- (1.) THE petitioners-Gram Panchayat of village Hafizabad and Piara Lal, a resident of the village have assailed the order of the Chief Judicial Magistrate, Ropar (respondent No 1), dated January 29, 1988 (copy Annexure P-11 to the writ petition) transferring the case relating to the encroachment on a public street by respondent No. 3 from Gram Panchayat of village Hafizabad to Gram Panchayat of village Khanpur.
(2.) THE facts :-On a petition moved by the petitioners to the District Development and Panchayat Officer, Ropar for initiating appropriate proceedings against respondent No. 3 and declaring the said site to be part of the public street vesting in Gram Panchayat under Section 11 of the Punjab Village Common Land (Regulation) Act, 1961, the latter vide his order dated September 21, 1987 directed petitioner No. 1, to intiate proceedings under Section 21 of the Punjab Gram Panchayat Act, 1952 (for short, the Act) against respondent No. 3. Petitioner No. 1 issued a conditional order under Section 21 of the Act to remove the encroachment from the public street and to show cause as to why the same be not made absolute. On receipt of the notice from petitioner No. 1, respondent No. 3 moved respondent No. 1 for transferring the case to same other Gram Panchayat. The application was allowed by respondent No. 1 vide his order dated January 29, 1988, which has been impugned in this writ petition.
(3.) CHAPTER IV of the Act relates to criminal judicial functions of Gram Panchayat. Section 41 of the Act reads thus :-" 41. Transfers--Any magistrate before whom a complaint or report by the police of any offence triable by a Panchayat is brought or who takes cognizance of any such offence upon his own knowledge or suspicion shall transfer the proceeding to a Panchayat of competent jurisdiction: Provided that a Chief Judicial Magistrate may for reasons to be recorded in writing transfer any criminal case from one Panchayat to another Panchayat of competent jurisdiction or to another court subordinate to him. " Proviso to Section 41 lays down that a Chief Judicial Magistrate may for reasons to be recorded in writing transfer any criminal case from one Panchayat to another Panchayat of competent jurisdiction or to another Court subordinate to him He can only transfer a criminal case from one Panchayat to another Panchayat having jurisdiction to try the same. Under Section 41 of the Act, he has no jurisdiction to transfer a case pending before a Gram Panchayat under Section 21 of the Act. Section 21, inter alia, provides for removal of encroachment and nuisance from a public street, place or drain by the Gram Panchayat. The order under Section 21 of the Act is not passed by the Gram Panchayat in exercise of its criminal jurisdiction Schedules I-A and I-B appended to the Act illustrate the offences cognizable by a Gram Panchayat. Removal of an encroachment or nuisance from a public street does not fall either in Schedule I-A or Schedule I-B to the Act Consequently, the order of respondent No. 1 is not envisaged by Section 41 of the Act and is thus without jurisdiction.;