. The learned District Judge after appreciating the evidence on record and examining the additional documents produced, came to the conclusion that the library cess can be collected as per the notification issued by the Government of Kerala and that the local bodies are authorised to collect the same. In the light of the findings entered, the learned judge negatived the contention of the plaintiff that he is not liable to pay any amount towards library cess. Further the contention regarding the prosecution proceedings in S.T. 1938/1996 was also re-appreciated. The learned judge observed that initiation of the criminal proceedings is not the only mode of recovery contemplated under the Act and that the dismissal of the criminal complaint for prosecuting an assessee for non- payment of tax cannot absolve him of his liability to pay tax. In the above circumstances the learned judge held that the plaintiff is not entitled to recover an amount of 1071/- paid by him as building tax for the period 1995-96 and further held that the Panchayath is entitled to proceed against the plaintiff for the recovery of the balance amount as demanded by them. The lower appellate court allowed the appeal and set aside the C.R.P No. 769 of 2004 -5- judgment and decree passed by the trial court. 9. This revision filed by the plaintiff in the appeal is considered by me in the light of Section 48(1) of the Public Libraries Act 1989 and documents produced . I find that the reason stated by the learned District Judge for non suiting the plaintiff does not require any interference. The above said statute empowers the local bodies to collect library cess along with the building tax under the Public Libraries Act 1989 since it is notified by the Government. I find that all the contentions raised by the plaintiff are not sustainable in law and therefore it was rightly repelled by the lower appellate court. Accordingly this Civil Revision petition is without any merit and is accordingly dismissed. There will be no order as to costs. HARUN-UL-RASHID, JUDGE es