I.S.TIWANA, J. - (1.) THE facts in this petition under Section 482 of the Code of Criminal Procedure for quashing the order of the Additional Sessions Judge, Gurgaon, (Shri B.R. Vohra) dated 6th February, 1986, are rather revealing.
(2.) THE petitioner Gram Panchayat in exercise of its powers under Section 21(1) of the Punjab Gram Panchayat Act (for short 'the Act') passed a resolution on 17.3.1985 (Annexure P.2) directing certain persons including Har Narain to remove the encroachments made by them on path No. 777 near the Masjid (Mosque) Chowk of the village. A notice to the same effect had even been issued to these persons earlier and they had also been asked verbally to remove their encroachments but they had failed to do the needful. The Panchayat fixed 21st March, 1985 as the date for the appearance of these respondents. On the date fixed, besides respondent No. 4 Har Narayan, others, namely, Om, Mawaso, Ram Avtar, Karam Singh, Mahi Pal sons of Ari Mal Saini and their mother Smt. Chand Kaur appeared before the Panchayat but failed to produce any evidence to controvert the notice issued to them under Section 21(1) of the Act. As a result of this, the Panchayat vide its resolution of the same date, i.e., 21st March, 1985 (Annexure P.3) after recording the presence of the above noted persons resolved as follows :- "No evidence was produced in their favour in spite of the fact that notice under Section 21 of the Panchayat Act was issued to them. The record of this since 1877 proves that path of Rect No. 777 had been in use for common path and Har Narain etc. are in illegal possession of it. So the Panchayat has reached the conclusion that either Har Narain etc. should vacate otherwise police help through Block Development and Panchayat Officer and Deputy Commissioner, Gurgaon will be taken for clearing the path and removing the unauthorised possession. Resolution passed unanimously. Accepted. The Panchayat met again on 21st April, 1985 and noted in its resolution (Annexure P.4) that the above noted persons had failed to carry out the directions of the Panchayat and wanted more time to comply with the same i.e. clearing of the encroachments made by them. The Panchayat accepting their request granted time till the next meeting. Har Narain, respondent No. 4, instead of carrying out the above noted directions on the Panchayat filed a Criminal Revision Petition alongwith his mother Smt. Chandro in the court of the Additional Sessions Judge, Gurgaon, alleging therein that the District Magistrate, Gurgaon, on the basis of a complaint from the Sarpanch of the Gram Panchayat, Jharsa had directed the police authorities through an order dated 27th or 28th May, 1985 to remove the above noted encroachments. According to them the District Magistrate, had passed this order in exercise of his jurisdiction under Section 133, Criminal Procedure Code, and the same stood vitiated as no hearing of any sort was afforded to the petitioners before the passing of the same. Even this provision had not been complied with inasmuch as no preliminary order as envisaged by it was passed by the District Magistrate. They also averred in their petition that the office of the District Magistrate had declined to issue the certified copy of the said order of the District Magistrate and, therefore, they should be exempted from filing the copy of the order. The Additional Sessions Judge to whom the petition had been entrusted issued notice of this petition and sent for the records of the case from the office of the District Magistrate and accepting the plea of the petitioners before him that the District Magistrate instead of passing a written order had verbally directed the police authorities to remove the encroachments that too without any notice to the petitioners, quashed the same vide his order dated 6th February, 1986. Mr. A.S. Nehra, learned Counsel for the Panchayat has forcefully contended before me that order of the Additional Sessions Judge is totally without jurisdiction as he had no revisional jurisdiction against an executive order passed by the District Magistrate at the request of the Gram Panchayat under sub-section (2) of Section 21 of the Act. His stand is that Har Narain, respondent No. 4 who is well versed with the ways of the courts having worked as a Reader in different courts including that of the District and Sessions Judge, Gurgaon, as well as his mother Smt. Chandro, respondent No. 5 knew fully well that the Gram Panchayat, Jharsa had directed them under Section 21(1) of the Act to remove the encroachments made by them on the thoroughfare and the panchayat had sought the assistance of the District Magistrate and through him of the police authorities to get those directions implemented were somehow able to persuade the Additional Sessions Judge to quash that order of the District Magistrate treating the same to be one under Section 133, Criminal Procedure Code.
(3.) IT was specifically pleaded before Mr. Vohra, Additional Sessions Judge by Mr. M.C. Ansari, Law Officer, appearing on behalf of the Panchayat, that the order or direction given by the District Magistrate to the Police was with a view to assist the Panchayat in the execution of its order under Section 21(1) of the Act and was only an executive order and legable one under Section 133, Criminal Procedure Code. Why could not be Additional Sessions Judge, strange as it may seem, thought it proper to set aside that order on the ground that since the panchayat in its written request to the District Magistrate for seeking the police held did not make a mention of the proceedings under Section 21 of the Panchayat Act the latter must have passed that order under Section 133, of the Criminal Procedure Code. It is difficult to appreciate how in the absence of any written order by the District Magistrate the court assumed the same to be one under Section 133, Criminal Procedure Code. Why could not he confront the petitioners before him, i.e. Har Narain and his mother Smt. Chandro with the fact as to whether any proceedings had been launched against them under Section 21 of the Act. It was the only appropriate course particularly when it was so vociferously being contended before him by the Law Officer of the Panchayat. The feigned silence on the part of the petitioners before him about the nature of the proceedings that had been initiated against them eloquently reveals that they wanted the court to somehow quash the order of the District Magistrate and Shri Vohra, Additional Sessions Judge conveniently did that. The total effect of this impugned order of Shri Vohra is that the legal proceedings carried out by the Gram Panchayat under Section 21 of the Act have been set at naught and Har Narain and his mother respondent Nos. 4 and 5 respectively have been able to retain their unlawful gain by encroaching upon the police path. It is no doubt true that it was desirable for the District Magistrate to have passed the order directing the police authorities to assist the Panchayat in the removal of the encroachments in writing yet that does not mean that the Additional Sessions Judge could assume any jurisdiction in that matter and that too when there was no written order before him which was sought to be quashed.;