Civil Writ Petition No. 15930 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- Civil Writ Petition No. 15930 of 2008 Date of decision: 08.09.2008 Satbir Singh and another ........Petitioners Versus The Collector Jhajjar and others .......Respondents Coram: Hon'ble Mr. Justice J.S.Khehar Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Mahavir Sandhu, Advocate for the petitioners -.- J.S.Khehar , J. (Oral) The Gram Panchayat Kaloi, Tehsil and District Jhajjar, filed an ejectment application against the petitioners under Section 7 of the Punjab Village Common Lands (Regulations) Act, 1961 (hereinafter to be referred as '1961 Act'). The ejectment application filed against the petitioners was allowed by the Assistant Collector Ist Grade, Jhajjar, vide order dated 16.10.2006 (Annexure P-10). Dissatisfied with the aforesaid order, the petitioners preferred an appeal. The appeal preferred by the petitioners was also dismissed by the Collector, Jhajjar, vide order dated 30.08.2007(Annexure P-11). A perusal of the order passed by the Collector, dismissing the appeal preferred by the petitioner dated 30.08.2007 (Annexure P-11) reveals, that as a matter of fact, the appeal preferred by the petitioners was not entertained in view of the mandate of Section 13(B) of 1961 Act. Section 13(B) aforesaid is being extracted Civil Writ Petition No. 15930 of 2008 2 hereunder:- “13(B).Appeal and revision-(1) Any person aggrieved by an order of the Assistant Collector of the first grade may, within a period of thirty days from the date of order passed under sub-section (1) or sub section (2) of Section 7 prefer an appeal to the Collector in such form and manner, as may be prescribed, and the Collector may after hearing the appeal, confirm, vary or reverse the order as he deems fit; Provided that no such appeal shall lie unless the amount of penalty, if any, imposed under sub-section (2) of Section 7, is deposited with the Collector. (2) The Commissioner may, suo motu (or on an application made to him by any person aggrieved by an order passed under the provision to sub-section (1) of Section 7 at any time) call for the record of any proceedings pending before, or orders passed by, any authority subordinate to him for the purpose of satisfying himself as to the legality or propriety of the proceedings or order and pass such order in relation thereto as he may deem fit; Provided that no order adversely affecting any person shall be passed unless he has been afforded an opportunity of being heard.” The Collector, Jhajjar in the impugned order dated 30.08.2007 Civil Writ Petition No. 15930 of 2008 3 (Annexure P-11) relied on the proviso under Section 13(B) extracted above. It is not a matter of dispute, that the petitioners did not deposit the penalty imposed by the Assistant Collector, Ist Grade, Jhajjar in his order dated 16.10.2006(Annexure P10). While agitating the claim on behalf of the petitioners, learned counsel for the petitioners in the first instance referred to an order passed by this Court in Civil Writ Petition No. 10872 of 2001, decided on 17.03.2004, wherein despite the fact, that the penalty had not been deposited by the petitioners in the aforesaid writ petition, their appeal was directed to be entertained. The order dated 17.03.2004 passed in Civil Writ Petition No. 10872 of 2001, is being extracted hereunder:- “The limited challenge to the impugned orders passed by learned Assistant Collector in proceedings initiated under Section 7 of the Punjab Village Common Lands (Regulations) Act, 1961 (hereinafter referred to as “1961 Act”) was with regard to imposition of penalty. Learned Assistant Collector while ordering eviction of the petitioners herein vide order dated 12.02.2001 also directed the petitioners to pay a penalty of Rs.4,000/- per year per acre w.e.f. 31.05.1977. Aggrieved, the petitioners filed an appeal before Collector, which had been dismissed on account of non-deposit of the penalty imposed upon them. Mr. Mahabir Sandhu, learned counsel representing the petitioners, in support of the present petition filed Civil Writ Petition No. 15930 of 2008 4 under Article 226 of the Constitution of India, contends that vide provisions contained in the 1961 Act, the minimum penalty that could be imposed was Rs.600/- per hectare. The same, however, came to be increased to Rs.2000/- per hectare in the Act of 1974, whereas, as per the amended provisions, the same was further increased to Rs.5000/- per hectare. He further contends that petitioner should have been issued separate notices to show cause against the imposition of the penalty in response to which they could have pleaded that the land could have pleaded that the land could not be put to any meaningful use. The only contention raised by learned counsel for the petitioners appears to have some merit. The concerned authorities had imposed a penalty of Rs.4000/-, without caring to know as to what were the provisions with regard to maximum or minimum penalty under the “1961 Act”, 1974 Act and the further amended provisions of the Act. Prima facie, it appears that the petitioners could not be imposed penalty for the period from 1974 to 1992 under the provisions as amended in 1992. There is no reply on behalf of the State to the contention raised by learned counsel for the petitioners. In view of the observations made above, the impugned orders are set aside only to the extent these Civil Writ Petition No. 15930 of 2008 5 impose penalty and the case is remitted to Assistant Collector to hear the petitioners in the matter of penalty and pass appropriate orders, in accordance with law. Parties, through their counsel, are directed to appear before Assistant Collector, Jhajjar on 15.04.2004.” The impugned order in the present controversy specifically relied on Section 13(B) of 1961 Act. While disposing of Civil Writ Petition No. 10872 of 2001, no reference was made to Section 13 (B) aforesaid. In this view of the matter, it is not possible for us to accept the decision rendered by this Court in Civil Writ Petition No. 10872 of 2001, as a precedent to adjudicate upon the present controversy. Since, it is not disputed by the learned counsel for the petitioners, that the vires of Section 13(B) of 1961 Act, have been upheld by this Court, there can be no doubt of the fact that the appeal against the order passed under Section 7 (1) of 1961 Act can only be entertained if the penalty imposed by the lower revenue authority has been deposited along with the appeal preferred by the aggrieved party. Since, in the instant case, it is not a matter of dispute that the penalty imposed by the Assistant Collector, Ist Grade, Jhajjar vide the order dated 16.10.2006 (Annexure P- 10) was not deposited by the petitioners, along with the appeal preferred by them, we are of the view that it is wholly futile for the petitioners to assail the determination rendered by the appellate authority in the impugned order dated 30.08.2007(Annexure P-11). So as to be fair to the learned counsel for the petitioners, it Civil Writ Petition No. 15930 of 2008 6 would be just and appropriate to notice that the learned counsel for the petitioners, during the course of hearing, referred to the provisions of Section 7 of 1961 Act so as to assert that the penalty imposed on the petitioners by the Assistant Collector, Ist Grade, Jhajjar vide order dated 16.10.2006 (Annexure P-10) was in clear violation of the aforesaid provisions. It is not proper for us to express any view on the aforesaid aspect of the matter. There is a forum available to the petitioners so as to assail the order dated 16.10.2006 (Annexure P-10) passed by the Assistant Collector, Ist Grade, Jhajjar, in case the petitioners are aggrieved of the aforesaid order. Accordingly, we are not incline to entertain the claim of the petitioners in so far as the merits of the order dated 16.10.2006 (Annexure P-10) are concerned. For the reasons recorded above, we find no merits in the instant writ petition. The same is, accordingly, dismissed. In case the petitioners even now deposit the penalty along with a fresh appeal against the impugned order dated 16.10.206 (Annexure P-10) passed by the Assistant Collector Ist Grade, Jhajjar, within two weeks from today, we hope and expect the appellate authority shall take a liberal view in deciding the application for condonation of delay in preferring an appeal. [J.S.Khehar] Judge [Nirmaljit Kaur] Judge September 8, 2008 mohan