IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. MMO No. 52 of 2004 Decided on: July 27, 2009. Bina Devi …Petitioner Versus Phalatu Ram and another …Respondents Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner : Mr. Bimal Gupta, Advocate. For the Respondents : Mr. Neeraj Maniktala, Advocate. Surjit Singh, Judge (oral) Petitioner is aggrieved by the order dated 22.5.2004 of learned Judicial Magistrate, Court No.2, Palampur, whereby Gram Panchayat, Jangal, Tehsil Jaisinghpur, District Kangra, on a motion made by respondent Phalatu Ram, has been directed to demolish the retaining wall (Danga), raised by the petitioner on abadi land, bearing Khasra No.1081. 2. Relevant facts may be stated thus. Respondent Phalatu Ram filed an application before the Panchayat on 7.4.1999 against the present petitioner stating therein that the petitioner had made encroachment on a portion of Abadi land, by raising a Danga (retaining wall). He requested that petitioner be directed to demolish that Danga and remove the encroachment. Panchayat treated the application as a Whether reporters of the local papers may be allowed to see the judgment? …2… criminal complaint and proceeded to prosecute the petitioner, under Section 447 and 506 IPC. 3. Parties went to trial. Panchayat ultimately passed an order on 11.10.2000, directing the petitioner to remove the Danga or to get her share, in abadi land, separated by making an application for partition, within six months. 4. It appears that petitioner neither removed the wall nor did she apply to the Revenue Officer for separation of her share in abadi land. Respondent then approached the Judicial Magistrate for enforcement of the aforesaid order of the Panchayat, regarding removal of Danga. Judicial Magistrate passed the impugned order, despite a submission having been made before him that the order regarding removal of danga, passed by the Panchayat in a criminal case, was without jurisdiction. Magistrate’s order has been challenged by means of the present petition, under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure. 5. I have heard the learned counsel for the parties and perused the record. 6. Under Chapter-IV of Panchayati Raj Act, a Panchayat has powers of Criminal Court, Civil Court and Revenue Court. When exercising criminal powers, Panchayat can pass an order of sentence of payment of fine upto Rs.100/- only. It does not have any power to order removal of encroachment in a case, under Section 447 IPC or for demotion of any structure by raising which encroachment has been made. …3… 7. As regards the civil powers of Panchayat, it can entertain suits of specific nature, mentioned in Section 41 of Panchayati Raj Act. It cannot entertain a suit for injunction or of mandatory nature for removal of encroachment or a suit for possession. 8. Revenue powers can be exercised by a Panchayat only if a matter is transferred to it by the Revenue Court, under Section 48 of the Panchayati Raj Act. 9. Panchayat in the present case has passed the order of removal of encroachment by demolishing the retaining wall. It did not have the power to pass such an order while exercising judicial powers of any of the aforesaid three kinds conferred upon it, under Chapter IV of the Panchayati Raj Act. Thus, the order of Panchayat was without jurisdiction and it being so, the learned Judicial Magistrate ought not to have passed the impugned order, without going into this question, which was specifically urged before him. 10. View taken by the learned Judicial Magistrate that Executing Court cannot go beyond the decree is perverse, in the facts and the circumstances of the case, because this was an order passed by the Panchayat while exercising its criminal jurisdiction and, therefore, it was not a decree and consequently, if a decree happens to be without jurisdiction and as such nonest, question of its execution does not arise, even if it be passed by a Civil Court or a Court of competent jurisdiction. Furthermore, Judicial Magistrate could have assumed the role of Civil Court to execute the Panchayat order/decree. It was an order passed by the Panchayat in a …4… case treated by it as criminal and, therefore, the rule that executing Court cannot go beyond decree was inapplicable. 11. In view of the above stated position, the present petition is allowed and the impugned order dated 22.5.2004, passed by the learned Judicial Magistrate, directing Gram Panchayat, Jangal, to demolish the retaining wall, raised by the petitioner on abadi land, bearing Khasra No.1081, is set aside. July 27, 2009 (ss) ( Surjit Singh ), J.