The imposition of a fine by the Gram Panchayat without following the procedure prescribed under Section 46 of the Gram Panchayat Act is illegal.

D.K.Mahajan, J.

1. This second appeal has arisen in the following circumstances : Jai Lal and others made an application under Section 21 of the Gram Panchayat Act, to the Gram Panchayat of village Kurar Ibrahimpur, Tehsil Sonepat, on the 9th of June, 1956. On the 11th of June, 1956, the Gram Panchayat issued a notice to the plaintiff, Dharman son of Jug Lal. The complaint was that the plaintiff had encroached upon the village path and had caused obstruction to it by constructing a wall. In the application, a prayer was made for the demolition of the wall. The plaintiff did not appear in spite of service and an ex parte order was passed against him. It was found that the plaintiff had made the encroachment and, therefore, it was directed that the wall be demolished. And in case, it was not done, a recurring fine of rupee one per day was imposed in addition to a fine of rupees twenty-five.

2. The plaintiff thereupon brought the present suit for a permanent injunction restraining the Gram Panchayat from demolishing the wall and from recovering the fine. This suit was contested by the Gram Panchayat. The trial Court dismissed the suit and, on appeal by the plaintiff, the decision of the trial Court was affirmed by the lower appellate Court. The plaintiff has come up in second appeal.

3. Mr. G.P. Jain, learned counsel for the plaintiff, rightly did not contest the decision of the Courts below on the question of encroachment and the dismissal of plaintiffs suit re-demolition. To that extent, the decision of the Courts below must stay.

4. The learned counsel for the plaintiff merely contested the decision of the Gram Panchayat regarding the imposition of fine of rupees twenty-five and the Recurring fine of rupee one per day. The contention of the learned counsel is that this fine is illegal because by an ex parte order fine could not be imposed without following the procedure prescribed under Section 46 of the Gram Panchayat Act.

"46. Procedure on failure of the Accused to appear - (1) If the accused fails to appear or cannot be found, the Panchayat shall report the fact to the nearest Magistrate.

(2) The Magistrate shall issue a warrant for the arrest of the accused and shall direct by endorsement on the warrant that if such person executes a bond with sufficient sureties for his attendance before himself in the manner provided by Section 76 of the Code of Criminal Procedure, 1898, he shall be released from custody.

(3) When the accused appears before the Magistrate, he shall direct him to execute a bond with or without sureties to appear before the Panchayat Sarpanch, or any Panch on such date as he may direct and thereafter to continue to appear before the Panchayat as directed by such person or the Panchayat.

(4) On his failure to execute such bond the Magistrate shall order that accused be produced in custody before the person mentioned in sub-section (3) or the Panchayat on such date not more than fifteen days later as he may direct.

(5) If the accused fails to appear before the Panchayat after executing a bond under sub-section (3) the Panchayat shall report the fact to the Magistrate before whom the bond was executed, and such Magistrate shall proceed in accordance with the provisions of Chapter XLII of the Code of Criminal Procedure, 1898."

The matter is not res integra, and is concluded by decisions of this Court in Naurang Lal v. The Gram Panchayat of village Gujarwas and another, 1964 Curr.L.J. 25 : 1964 PLR 28 wherein it was held by a Division Bench of this Court that the imposition of a recurring fine was illegal. In Bhagwan Singh v. The Gram Panchayat, village Balona, Civil Revision No. 365 of 1966, decided on 9.12.1966, it was held that without following the procedure prescribed under Section 46, a fine could not be imposed. Mr. R.S. Mittal, who appears for the Gram Panchayat, contested the validity of the decision in Bhagwan Singhs case. His contention is that imposition of fine under Section 21 is n