Durga vs Gram Panchayat

D.S. Tewatia, J.—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.

The relevant facts to the extent which bear upon the question posed are that the Gram Panchayat of village Sarhala Mandian issued to the petitioners, notice u/s 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 exparte against him, recorded evidence, and u/s 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 Rs. 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, 19(sic)3. 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 (Fortysecond 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 Constitution. I 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.

The power of the High Courts under the original article 227 extended over all Courts and Tribunals within their respective jurisdiction. As a result of the Constitution (Fortysecond Amendment) Act, 19 76, this power of superintendence has been restricted over the Courts-subject to its appellate jurisdiction only, and thereto only such orders of such Courts could be interfered with as are subject to appeal or revision.

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 provision of the amended article 227 of the Constitution are in the following terms:--

(1) Every High Court shall have superintendence over all courts subject to its appellate jurisdiction.

(2) xx xx xx

(3) xx xx xx

(4) XX XX XX

(5) Nothing in this article shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior court which is not otherwise subject to appeal or revision.

The learned counsel for the petitioner on the other hand has urged that the provision of article 227, as it has emerged after the amendment, does not, either expressly or impliedly, take away the jurisdiction of the High Court to deal with the pending cases over which, under the original article it had the jurisdiction. In support of his submission, he placed reliance on the single Bench decision of this Court in Karnail Singh v. The Under Secretary Development (Cooperation'', Punjab, (1977) 79 P.L.R. 498 as also on a Full Bench decision of the Bombay High Court in Shripatrao Dajisaheb Ghatge and Another Vs. The State of Maharashtra and Another,

Harbans Lal, J. who decided Karnail Singh''s case (1977) 79 P.L.R. 498 (supra) in his short judgment referred to section 58 of the Constitution (Forty-second Amendment) Act, 1976 which provided that pending writ petitions under article 226 would be disposed of in accordance with the amended article 226 and deductively that if the intention had been to make the provisions of article 227 also retrospective then similar provision, as the one in section 58 aforesaid, would also have been made in regard to the decision of the pending matters in accordance with the amended article 227. Though we agree with the conclusion of Harbans Lal, J that article 227 is not retrospective in nature, but the reason aforesaid given with respect thereto has not appealed to us and we would return to this aspect after taking note of the Full Bench decision of the Bombay High Court for in that decision also a similar reliance has been placed on the provisions of section 58 aforesaid.

Tulzapurkar, Acting Chief Justice (as he then was) who delivered the opinion in Dajisaheb Ghatge''s case (Supra), held the provisions of amended article 227 not to be retrospective in nature for four reasons:--

(i) that article 227 confers a substantive right on the litigants to invoke the said jurisdiction and the said right unlike a procedural right could be taken away only by either express words to that effect or by necessary intendment. In this context, it was also mentioned by the earned Chief justice that the amended article 227 in its very nature is prospective in operation;

(ii) that the principle is well settled that where a statute is passed pending an action as distinct from after the date of the cause of action ; strong and distinct words are necessary to alter the vested rights of either litigant as they stood at the commencement of the action ;

(iii) that there is a well settled principle firmly established and accepted by the Courts that unless contrary could he shown a provision which took away the jurisdiction of a Court is itself subject to implies saving of (sic) right and since there was nothing in the amending article 227 to in (sic) to the contrary, the petitioner''s right to continue the pending petition under the original article 227 must be held to have been saved ; and

(iv) that Parliament was aware of the pending cases and where ever it wanted the pending cases to be subjected to the amended provisions, it expressly provided as it did so in regard to the petitions pending under article 226 by enacting specific provisions to that effect in section 58 of the Constitution (Fortysecond Amendment) Act, 1976 and, therefore, since no such express provision was made in regard to the matters pending under original article 227 so the pending cases ware intended to be dealt with under the original article 227.

We have reservation only about the fourth reason otherwise we agree entirely which the reasoning of the learned Chief Justice in coming to the conclusion that the provisions of amended article 227 would not govern the decision of the pending cases in the ugh Courts, and the following observations from the judgment can be noticed with advantage:--

* * *

[Paras 13 to 19 of the Judgment reproduced are omitted.--Editor.]

Relevant provisions of sub-section 2 of section 58 of the Constitution (Fortysecond Amendment) Act are in these terms:--

In particular, and without prejudice to the generality of the provisions of sub-section (1) every pending petition before a High Court which would not have been admitted by the High Court under the provisions of Article 226 as substituted by Section 38 if such petition had been made after the appointed day shall abate and any interim order (whether by way of injunction or stay or in any other manner) made on, or in any proceedings relating to, such petition shall stand vacated :

Provided that nothing contained in this section shall affect the right of the petitioner to seek relief under any other law for the time being in force in respect of the matters to which such petition relates and in computing the period of limitation, if any, for seeking such relief, the period during which the proceedings relating to such petition were pending in the High Court shall be excluded.

Our reasons for holding that the aforesaid provisions of section 58 of the Constitution (Forty second Amendment) Act, 1976 do not necessarily suggest that wherever the Parliament desired that the pending petitions were to be dealt with in accordance with the amended provisions of the Constitution, they expressly provided for that, are that is our opinion the wording specially of the provisions of clause (3) or article 226 made the clarification contained in sub-section (2) of section 58 of the Constitution (Fortysecond Amendment) Act necessary. Clues (3) of article 2266 is in the following terms:--

(1) xx xx xx

(2) xx xx xx

(3) No petition for the redress of any injury referred to in sub-clause (b) or sub clause (c) of clause (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for time being in force.

A perusal of the said clause would leave no doubt that it contained an interdict against the Courts entertaining any petition for the redress or any injury referred to in sub-clause (b) or sub clause (c) of clause (1), but it was silent about the petitions already entertained by the High Courts. In other words clause (3) sought to create a bar at the threshold in regard to the petitions for the redress of any injury referred to in sub clause (b) or sub-clause (c) of clause (1), but was silent about the petitions which already stood entertained. Since the Parliament desired that all such matters in the first instance be dealt with statutory authority empowered by the statute and thus lighten the burden of the High Courts before which huge arrears are pending, without in no manner affecting the rights of the litigants to invoke the jurisdiction of the High Courts after exhausting the alternative remedy, for if they still felt dissatisfied they could again invoke the jurisdiction of the High Courts under article 226, so it had to give retrospective effect to the aforesaid clause.

Under article 227 of the Constitution, the Parliament did not, while amending article 227 want to take away the jurisdiction of the High Courts over the pending matters, for if it had done so, it would have denied justice to the petitioners whose matters were pending before the High Courts, as unlike the litigants, whose writ petitions were pending in the High Courts and which had been made to abate by the provisions of section 58 of the Constitution (Fortysecond Amendment) Act, 1976, and who could look for justice from the High Court again after exhausting the alternative remedy provided by the statute, the petitioners under article 227 had nowhere to go if their pending petitions had been made to abate.

For the reasons aforesaid, we hold that the provisions of clause (1) of article 227 and consequently the provisions of clause (5) of article 227 of the Constitution of India were never intended to operate retrospectively and therefore, they are held to be prospective in nature.

The petition can now be set down for hearing before the learned single Judge for decision on merit.

Judgment dated 23rd October, 1978.

S.S. Dewan, J.

This petition under Article 227 of the Constitution of India, is directed against the order of the Judicial Magistrate 1st Class, Hoshiarpur, dated August 23, 1973, upholding the decision of the Gram Panchayat of village Sarhala Mundian It is alleged that said Panchayat issued notice u/s 21 (2) of the Gram Panchayat Act, 1952 (hereinafter referred to as the Act), requiring the petitioner to remove the encroachment pointed out in the notice by a stipulated date. He disregarded the said notice where upon 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 u/s 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 of village Sarhal Mundian 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 Rs. 1/- per day till the removal of the encroachment in question. Feeling dissatisfied, the petitioner again challenged that order in the Court of Judicial Magistrate 1st Class, Hoshiarpur, who dismissed the revision petition vide his order dated August 25th 1973. This order has now been impugned by the petitioner.

The main contention of the learned counsel for the petitioner is, that the notices dated July 30th, 1972 and August 7th, 1972, issued to the petitioner by the Gram Panchayat, are vague and indefinite, on the ground that the extent of encroachment alleged by the panchayat has not been defined precisely. It is contended that the whole proceeding are bad because of ambiguity in the notices He has cited a case Raimohan Karmokar v. Emperor, AIR 1917 Cal. 207 in support of his submission. The learned counsel for the respondent has nothing to repel this argument. On perusel of the notices 1 find that the same are in fact vague and indefinite as they do not specify the area of the shamlat alleged to have been encroached upon by the petitioner. It is difficult to escape the conclusion that the petioner was misled on account of there having been no precise indication as to how far he had encroached into the shamlat land and to what event he had to vacate the same. On this ground all one, I am of the opinion that the revision should be accepted.

The result, therefore, is that the order of the Judicial Magistrate 1st Class, Hoshiarpur, is set aside and the present proceedings are dropped However, the Gram Panchayat, if so advised, may serve a fresh notice according to law.