(1) This is a petition under Article 227 of the Constitution by Gram Panchayat Ponahana of Tehsil Ferozepore Jhirka in Gurgoan district questioning the legality of the order of respondent No. 1 the judicial Magistrate at Palwal transferring proceedings under section 21 of the Punjab Gram Panchayat Act 1952(Punjab Act 4 of 1953) against respondent 3 Het Lal, from the petitioner-Panchayat to respondent 3 Het Lal from the petitioner-Panchayat to respondent 2 Gram Panchayat Panigwan in the same Tehsil. Respondent 1 has made the order under section 21 are not a 'criminal case ' as held by Grover J., in Mukh Ram v., Gram Panchyat Mullana C W. Np 1074 of 1959 D/- 27-10-1960(Punj) and that therefore the order of respondent 1 is without jurisdiction. Return to the petition has only been made by respondent 1 and it says that order of transfer of the case was passed after hearing counsel for both the sides and the order made is legal and with jurisdiction because the District Magistrate of Gurgaon delegated his power under section 41 of the Act to him pursuant to sections 74 and 75 of the Act.
(2) There is no substance in the stand of the petitioner-Panchayat that respondent 1 made the order behind it s back for respondent 1 has in the return clearly stated that the counsel for the petitioner-Panchayat was also heard before the order was made. The only other question for consideration is whether the order of respondent 1 is without jurisdiction on the ground as urged in the petition.
(3) In Punjab Act 4 of 1953 Chapter III has heading 'Gram Panchayats Conduct of business duties functions and powers', and it is this chapter that section 21 appears. Sub-section (1)(a)(i)of this section reads thus--
'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 evident 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 a satisfied the order shall be mad absolute.'
And section 23 provides that any person who disobeys an order of a Gram Panchayat made under section 21 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. The proviso says that the recurring penalty shall not exceed the sum of rupees five hundred. The procedure for abatement of nuisance in section 21 of the act is in substantial detail I analog our to procedure for abatement of nuisance under section S 133, 136 and 137 and the other procedural section connected therewith in the Code of Criminal Procedure. The learned Judges of the Full Bench in Narain Singh v. State ILR (1958) Punj) 1696: (AIR 1958 Punj 372 (FB) have pointed this out while holding that proceedings under sections 21 and 23 of the Act are judicial proceedings.
Chapter IV in the Act concerns 'criminal judicial functions' of a Gram Panchayat. Sections 38 says that the criminal jurisdiction of a Gram Panchayat shall be confined to the trial of offences specified in Schedule 1-A to the Act and in that Schedule entry (k) refers to offences 'under this Act or under this Act or under any rule or by-law made thereunder are triable by a Gram Panchayat. The proviso to section 41 enacts that a District Magistrate may for reasons to be recorded in writing transfer any criminal case from one Panchayat to another Court subordinate to him.' Section 38 and 41 appears in chapter relating to 'criminal judicial functions' of a Panchayat and sections 21 and 23 appear in chapter III to which reference has already been made. When there is disobedience of an order of a Gram Panchayat under section 21 for that disobedience penalty is provided in section 23. If the proceedings under section 21 are a 'criminal case' as those words are used in the proviso to section 4` the order of respondent 1 is not open to exception if otherwise it is obviously without jurisdiction.
(4) This question first came for consideration of Grover J., in Mukh Ram's case C. w. No. 1074 of 1959D/- 27-10-1960 (Punj). The learned Judge after noticing the opinion of the Full Bench that a Gram Panchayat exercising functions under section 21 of the Act acts judicially and the proceedings before it are proceedings judicial in nature goes on to observe that the Full Bench has also held that in trying an offence under section 23 as that offence is included in Schedule 1-A of the Act a Gram Panchayat discharges criminal judicial functions as laid down in chapter IV. After noticing this and also the observations of the Full Bench in regard to similarity of the provision sin sections 21 and 23 of the Act and sections 133, 136 and 137 and other connected sections in the Criminal Procedure Code the learned of much assistance in deciding whether any judicial order or proceedings antecedent to the making of an order under section 23 would be of a criminal nature and further that 'even if it is assumed for the sake of argument that they have the attributes of criminal proceedings I cannot per Saudi myself to hold...... that proceedings under section 21 would fall within the category of a criminal case because it is only a 'criminal case' which can be transferred under the provision to section 41.'
So the learned Judge held that transfer of proceedings under section 21 of the Act in exercise of the power in proviso to section 41 was without jurisdiction in that case. The question again came before Shatter Bladder J., in Banns All v. Gram Panchayat Mullana 64 Pun LR 892. The learned Judge did not follow Mukh Ram's case C. W. No. 1074 of 1959 D/- 27-10-1960(Punj) on the ground that a Gram Panchayat is authorised to levy the punishment of fine under section 23 for breaches committed under section 21 and so the proceedings under those provisions at once become 'criminal' in nature as it that its legal consequences are penal in nature as it is the essential characteristics of an offence or crime that its legal consequences are penal in nature. The learned counsel for the petitioner-Panchayat refers to Mahedeolal Kanodia v. Administrator General of West Bengal AIR 1960 SC 936 in which their Lordships held that even a Single Judge differing from a decision of another Single Judge in a previous case on a question of law should refer the case to a larger Bench instead of deciding the case in accordance with his own view and says that Bansi Lal's case 64 Pun LR 892 should have been referred to larger Bench. It does not however appear that Mahadeolal Kandia's case AIR 1960 S C 136 was brought to the notice of the learned Judge for otherwise I am sure that Bansi Lal's case 64 Pun LR 892 would have been referred to a larger Bench. It is difference of opinion among the two learned Judges that has led Khanna J., in his order of April 15 1963 to refer this question to a larger Bench.
(5) In Narain Singh's case ILR (1958) Punj 1696: (AIR 1958 Punj 372 FB) in the Full Bench has held that proceedings under section 21(1) are judicial proceedings. It has then been pointed out that after an order absolute has been made under sub-section (1) of that section that are two provisions in the Act where under such an order absolute is made effective (a) under sub-section (2) of section 21 under which if such act as referred to in the order absolute is not performed within the time fixed the Gram Panchayat may cause it to be performed and may recover costs of performing it from the person against whom such an order has been made or (b) under section 23 such a person may be prosecuted for disobedience of such an order an becomes liable to a penalty as is detailed in that section. The learned Judges have further held that the words 'fine' and 'penalty' are used in the Act as interchangeable and with the same connotation and that disobedience of an order absolute under sub-section (1) of section 21 is an offence under section 23. A Gram Panchayat when dealing with such an offence discharge criminal judicial functions.
It is evident then that section 23 relates to criminal offence and a Panchayat when dealing with such an offence discharges criminal judicial functions in other words the proceedings before it under that section are criminal proceedings and thus a 'criminal case.' The question is can proceedings under section 21(1) be completely divorced from the offence under section 23? In my opinion this cannot be done because although an order absolute under section 21(1) can also be enforced in the manner given in sub-section (2) of that section yet nothing compels a Panchayat to have resort to that course and not to proceed to deal with disobedience of such an order under section 23. Once section 21 is taken as an entirely independent proceedings the basis for the offence under section 23 is not there. So that the offence under section 23 is essentially and mainly dependant upon the proceedings under section 21(1). These two sections thus cannot be read distinctively and unconnected. When they are read together as forming for all particle purposes one proceeding, it because clear that proceedings under section 21(1) are criminal proceedings in the same manner as proceedings under section 23. The nature of both is the same and in fact they are proceedings so connected together that they cannot be considered as something separate. The outcome of proceedings under section 21(1) may be punishment of fine by way of penalty under section 23 and proceedings which thus end in a punishment are criminal proceedings and they are a 'criminal case.'
(6) In section 526 before its amendment in 1923 of the Case of Criminal Procedure there appeared the words 'criminal case 'in transfer such a case. In re Pandurang Govind Pujari ILR 25 Bom 179 was a case in which under section 526 of the Code transfer of proceedings under section 145 of it was sought. It was held that proceedings under section 145 of the Code are not a 'criminal case' and Sir Lawrence Jenkins C. J. among other reasons gave the reasons for this conclusion that a 'criminal case like a criminal appeal must arise out of and deal with some crime already committed. It seems therefore that this clause confers no power to deal with procedure that can be taken only for the prevention of crime.' This view of the words 'criminal case' has however not been accepted in Lolit Mohan Moitra v. Surah Kanta Acharjee ILR 28 Cal 709 Jaggu Ahir v. Muril Shukul ILR 34 All 533 Farid Imambux v. Piru Kouro AIR 1914, Sind 11 and Wazed Ali Khan v. Emperor AIR 1914 Cal 792 in which the learned Judges have held that it is not necessary to construe the expression 'criminal case.' as restricted to cases arising out of and dealing with some crime already committed.
In the last mentioned case proceedings under S. 107 of the Code of Criminal Procedure were held to be a 'criminal case' within section 526 of the Code although the proceedings related to preventive measures and not to a crime already committed on the grounds (a) that under S. 107 a Magistrate is empowered in his discretion to detain a person who is the subject of the proceedings in custody until the completion of the enquiry and (b) that if a person ordered to keep the peace does not give the necessary security he shall suffer simple imprisonment for the period laid down in the order. It were these penal consequences of proceedings which did not arise out of a crime already committed that was the basis on which the learned Judges proceeded too hold proceedings under S. 107 to be a 'criminal case.'
(7) In the Supreme Court of Judicature Act 1873 (36 & 37 Vict. c. 66) section 47 provides with stated exception that 'no appeal shall lie form any judgment of the said High Court in any criminal cause for matter' and in the Supreme Court of Judicature Act 1873 (38 & 39 vict. c. 77), S. 19 also refers to the words 'criminal cause'. In other words a 'criminal cause' in S. 47 of the first Act and S. 19 of as a 'criminal cause' and matters. In Queen v. Fletcher (1876) 2 q B D 43 Mellish L, J., Freely refers to the words 'criminal cause or matter' as the same thing 'criminal case. ' In other words a 'criminal cause' in S. 47 of the first Act and S. 19 of the second Act as referred to above is the same thing as a 'criminal cause' in s. 47 of the first Act and S. 19 of the second Act as referred to above is the same thing as a 'criminal cause' in S. 47 of the first Act and S. 19 of the second Act as referred to above is the same thing as a 'criminal case'. In the Metropolitan Building Act 1855 (18 & 19 Vict c. 122) section 45 provides for the district surveyor to give notice to a builder engages in erecting a building or in doing work as time stated in the section to cause anything done contrary to the rules of that Act to be amended or to do anything required to be done by that Act or to case so much of any building or work as prevents such district surveyor from ascertaining whether anything has been done or omitted to be done as detailed in the section to be to sufficient extent cut into laid open or pulled down.
Under section 46 in the event of default by the builder in complying with the notice the district surveyor may cause complaint of such non-compliance to be made before a Justice of the Peace and such Justice shall thereupon issue a summons requiring the builder so in default to appear before him; and if upon his appearance or in his absence, upon due proof of the service of such summons it appears to such Justice that the requisitions made by such notice or any of them are authorised by that Act he to comply with the requisitions of such notice or any such requisitions that my in his opinion be authorised by that Act within a time to be stated in such order. Under S. 47 if such an order is not complied with such a builder incurs a penalty not exceeding twenty shillings a day and in addition the district surveyor is given power to enter upon the premises and to do all such things as may be necessary for enforcing the requisitions of such notice.
In Payne v. Wright, (1892) 17 Cox CC 460, the respondent Wright was summoned by the appellant Payne the district surveyor under S. 45 of the Metropolitam Building Act, 1855, for having covered the roof of a building externally with a combustible material contrary to the provisions of S. 19(1) of that Act and a notice under S. 45 was duly served upon him to do such things as were required by the Act to be done but he did not comply therewith. In a compliant by the district surveyor under S. 46 of that Act the Magistrate held that the material with which the roof was covered was 'incombustible ' within the meaning of that Act but state as case for the opinion of the Queens Bench Division upon the question. The Queens Bench Division decided that the material was not 'incombustible' and remitted the case to the Magistrate with that expression of opinion.
Against the decision of the Queens Bench Division there was an paella by the District surveyor to the Court of Appeal in which on behalf of respondent Wright a preliminary objections to the hearing of the appeal was taken on the ground that the proceedings before the Magistrate under S. 46 of that Act were a 'criminal cause or matter' as to which S. 47 of the Supreme Court of Judicature Act 1873 enacts that no appeal shall lie to the Court of Appeal. This objection prevailed Lord Esher M. R. observing that the words 'criminal cause or matter in S. 47 are not confined to 'proceedings the actual final result of which would be the infliction of a penalty (but extend to) any dispute which at any time and at any stage might end in a penalty.......' It seems to be clearly within the decision in Reg v. Schofield, (1891) 2 QBD 428, where i quoted and adopted the words I think that the clause of S. 47 in question applies to a decision by way of judicial determination of any question raised in or which is criminal at whatever stage of the proceedings the question arises.'
There cannot be a doubt but that if this matter had to be taken before the Justices under Jervis's Act (11&12 Vict. c. 43) so as to enforce the order by inflicting a penalty it would then be a criminal cause or matter'; it has been so held over and over again. This proceedings therefore is a step in a criminal cause or matter as to which we have no appellate jurisdiction. It will be seen that in substance S. 46 of the Metropolitan Building Act 1855 is in the matter of abatement of what is statutorily required to be abated for all practical purposes something similar as section 21 of the Punjab Act 4 of 1953 and further that section 47 of the first Act is again similar in imposing penalty to S. 23 of the second Act. In Payne's case (1892) 17 Cox CC 460 it were the proceedings under S. 46 before the Magistrate that were held by the Court of Appeal to be 'criminal cause or matter'; in other words to be a 'criminal case'. It is apparent that the basis of the conclusion is that proceedings under S. 46 of the first Act may end in imposition of penalty under S, 47 of that Act. Similarly proceedings under S. 46 of the first Act may end in imposition of penalty under S. 47 of that Act. Similarly proceedings under S. 21 of our Act may end in imposition of penalty under S. 23 of the Act.
Payne's case (1892) 17 Cox CC 460 is therefore a close parallel to the present case. Learned counsel for the petitioner-Panchayat contends that a decision of an English Court interpreting a British statute or statutes cannot be of assistance in the interpretation of Punjab Act 4 of 1953 and it has been so held by the Privy Council in Lasa Din v. Mt. Gulab Kunwar AIR 1932 P C. 207. It is so But all that their Lordships said was that it is always dangerous to apply English decisions to the constructions of an 'Indian Act where clauses under consideration are not the same and I have endeavored to show that Ss. 46 and 47 of the Metropolitan Building Act 1855 are for the matter under consideration a close parallel to Ss. 21 and 23 of Punjab Act 4 of 1953.
(8) In consequence the proceedings under sub-section (1) of section 21 of Punjab Act 4 of 1953 are found to a 'criminal case' as those words appear in proviso to S. 41 of that Act. On this conclusion the petition of the petition of the petitioner-Panchayat is without substance. It is dismissed. There is no order on costs in this petition.
(9) Petition dismissed.