Jai Singh vs Gram Panchayat Singhanwala and Others

Dua, J.—Jai Singh instituted a suit for permanent injunction restraining the Gram Panchayat Singhanwala defendant No. 1, and the Gram Panchayat Nasirpur, defendant No. 2, from demolishing the wall A.B. shown red in the plan attached to the plaint and also from recovering Rs. 525/- as penalty in execution of their notices and orders. According to the plaintiffs case, house No. 24 situated in village Laharsa was allotted to him 11 years ago and he is in possession thereof ever since, on a report by one Phami Shah, the Gram Panchayat of village Singhanwala issued a notice u/s 21 of the Gram Panchayat Act (hereinafter called the Act) but on the plaintiff approaching the competent authority the case was transferred to the Gram Panchayat of village Nasirpur, defendant No. which Panchayat by its order dated 30/12/1958 directed the wall A.B. of the plaintiff''s compound to be removed within a week with a further direction that the plaintiff pays Rs. 25/- as fine and failing compliance, to pay a further fine of Rs. 1/-per day to the extent of Rs. 100/-. The plaintiff preferred a revision against this order in the Court of Shri Nand Kishore. Revenue Assistant. Ambala, who after hearing the parties suspended the resolution and held that the wall had existed from the time of the Muslims and that the Panchayat had no right to include that part of the house in the public street. The plaintiff on 11-12-1959 received a notice from the Panchayat, defendant No. I, to the effect that the Director, Gram Panchayat had dismissed the plaintiff''s revision and the plaintiff was to pay Rs. 525/- being the amount of fine within one week, failing which that Collector would be moved for realising the amount. This notice by defendant No. 1 and the order to defendant No. 2 were described in the suit to be mala fide, perverse, ultra vires and void and also that the wall A.B. was never constructed by him, the same having been in existence since the time of the Muslims and it was not situated in the public street. Another plea raised was that defendant No. 1 had no jurisdiction in the matter because the area of village Laharsa had been taken out of its jurisdiction vide notification dated 17-7-1959. The order of this Panchayat was illegal on this ground as well. Defendant No. 2, Gram Panchayat of Nasirpur, was impleaded as a proper party.

In the written statement, it was denied that the disputed wall already existed. The plea of the orders of the Gram Panchayat being ultra vires, was controverted. The jurisdiction of the civil Court to set aside the orders of the Panchayat or which took exception to them was disputed.

On the pleadings of the parties, the following issues were settled:

Whether the plaintiff is the owner of the site on which the disputed wall A.B. stands ?

Whether the civil Courts have jurisdiction to set aside the order of imposing the fine on the plaintiff?

Whether the order of Gram Panchayat is ultra vires, void, mala fide and perverse ?

Whether the suit is not maintainable in present form and the plaintiff has no locus standi to file the suit ?

Whether defendant No. 1 has no jurisdiction to affect recovery for reasons given in para No. 6 of the plaint ?

The trial Court decided issue No. 1 against the plaintiff holding that the Court was not convinced that the plaintiff was the owner of the site over which the wall A B. stood or that the site extending up to the wall was allotted to him with the result that his occupation, even assuming to be from the date of allotment extending to the wall A.B., was unauthorised. Issues Nos. 2, 3 and 5 were also decided against the plaintiff. Before the Court, it seems to have been conceded that if the plaintiff failed to establish that the disputed wall stood on the site belonging to the plaintiff which is not a public street, then the order of the Panchayat could not be ultra wires or without jurisdiction The Court further proceeded to notice a decision of the Lahore High Court in AIR 1939 372 (Lahore) , and a Full Bench decision of this Court in Narain Singh and other v. The State (1959) 61 P.J..R. 93 [F.B.]. but observed that in face of the Court''s conclusion on issue No. 1 it was not necessary to further probe the matter. At the time when the original order was passed, according to the trial Court, the Gram Panchayat, village Singhanwala, had jurisdiction over the area and a subsequent transfer to some other Panchayat made no difference. Issue No. 4 was not decided, being considered unnecessary in view of the findings on other issues, though after so observing the learned Subordinate Judge proceeded to remark that the objection was well founded, for unless the orders passed by the Panchayat are set aside by a competent authority, the suit was not maintain ale in the present form.

On appeal before the learned Senior Subordinate Judge, onus of issue No. 1 which had been placed on the plaintiff was assailed but this challenge was negatived on the ground that the onus had rightly been placed on the plaintiff. It was further noticed that this objection had not been included in the memorandum of appeal. It was added that evidence having been led, the question of onus was at the appellate stage immaterial.

The Court then proceeded to scrutinise the record and found that the plaintiff had not placed on the record the allotment order or any sanad issued by the authorities concerned regarding the house in question. After considering the evidence, the appellate Court also found that the site in dispute formed part of the public street and not of the courtyard as alleged by the plaintiff. On this conclusion, his occupation up to wall A.B. was held unauthorised. The orders of the Panchayat were accordingly held to be intra vires and according to law. Had they been ultra vires, then, according to the Court, it would not have been necessary for he plaintiff to get these orders imposing fine set aside. With this observation, the finding of the trial Court on issues Nos. 4 and 2 were reversed out the conclusion on issues Nos. 3 and 5 was affirmed, with the result that the appeal was dismissed.

On Second appeal in this Court on 24-9-1963, my attention was drawn to the fact that one of the points arising before me had arisen in another case in Naurang Lal v. The Gram Panchayat of village Gujarwas ILR (1964)1 P&H. 512 - 66 P.L.R. 28, Civil Misc. 2835 of 1962, which had been referred by a learned Single Judge to a larger Bench. I, therefore, directed that this case should await the decision of the larger Bench in that case. It appears that the counsel before me were unaware that Naurang Lal''s case had already been decided by the learned Chief Justice and Grover J., on 19-9-1963 and even the office did not care to check up this fact which it should have done immediately on reading my order dated 24-9-1963. That decision has since even been reported in ILR 1964 P&H 512 : ILR (1964) P&H. 512 - 66 P.L.R. 28 and it holds that the imposition of recurring fine or an offender on his first conviction for the breach of the provisions of section 21 of the Punjab Gram Panchayat Act is illegal as it tantamounts to imposing fine for an offence not yet committed, which cannot be done. In a case of this type, according to the Division Bench, the course to be adopted by the Panchayat is to summon the offender from time to time if he has not removed the encroachment and continue imposing on him the recurring fine as it becomes due up to the limit prescribed by section 23 of the Act. The impugned order, in so far as it imposes a recurring fine, must, therefore, be declared to be ultra vires and inoperative. The contention that Civil Courts have no jurisdiction to quash this order is clearly misconceived for it is axiomatic that exclusion of the jurisdiction of the civil Courts is not to be readily inferred and even when it is excluded, the civil Courts have jurisdiction to examine into cases when the provisions of the Act creating special tribunals have not been complied with or the statutory tribunals have either acted without jurisdiction or assumed jurisdiction not vested in them.

The respondent has however submitted that in any case the order of demolition and of imposition of basic fine, which is not recurring, must stand because the subsequent transfer of area does not affect its validity, nor would it render the order in executable at the instance of the Panchayat having jurisdiction on the transferred area. The appellant has, in reply, contended that the Director of Panchayats could not supersede the order of the Revenue Assistant which was a judicial order and, therefore, the Director''s order is ultra vires.

Although this precise point is not decided by the Court below, nevertheless, the question being purely one of law to be decided on the existing record and going to the root of the controversy. I consider it proper to go into it. The order of Shri Nand Kishore, Revenue Assistant dated 30-1-1958 purports to have been passed u/s 97 of the Act. On the merits, the learned Officer came to a positive conclusion that the record prepared by the Patwari was wrong so far as the house in question is concerned, with the result that the Panchayat had no right to include the impugned part of the house in question in a public street. The plea on behalf of the Panchayat which was represented before the Revenue Assistant that the application for revision preferred by Jai Singh was barred by time was repelled. The resolution of the Panchayat dated 30-12-1956 was accordingly suspended u/s 97. The Gram Panchayat thereupon wrote to the Director Panchayats, Punjab Jullundur, stating the facts of the case and ventilating its grievance in the following words:

Panchayat raised objections that the revision petition was not in time since the order of the Panchayat was of 30-12-56 and copy whereof was applied on 27-2-1957 i.e. after 57 days of the announcement of the orders and also raised objections that as per section 23 of the Panchayat Act the case could not be transferred to any other Panchayat. The learned R. A- held that the record prepared by the Patwari was wrong.

This has led to an encroachment by many persons on the Share-am on the public places.

Under the above circumstances, it is submitted that the Gram Panchayat Singhanwala may kindly be advised in the matter.

On this, the learned Director Panchayats purporting to act u/s 97(2) rescinded the order dated 22-6-1956 passed by the Revenue Assistant, Ambala, suspending the execution of the order of Gram Panchayat Singhanwala dated 6-9-1955 imposing penalty of Rs. 25/- on Jai Singh. The Director further proceeded to observe that the impugned proceedings were of an executive nature and therefore, the provisions of section 67 debarring member of a Panchayat personally interested in a controversy from taking part in any case, suit or proceeding was inapplicable. The rescession of the order of the Revenue Assistant dated 22-6-1956 according to the Director, automatically rendered inoperative the subsequent proceedings, thereby nullifying the order of the Revenue Assistant dated 30-1-1958 as well.

Here, it may be pointed out that in this case initially, the Revenue Assistant by his order dated 22-6-1956 had set aside the resolution of the Gram Panchayat, Singhanwala dated 6-9-1955 and had also transferred the proceedings to the Gram Panchayat, Nasirpur, for fresh decision on the ground that the Gram Panchayat passing the impugned resolution had not given proper opportunity to Jai Singh to defend himself and further that the report in the controversy has been made by Shri Phami Shah and the judgment had also been written by him which was violative of the provisions or section 67 of the Act.

I also find on the record a memorandum from the Director of Panchayats to the Revenue Assistant with a copy to the Gram Panchayat, Singhanwala, dated 16-11-1959 stating that since a Full Bench of the Punjab High Court had decided that the Panchayat while acting under sections 21 and 23 of the Act has all the attributes of a judicial tribunal, the provisions of section 97 of the Act cannot be invoked in such cases. In view of what has just been stated it is obvious that he proceedings before the Panchayat were judicial proceedings and the Revenue Assistant, through purporting to act u/s 97 for all practical purposes, considered himself to be discharging the functions of a judicial authority supervising the judicial proceeding of the Panchayat. It appears to me, however, that section 97 must be held to be confined to executive or administrative measures because in express language it excludes orders passed in judicial proceedings. It would thus follow that if the appellant wanted to assail the order of the Panchayat, he had to approach the District Magistrate u/s 51 of the Act with his challenge.

But be that as it may, I cannot help observing that the learned Director of Panchayats has in passing the order rescinding the order of the Revenue Assistant, dated 22-6-1956, betrayed not only a wholly unjudicial approach to a matter which is essentially judicial, but he seems to have answered mainly to call based on executive policy and administrative convenience, completely ignoring the rule of law and the dictates of justice, though his order seriously affected a citizen''s claim to property. His order is plainly suggestive of a pre-disposition in favour of upholding the order of the panchayat rather than of unbiased appraisal of the dispute with the virgin mind of a judicial or even a quasi-judicial agency. Even as an administrator (assuming he was so acting) when adjudicating upon controversies affecting citizen''s rights and interests in property, he was bound to follow the rules of fairplay and fundamental justice, and was not free to act without directing his mind to or ignoring the other side of the picture. The decision of the Full Bench in Narain Singh''s case is dated 4-3-1958 and I am inclined to assume that a copy of this decision must have reached the Panchayat Department within a reasonable time thereafter. It is in the circumstances not understood why the learned Director of Panchayats as late as January 1959 passed the impugned order on the basis of the erroneous view that the proceedings in question were of an excutive nature. It is also difficult to appreciate why the Department concerned should not have immediately with a responsible sense of duty intimated to all the Panchyats the effect of the Full Bench decision of this Court for, from the records it is obvious that the Gram Panchyat Singhawala made the representation to the Director on 20-10-1959, suggesting that the panchayat was completely ignored of legal position, clarified by this Court. The attitude of casual indifference towards one of the most fundamental ingredients of our set up is, to put it mildly, disappointing and indeed it reflects bureaucratic inertia and unawareness on the part of the administrators of the constitutional and ethical importance of the Rule of Law to their own functioning in a civilised democracy of our pattern. At this point I consider it necessary to emphasise that the rule of natural justice, also described by some as "rational or universal justice" and which is only fairplay in action conceiving justice as the supreme human good and a self-sufficient end, also extends to the activities of the Gram Panchayat affecting the property and interest of citizens. It is unnecessary to repeat that the Director of Panchyat too is equally subject to and controlled by the rule of natural justice when he in the discharge of his statutory functions, passes orders of like nature. In this respect the responsibility of the Director is all the greater, because the Gram Panchayats at the present stage of their existence, with no traditions and little experience, look up to him for guidance and advice, as is obvious from the case in hand: he is accordingly expected not only to be properly posted with the correct legal position, but also to be adequately trained in the democrative way of life to be able to guide the Panchyats on true and healthy democratic lines : it goes without saying that one of the truly affective ways of doing so is for the Director to demonstrate to the Panchayats in practice by himself functioning democratically under the Rule of Law.

The question which concerns this Court at this stage is. What order should this Court pass? On the merits the plaintiff has failed on issue No 1 and that finding would clearly be one of the fact apparently unassailable on second appeal. The position in law regarding the orders of the Revenue Assistant and of the Director, as I now see it, is that both erroneously purported to act u/s 97, which according to the Full Bench decision in Narain Singh''s case was inapplicable. The order of the Panchayat would, therefore, be bad onty to the extent of the imposition of continuing fine, in other respects it is not open to any serious legal challenge. Nothing cogent has been shown as to why the initial penalty cannot be realised from the appellant. Prima facie the initial penalty can be realised by the Panchayat imposing the same. This appeal accordingly succeeds only to the extent of declaring the impugned order of the Panchayat imposing recurring fine to be ultra vires and inoperative and as a result quashing the said order to this extent.

Before parting with the case, I deem it my duty to bring it to the notice of the authorities concerned that according to the directive principle contained in Article 40 of the Constitution the State is undoubtedly expected to take steps to organise village Panchayats and endow them with such power and authority as may be necessary to enable them to function as units of self-government, but the directive principle of separation of the executive from the judiciary contained in Article 50 which from one point of view may be considered more basic, must also be kept in view and attempt should be made properly to harmonise both of them. The organisation of village Panchyats accordingly deserves to be carried out in practice consistently with Article 50; in any case it has to be confined within the orbit of the rule of Jaw, for there is nothing more fundamental in our democracy than this rule of law. It is not only lawyers who attach importance to it, but this rule of law has been the sheet-anchor of all leaders of thought and action advocating democratic system like ours as also of our struggle for freedom. The keen desire and also struggle of man for impartial and objective law can be traced back to history as old and as persistent as the desire of those who seek power and stick to it to free themselves from impartiality and objectivity of law and strive to use the law as an instrument of domination which more often than not leads to self-aggrandisement exploitation and corruption which must ultimately destroy the democratic society. At the foundation of the Rule of Law in our set-up lies the consciousness of this truism. When planning to train our village folk in the art of self-government through the elected system of Panchayats, we must bear in mind the grave danger of accumulation of judicial and administrative or executive power in the same hands particularly in persons who have never had any training to adjudicate upon controversies objectively uninfluenced by their personal and private likes and dislikes. The present system of Panchayats is not indigenous; it is being imposed from above. Lest it develops into an instrument of despotism and tyranny breeding intrigue and corruption in the villages, resulting in disillusionment and frustration of rural inhabitants with our democratic system its day-to-day working and progress must be closely watched, and the desirability of devising ways and means of making judicial Panches more impartial and objective and of imbibing in them the true spirit of the Rule of Law considered. The scrutiny by the revising authority into the judicial functions of the Panchayat also deserves to be close and frequent and inspired by a keen desire To see that its judicial decisions are marked by that impartial and objective approach which is the hall-mark of Indian Republican sense of justice. Similarly, the Director has to dedicate himself to the sacred cause of developing sense of judicial integrity and objectivity in the Panchayats. I have made these observations because in my view the problem is of the greatest importance today, when we consider that we are on the threshold of a new major experiment of training our rural uneducated population in our democratic system under the Rule of Law. To re-emphasise once more the most vital aspect, we must in this connection be particularly aware that uncontrolled accumulation of both executive and judicial power in the same hands-whether of one individual or of a group of men, whether elected or otherwise appointed does not tend to promote the Rule of Law and indeed it may well be considered to be the very antithesis of the Rule of Law; and this awareness must constitute the starting point of this experiment. I do not consider it necessary to say anything more on this point on the present occasion.

In the circumstances it is the finding of fact of the Courts below which has induced me to decline full relief claimed by the appellant. In the result, this appeal succeeds in part, as already stated, and allowing the same to that extent, I leave the parties to bear their own costs throughout.