IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.M-18956 of 2008 Date of decision: 29th January, 2009 Malkiat Singh and others … Petitioners Versus Kehar Singh … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sarabjit Singh Hira, Advocate for the petitioners. Mr. R.P. Dhir, Advocate for the respondent. KANWALJIT SINGH AHLUWALIA, J. Malkiat Singh along with his seven co-villagers, Sadhu Singh Patwari and Sarabjit Singh, Block Development and Panchayat Officer (Block No.1), Hoshiarpur have invoked inherent jurisdiction of this Court seeking quashing of impugned complaint No. 108 dated 3rd December, 2002 (Annexure P-8) under Section 452, 427, 506, 440, 148, 149 IPC along with summoning order dated 29th October, 2003 (Annexure P-9) passed by the Court of Chief Judicial Magistrate (1st Class), Hoshiarpur. Before the arguments raised in the present petition are dealt with, brief facts can be gathered from the complaint attached with the petition as Annexure P-8. Complainant had averred that in year 1973, 5 marlas of plot was allotted to him by the Gram Panchayat. In year 1983, Gram Panchayat passed a resolution for exchange of the land from Khasra No. 24 to Khasra No. 36. Complainant had claimed that he is in possession of the property from the last 30 years. Case of the complainant is that on 19th September, 2002, at about noon time, Palminder Kaur Sarpanch of the village Panj Graiyan came to the spot and demolished the house of the Criminal Misc. No. M-18956 of 2008 complainant Kehar Singh and Gurdip Singh, without any authority of law and without any order from the competent Court and thus they caused loss to the complainant to the extent of Rs.1.50 lacs. It is stated that occurrence was witnessed by Gurdip Singh. It was alleged that the accused were armed with deadly weapons including Kahis and Sabbals. Dayal Singh accused destroyed the household articles after coming down from the roof of the house and the offence was committed by the accused with a common intention and with criminal conspiracy. It was stated that the complainant has sought help of police but police of village Bhullowal refused to help the complainant, rather police was party to the accused. To support these facts, complainant Kehar Singh appeared as PW-1. His brother Gurdip Singh appeared as PW-2 and Ahlmad of the Court of Civil Judge (Jr. Division) appeared as PW-3. Kehar Singh PW-1 had proved copy of Civil Suit No. 521/02 titled as ‘Kehar Singh v. Gram Panchayat’ exhibited as Annexure C-1. On the basis of these facts, the Court had summoned the accused under Section 452, 427, 506, 148, 149 IPC. In the petition filed for quashing, it has been submitted that all the accused No.1 to 8 are members of Panchayat of village Sada Raian and petitioner No. 9 and 10 are Halqa Patwari and BDPO, Block No.1, Hoshiarpur respectively. Petitioner No.1 Malkiat Singh had filed a complaint in the open Court held by Deputy Commissioner on 18th July, 2002 for removal of illegal encroachment made by the complainant Kehar Singh and his brother Gurdip Singh on 2 kanals of land owned by the Panchayat of village Sada Raian, comprising in Khasra No.36. On that complaint, Deputy Commissioner had made following endorsement: 2 Criminal Misc. No. M-18956 of 2008 “Panchayat Officer, along with Samiti Patwari to hand over the demarcation report before the open Court to be held”. District Development and Panchayat Officer directed the BDPO, Hoshiarpur to remain personally present in the open Court and submit demarcation report. In pursuance of the order passed by the DDPO, petitioner No.9 Sadhu Singh Patwari, Block No.1, Hoshiarpur and Jagdish Ram, Panchayat Officer, Block No.1 conducted the demarcation/ measurement on 27th July, 2002 through Jarib and had affixed permanent marks by demarcating the Firni. They came to the conclusion that area of Panchayat has been encroached upon, rooms have been constructed and place for putting water to the animals has been raised. They recommended that for removing the encroachment, police assistance is required. Along with the report, copy of Jamabandi was annexed. Upon submission of the report, BDPO Hoshiarpur communicated to the Sarpanch that demarcation has been conducted by Samiti and Revenue Patwari. It has been found that land of the village panchayat has been encroached upon and panchayat should pass a resolution for removal of the encroachment. Counsel for the petitioner has submitted that in case panchayat had remained a mute spectator and had not acted upon the advise of the senior officials, it would have faced the threat of dissolution of panchayat. Therefore, on 7th August, 2002 at 4.00 p.m., an emergency meeting of panchayat was convened and a resolution was passed for removing the illegal encroachment made by the complainant. After passing of the resolution, BDPO issued a direction to the Sarpanch, Gram Panchayat Sada Raian that encroachment at Khasra No.36 area 2 kanals made by the complainant be removed on 19th September, 2002 at 11.00 a.m. At the spot, labour etc. be managed and all panchayat members 3 Criminal Misc. No. M-18956 of 2008 should be present there, so that no difficulty is faced for removing the illegal encroachment. Copy of this communication was sent to SDM, Hoshiarpur; SHO, Police Station Sadar Hoshiarpur for providing police help to the Gram Panchayat; Panchayat Officer (Samiti) Block Office, Hoshiarpur-I and Panchayat Secretary with a direction to engage labour and coordinate with the Sapanch of the Gram Panchayat. In order to give effect to the directions received, a meeting of Gram Panchayat was held. Proceedings were recorded that BDPO Hoshiarpur-I and Panchayat Officer Hoshiarpur-I have come for removal of illegal encroachment over the panchayat land. These proceedings were signed and attested by members of panchayat. Counsel for the petitioner has further relied upon order passed by Civil Judge (Jr. Division), Hoshiarpur (Annexure P-7), whereby application preferred by the complainant under Order 39 Rule 1 and 2 read with Section 151 CPC was disposed off, wherein it was held as under: “6. In the above circumstances, parties are directed to maintain status quo regarding the suit property. This status quo order does not stop DDPO or BDPO from taking possession of the suit property in due course of law. This also does not restrain BDPO, DDPO or Gram Panchayat to retain their possession over the suit property, if they are already in possession, because it has come on the file that after finding of encroachment of plaintiff, notice was duly given to plaintiff and possession was sought by taking due process of law through Block Development Officer, under the orders of D.C., DDPO, after the demarcation. It is made clear that Gram Panchayat, DDPO, BDPO can very well take the possession of suit property in due course of law and can very well retain their possession, if they are already in possession.” This order was passed on 22nd October, 2002. I have heard Mr.Sarabjit Singh Hira and Mr.R.P. Dhir, counsel for the petitioners and the respondent, respectively. It has been contended 4 Criminal Misc. No. M-18956 of 2008 by the counsel for the petitioner that petitioner No.1 to 8 being Sarpanch and panchayat members, petitioner No.9 being Halqa Patwari and petitioner No.10 being BDPO, were acting in pursuance of the orders passed by the higher officials and were as such duty bound to remove the encroachment over the panchayat land. It has been stated that they purportedly acted in discharge of their duty and therefore, sanction was required to prosecute them. It has been further stated that it is duty of the panchayat members that no encroacher is allowed to claim ownership and possession of the land, which vest with the Gram Panchayat. It has been further submitted that had the members of panchayat not acted, then it would have been assumed that they have colluded with the complainant and had allowed public property to go to a private person. It has been submitted that petitioner No.1 to 8 being Sarpanch and members of panchayat, were duty bound to protect and safeguard the interests of Gram Panchayat. To repel this contention, Mr.R.P. Dhir appearing for the complainant respondent has stated that ownership of the land vest in complainant and it was not a Gram Panchayat land. However, he has been unable to assail the demarcation report, whereupon orders were passed by the officials, directing the Gram Panchayat to remove the encroachment. I have given my thoughtful consideration to the submissions made before me by the counsel for the parties. Gram Panchayat is a democratically constituted body. It has a statutory duty to safeguard and protect the property vested in the Gram Panchayat. They are bound to remove the encroachments from the land, which vest in Gram Panchayat. Public interest demand that no encroacher, for his personal gain, should usurp public property. 5 Criminal Misc. No. M-18956 of 2008 Counsel for the parties are in dispute whether proper procedure for removal of the encroachment was followed or not. Whether due procedure was followed or not, is a question of fact, which, this Court is conscious, cannot be determined under Section 482 Cr.P.C. For the sake of arguments, even if contention of counsel for the complainant is accepted, that due procedure was not followed for removal of the encroachment, can it be held that if members of Gram Panchayat remove the encroachment, they have the criminal intention to commit offence of trespass. I am of the view that non-following of the procedure may vest civil rights in the complainant-respondent to take Gram Panchayat to task and seek compensation, but it cannot be assumed that while performing their duty, members of Gram Panchayat, Patwari and BDPO’s have not followed due procedure, they had necessary mens-rea to commit an offence of trespass, or they will constitute unlawful assembly to damage the property with criminal intent. That being so, I am of the view that petitioners cannot be fastened with any criminal liability. Continuation of the complaint and summoning order are the abuse of process of law and are required to be quashed. Accordingly, present petition is accepted. Complaint (Annexure P-8) and summoning order (Annexure P-9) are quashed. (KANWALJIT SINGH AHLUWALIA) JUDGE January 29, 2009 rps 6