H.R. Khanna, J. - (1.) THE only question which arises for determination in these four petitions (Nos. Cr.M. 862 of 1962 to 865 of 1962) is whether the Judicial Magistrate was authorised to transfer proceedings under section 21 of the Punjab Gram Panchayat Act from one Panchayat to another. There is a conflict of authority on this point in Mukh Ram v. The Gram Panchayat Mullana and another C.W. No. 1074 of 1959, Civil Writ No. 1074 of 1959, decided on 27 -10 -1960, Grover J. held that proceedings under section 21 of the Gram Panchayat Act did not fall within the category of a criminal case and as such could not be transferred under the proviso to section 41 of the Gram Panchayat Act. Contrary view was, however, taken by Shamsher Bahadur J. in Bansi Lal v. The Gram Panchayat Mullana : (1962) 64 P.L.R. 892 In view of the conflict on the point, I am of the opinion that the matter should be referred to a larger Bench for authoritative pronouncement on the subject and to set the conflict at rest. I, therefore, direct that the papers may be laid before my Lord the Chief Justice for referring the matter to a larger Bench. ORDER Mehar Singh and Jindra Lal, JJ.
(2.) (10th September 1963) -This is a petition under Article 227 of the Constitution by Gram Panchayat, Ponohana of Tehsil Ferozepore Jhirka, in Gurgaon 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 2, Gram Panchayat, Panigwan, in the same Tehsil. Respondent 1 has made the order under section 41 of the Act. The petitioner -Panchayat takes the position that transfer under proviso to Section 41 of the Act can only be of a 'criminal case', and that proceedings under section 21 are not a 'criminal case' as held by Grover J., in Mukh Ram v. The Gram Panchayat Mullana, C.W. No. 1074 of 1959 decided on October 27, 1960, 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. There is no substance in the stand of the petitioner -panchayat that respondent 1 made the order behind its 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 in this chapter that section 21 appears. Sub - section (1) (a) 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, my 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 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." 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 analogous to procedure for abatement of nuisance under sections 133, 136 and 137, and the other procedural sections connected therewith, in the Code of Criminal Procedure. The learned Judges of the Full Bench in Narain Singh v. State, I.L.R. (1958) 11 P&H. 1696, 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. Section 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 any rule or by -law made thereunder", which means offences under Punjab Act 4 of 1953 or 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 Panchayat of competent jurisdiction or to another Court subordinate to him'. Sections 38 and 41 appear 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 41, the order of respondent 1 is not open to exception, if otherwise, it is obviously without jurisdiction.;