Punjab-Haryana High Court
Karam Singh And Ors. vs The District Development And Panchayat ... on 12 December, 1995
Equivalent citations: (1996)112PLR684
Author: T.H.B. Chalapathi
Bench: T.H.B. Chalapathi
ORDER T.H.B. Chalapathi, J.
1. This writ petition is most frivolous and misconceived.
2. The first petitioner was a Panch of the Gram Panchayat Chhota Phul. The petitioners 2 and 3 are the residents of the village. According to the Gram Panchayat, the petitioners dug a pit on the road thereby causing damage to the road. Therefore, the Gram Panchayat issued a notice Under Section 109(1) of the Punjab Gram Panchayat Act, 1952 calling upon the petitioners to show cause why action should not be taken against them and to lead evidence, if any, in support of their case. Accordingly, the petitioners appeared before the Gram Panchayat and after recording the statement of Bakhtawar Singh, the Sarpanch and other members of the Gram Panchayat asked the petitioners to execute a personal bond so that the matter could be closed, but the petitioners refused to execute a bond and they also did not cross-examine Bakhtawar Singh though an opportunity was given to them to cross-examine. Thereupon, the Gram Panchayat imposed a penalty of Rs. 20/- on each of the petitioners for the damage caused to the property of Gram Panchayat vide order dated 28.6.1979. Against the said order, the petitioners filed an appeal to the District Development and Panchayat Officer, Ropar, unsuccessfully. Therefore, the petitioners, filed this writ petition.
3. The first contention raised by the learned counsel for the petitioners is that Under Section 42 of the Punjab Gram Panchayat Act, 1952, the Panchayat has no power to take cognizance of any offence under the Indian Penal Code in which either the complainant or the accused is a public servant. No doubt Under Section 3(1), a Panch or Sarpanch are included in the definition of public servant. Therefore, the first petitioner is a public servant. Therefore, it has to be seen whether the act complained of amounts to any offence under the Indian Penal Code so as to attract Section 42 of the Act. The learned counsel for the petitioners argued that the act complained of the against the first petitioner comes within the definition of 'mischief as defined in Section 425 of the Indian Penal Code. Therefore, it is an offence falling under the Indian Penal Code, which cannot be taken cognizance of by the Gram Panchayat-
Section 425 of the Code reads as follows :-
"Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or effects it injuriously, commits "mischief".
The main ingredient to attract Section 425 of the Indian Penal Code is the act must have been done with an intention to cause a wrongful loss or damage to the property and that it destroys or diminishes the value or utility of the property. In this case, it is not the case of the Gram Panchayat that the petitioners did any act with any intention. The mensrea, which is required in a criminal case is totally , absent in the present case. If an act is done without any intention it may attract the provisions of Section 109 of the Punjab Gram Panchayat Act, 1952. To attract Section 109, the intention is not necessary.
Section 109 reads as follows :-
"Penalty for tampering with the property-(l) Whoever removes, displaces or makes an alteration in or otherwise interferes with any pavement, gutter or other material of public street or any fence, wall or post, thereof, or lamp post, or bracket, direction post stand post, hydrant, or other such property of the Gram Panchayat or interferes with any right, title or interest whatever, in the land vesting in the Panchayat without the written sanction of the Gram Panchayat or other lawful authority shall be punishable with fine which may, extent to fifty rupees."
Therefore, in order to attract Section 109 of the Act, the intention of the person to cause loss or damage is not required. Therefore, I am of the opinion that the act complained of is not an offence coming within the purview of Section 425 of the Indian Penal Code. Therefore, Section 42 of the Gram Panchayat Act is not applicable at all to the facts of the present case.
4. It is further argued by the learned counsel for the petitioners that the Gram Panchayat cannot be a judge in its own cause but a statutory provisions has been made Under Section 109 empowering the Gram Panchayat to take action against any person who causes any damage to the property belonging to the Gram Panchayat or any street. He relied upon a decision in Ram Bhagat v. The Gram Panchayat, Hibatpur and Anr., 1965 Current Law Journal (Pb.) 582. But in that case the title of the Gram Panchayat was in dispute. There, actually the persons removed the Shishan trees standing on the land. The question was whether the land belonged to the Gram Panchayat. In such circumstances the Court held that the Gram Panchayat cannot determine its own title which was in dispute. But in the case in hand, the title of the Gram Panchayat to the street is not in dispute. There is also no dispute that the petitioners dug a pit. Therefore, the decision relied upon by the learned counsel is not applicable.
5. The learned counsel also argued that the petitioners were not given any opportunity of presenting their case before the Gram Panchayat. The record clearly shows that Bakhtawar Singh was examined in the presence of petitioners and they were allowed to cross-examine him, but they did not avail of the opportunity, and then they also did not seek to adduce any evidence on their behalf. In these circumstances, the Gram Panchayat offered them to execute a personal bond not to commit such act in future, but they refused to execute any bond. Therefore, the Gram Panchayat imposed a penalty of Rs. 20/- only on each of them. I do not find any infirmity in the order of the Gram Panchayat or in the order of the Appellate Authority confirming the orders of the Gram Panchayat. The writ petition, therefore, fails and is accordingly dismissed. But in the circumstances of the case, no costs.