Zila Panchayat Thru' Upper Mukhya ... vs District & Sess. Judge & Another
2014 Latest Caselaw 4873 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No. - 21
 

 
Case :- WRIT - C No. - 43917 of 2014
 

 
Petitioner :- Zila Panchayat Thru' Upper Mukhya Adhikari & Another
 
Respondent :- District & Sess. Judge & Another
 
Counsel for Petitioner :- Ajay Kumar Singh,Ashish Kumar Singh
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Vivek Kumar Birla,J.

Heard Sri Ashish Kumar Singh, learned counsel for the petitioner and Sri Manish Goyal for the respondents. This matter had been adjourned to enable the learned counsel for the petitioner to point out the provisions under which the Zila Panchayat is claiming its rights and powers to receive the amount of fine that is realised as penalty in criminal prosecutions by a court of competent jurisdiction.

The petitioner had earlier filed Writ Petition No. 24330 of 2014 and the same was permitted to be withdrawn to enable the learned counsel to file a better writ petition after explaining the powers and rights under which such payment is sought to be invoked by the petitioner to realise fine and seek deposit thereof with the Zila Panchayat. The judgment is quoted herein under:-

"Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Vivek Kumar Birla,J.

After the matter was heard and having perused Rules 72 and 85 of the General Rules (Criminal), we find that the writ petition appears to be for the purpose of claiming a substantive right to receive the amount of fine which is realized for violation of the bye-laws of the Zila Panchayat.

The writ as framed, in our opinion, does not take the point home and, therefore, learned counsel for the petitioner prays that he may be permitted to withdraw the writ petition and file a better writ petition founded on such rights that may flow in favour of the Zila Panchayat as a local body as protected under Chapter IX-A of the Constitution of India.

Dimissed as withdrawn with the aforesaid liberty.

Order Date :- 15.7.2014"

This writ petition has therefore again been filed contending that on a perusal of Rule 85 readwith Rule 72 of the General Rules Criminal 1977, the fine which is deposited in courts in such proceedings has to be sent to the municipality concerned. Rule 72 and Rule 85 of the General Rules Criminal are extracted herein under:-

"72. Deposit of fine etc. paid into Court - when the amount of any fine, compensation or other sum, deposit, penalty or fee is paid into Court, the Presiding Officer shall, as soon as may be, send the money to the Nazir through the Criminal Ahalmad, for onward transmission to the nearest treasury or sub-treasury. The money so sent shall be accompanied by an invoice in duplicate in Form (Part IX, No. 74) signed by the Presiding Officer himself. In the case of any sum which is to be credited as a deposit the invoice shall be made out in triplicate. One copy of the invoice shall be returned by the officer-in-charge of the treasury or sub-treasury concerned with an endorsement showing receipt of the amount.

85. Statement of fine etc.- A monthly return of all amounts realised by criminal courts as fines and credited as required by law to a Municipal or Corporation fund, shall be transmitted to the Municipal Board for Corporation concerned.

The return shall be made in from (Part IX, No. 77)."

Learned counsel submits that Rule 85 extracted hereinabove clearly demonstrates that a monthly return of all amounts realised by criminal courts as fine have to be credited to a municipal corporation or board as the case may be.

The contention is that since the Zila Panchayat has now a constitutional status under Part - IX-A of the Constitution of India, the fines that are realised, form part of the corporate funds of the Zila Panchayat and it would be unconstitutional on the part of the respondents not to release the same in favour of the Zila Panchayat.

Learned counsel then has invited the attention of the Court to Sections 240 to 249 of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 to contend that any infringement of the bye-laws invites prosecution and Section 247 empowers the Zila Panchayat to undertake such prosecution. Not only this, the power to compound offences is also applicable and consequently if a complaint is filed under the aforesaid provisions before a criminal court then any fine imposed and realised has to be deposited in the municipal funds account. The contention further is that Section 249 clearly takes care of the situation which runs as follows:-

"249. Compensation for damage to property vested in the Zila Panchayat.- If through an act, neglect or default on account whereof a person has incurred a penalty imposed by or under this Act any damage to the property of the Zila Panchayat or any Kshettra Panchayat has been caused, the person incurring such penalty shall be liable to make good such damage as well as to pay such penalty and the amount of damage shall, in cause of dispute, be determined by the Magistrate by whom the person incurring such penalty is convicted, and on non-payment of such amount on demand the same shall be levied by distress; and such Magistrate shall issue his warrant accordingly."

The incurring of a penalty and damages under the aforesaid Section obliges the person against whom such penalty has been imposed to make good any damage caused to the Zila Panchayat and in the case of dispute the determination has to be done by the Magistrate and the penalty is to be determined accordingly. In the event of non-payment the Magistrate has been empowered to take coercive steps and realise the same by distress.

The question raised by the learned counsel for the petitioner is about the levy and deposit of such penalty in the shape of fines in such proceedings as per General Rules Criminal, 1977 referred to hereinabove with the Zila Panchayat.

He urges that even in relation to compounding of offences sub-section (3) of Section 248 authorises that where sums have been paid by way of composition the same shall be credited to the Zila Panchayat or the local body concerned.

Sri Goyal on the other hand submits that the statement of fine etc. as contained in Rule 85 of General Rules Criminal clearly visualizes the transmission of the amount realized as fine only "as required by law". He submits that whatever provisions for realisation have been pointed out by the learned counsel for the petitioner in respect of fines by compounding are in proceedings directly undertaken by the Zila Panchayat and not through courts.

The issue presently involved is with regard to fines realised in prosecutions through the criminal courts. He therefore contends that this clear distinction is already explained with the aid of Rule 85 itself which specifies that only such amounts shall be transmitted which are required by law to be done as such. He therefore submits that a fine realised in a criminal prosecution by courts have only to be deposited in the treasury as per Rule 72 of the 1977 Rules and the court is not obliged to transmit such amounts to the Zila Panchayat as claimed in the present writ petition.

Having considered the aforesaid submissions raised and having perused the provisions that have been pointed out, it is clear that there are two sets of proceedings, one that are conducted by the Zila Panchayat itself in relation whereto the realisation has to be made and the amount has to be deposited in the Zila Panchayat Funds.

However, where complaints are lodged in criminal courts then in that event the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 does not specify the procedure of such a fine realised by the court to be transmitted to the Zila Panchayat Funds. Where fiscal matters are involved, the Court has to strictly construe the provisions and no addition or assumption of powers can be impliedly acknowledged.

Learned counsel for the petitioner has been unable to show any such provision which may directly and specifically authorise the Zila Panchayat to receive the amount of penalty realised as fine in a criminal prosecution by a court of competent jurisdiction according to Rule 85 of General Rules Criminal. It is only such fines that can be credited as required by law. In the instant case in the absence of any such law having been pointed out which may authorise the Zila Panchayat to claim such fines to be deposited in its funds as a matter of right, the prayer made by the petitioner Zila Panchayat cannot be acknowledged or accepted in law.

The writ petition lacks merit and is accordingly dismissed.

Order Date :- 25.8.2014

Sahu