@JUDGMENTTAG-ORDER
S.P. Goyal and I.S. Tiwana, JJ.
The imposition of continuing penalty u/s 23 of the Act was held to be bad by a Division Bench of this Court in Naurang Lal v. The Gram Panchayat of village Gujarwas (1964) 66 P.L.R. 28 The learned counsel for the State challenges the correctness of this decision and has urged that the decisions which were relied upon by the Division Bench mostly related to offence triable by the criminal court. As the proceedings u/s 23 are not in the nature of the trial of an offence, the ratio of those decisions could not be relied upon for holding that recurring penalty could not be imposed. As we are of the view that the Division Bench decision requires re-consideration, this petition is admitted to a Full Bench. Necessary order for constituting the Bench may be secured from the Hon''ble Chief Justice.
JUDGMENT OF FULL BENCH
I.S. Tiwana, J.@mdashA luking doubt about the correctness of the view expressed by a Bench of this Court in Naurang Lal v. The Gram Panchayat of Village Gujarwas (1964) 66 P.L.R. 28 right at the motion stage, made us (my learned brother S. P. Goyal, J. and myself) to admit this petition to hearing by a Full Bench and that is how the matter is before us now. Vide this judgment, it has been ruled that inspite of the language of section 23 of the Punjab Gram Punchayat Act, 1952 (for short, the Act) the Gram Panchayat has no power to impose a prospective recurring penalty at the stage of first conviction for the breach of its order made absolute u/s 21 of the Act. The relevant part of these two sections reads as follows :--
21(1). A Gram Panchayat either suo motu or on receiving a report or other information and on taking such evidence, if any, as it thinks fit, may made a conditional order requiring within a time to be fixed in the order.
(a) the owner or the occupier of any building or land
(i) to remove any encroachment on a public street, place or drain;
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(h)...... Or if he objects so to do to appear before it, at a time and place to be fixed by the order and to move to have the order set aside or modified in the manner hereinafter provided. If he does not perform such act or appear and show cause, the order shall be made absolute. If he appears and shows cause against the order, the Gram Panchayat shall take evidence and if it is satisfied that the order is not reasonable and proper no further proceedings shall be taken in the case. If it is not so satisfied the order shall be made absolute
(2) If such act is not performed within the time fixed, the Gram Panchayat may cause it to be performed and may recover the costs of performing it from such person.
23. An person who disobeys an order of the Gram Panchayat made under the two last preceding sections, shall be liable to a penalty which may extend to fifty-five rupees; and if the breach is a continuing breach, with a further penalty which may extend to five rupees for every day after the first during which the breach continues :--
Provided that the recurring penalty shall not exceed the sum of rupees five hundred:
3. Before adverting to the legal contention raised in this petition it is but necessary to notice the following undisputed facts.
4. The respondent Gram Panchayat, on December 26, 1981, made and served a conditional order (Annexure P. 2) on the petitioner directing him to remove the encroachment made by him by constructing a wall on a public path, within three days, i. e., upto December 29, 1981; and in case he had any objection to the said direction, to appear before the Panchayat at 11. A. M. on December 29, 1981 along with his evidence justifying the modification or the setting aside of that order The petitioner, however, refused to comply with the direction contained in Annexure P. 2. Then on December 29, 1981 (wrongly typed as 19th December 1981) the Panchayat unanimously resolved that for the above noted defiance of its direction by the petitioner, a fine of Rs. 20/- be imposed on him. It was further resolved that in case he failed to remove the above noted encroachment by January 17, 1982, he would pay a recurring penalty of Rs. 1/- per day thereafter. This resolution of the Panchayat is Annexure P. 1 to the petition. Petitioners appeal u/s 23-A of the Act against the above noted order of the Panchayt was dismissed by the District Development and Panchayats Officer, Gurdaspur, on December 14, 1982 vide order Annexure P. 3. His further revision u/s 100 of the Act against the appellant order was dismissed by Shri Dayal Singh Saroya, Joint director Panchayats, Punjab (exercising the powers of the State Government) with the observation that u/s 100 of the Act, he could only look into the legality and propriety of an executive order passed by the Panchayat and since the proceedings taken against the petitioner under sections 21 and 23 of the Act were quasi-judicial proceedings in nature, he could do nothing in the matter. This order is Annexure P. 4 to the petition.
5. The solitary contention raised by Mr. S. S. Mahajan, learned counsel for the petitioner, now is that u/s 23 of the Act, the Panchayat could not impose a prospective recurring penalty right at the first stage of conviction. In a nut shell, the submission is that in case the Panchayat was to impose any such penalty on the petitioner for noncompliance of its order u/s 21 of the Act, it was bound to summon the petitioner from time to time and in case he was found not to have removed the encroachment, it could continue to impose on him the recurring fine upto the prescribed limit of Rs. 500/-. For this stand of his he places firm reliance on Naurang Lal''s case (supra) which undoubtedly fully supports his submission.
6. The learned State counsel, while not disputing the factual matrix of the case, contends that the clear phraseology of section 23 (already reproduced above) entitles the Panchayat to impose a recurring penalty on an offender right at the time when it awards the substantial punishment for the non-compliance of the order which had been made absolute u/s 21 of the Act. He sought to support this argument of his with the observation of Capoor, J., in
The last point urged was that a continuing fine could not be imposed in this case but such a continuing fine is clearly authorised by terms of section 23 of the Act.
No reasoning or logic in support of this observation was, however, recorded in this judgment.
7. Having heard the learnad counsel for the parties at length, I am of the opinion that this petitition deserves to be allowed.
8. While answering the legal question as to whether the proceedings under sections 21 and 23 of the Act are administrative or executive in nature so that a petition u/s 439 of the Code of Criminal Procedure or under Article 227 of the Constitution of India would not be maintainable, the Full Bench of this Court in Narain Singh''s case (supra) finally set at rest the prevalent controversy by holding that the proceedings under the above noted two sections were judicial proceedings. The learned counsel for the parties neither challenge the correctness or the ratio of this judgment nor, to my mind, they succesfully can in view of the clear language of sections 21 and 23. The former section provides that in the first instance the Panchayat has to pass a conditional order on the basis of opinion or report received by it or on taking such evidence, if any, as it thinks fit, and the person against whom the conditional order is made has. if he objects to the order, the right to appear before it and to show cause with a view to have the order set aside or modified. In case he so appears before the Panchayat, it is required to take evidence and it can make the conditional order absolute only if it is satisfied that the order was reasonable or proper. The decision of the Panchayat can obviously not be arbitrary or unfetered. Thus apparently the Panchayat has all the attributes of a judicial Tribunal.
9. Equally well settled appears to be the proposition that the proceedings before the Panchayat under sections 21 and 23 of the Act. besides being judicial, are proceedings of criminal nature. In other words, these proceedings can safely be styled as judicial proceedings of criminal nature. It has been so held in Bansi Lal v Gram Panchayat Mullana (1962) 64 P.L.R. 892, by Shamasher Bahadur, J.; The Gram Pancliayat Ponohana v. The Judicial Magistrate, Palwal (1964) 66 P.L.R. 109, by Mehar Singh and Jindra Lal, JJ.; Smi. Krishana Devi and others v. Gram Sabha, Lohara (1980) 82 P.L.R. 29; by myself and S. S. Sandhawalia, C. J. (as his Lordship then was) and Jhalla Ram v. Gram Sabha Kosh (1982) 84 P.L.R. 77, wherein my learned brother Goyal, J., while following the decision in Naurang Lafs case (supra) held that the recurring fine ''could not be imposed without a regular trial according to the procedure provided in the Act''. The learned State counsel, however, seeks to contend that the proceedings under the two sections cannot possibly be equated with a criminal trial and the word ''penalty'' as used in section 23 of the Act cannot be taken as an equivalent of fine. The submission apparently is not well founded in the light of the phraseology of the two sections. It has been observed by the learned Judges of the Full Bench in Narain Sinah''s case (supra) that the words ''fine and ''penalty'' are used in the Act as inter changeable and with the same connotation. Secondly, I find that the procedure prescribed in section 21 of the Act for the abatement of a nuisance is in substantial detail analogous to the procedure for abatement of nuisance under sections 133, 136 and 137 and other procedural sections connected therewith in the Criminal Procedure Code. Section 136 provides that if a person fails to perform such act (as ordered u/s 133) or appear and show cause, he shall be liable to the penaty prescribed in that behalf in section 188 of the Indian Penal Code and the order shall be made absolute Now section 188, Indian Penal Code, provides that such an offender, guilty of disobedience of the order promulgated by the public servant is liable to be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to Rs. 200/- or with both and in case such disobedience causes or tends to cause danger to human life, health or safety, etc., is liable to be punished with imprisonment of either description for a term which may extend to six months or with fine which may extend to Rs. 1000/-or with both Substantial sentences of imprisonment or fine, as provided for in section 188, Indian Penal Code, have only been described as penalty in section 136 of the Code of Criminal Procedure. Thus the submission of the learned State counsel that the use of the word ''penalty'' in section 23 of the Act in any way indicates that either the proceedings under the two sections are not in the nature of criminal proceedings or the same cannot be equated with sentence of fine, has no substance.
10. ''In the light of the above noted two settled legal propositions, it is difficult to countenance or accept the argument that in the instant case the petitioner could be punished with prospective recurring penalty right at the initial stage when a fine of Rs 20/- was imposed upon him for not complying with or carrying out the order of the Panchayat passed u/s 21 of the Act. To elicite this conclusion of mine, I can safety depend upon the following words of Kbanna, J. (as his Lordship then was), recorded in Suram Singh v. The Gram Panchayat of Samtana Kalan (1963) 65 P.L.R. 417, after an exhaustive review of the case law dealing with somewhat similar provisions of various statutes by the different High Courts in India :--
It would appear from the above that whenever the question has arisen as to whether the fine can be imposed in anticipation for future disobedience, the Courts in India have always taken in view that fine cannot be imposed for a breach which has yet to take place in future. It is no doubt true that the language of the different enactments, which were the subject-matter of the above mentioned cases, and that of section 23 of Punjab Gram Panchayat Act is not absolutely identical but that would not affect (he applicability of the dictum laid down in those cases on the point of the imposition of fine in anticipation for breaches in future. u/s 23 of the Act the fine for the continuing breach after the first day of the breach can extend upto Rs. 1/- per day during the time the breach continues subject to a maximum of Rs. 500/-. The words "which may extend to one rupee for every day" indicate that the fine may not necessarily be the maximum of Rs. 1/- per day, but may in appropriate cases be less, e.g., 0.50 n.p. or 0.20 no. per day. The question as to what should be the penalty for future breach can only be judged when the full facts get known as to why the breach continued. There may be cases when a man directed by the Panchayat to remove an encroachment may be anxious to do so after the order of fine is first passed against him but is incaprcitated to remove the encroachment for considerable time because of some unavaoidable difficulty like meeting with an accident. In such cases leniency would have to be shown to that man for the future breach. As against that, there may be the case of a person who deliberately and wilfully flouts the order for removal of encroachment and in whose case the Panchayat may like to impose a severer penalty. To pass a sentence in anticipation for future breach would be tantamount to treating the two cases alike. The question of sentence has always been important, and any view which prevents a Court from taking into consideration the extenuating circumstances for a breach cannot be readily countenanced. This aspect of the matter has been specifically emphasised by the High Courts of Allahabad and Bombay in
This expression of opinion by Khanna, J, was approved and accepted by the Division Bench in Naurang Lal''s case (supra) with the following observations :--
The terms of many Municipal Acts contain provisions similar to those in the Punjab Gram Panchayat Act and the view which I have set out above has been expressed by the Allahabad High Court in
This Bench decision of this Court has later been consistently followed in in Sunder Singh and others v. Gram Panchayat of Mankan Tehsil Naraingarh (1966) Cur. L.J. (P&h.) 500. Sardara Singh and others v. State of Punjab 1967 Cur. L.J. (P&H) 833; Ujjagar Singh v. The State of Punjab 1967 Cur. L.J. (P&H.) 859 and Jhalla Ram''s case (supra) by S. P. Goyal, J.
11. Thus neither on principle nor on precedent I find any scope for doubting the correctness of the view expressed in Naurang Lal''s case (supra) holding that the Panchayat has no power to impose a prospective recurring penalty at the initial stage of conviction for the breach of its order. The only course open to it is to summon the offender from time to time if he has not complied with its order made absolute against him in terms of section 21 of the Act, and to continue imposing on him the recurring fine up to the prescribed limit. The impugned order Annexure P. 1, so far as it imposed the recurring fine of Rs. 1/- per day right on the day the petitioner was substantially punished with a fine of Rs. 20/-for non-complianee of the order made absolute against him, connot possibly be sustained and has to be quashed to that extent. I order accordingly. This, however, would not debar the Gram Panchayat from going into the matter over again to punish the petitioner if found guilty of non-compliance of its order in accordance with law. I propose no costs in favour of the petitioner.
S.P. Goyal, J.--After having the privilege of going through the judgment prepared by my learned brother, I. S. Tiwana, J., I regret my inability to agree with the opinion expressed on the question referred to us.
13. No doubt since the Full Bench decision in
14. The primary question before the Full Bench in Narain Singh''s case (supra) was as to whether the order passed by the Panchayat u/s 23 was judicial in nature and as such subject to the jurisdiction of this Court under Article 227 of the Constitution, but while answering this question in the affirmative, S. B. Capoor, J. who spoke for the Bench, further opined that the jurisdiction exercised by the Panchayat under the said section was criminal jurisdiction and the alleged disobedience was an offence within the meaning of clause (k) of Schedule 1-A of the Act. To hold that the act of disobedience of an order passed by the Gram Panchayat u/s 21 was an offence, the learned Judge relied on the defination of "offence" as contained in clause (o) of section 4 of the Criminal Procedure Code read with clause (s) of section 3 of the Act according to which "offence" means any act or omission made punishable by any law for the time being in force For the view that the Gram Panchayat while acting u/s 23 was performing function of criminal nature, the learned Judge was mainly influenced by the fact that neither in section 23 nor in any other section of the Act it was provided as to which Tribunal or Court was to adjudge penalty and the proceedings for that purpose, but for the provisions of Schedule 1-A, had to be instituted in the court of competent Magistrate under the provisions of the Code of Criminal Procedure. The Legislature by inserting section 23-A has knocked down both the reasons and made its intention clear that neither an act of disobedience of the order passed u/s 21 of the Act is an offence nor the jurisdiction exercised by the Panchayat under that section of criminal nature. Reliance by Khanna, J (as he then was) in Naurang Lal v. The Gram Panchayat of Village Gujarwas (1964) 66 P.L.R. 28 on the several decisions of the Allahabad Patna, Bombay and Calcutta High Courts for holding the act of disobedience punishable u/s 23 as an offence was also misplaced because all those cases related to the Municipal Act under which the acts of omission such as the oaes enumerated u/s 172 of the Punjab Municipal Act are triable as offence and punishable by the Magistrate and not by the Municipal Committee. The omission to obey punishable u/s 23, therefore, could not be an offence on the ratio of those decisions.
15. There is no gain saying that neither in section 23 nor in any other provision of the Act, any authority is named which is to take proceedings and adjudge penalty for the disobedience of the order passed by the Panchayat u/s 21 or 22 of the Act. The only possible way to make the provisions of section 23 workable was to hold the act of disobedience as an offence which necessarily clothed the Gram Panchayat with the jurisdiction to try the same by virtue of clause (k) of Schedule 1-A of the Act. However, the view expressed by the court did not find favour with the Legislature and the lacuna noticed in the Full Bench judgment was removed by introducing section 23-A of the Act which reads as under :--
Any person aggrieved by an order of the Panchayat made under sections 21, 22 or 23 may, within a period of thirty days of date of such order, prefer an appeal to the District Development and Panchayat Officer whose decision shall be final and shall not be liable to be questioned in any court of law.
Though no amendment has been made in section 23 but by providing u/s 23-A that an appeal shall lie against the order of the Pancha. yat passed u/s 23 it has been made clear that jurisdiction to take action u/s 23 would be that of the Panchayat. The question now remains to be determined as to whether the Panchayat while acting u/s 23 exercises criminal or civil jurisdiction. The Full Bench in Narain Singh''s case (supra) termed the disobedience of the order passed by the Gram Panchayat u/s 21 or 22 of the Act as an offence solely relying on the definition of the word, "offence" as contained in clause (o) of section 4 of the Code of Criminal Procedure without any detailed discussion. The simple fact that for the act of disobedience of the order of the Gram Panchayat, a penalty of fine can be imposed would not be sufficient to hold that the disobedience would be an offence as defined in the Act. Under innumerable statutes the penalties are imposed for the violation of their provisions particularly so in the taxing statutes. But never it has been held that the act of violation of those statutes is an offence. Even under Order 21, rule 32, CPC for disobedience of a decree or injuction judgment-debtor can be detained in civil prison. Yet it cannot be said that the act of disobedience of the decree is an offence though all the ingredients of the definition of an offence are fully satisfied. The provisions for the imposition of the penalty of fine, therefore, is hardly a criteria to determine as to whether the act of disobedience is a offence or not. The determining factor in my view would be the forum and the procedure by which it is to be adjudicated.
16. Now we may examine the provisions of the Gram Panchayat Act to find out in which capacity the Gram Panchayat acts while taking proceedings u/s 23. The criminal judicial functions are performed by the Panchayat in accordance with the provisions of Chapter IV of the Act and it is deemed to be a criminal court while trying a criminal case. Cognizance of a criminal case as provided in section 43 can be taken by the Panchayat only on a complaint in writing to be presented personally to the Sarpanch or in his absence to the Panch or by sending it by registered post to the Panchayat. u/s 23 the Gram Panchayat itself punishes a person for disobedience of its order and in such situation possibly the Gram Panchayat cannot both be a complainant and the judge in its own cause. If the act of disobedience is an offence it would be impossible for the Panchayat to take its cognizance u/s 43 and try it as a criminal court. Again the order passed by the Gram Panchayat as criminal court is open to challenge before the Chief Judicial Magistrate u/s 51. If the act of disobedience is an offence and the order imposing fine is taken to be the order of the Panchayat acting as criminal court an anamolous position would immediately arise because the order passed u/s 23 by the Panchayat is appealable to the District Development and Panchayat Officer whose decision is final and not liable to be questioned in any court of law by virtue of the provisions of section 23-A whereas u/s 51, the Chief Judicial Magistrate has also been empowered to revise, cancel or modify that order. Obviously the Legislature could not intend to create such an absurdity by enacting section 23-A. The aforementioned anamolous position also disappears if it is held that the act of disobedience for which the penalty of fine can be imposed u/s 23 is not an offence but only a civil wrong.
17. The Gram Panchayat while acting u/s 23 also cannot be said to be exercising any civil or revenue judicial functions as envisaged in Chapter V of the Act. The procedure to be followed by the Gram Panchayat while exercising civil/revenue judicial functions is similar to that of a suit and the Gram Panchayat is deemed to be civil or revenue court, as the case may be, while performing those functions. While acting u/s 23, the Gram Panchayat punishes the disobedience of its orders passed under sections 21 and 22. The orders passed u/s 22 are only of administrative nature, though under the other section they can be said to be of quasi judicial nature. The function of imposing fine for disobedience of its order would obviously be a quasi judicial function but the Panchayat while doing so cannot be said to be exercising either criminal, civil o revenue jurisdiction conferred under the Act. If the Gram Panchayat is only imposing fine for civil wrong that is disobedience of its orders passed u/s 21 or 22 there would be no bar in imposing a recurring fine so long as its disobedience continues. My answer to the question before the Full Bench, therefore, would be that Gram Panchayat while imposing fine for disobedience of its order passed u/s 21 or 22 would also have the jurisdiction to impose recurring fine so long as the disobedience continues.
Prem Chand Jain, Act, C. J.--I have very carefully gone through the judgment, written separately, of my learned brothers and on given my thoughtful consideration I find myself in agreement with the view of brother I. S. Tiwana, J.
FINAL JUDGMENT OF THE FULL BENCH
Prem Chand Jain, Act C.J., S. P. Goyal and I. S. Tiwana, JJ.--In view of the majority view, the writ petition is allowed to the extent that impugned order, Annexure P-1 is quashed in so far as it imposes recurring fine of Re. 1/- per day right on the day the petitioner was substantially punished with a fine of Rs. 20/-for non-compliance of the order made absolute against him. In the circumstances of the case, the parties are left to bear their own costs.
