UMDA vs Gram Panchayat Village Balaha Kalan and another

P.C. Pandit, J.—This is a petition under Article 227 of the Constitution of India challenging, the validity of the notice dated 3-11-1961 issued by the Gram Panchayat of village Balaha Kalan tehsil Narnaul, district Mohindergarh.

It appears that the Gram Panchayat respondent No. 1, issued a notice on 16-6-1961 against Under the petitioner, and Chandgi, respondent No. 2 to the effect that they had constructed a wall in a thoroughfare and they should show cause as to why the obstruction should not be removed. According to the allegations of the petitioner, on receipt of this, notice the petitioner submitted his objections, to the Panchayat on 17-6-1961. After some time another notice to the same effect was issued to him and respondent No. 2. He again filed his objections on 20-10-1961, saying that the wall in dispute had been constructed by him about 15/16 years ago in his own place and that the notice issued by the Gram Panchayat u/s 21(1) of the Gram Panchayat Act, 1952, was invalid and was based on enmity with one Ganeshi. A prayer was also made that no action should, therefore, be taken u/s 21(2) of the Act. The Gram Panchayat issued the impugned notice dated 3-11-1961 u/s 21(1) of the Act, paying that it had rejected the petitioner''s objections and that the obstruction should be removed by 9-11-1961, otherwise the Gram Panchayat would get it removed at the petitioner''s costs u/s 21(2) of the Act. According to the petitioner, the impugned notice had been issued without affording him an opportunity to adduce evidence in support of his objections.

The petitioner applied to the General Assistant to the Deputy Commissioner, Mohindergarh at Narnaul, u/s 97 of the Act against the impugned notice, but he was directed to approach this Court vide order dated 18-12-1961. Thus the present petition was filed on 20-12-1961.

It has been held by a Full Bench of this Court in Narain Singh and another v. The State (1959) 61 P.L.R. 93, that a Gram Panchayat while proceeding under sections 21 and 23 of the Punjab Gram Panchayat Act acts judicially and therefore, a petition challenging its orders under either of these sections would lie to this Court under Article 227 of the Constitution of India.

The only contention raised by the learned counsel for the petitioner was that it was incumbent upon the Panchayat u/s 21(1) to take evidence in support of the objections filed by the petitioner before issuing the impugned notice. The relevant provisions of section 21 are as follows:-

21.(1) A Gram Panchayat on receiving a report or other information and on taking such evidence, if any, as it thinks fit, may make 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;

* * * *

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.

A bare reading of this section would show that if the person to whom the notice is issued appears and shows cause as to why the conditional order passed by the Gram Panchayat under sub-section (1) be not made absolute, the Gram Panchayat shall take evidence and if it is satisfied that the order is not reasonable and proper, no further proceedings will be taken in the case. If, on the other hand, it is not so satisfied, the order shall be made absolute. This section is analogous in its terms to sections 133 and 137 of the Code of Criminal Procedure. There is no decided case under the Punjab Gram Panchayat Act, but there are numerous authorities under sections 133 and 137 of the Code of Criminal Procedure where it is laid down that the Magistrate is bound to take evidence as in a summons case and it is only when this has been done that the Magistrate can make the conditional order absolute (see in this connection Khair Din v. Wasan Singh A.I.R 1935 Lah. 28). In principle, I see no difference why the same rule should not be applied in cases covered by the Gram Panchayat Act and as I have already mentioned above, the wording of the section, itself, shows that the Gram Panchayat has to take evidence produced by the objector before it can make its conditional order absolute.

In view of what I have said above, this petition is accepted and the notice dated 3-11-1961 issued by the Gram Panchayat is hereby quashed. Since the respondent is not represented before me, I will make no order as to costs.