Bohar and others vs The Gram Panchayat, Kari Kalan and another

S.S. Dewan, J.—The Gram Panchayat of village Kari Kalan instituted proceedings under S. 23 of the Punjab Gram Panchayat Act, 1953 (for short, the Act) against the petitioners. The matter came up before the Gram Panchayat on April 30, 1981. The Gram Panchayat inspected the spot and found that the petitioners had not vacated their illegal possession of the street and drain. Thereafter it directed the petitioners to remove the encroachment by May 7, 1981 and further ordered that the. Gram Panchayat would meet on that date to find out whether the encroachment had been removed or not. It is alleged that on that date the Petitioners did not appear before the Gram Panchayat. The Gram Panchayat then imposed a penalty of Rs. 50/- each on the petitioners. It was further ordered that if the petitioners did not vacate the illegal possession by 7.5.1981, they will be fined Rs. 5/- per head per day. Feeling dissatisfied, the petitioners went up in appeal and the same was dismissed on May 29, 1981, by the District Development and Panchayat Officer, Ferozepur. The petitioners have now challenged both these orders by invoking the powers of this Court under Article 227 of the Constitution of India read with S. 482 of the Code of Criminal Procedure for quashing the orders, copies annexures P-1 and P.2.

Mr. S.C. Khungar, learned counsel for the petitioners, has at the outset contended that the proceedings under S. 23 of the Act are in the nature of criminal proceedings and the Panchayat while exercising its jurisdiction under the said section is a criminal Court and thus the alleged imposition of fine under S. 23 of the Act without following the procedure prescribed in S. 46 of the Act was illegal and the same should be dismissed. It was contended that the impugned order (copy annexare P. 1) of the imposition of fine violated the principles of natural justice as the same has been passed behind the back of the petitioners and no effort was made to secure their presence according to law and that the trial of the petitioners in absentia was void and illegal. In support of these contentions reliance was placed on a decision in Dharman v. The Gram Panchayat of village Kurar 1968 C.L.J. 938, wherein it was held that the imposition of fine under S. 23 of the Act without following the procedure prescribed in S. 46 of the Act was illegal. Similar law was taken in Chuharia v. Gram Panchayat (Sabhd) Joona khera 1970 P.L.J. 395, in which a Division Bench of this Court held that the order of the Gram Panchayat imposing fine under S. 21 of the Act in absentia was void and illegal.

On the other hand, Mrs. Surjit Bindra, appearing for the respondents, has contended that a petition under Article 227 of the Constitution of India challenging the orders of the Gram Panchayat and the Appellate Court is not maintainable and to buttress this argument she has relied on a decision in Bhura Singh v. Labh Singh 1980 Rev. L.R. 247. In that case, the question arose as to whether the Court should interfere under Article 227 of the Constitution of India with the order of the Tribunal which had the jurisdiction to try the case but it decided the matter incorrectly. The ratio of that decision is not at all applicable to the facts and circumstances of this case. In the present case, while recording proceedings under S. 23 of the Act, a Gram Panchayat exercises criminal judicial functions. From the impugned order of the Gram Panchayat, copy annexure P. 1, it is apparent that the petitioners never attended the proceedings of the Gram Panchayat. S. 46 of the Act expressly provides that in such an event, the Gram Panchayat shall report this fact to the nearest Magistrate, who shall issue a warrant for the arrest of the accused and shall direct by endorsement on the warrant that if such person executes a bond with sufficient surety for his attendance before him, shall be released from custody. When such a person appears before the Magistrate, he shall then call upon him to execute a bond with or without sureties to appear before the Panchayat. On the failure of the accused to execute such a bond, the Magistrate shall order that the accused be produced in custody before the Gram Panchayat. In other words, the legislature has provided a particular procedure to be adopted in I case the accused person does not appear in proceedings before the Gram Panchayat. The provisions of this procedure imply that it is not open to the Gram Panchayat to pass an order against the accused person in absentia. In agreeing with the view propounded in the two authorities cited by the learned counsel for the petitioners, I would allow this petition and quash the impugned orders, copies annexures P. 1 and P. 2. I, however, make it clear that it will be open to the Gram Panchayat to have recourse to the proceedings under Ss. 21 and 23 of the Act is accordance with the provisions of the Act particularly S. 46 of the Act if it is so advised.