P.C. Pandit, J.—This petition under Articles 226 and 227 of the Constitution has been filed by Sardara Singh, his two brothers Harjalla Singh and Basawa Singh and Sunder Singh and his brother Teja Singh. It is directed against the order dated 22nd May, 1963 passed by Shri D.P. Gupta, Magistrate 1st Class, Ambala Camp Chandigarh, respondent No. 3.

2. The Gram Panchayat Sarangpur, District Ambala respondent No. 2, passed orders under Section 23 of the Punjab Gram Panchayat Act, 1952 (hereinafter called the Act) against the first four petitioners on 15th May, 1956 and the fifth petitioner on 26th May, 1956, imposing a penalty of Rs. 15/- each for making encroachment on a public place in the village. It was further mentioned in the said orders that if the petitioners failed to remove the obstruction within a week, legal action would be taken against them. Since the petitioners did not remove the said encroachments, the Gram Panchayat passed another order imposing a recurring penalty of Re. 1/- per day till they removed the same. The order against the first four petitioner was made on 26th May, 1956 and against the fifth petitioner on 13th June, 1956. It appears that the petitioners moved the Sub Divisional Magistrate, Kharar by filing a revision petition, but obtained no relief. Later, the Government was also approached in revision, but without any effect. They then filed a writ petition in this Court which was dismissed on 9th of February, 1959. The letters patent appeal against the judgment of the learned Single Judge was also dismissed on 29th August 1961. It may, however, be mentioned that this Court did not give any finding as to whether the subsequent orders passed by the Gram Panchayat imposing recurring penalty were anticipatory in nature, because the copies of the said orders had not been placed on the record. Thereafter, since the petitioners did not remove the encroachment, the Gram Panchayat submitted an application to respondent No. 3 for ordering the recovery of Rs. 2050/- from each of the petitioners as penalty. This amount included Rs. 15/- as the original fine and Rs. 2035/- as penalty at the rate of Rs. 1/- per day from 26th May, 1956 to 26th December 1961 i.e., for five years and seven months. It was prayed that this amount might be recovered from petitioners as arrears of land revenue. The petitioners filed objections before respondent No. 3 to the effect that the penalty imposed on 26th May, 1956 and 13th June, 1956 was for a future period and since it was in anticipation of the breach, such a penalty could not be imposed under the law. In any case, the penalty could not be imposed under the law. In any case, the penalty could not exceed the amount of Rs. 500/- under Section 23 of the Act. The learned Magistrate held that the orders of the Gram Panchayat imposing a fine of Rs. 15/- were valid and legal. It was also found that the recurring penalty of Rs. 2035/- imposed on the petitioners was beyond the statutory limit of Rs. 500/- provided under Section 23 of the Act. It was further held that because the breach on the part of the petitioners had continued up to the date of the filing of the recovery proceedings, the penalty of Rs. 2035/- calculated by the Gram Panchayat was not anticipatory in nature, but that penalty could not, according to the learned Magistrate, be more than Rs. 500/-. He, therefore, by means of the impugned order, directed that the recovery of fine of Rs. 15/- and penalty of Rs. 500/- be effected from each of the petitioners in accordance with law. That led to the filing of the present writ petition.

3. The sole argument urged by the learned counsel for the petitioners was that the orders dated 26th May, 1956 and 13th June, 1956 passed by the Gram Panchayat imposing a recurring penalty of Re. 1/- per day till the petitioners removed the obstruction, were not in accordance with law. If this submission of the counsel is correct, then admittedly the learned Magistrate could not order the recovery of the penalty of Rs. 500/- from each of the petitioners. So, the sole question for decision is whether the said two order of the Gram Panchayat were valid in law.

4. This matters has been settled by a Bench decision of this Court in Naurang Lal v. The Gram Panchayat of village Gujarwas and another, 1964 CLJ (Pb.) 25 : 1964 PLR 28. While dealing with the powers of the Gram Panchayat under Section 23 of the Act, the learned Judges observed -

"The point is not that a Court or Panchayat cannot imposes a recurring fine for a continuous breach of an order of this kind, but that it cannot do so on the first conviction of the offender for the breach, since by doing so, it would be tantamount to imposing for an offence not yet committed, which cannot be done. In other words, after a conviction for disobedience of an order of this kind, whether passed by a Panchayat or a Municipal Authority, the recurring fine can only be imposed after the continuance of the breach has taken place, and as long as the breach continues the Panchayat or Court must call the offender and impose the recurring fine on him from time to time as it becomes due."

5. Applying the principle laid down in this authority, it would be seen that the first orders dated 15th May, 1956 and 26th May, 1956 imposing a penalty of Rs. 15/- on the petitioneres and directing them to remove the obstruction within a week were valid in law. The two subsequent orders passed by the said Gram Panchayat on 26th May, 1956 and 13th June, 1956 were not in accordance with law. The recurring penalty of Re. 1/- per day could have been imposed only up to the time it had become due. This the Panchyat did not do and instead it passed an order imposing a penalty of Re.1/- per day till the petitioners removed the obstruction. That would tantamount to imposing fine for an offence not yet committed and it could not be done under the law. That being so, the recovery of Rs. 15/- as penalty from the petitioners as originally imposed by the Panchayat could be ordered by the learned Magistrate. The other direction in his order, namely, the petitioners, is not in accordance with law and is hereby quashed. The writ petition is accepted to this extent only. These will, however, be no order as to costs.

6. It may be mentioned that when the learned counsel for the Gram Panchayat was confronted with the Bench decision of this Court in Narang Lal's case (supra), he submitted that it should not be applied to this case in view of the fact that the earlier writ petition filed by the petitioners had been dismissed by the learned Single Judge of this Court on 9th of February, 1959 and his order was confirmed by the Letters Patent Bench on 29th August, 1961. That decision being inter parties should be binding on the petitioners. As I have already mentioned above while narrating the facts, this Court did not give any positive finding on the orders dated 26th May, 1956 and 13th June 1956 passed by the Gram Panchayat imposing recurring penalty on the petitioners whether they were anticipatory in nature or not, because copies of those orders had not been placed on the record. This is what the Letters Patent Bench said regarding this matter -

"Another point, on which cases have been cited before us holding the imposition of anticipatory fine to be illegal also appears to be not open to the appellant in this Court. They have not produced copies of the orders by which the fines of Re. 1/- per day for failing to comply with the order were imposed and in the absence of the copies of the orders it is impossible to say that the fines were imposed in anticipation of a breach of the order and not after the breach had actually taken place. The orders were certainly passed some time after the week fixed by the original order had expired. In any case it appears that this point was also not taken in revision before the S.D.M. nor was it specifically raised even in the petition in this Court and it only appears to have been raised at the time of arguments."