DURGA Vs. GRAM PANCHAYAT SARHALA

JUDGEMENT

(1.) THE important question that falls for determination is as to whether the provisions of Article 227 of the Constitution of India are retrospective in nature.

(2.) THE relevant facts to the extent which, bear upon the question posed are that the Gram Panchayat of village Sarhala Mundian issued to the Petitioner notice under Section 21, Clause (2) of the Gram Panchayat Act, 1952 (hereinafter referred to as the Act) requiring him to remove the encroachment pointed out in the notice by a stipulated date. He disregarded the said notice whereupon the Gram Panchayat initiated proceedings against him. He dissociated himself from the proceedings with the result that the Gram Panchayat proceeded ex parte against him, recorded evidence and under Section 23 of the Act imposed a fine of Rs. 25 on him, conditionally, i.e. if he was to remove the encroachment by a certain date then he would not have to pay the fine, but if he failed to do so then he would have to pay the said fine. He was also required to pay the penalty of Rs. 2 per day till the removal of the encroachment in question. That order was challenged in revision. The revisional Court set aside the order and remanded the case back to the Gram Panchayat with the direction that the proceedings were, to be taken in the presence of the Petitioner. The Gram Panchayat in question started de novo proceedings this time in the presence of the Petitioner. However, again it reached the same conclusion i.e. they found the Petitioner guilty of encroaching the Panchayat land and fined him Rs. 25 and imposed penalty of Re. 1 per day till the removal of the encroachment in question. He challenged that order in the Court of Judicial Magistrate First Class, Hoshiarpur, who dismissed the revision petition, - -vide his order dated August 28, 1973. This order has been impugned by the Petitioner under Article 227 of the Constitution of India. Before the matter could be set down for hearing for final decision, original Article 227 came to be amended and when the petition came up for hearing before me sitting singly, the learned Counsel for the Respondent raised a preliminary objection that in view of the amendment of Article 227 as a result of the Constitution (Forty -second Amendment) Act, 1976, this Court was left with no jurisdiction to interfere with the impugned order. In support of his submission, reference was made to Clause (5) of the amended Article 227 of the Constitution referred the matter to a larger Bench by order dated August 8, 1977 and that is how this petition has been laid before us for the determination of the question aforesaid.

(3.) THE point raised on behalf of the Respondents is that the impugned order of the Magistrate First Class, Hoshiarpur, is neither appealable nor revisable and therefore, the same stands outside the jurisdiction of this Court by virtue of the provision of Clause (5) of Article 227 of the Constitution of India. The relevant provisions of the amended Article 227 of the Constitution are in the following terms: