Naurang Lal vs The Gram Panchayat of Village Gujarwas and Another

Grover, J.—There is a conflict of opinion in this Court on the question whether recurring fine can be imposed u/s 23 of the Gram Panchayat Act. Khanna J. is of the view that this cannot be done (Suram Singh v. The Gram Panchayat of Samtana Kalan (1963) 65 P.L.R. 417); whereas Gurdev Singh J. in Criminal Miscellaneous 183 of 1962 (Banta Singh v. Gram Panchayat of Mouza Bhutta Cr. Misc. No. 183 of 1962) and Capoor J. in Narain Singh Hira Singh v. The State AIR 158 P&H. 372 . p .377 have held that it can be done. This conflict ought to be resolved by a larger Bench and I direct that appropriate orders of the Hon''ble the Chief Justice may be obtained in this behalf.

JUDGMENT OF THE DIVISION BENCH Falshaw, C. J.-(19th September, 1963) -This case has. been referred to a Division Bench by my learned brother because of conflicting decisions of two learned Single Judges of this Court concerning the interpretation of section 23 of the Punjab Gram Panchayat Act, IV of 1953.

The facts are that the Gram Panchayat of Gujarwas, Mohindergarh district, took proceedings against the petitioner Naurang Lal u/s 21 of the Act on the 1st of March, 1961 on the ground that in constructing a house he had encroached on a public pathway. It was held that he had offended in this manner and he was ordered u/s 23 of the Act to pay a fine of Rs. 20/- and also a penalty of 50 nP per day as from the 10th of March, 1961 until the day when the encroachment was removed. His revision petition against this order was dismissed by a Magistrate at Narnaul and he then came to this Court under Article 227 of the Constitution.

Section 23 of the Act reads-

Any 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 twenty-five rupees; and if the breach is a continuing breach, with a further penalty which may extend to one rupee 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.

The main point raised in the petition was that in spite of the provisions of section 23 the Gram Panchayat had no power to impose a prospective recurring penalty and when the case came up for hearing before my learned brother on the 19th of April, 1963 a judgment of Khanna J., Suram Singh v. The Gram Panchayat of Samtana Kalan1, apparently delivered on the 5th of February 1963 in which this contention was upheld was cited on the one side while on the other side an unreported decision of Gurdev Singh J. in Banta Singh v. Gram Panchayat of Mouza Bhutta2, decided on the 14th of August 1962, was cited in which he had upheld a similar order of the Panchayat.

In that case the learned Judge relied on a remark made by S.B. Capoor J. in Narain Singh Hira Singh v. The State3, which consists of a single sentence to the effect, "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 the terms of section 23 of the Act", and the only case which was cited before him to the contrary, Emperor v. Mohan Lal A.I.R 1915 Lah 147, was considered by him to be of dubious authority, since the decision in that case merely referred to an unreported previous decision under the Municipal Act to the effect that a Magistrate had no power to inflict a fine for prospective disobedience.

However, in the case decided by Khanna J. an abundance of authority was cited all pointing in the same direction.

The point is not that a Court or Panchayat cannot impose a recurring fine for a continuous breach of an order of this kind, but that it cannot do so on the first conviction of the offender for the breach, since by doing so it would be tantamount to imposing fine for an offence not yet committed, which cannot be done. In other words, after a conviction for disobedience of an order of this kind, whether passed by a panchayat or a municipal authority, the recurring fine can only be imposed after the continuance of the breach has taken place, and as long as the breach continues the Panchayat or Court must call the offender and impose the recurring fine on him from time to time as it becomes due.

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 Ram Lal Vs. The Municipal Board, Ramzan Vs. The Municipal Board of Benares and Hurmat Vs. Emperor, The same is the view of the Patna High Court in Haluman Sah Vs. Motihari Municipality, and Suman Tawaff Vs. Gaya Municipality, as well as of the Bombay High Court in In re: Limbaji Tulsiram I.L.R 22 Bom. 766, Calcutta High Court in Phani Bhusan and Another Vs. Corporation of Calcutta, and Assam High Court in Md. Nadir Shah v. The State AIR 1959 Asa 103.

As against this view, which appears to be almost universally accepted by the Courts in India, there appears only to be the decision of Gurdev Singh J. supported by the passage of the judgment of S. B. Capoor J. and in neither of these cases does it appear that the matter was considered from the point of view of at what stage such a recurring fine can be imposed, there being no question about the legality of imposing such a fine at a proper stage.

I am therefore of the opinion that the imposition of a recurring fine at the stage of first conviction for the breach must be held to be illegal and therefore, that part of the order of the Panchayat in this case must be set aside. In future in such case 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 in the section. The petition is therefore accepted to this extent.

Grover, J.

I agree.