CHUHARIA Vs. GRAM PANCHAYAT

JUDGEMENT

(1.) THIS second appeal has arisen out of a suit filed in rather peculiar circumstances. The facts which are necessary for the determination of the point in controversy in this second appeal, shorn of other unnecessary details, may be stated as follows:

(2.) THERE was a shamlat land in the village over which Chuharia the Appellant or his father had constructed some structure. The Gram Panchayat of his village Jogana Khera proceeded against him under Section 21 of the Punjab Gram Panchayat Act (hereinafter referred to as the Act) in the year 1961 alleging that he has encroached upon and caused obstruction on the shamlat land which had vested in the Panchayat. A notice was given to Chuhria which according to the Appellant was not served on him. but according to the Panchayat was refused by him. In any case, on the date fixed, that is, 2nd of March, 1961, the Appellant was not present before the Panchayat which by its resolution of that date imposed a fine of Rs. 20 and directed him to remove the obstruction. This resolution not having been complied with the Panchayat proceeded to take action against the Appellant under Section 23 of the Act. Notice of this was also sent to Chuhria, but he was again absent on the date fixed, namely, 5th of June, 1961, and by a resolution of that date, recurring fine of Re. 1 per day was imposed upon him till he removes the obstruction. This order as indicated above was again passed in the absence of the Appellant. On 5th of February, 1963, another resolution was passed by which the Gram Panchayat sought to recover the amount of daily fine which by that date amounted to Rs. 610. Intimation of this resolution was also given to the Appellant. Thereupon, the Appellant filed a revision under Section 51 of the Act before the Sub -Divisional Magistrate, Thanesar challenging the resolution directing the recovery of the fine. This revision was dismissed on some technical objections which are not necessary to mention here. He thereupon filed a second revision which was dismissed by the Sub -Divisional Magistrate on 22nd of June, 1963 mainly on the ground that unless the previous order of the Gram Panchayat imposing the daily fine is set aside, the resolution ordering the realisation of the amount of fine cannot be challenged. Against this order of the Sub -Divisional Magistrate, the Appellant filed a petition under Article 227 of the Constitution of India (Criminal Miscellaneous No. 760 of 1963) in which after stating the facts substantially as detailed above, in paragraph 10 the Appellant claimed that the Gram Panchayat had no jurisdiction to impose a daily fine and then detailed the various reasons in several sub -paragraphs. In paragraph 11, it was again repeated that the resolution of 5th of June, 1961 was illegal and ultra vires and was passed without notice to the Petitioner and consequently the validity of the original resolution could be assailed even at the time of the realisation of the fine imposed - In the prayer clause, two reliefs were claimed, first, that the resolution of the Respondent dated 5th of February, 1963 seeking to realise the fine be quashed and, secondly, the resolution dated the 5th of June, 1961 be also quashed to the extent of imposition of daily fine. This petition was dismissed by Mr. Justice Shamsher Bahadur vide an order dated the 14th of October, 1963, holding that (1) the objection that the Gram Panchayat had no jurisdiction to direct that the fine should be recovered as arrears of land revenue was not taken before the Sub -Divisional Magistrate, nor was it clear from the resolution that the amount was to be recovered as arrears of land revenue, and that (2) so far as the other objections raised "against the order of the Gram Panchayat" are concerned these were also not taken specifically before the Sub -Divisional Magistrate. The learned Judge then observed as follows:

(3.) THE main contention of the learned Counsel for the Appellant is that even if it be taken that the notices were issued by the Gram Panchayat and were refused by the Appellant, no action could be taken under Section 21 or 23 of the Act and no fine could be imposed in the absence of the Appellant. Reliance was placed on Dharman v. The Gram Panchayat of village Kurar, 1968 Cur. L.J. 938. wherein it was held by Mr. Justice Mahajan that the imposition of fine under Section 23 without following the procedure prescribed in Section 46 is illegal and cannot be recovered. Section 46 prescribes the procedure to be adopted on failure of the accused to appear. According to it. if the accused fails to appear, the Panchayat has to report the fact to the nearest Magistrate who then issues a warrant directing the accused person to appear before the Magistrate and when he does so the accused shall be asked to execute a bond with or without sureties to appear before the Panchayat and if he fails to execute such a bond he can be directed to be produced before the Panchayat in custody. Some decided cases were relied upon by the learned Judge.