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Patel Prabhudas Dwarkadas Vs. Dholasan Gram Panchayat, Dholasan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberSpl. Criminal Appln. No. 32 of 1969
Judge
Reported inAIR1971Guj9; 1971CriLJ212
ActsGujarat Panchayats Act, 1962 - Sections 93(2), 93(4), 229 and 232
AppellantPatel Prabhudas Dwarkadas
RespondentDholasan Gram Panchayat, Dholasan and ors.
Appellant Advocate N.H. Bhatt and; C.V. Joshi, Advs.
Respondent Advocate S.K. Zaveri, Adv. and; K.J. Vaidya, Asst. Govt. Pleader
Cases ReferredEmperor v. Dharala Mungal
Excerpt:
criminal - fine - sections 93 (2), 93 (4), 229 (3), 229 (4) and 232 of gujarat panchayats act, 1962 - petition filed challenging imposition of certain fine upon petitioner on violation of section 93 and additional recurring fine per day in case orders of panchayat not complied within stipulated period - offence committed by petitioner not covered by cases falling under section 229 (4) - it fell within purview of section 229 (3) - maximum punishment for committing such offence can be fine not exceeding rs. 20 - imposition of recurring fine impermissible in view of section 93 (4) - held, order of recurring fine inflicted by panchayat illegal. - - therefore whatever be the contents of that resolution, it not having been communicated, he was entitled under section 93 to act under the.....vakil, j.1. this special criminal application is directed against the judgment of the additional sessions judge, mehsana given under his revisional jurisdiction under section 271 of the gujarat panchayats act, 1961 confirming the order of the nyaya panchayat at lich village in mehsana taluka whereby he dismissed the revision application of the present petitioner against the order of the nyaya panchayat whereby the nyaya panchayat had convicted him for an alleged offence for having violated section 93 of the gujarat panchayats act, 1961, (hereinafter referred to as `the act') and ordering him to pay a fine of rs. 20/- and further ordering that if he did not fill up the gap made for putting in a door within ten days then a fine of rs. 2/- per day from 18th february, 1967 be levied and.....
Judgment:

Vakil, J.

1. This Special Criminal Application is directed against the judgment of the Additional Sessions Judge, Mehsana given under his revisional jurisdiction under Section 271 of the Gujarat Panchayats Act, 1961 confirming the order of the Nyaya Panchayat at Lich village in Mehsana Taluka whereby he dismissed the Revision Application of the present petitioner against the order of the Nyaya Panchayat whereby the Nyaya Panchayat had convicted him for an alleged offence for having violated Section 93 of the Gujarat Panchayats Act, 1961, (hereinafter referred to as `the Act') and ordering him to pay a fine of Rs. 20/- and further ordering that if he did not fill up the gap made for putting in a door within ten days then a fine of Rs. 2/- per day from 18th February, 1967 be levied and further that the Panchayat should take necessary steps to fill up the gap of the door. The short facts leading to this order are as follows:-

The petitioner is a resident of village Dholasan in Mehsana Taluka. Respondent No. 1 is the Gram Panchayat constituted under the Act and respondent No. 2 is the Nyaya Panchayat constituted for that area. Respondent No. 3 is the State of Gujarat. On the 2nd of November, 1968, the petitioner had applied to the Gram Panchayat for permission to allow him to open a door in the back wall of his house. This part of the petitioner's building abuts an open street land. It appears that one Ambaram of the same village having come to know that the petitioner had asked for the permission, applied to the Panchayat for granting him that land which is touching the petitioner's building at the back. The application made by the petitioner came to be considered by the Panchayat on the 30th November, 1968. It appears that at that time the application made by Ambaram Joitaram also came up for decision. It is the allegation of the petitioner that Ambalal Joitaram is an influential man in the village. Respondent No. 1 the Panchayat therefore found it difficult to take a decision which may displease Ambalal Joitaram by granting permission to the petitioner. On that day respondent No. 1 Panchayat passed a resolution (Exhibit `A') which runs as follows:- 'Meeting was held today wherein Patel Prabhudas Dwarkadas of this village had sought permission for placing door in the wall of his house. Ambaram Joitarambhai of this village had given application to get the said land at a lump sum. The Panchayat, therefore, inspected the site today, looking to the present situation of the place under demand, the Panchayat is silent (this is erased) for disposing of these applications. The Panchayat therefore resolves to forward the papers to the Taluka Development Officer, for taking satisfactory decision regarding the demands of the aforesaid Patel Prabhudas Dwarkabhai and of the No. 2. Resolution passed unanimously. It is resolved that the papers and applications be sent to the Taluka. The secretary to take further steps.' It is the case of the petitioner that the said resolution is ambiguous and it only expresses its inability to decide one way or the other and forwarded the application of the petitioner and the application of Ambaram Joitaram to the Taluka Development Officer, may be for guidance or for decision. It is the petitioner's case that intimation of this resolution was not given to him and he proceeded to open and fix the door assuming that the permission was granted as per the provisions of Section 93 (2) of the Act. The members of the Panchayat-respondent No. 1 being annoyed at this act of the petitioner, decided to file a complaint against him under Section 93 (4) of the Act, for having opened up a door in his wall abutting on the adjoining land belonging to the Panchayat without permission of the Panchayat. Thereafter respondent No 2 the Lich Nyaya Panchayat took up the matter on the 7th of February, 1969 and imposed a fine on the petitioner of Rs.20/- and further ordered that the petitioner shall pay a recurring fine of Rs. 2/- per day if he fails to close the door within ten days from the date of the order. Thereafter the Criminal Revision Application No. 11 of 1969 was filed in the Court of the Sessions Judge, Mehsana against the respondents by the petitioner but the learned Judge dismissed the Revision Application. The said order of the Additional Sessions Judge is Exhibit `B'.

2. Before us Mr. Bhatt, the learned Advocate for the petitioner, tried to raise the contention that the resolution of the Panchayat dated 30th November, 1968, was not communicated to him. Therefore whatever be the contents of that resolution, it not having been communicated, he was entitled under Section 93 to act under the presumption that the permission was granted and under the circumstance, in any event the conviction is bad in law. We have not permitted Mr. Bhatt to agitate that question because that involved a question of fact and we find that the learned Additional Sessions Judge has accepted the finding of the Nyaya Panchayat that the said resolution was communicated. It is therefore not open to the petitioner to reagitate that question before us. Under the circumstances, Mr. Bhatt made the following two submissions for challenging the conviction:-

I. The resolution of the Panchayat neither grants nor refuses permission. Therefore the petitioner was entitled to construct or put in the door for which he had asked for permission, on the presumption under sub-section (2) of Section 93 of the Act.

II. The recurring or daily fine imposed by the Nyaya Panchayat was not in accordance with law and in any case that part of the order must be quashed.

Now before we go to the submissions made on this contention of the parties, it would be proper for us to look at the provisions of Section 93 of the Act and we may as well reproduce the relevant part thereof:

'93. (1) No person shall erect or re-erect or commence to erect or re-erect within the limits of the Gram or Nagar as the case may be, any building without the previous permission of the Panchayat.

(2) Permission shall be presumed to have been granted if the Panchayat fails to communicate its sanction or refusal in respect thereof within one month from the date of receipt of the application for the permission. In case of refusal, the Panchayat shall communicate to the applicant the reasons thereof; and an appeal shall lie against any such order of refusal to the President of the Taluka Panchayat.

(3) xx xx xx

(4) Whoever erects or re-erects or commences to erect or re-erect any building without such permission or in any manner contrary to the provisions of sub-section (1) or any by-law in force, or any conditions imposed by the panchayat shall, on conviction be punished with fine, which may extend to fifty rupees and in the case of a continuing contravention, he shall be liable to an additional fine which may extend to five rupees for each day during which such contravention continues after conviction for the first such contravention.

(5) Without prejudice to the penalty prescribed in sub-section (4), the Panchayat may -

(a) direct that the erection or re-erection be stopped;

(b) by written notice require such erection or re-erection to be altered or demolished, as it may deem necessary, and if the requirement under clause (b) is not complied with within the time fixed in the notice, the panchayat may cause the alteration or demolition to be carried out by its officers and all the expenses incurred by the panchayat therefor shall be recoverable in the same manner as an amount claimed on account of any tax recoverable under Chapter IX:

xx xx xx (6) xx xx xx

Explanation. - The expression 'erect' or 're-erect' with reference to a building in this section includes -

(a) xx xx xx

(b) xx xx xx

(c) xx xx xx

(d) xx xx xx

(e) xx xx xx

(f) xx xx xx

(g) xx xx xx

(h) construction in a wall adjoining any street or land not vested in the owner of the wall, of a door opening on such street land'.

Sub-section (1) clearly lays down a restraint on the right of a person to erect or re-erect or commence to erect or re-erect any building without the previous permission of the Panchayat. There can be no doubt that putting in the wall of a building, a door would be covered by the expression ' erect or re-erect' as it is directly covered by the inclusive definition given in the explanation clause (h) to this Section 93. Sub-section (2) on a plain reading means that when a person seeks permission under sub-section (1) to do any of the acts mentioned in sub-section (1), the Panchayat has to communicate either its sanction or refusal in respect thereof within one month. If it fails to do so, permission shall be presumed and the person applying will be free to do the thing for which the permission was asked for. In case the Panchayat chooses to refuse permission, it has to give reasons for such refusal and right of appeal is given to the party concerned. It is obvious therefore that the Legislature has intended it to be a quasi-judicial act. Now one thing is clear that so far as the present case is concerned, it is not the case where the authority has altogether failed to communicate but the case of the petitioner is that the resolution which was passed cannot amount to refusal of permission. It is conceded that it does not amount to granting of permission. There is no doubt that the resolution also does not in terms refuse permission. Read as it is, it is entirely unequivocal on the question of refusal. It only informs the petitioner that the Panchayat does not want to decide the matter and have forwarded the papers the Taluka Development Officer to do the needful. The material question that arises therefore for our decision is whether this communication can be said to be a refusal within the meaning of Section 93 (2) of the Act.

3. Before we proceed to deal with the respective submissions on behalf of the parties, it would be helpful to refer to some of the similar provisions in the Acts concerning other local authorities. In the Bombay District Municipal Act, 1901, Section 96 is the similar provision. There also the requirement is that before beginning to erect any building, or to alter externally or add to any existing building, or to construct or reconstruct any projecting portion of a building in respect of which the Municipality is empowered by Section 92 to enforce a removal or set-back, the person intending so to build, alter, add or reconstruct etc., shall have to give to the municipality notice thereof in writing for permission and shall also have to furnish certain details, if required by law or by special order to do so. Sub-section (2) of that section then provides that save as otherwise provided in the Act or the rules and bye-laws thereunder, the Municipality may either give permission, to erect, alter, add to or reconstruct the building according to the plan and information furnished or may impose in writing such conditions as to level, drainage, sanitation, materials or to the dimensions and cubical contents of rooms etc., or may direct that the work shall not be proceeded with unless and until all questions connected with the location of the building and any such street have been decided to their satisfaction. Sub-section (3) also authorises the Municipality, within one month from the receipt of such notice, before issuing any order under sub-section (2), to either issue a provisional order directing that for a period which shall not be longer than one month from the date of such order, the intended work shall not be proceeded with or may demand further particulars. Then sub-section (4) provides for the right of the owner of the building to proceed with the work under certain circumstances and those circumstances are that in case the municipality within one month from the receipt of the notice given under sub-section (1), have neither (i) passed orders under sub-section (2) and served notice thereof in respect of the intended work; nor (ii) issued under sub-section (3) any provisional order or any demand for further particulars; (iii) in case the Municipality had demanded further particulars and such particulars were furnished but no further orders within one month from the receipt of such particulars are passed. Sub-section (5) then provides that if anybody were to begin any construction, alteration etc. without giving any notice under sub-sec.(1) or without furnishing the documents or affording information etc., prescribed in the earlier part of the section or except as provide in sub-section (4), without waiting or in any manner contrary to such legal orders that may be issued by the Municipality or in any other respect contrary to the provisions of the Act or any bye-law, shall be punished with a fine which may extend to one thousand rupees and in the case of a continuing contravention of any of the aforesaid provisions, he shall be liable to an additional fine which may extend to ten rupees for each day. It may also direct the building or the alteration etc., to be stopped and upon a conviction being obtained, by written notice require such construction etc., to be demolished or altered.

4. It may be noted that in the later Legislation that is to say in the Bombay Municipal Boroughs Act, 1925 by Section 123 and in the Gujarat Municipalities Act, 1963 by Section 155, similar provisions have been enacted and we do not think it necessary for our purposes to detail them here. But if we have a look at the scheme of these provisions, it is more or less the same, but a bit more elaborate than the scheme of Section 93 of the Act as very complex problems have to be handled by the local authorities in respect of constructions or alterations in buildings. But the fact remains that the general structure or the underlying scheme in the enactment of Section 93 and the other provisions to which we have referred to are the same with one material difference that so far as the provisions of the other Acts are concerned, one further power is granted to the local authorities viz., to ask the applicant to wait for one month more and supply the local authority with further information or give other directions as laid down in the respective sections. But the fact remains that there is a period prescribed within which the local authority has to act that is to say one month in the initial stage and at the most one month more under the extra powers granted under the other three acts to which we have made a reference. But the underlying principle is the same that the local authority has to decide the question by ultimately granting or refusing the permission sought within the prescribed time of one month or two months as the case may be. The other provisions also provide that if the Municipality does not communicate any order granting or refusing permission within the prescribed time, the applicant will have the right to proceed with the construction for which the permission is sought.

5. Turning back to the provisions of the Gujarat Panchayats Act, as we have observed, the action under sub-section (2) is intended to be quasi-judicial exercise of power. Sub-section (1) creates a restriction on the right of the owner of the property to enjoy his property but at the same time sub-section (2) casts an obligation on the Panchayat to take the decision within the time prescribed one way or the other. The language requires that it has either to grant the permission or to refuse it. Not only that but the grant or refusal must be duly communicated to the party concerned within a period of one month from the receipt of the application. The duty cast even does not end there. It requires the authority to give reasons if it were to refuse permission. It also gives a right to the subject to appeal against the order to refusal. One more thing to be noted in that disregard of the provisions of this Section or the order passed by the Panchayat by the owner of the property is made penal. Under the acknowledged principles of construction of statutes, a provision like this has to be strictly construed. The anxiety of the Legislature to cast an obligation on the authority to take the decision one way or the other is expressed in clear language which categorically requires the authority either to refuse permission or grant permission and furthermore to communicate it within one month. In case it fails to carry out this obligation, a presumption in favour of the subject is to be raised. Furthermore, as pointed out above, it also obliges the authority to give reasons in case of refusal. If these obligations are carried out and then the order is made, breach of an order refusing permission can become liable for penalty. Penal liability of the person asking for the permission would arise only if the conditions precedent are complied with by the local authority. In the present case we find it difficult to see how the conditions precedent can be said to have been complied with. The resolution on the contrary makes it quite clear that the Panchayat did not want to take any decision itself either of refusing permission or granting the permission sought by the petitioner. Its failure to exercise the right, either to refuse or grant permission, or expression of its inability to carry out the duty cast on it, cannot be read as refusal within the meaning of Section 93. In the light of the specific wording used in the resolution and the contents of the resolution even, we are unable to cull out refusal by implication, even if it is assumed that refusal by implication is permissible under the present position of law. As we read the requirements of the law and the clear language used, it positively indicates the legislative anxiety to require the authority either positively to grant or positively to refuse and communicate that decision to the party concerned. If that were not so, the Legislature would have provided that if within one month, permission is not communicated, it will be presumed that the permission is refused. But the presumption provided is to the contrary. Then again the refusal has to be supported by reasons to be given in the communication. In the present case in the communication by the Panchayat to the petitioner no reasons are given. It is not possible for us to read in the resolution either a decision refusing permission or any reasons given for such refusal.

6. When a statutory provision enables inflicting of penalty and provides an encroachment on the natural rights of the citizens, it is expected that the Legislature will not leave its intention to be gathered by mere inference but will convey it in terms reasonably framed and that is what the Legislature has done in sub-section (2) of Section 93. The intention of the Legislature in the present provision, in our view is clear that before the liability to prosecute arises, the Panchayat has to comply with the specific conditions (i) that it has to decide either to refuse or grant permission and this is a quasi-judicial decision and to communicate the said decision within one month; (ii) that the permission if refused, reasons must be given. Neither of these two conditions precedent have been complied with. To include within the language used by the Legislature a case of no decision whatever and furnishing of no reasons, would amount in our view, disregard of one of the fundamental rules of construction and would amount to doing violence to the language used. The object of the provisions is two-fold. One is to prevent unauthorised construction and the other is to cast an obligation on the local authority to take a decision when the citizen approaches for permission, to either grant or refuse permission and communicate that decision within one month and also give reasons if the permission is refused. Normally the idea is not to put any unreasonable restriction on the fundamental rights of the citizens to hold and enjoy property. The mischief intended to be prevented is also twofold. One the one hand to prevent a citizen using the property to the detriment of the interest of others and on the other hand to prevent the local authority from acting capriciously so as to deprive the citizen of his fundamental right to enjoy his property.

7. The learned Assistant Government Pleader, appearing on behalf of the State however tried to submit that it cannot be said that the resolution neither grants nor refuses permission. He urged that one thing is certain that the resolution does not grant permission. Therefore it is a refusal. He further urged that from the act of communication and the fact that there is no permission granted and the contents of the resolution, refusal should be implied. We are unable to accept this submission of the learned Assistant Government Pleader for reasons that we have already given. It is true that there has been a communication of the resolution of the Panchayat which does not contain any permission but it is difficult to agree with him that from these facts, refusal should be called out. Apart from that, we have already pointed out that the nature of this provision of law is such that it requires strict construction and the language used clearly indicates the legislative intent that a definite decision has to be taken by the Panchayat to refuse or to grant. Reading this resolution as it stands, it clearly indicates that the Panchayat did not take any decision as regards refusal or granting permission to the applicant. On the contrary it specifically states that the Panchayat remains silent and would not like to express its views one way or the other as regards the two applications. It is therefore impossible to hold that the Panchayat had taken the decision of refusing the application of the petitioner by implication.

8. Mr. Zaveri, the learned Advocate appearing for respondents Nos. 1 and 2 submitted that on the facts of this case, the content of the resolution itself must be held to amount to refusal. He tried to develop a different line of reasoning in support of his submission. He argued that the word 'Maun' used in the resolution should not be construed to mean that the Panchayat refused to take a decision. He argued that if the application was only by the petitioner and if they had mentioned that they were keeping silent over it, it may not have amounted to refusal. But in the present case the petitioner wanted to open the door in his wall at the back of his house which abutted on an open land belonging to the Panchayat and another person had applied for that very land being granted to him and under these circumstances the Panchayat used the word 'Maun' and forwarded the papers to the Taluka Panchayat for deciding the question. He urged that under the provisions of the Act, the Gram Panchayat did not have the powers to directly grant the application for land being granted and it can only recommend for such a grant to the Taluka Panchayat. Taking all these factors into consideration, argued Mr. Zaveri, when the Panchayat stating all these facts communicated the contents of the resolution to the petitioner, the Court must hold that communication contained a refusal of the application of the petitioner. If it was not the intention of the Panchayat to communicate a refusal, he argued, the Panchayat would not have communicated the resolution.

9. We have given our careful consideration to the submission of Mr. Zaveri but we find that it is not tenable having regard to the positive requirements of the provisions of law. The resolution even if read by itself clearly shows that the decision which was taken by the Panchayat was to keep quiet as regards both the applications and to forward the papers to the higher authority 'for taking satisfactory decision regarding the demands of the aforesaid Patel Prabhudas Dwarkabhai and of No. 2.' This reference to No. 2 is of course to the application of Ambaram Joitaram for grant of that piece of land to him. Nothing can be more clear than the fact that the Panchayat for reasons best known to them instead of exercising the power vested in them to either grant or refuse the permission sought by the petitioner, decided to send the matter for decision by the higher authority. Even if the law would permit us to imply by implication a refusal, in our opinion this resolution as it stands cannot be considered to imply any such decision of refusal. Under the circumstances we hold that the learned Additional Sessions Judge was in error in holding that the prosecution launched and the conviction made on the petitioner by the Nyaya Panchayat was legal. On our finding, the petitioner was entitled to act under sub-section (2) of Section 93 and the petitioner was not liable to be prosecuted he having committed no breach of any provision of Section 93 or any order passed by the Panchayat.

10. The only other point which is canvassed before us is that in any case the recurring fine imposed by the Nyaya Panchayat is unsustainable. Mr. Bhatt drew our attention to a decision of the Division Bench of this Court in Special Criminal Appln. No. 67 of 1967, D/-20-8-1968 (Guj) where the very provision of Section 93, sub-section (4) was considered. The Court on construction of sub-section (4) came to the conclusion that the words 'after conviction' indicate that there must be first a conviction under the first part of sub-clause (4) of Section 93 and it is only after such a conviction that the additional fine referred to in the clause could be imposed. The conviction for such an offence, therefore, is a condition precedent and when such a conviction has taken place, it is only then that proceedings for an additional fine could be started. They have referred to a decision of the Bombay High Court in Emperor v. Dharala Mungal : AIR1926Bom526 wherein it was decided that a Court cannot sentence a person to pay a fine for a prospective offence but can only impose a daily fine for failure or disobedience which is proved to have continued to in the section could, therefore, be imposed only after the conviction and when if it had been found that the disobedience or contravention had continued. The Division Bench of this Court therefore held that part of the order passed by the Nyaya Panchayat and the learned Additional Sessions Judge required to be quashed. In the light of this decision the same principle has to be followed in the present case.

11. But we do not want to leave this question at this and would also like to observe that as a matter of fact there is no jurisdiction vested in the Nyaya Panchayat to impose any recurring fine under the provisions of Section 93 (4). Section 229 of the Act lays down that a Nyaya Panchayat shall take cognizance of and try all or any of the offences including the abatement thereof, or attempt to commit any such offences mentioned in the said section but subject to the provisions of sub-section (3) of Section 218. In clause (e) (i) of Section 229, we find the following provision: '(i) erecting or re-erecting etc., any building without permission' under Section 93. This would show that the Nyaya Panchayat can take cognizance of any offence in respect of a matter contained in Section 93 (4) and Section 218 (3) has no bearing in the present case. But then there is another section which lays down a restriction on the jurisdiction of the Nyaya Panchayat to inflict penalty and that section is Section 232 of the Act. The relevant part of Section 232 is as follows:-

'232 (1) The following are the maximum penalties which may be inflicted by a Nyaya Panchayat for the offences mentioned in Section 229 - for an offence -

(i) xx xx xx

(ii) xx xx xx

(iii) under the provisions of any other Act mentioned in Section 229 of this Act, fine not exceeding twenty rupees;

(iv) under a rule made under Section 323 or bye-laws made under sub-section (4) of Section 324 of this Act, fine not exceeding fifty rupees and in addition not exceeding five rupees per day for a continuing contravention as provided in that sub-section.

(2) xx xx xx

Reading this provision, it becomes clear that except in cases falling under clause (4), the right to inflict fine per day for a continuing contravention, is not vested in the Nyaya Panchayat. The present case would fall within the purview of clause (3) and the maximum punishment by the Nyaya Panchayat can be fine not exceeding rupees twenty. Clause (4) only deals with offences falling under bye-laws made under Section 323 or sub-section (4) of Section 324 of the Act and in those cases only the power is vested in the Nyaya Panchayat to inflict fine not exceeding fifty rupees and in addition fine not exceeding five rupees per day for a continuing contravention as provided in that sub-section. We, therefore, hold that the order of recurring fine inflicted by the Nyaya Panchayat, is illegal not only on the ground that on a proper construction of sub-section (4) of Section 93 it could not have imposed such a recurring fine as discussed earlier but also on the ground that the said order is without jurisdiction whatever.

12. The result is that the whole order of the Nyaya Panchayat dated the 7th February, 1960, is illegal and is set aside. Consequently the decision of the Additional Sessions Judge dated 23rd May, 1969, given in Criminal Revision Application No. 11 of 1969 is also erroneous and is set aside. Rule made absolute.

13. Rule made absolute.


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