Jaswant Singh, J.
1. This is a petition for issue of a writ of certiorari quashing the order of the Pachayati Adalat, Bhaya, Tehsil. Hiranagar dated 10-8-1966.
2. The facts material for the purpose of this petition are:
On 9-8-1964 one Ram Chand filed a complaint before the Panchayati Adalat, Bhaya, alleging therein that Anant Ram and Mulk Rai, petitioner and respondent No. 3 respectively herein, had committed an offence punishable under Section 430. R. P. C. by obstructing the water channel which irrigated his land. On receipt of the complaint, the accused were summoned by the said Panchayati Adalat and after protracted proceedings the Panchavati Adalat, vide its order dated 5-12-1965, acquitted Mulk Raj but convicted Anant Ram under the aforesaid section of the Ranbir Penal Code and sentenced him to a fine of Rs. 25. Against this order the petitioner went up in appeal to the Sessions Judge, Kathua, who vide his order dated 30-5-1966 upheld the conviction and sentence and dismissed the appeal. As the petitioner did not remove the obstruction a notice again appears to have been issued to him by the Panchayati Adalat to remove the obstruction, and on his refusing to do so, the Panchayati Adalat, vide its order dated 10-8-1966, imposed on him a recurring fine of Rs. 2 per diem till he remove ed the obstruction. Jt is this order which the petitioner has challenged by means of this writ petition.
3. Notice with regard to this petition was issued to the respondents who have appeared through Shri V.S. Malhotra.
4. The respondents have contested the petition inter-alia on the grounds that the petition is not maintainable as another alternative remedy is open to the petitioner and the impugned order is warranted by the provisions of the Jammu and Kashmir Village Panchayat Act, 1958, hereinafter referred to as the Act.
5. Appearing for the petitioner, Shri Bhalgotra has contended before me that the order of the Panchayati Adalat imposing a recurring fine on the petitioner is not warranted by any provision of law.
'Shri Malhotra, has on the other hand contended that the impugned order can be passed under Sections 46. 121 and 125 of the Act.
6. 1 have gone through' the aforesaid provisions of law relied upon by Shri Malhotra and I am of the opinion that though under Section 72 of the Act, the Panchayati Adalat can convict a person for an offence contrary to Section 430, R. P. C. to wit when he commits mischief by doing an act which causes or which he knows to be likely to cause a diminution of the supply of water for agricultural purposes i.e., when he mischievously cuts off another person's water supply for cultivation, the order of the nature made on 10-8-1966 imposing continuing fine could not be passed as the same cannot be traced to any provision of law.
7. It is now well settled that the imposition of continuing fine cannot be prospective but can only follow on proof that the offence has been committed. A sentence of daily fine for offence which may be committed in future is illegal. It is in fact imposition of fine in anticipation of commission of an offence which cannot be done. Reference in this connection may be usefully made to (1900) ILR 27 Cal 565. where it was held as follows:
An order for payment of a daily fine: is illegal inasmuch as it is in adjudication in respect of an offence which has not been committed when such order is passed.
Again in (1910) ILR 37 Cal 671. it was held:
A sentence of daily fine in anticipation of a continuing offence which may be committed after the date of the proceeding in which it was passed, is illegal.
Again in AIR 1924 Nag 66 it was held as follows:
Since no person can be punished for a thins he has not done but may possibly do in the future or is even likely to do in future, a daily fine until the accused complies with the order passed against him is illegal.
Then again in AIR 1925 Pat 322. it was observed:
It is not permissible in law to impose a daily fine in anticipation of a commission of an offence.
Reference in this connection may also be usefully made to another decision reported in AIR 1926 Lah 248, The position that the Panchayati Adalat cannot impose a recurring fine would also be clear from a decision of the Punjab High Court in Jai Singh Pyara Singh v. Gram Panchayat Singhanwala . wherein it has been held as follows:
The imposition of recurring fine on an offender on his first conviction for the breach of the provisions of Section 21 of the Punjab Gram Panchayat Act is illegal as it tantamounts to imposing fine for an offence not yet committed, which cannot be done. In a case of this type the course (sic)