NAUHAR CHAND Vs. VED PARKASH

JUDGEMENT

(1.) THIS is a reference by the Sessions Judge, Barnala for setting aside an order of Magistrate 1st Class, Dhuri dated 27 -3 -1952 directing that Nauhar Chand Petitioner, who had been convicted under Section 38, Patiala Small Towns Act, 1995, and sentenced to a fine of Rs. 20/ -, should also pay a fine of Rs. 2/ - per day from the date of the order till the breach continued. The complaint of the Small Towns Committee, Dhuri, was that Nauhar Chand had built a wall on the land belonging to and in possession of the Committee and that too without the necessary sanction of the Committee. The position taken by the accused was that he had constructed the wall on his own land, but it was conceded that no sanction for erecting the same had been obtained. On the evidence led by the parties, the Magistrate came to the conclusion that the complainant had not been able to prove that the land on which the wall was built belonged to the Committee, but since the wall had been raised without the required sanction Nauhar Chand was found guilty and was convicted under Section 38, Small Towns Act. A fine of Rs. 20/ - was awarded as the sentence for the breach and it was further directed that Nauhar Chand would pay Rs. 2/ - per day as long as the breach continued. Nauhar Chand presented an appeal against his conviction and serance to the Sessions Judge. As no appeal again the order was competent, the Sessions Judge treated it as a revision and recommended for setting aside the order so far as it related to the direction of payment of future fine.

(2.) A number of authorities have been cited in support of the reference by Shri Chiranji Lal, the learned Counsel for the Petitioner. In - Aisha v. Emperor, AIR 1926 Lah 248, it was held that the sentence directing the accused to pay a fine in future was illegal. - Pancham Sao v. Emperor : AIR 1925 Pat 322, is another case in which, on almost similar facts, it was held that it was not permissible in law to enforce a daily fine in anticipation of a commission of an offence. I am in respectful agreement with these observations and am of opinion that in the present case the Magistrate was not justified in making an order for payment of fine for an indefinite future period. At the time of passing the order there could be no proof of a continuing breach after the date of conviction and the fine for the continuing breach might increase to a sum exceeding the amount of fine which the Magistrate had power to impose. An order for payment of daily fine for a period subsequent to the date of conviction amounts to adjudication in respect of an offence which has not been committed when such order is made and it would lie bad in law to impose a daily fine, in anticipation of the commission of an offence. Moreover, the resolution of the Committee requiring the Petitioner to demolish the wall was set aside by the Deputy Commissioner on appeal. The only breach, therefore, that the Petitioner committed lay in his building the wall without the requisite sanction and for that he had been separately convicted.