P.D. Desai, C.J.
1. The third respondent appears to have lodged a complaint before the first respondent-Panchayat alleging that the petitioner and another person (hereinafter to be compendiously referred as 'the petitioner') had encroached upon and were causing obstruction in the use of a public street/path. Upon receipt of the complaint, the petitioner appears to have been summoned before the Panchayat. Besides, the Panchayat appears to have visited the spot and recorded statements of two witnesses. Having been satisfied about the existence of the encroachment/ obstruction, the Panchayat made a conditional order on April 21, 1983, under Section 19(1)(a) of the Himachal Pradesh Panchayati Raj Act, 1968 (hereinafter to be referred to as 'theAct') requiring the petitioner to clear the encroachment within a period of 15 days and if the petitioner had any objection so to do, to appear before it on May 7, 1983 and to move to have the order set aside or duly modified. According to the first respondent Panchayat, the petitioner failed to produce any evidence or to clarify the position as required. Under the circumstances, in purported exercise of the powers conferred by Section 19(1) read with Section 22 of the Act, the conditional order made on April 21, 1983 was made absolute on May 7, 1983. The first respondent-Panchayat also proceeded to give the following further directions in the course of the same order : --
'.........A penalty of Rs. 25/- is imposed uponaccused No. 1-Shri Sunka Ram. A penalty of Rs. 25/- is imposed upon accused No. 2 Shri Bali Ram. It is further ordered that the path be cleared within 15 days. In case of breach, the accused persons will be visited with a penalty of Re. 1/- per day till the breach continues. The order is announced in presence of the parties.'
The petitioner preferred an appeal against the aforesaid order before the second respondent, who, by his order dt. Dec. 14, 1983, dismissed the same. Hence the presentwrit petition.
2. Section 19 of the Act reads as under :--
'19. Power to require removal of encroachments and nuisance -
(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;
(ii) to close, remove, alter, repair, cleanse, disinfect or put in good order any latrine, urinal, water closet, drain, cesspool or other receptacle for filth, sullage-water, rubbish or refuse or to remove or alter any door or trap or construct any drain for any such latrine, urinal or water closet which opens on to a street, drain or to shut off such latrine, urinal, water closet by a sufficient roof and wall or fence from the view of persons passing by or dwelling in the neighbourhood;
(iii) to cleanse, repair, cover, fill up, drain off, deepen or to remove water from a private well, tank, reservoir, pool, pit, ditch, depression or excavation therein which may appear to the Gram Panchayat to be injurious to health or offensive to the neighbourhood;
(iv) to remove any dirt, dung, nightsoil, manure or any noxious or offensive matter therefrom and to cleanse the land or building;
(b) the owner of any wall or building which is deemed by the Gram Panchayat to be in any way dangerous, to remove or repair such wall or building;
(c) the owner or occupier of any building or property to keep his building or property in asanitary state;
(d) the owner of any dog or other animal suffering or reasonably suspected to be suffering from rabies or which is dangerous, to destroy or confine or cause to be confined such dog or animal;
(e) the owner or occupier of any agricultural land to destroy harmful weeds from such land;
(f) the owner or occupier concerned to reclaim an unhealthy place;
(g) the owner or occupier of any building or land to maintain in proper repair the level and surface of any road or street passing in front of the building or through his land;
(h) the owner or person in-charge of a private water channel to keep it in a state of reasonable repair, 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 shaft 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.
(2) If such act is not performed within the time fixed, the Gram Panchayat may cause it to be performed and may recover the costs of performing it from such person in the prescribed manner.
(3) Any person aggrieved by an order under Sub-section (1) may file an appeal within thirtydays of the passing of such order before the Deputy Commissioner who after holding such enquiry as he may deem fit, may set aside, modify or confirm the said order and his decision thereon shall be final.'
Section 22 of the Act reads as under :--
'22. Penalty for disobedience of a special or general order of the Panchayat -
Any person who disobeys an order of the Gram Panchayat made under Sections 19 and 20 shall be liable to penalty which shall be imposed by the Gram Panchayat and may extend to twenty-five rupees; and if the breach is a continuing breach, with 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 five hundred rupees. The penalty, if not paid, shall be recovered as arrears of land revenue'.
Against the aforesaid factual and legal background the question which arises for consideration is whether the order dt. May 7, 1983 made in the purported exercise of powers conferred by Section 19(1) read with Section 22 of the Act, whereunder a penalty of Rs. 25/- and a recurring penalty of Re. 1/- per day till the continuance of breach is imposed, is valid.
3. On a careful analysis of the provisions of Sections 19 and 22 of the Act, a Gram Panchayat is required to take the following steps (other than step No. 4) in a chronological order to require the removal of encroachments and nuisance and to ensure compliance with its orders in that behalf as well as to impose penalty for its disobedience :
(1) Upon receiving a report/information with regard to any of the matters covered by Clauses (a) to (h) of Section 19(1), the Gram Panchayat may take such evidence, if any, as it thinks fit and may make a conditional order : --
(i) requiring the owner/occupier/person incharge to perform one or more of the acts, as the case may be, specified in Clauses (a) to (h) within a time to be fixed in such order; or
(ii) if he objects so to do to appear before it, at the time and place to be fixed by the order, and to move to have the order set aside or duly modified,
(2) If the owner/occupier//person in-charge does not perform such act(s) within the timefixed in the order or fails to appear and show cause, the conditional order shall be made absolute,
(3) If the owner/occupier/person in-charge appears and shows cause against the conditional order, the Gram Panchayat shall take evidence, and
(i) if it is satisfied that the order is not reasonable and proper, no further proceedings shall be taken in the case:
(ii) if it is not so satisfied, the conditional order shall be made absolute, that is to say, the Gram Panchayat shall make a final order requiring the performance of the act (s) within the time fixed in the conditional order, if such time limit has not expired meanwhile, or within such further time as may be fixed in such final order. No other or further order shall, however, be made at that stage providing for the imposition of penalty in case of non-compliance with the requisition contained in the final order.
(4) If such act(s) is/are not performed within the time fixed in the final order, the Gram Panchayat may cause it/them to be performed and may recover the cost of performing it/them from such person in the prescribed manner.
(5) If and when the owner/occupier/person in-charge fails to comply with the final order made by the Gram Panchayat, he shall be liable to be visited with a penalty for such default which shall be imposed by the Gram Panchayat and such penalty may extend to Rs. 25/-. Before imposing the penalty, however, the Gram Panchayat shall summon the offender and afford him an opportunity to be heard as regards conviction and the quantum of penalty.
(6) If the owner/occupier/person in-charge continues to commit the breach even after the first default is committed as aforesaid, he shall be liable to be visited with a further penalty to be imposed by the Gram Panchayat which may extend to Re. 1/- for every day during which such breach continues after the day of the first default. The recurring penalty so imposed shall not, in any case, exceed the sum of Rs. 500/-. For the imposition of such recurring penalty, the Gram Panchayat must call the offender from time to time and impose such penalty as and when it becomes due after affording him an opportunity to be heard similarto that given to him at the time of his first conviction.
(7) The penalty, whether imposed on the first default or for the continuing default, if not paid, shall be recovered by the Gram Panchayat as arrears of land revenue.
4 On a combined reading of the provisions of Sections 19 and 22 of the Act, it seems imperative for a Gram Panchayat to take the aforesaid steps (other than step No. 4) in a logical sequence and failure on its part so to do will vitiate an action taken by it in exercise of the powers conferred thereunder. It is pertinent to point out in this connection that an order under Section 19(1) is, by its express terms, made de bene esse, that is, it is a provisional order subject to review at a future time, especially in a case where the owner/occupier/person in-charge appears and shows cause against the conditional order. In such a case, an adjudication must take place as provided under Section 19(1) and, if the conditional order is made absolute pursuant to such adjudication, an opportunity has to be afforded to the objector to comply with the requisition contained in the final order. If the time fixed in the conditional order for the performance of the act(s) has not expired till the final order is made and the unexpired period leaves a reasonable interval of time, the objector will have an opportunity to comply with the final order within such time. However, if the time fixed in the conditional order has meanwhile expired, unless a fresh time limit is fixed by the final order, the objector will have no opportunity whatever to comply with the requisition contained in the final order and the breach will automatically follow and so will the consequential penalty. This could not be the intendment of the Legislature: Lex non cogit ad impossibilia : The law forces not to do impossibilities. It is equally pertinent to point out that, in law, it is impermissible to impose penalty before an offence is complete. The penalty, whether for the first or for the continuing breach, cannot, therefore, be imposed in anticipation of the breach. In other words, no penalty can be imposed under Section 22 for non-compliance with an order made under Section 19(1) till the breach has actually taken place.
5. In Naurang Lal v. Gram Panchayat of village Gujarwas, (1964) 66 Pun LR 28, the question before a Division Bench of the PunjabHigh Court was whether under Section 23 of the Punjab Gram Panchayat Act, 1953, which is in pari materia with Section 22 of the Act, a Gram Panchayat had the power to impose a prospective recurring penalty at the stage of first conviction for the breach. The Division Bench, for the reasons set out hereinbelow, held that a Gram Panchayat was not invested with such a power under the relevant statutory provisions:
'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 Division Bench proceeded to observe that many Municipal Acts contained provisions similar to those with which it was concerned and that the view taken by it was in line with the decisions of several High Courts on such provision (See : Ram Lal v. Municipal Board Budaun, AIR 1925 All 251, Ramzan v. Municipal Board of Benares, AIR 1926 All 204(1), Hurmat v. Emperor, AIR 1932 All 109, Haluman Sah v. Motihari Municipality, AIR 1937 Pat 352, Suman Tawaff v. Gaya Municipality, AIR 1952 Pat 45, In Re : Limbaji Tulsiram, (1898) ILR 22 Bom 766, Phani Bhusan v. Corporation of Calcutta, AIR 1952 Cal 737, and Md. Nadir Shah v. State, AIR 1959 Assam 103).
6. Against the aforesaid background it is manifest that the impugned order of the Gram Panchayat was not in accordance with law for three reasons. In the first place, when the conditional order dt. April 21, 1983 was made absolute on May 7, 1983, a fresh time limit of 15 days was fixed for the removal of encroachment/obstruction, because the time fixed in the conditional order for the performance of such act had already expired aday prior to the day on which the final order was made. The petitioner ought to have been afforded an opportunity to comply with the requisition contained in the final order within such fresh time limit and till then no question of breach can arise. In the next place, the penalty of Rs. 25/- could not have been imposed upon the petitioner on the same day on which the conditional order was made absolute because such order would tantamount to an anticipatory order of penalty before the offence was committed by the non-performance of the act required. In the last place, no recurring penalty could have been imposed in anticipation for the continuance of breach till it had actually taken place.
7. For the foregoing reasons, in my opinion the impugned order of the first respondent-Panchayat, duly confirmed by the Appellate Authority, in so far as it imposes a penalty of Rs. 25/- and a recurring penalty of Re. 1/- per day till the breach continues, requires to be quashed and set aside. The remaining portion of the impugned order, that is to say, the requisition with regard to the clearance of the encroachment/obstruction of the path within 15 days of the passing of the impugned order will, however, continue to remain operative. It is clarified that the first respondent-Panchayat will be at liberty to initiate fresh proceedings, if any, for the imposition of penalty in accordance with law and in light of the observations made in this judgment.
8. Rule made absolute accordingly with no order as to costs.