Allowed

Gram Panchayat Nangal Chhanga v. State of Punjab and Ors.

Punjab & Haryana HC4 Feb 2009CWP/12764/2008

Case brief

AI extract

What is this about?

This court quashed an order restoring an appeal that had allegedly been wrongly recorded as dismissed for default instead of on merits. Relying on precedents that a judgment must be written, dated, and signed to be valid, the court remanded the matter for fresh adjudication to correct the procedural fraud.

What did the court decide?

Impugned order quashed; case remanded to respondent No.2 to decide afresh after hearing; inquiry directed to conclude against responsible officials.

Gram Panchayat Nangal Chhanga… — Constitutional and Fundamental Rights | Punjab & Haryana HC (2009)

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Civil Writ Petition No. 12764 of 2008

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Writ Petition No. 12764 of 2008 Date of decision:- 4.2.2009

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Gram Panchayat Nangal Chhanga

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...petitioner.

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Versus

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The State of Punjab and others

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...respondents.

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CORAM: HON'BLE MR. JUSTICE RANJIT SINGH

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Present: Mr.T.P. singh, Advocate for the petitioner.

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Mr. Parveen Chander Goyal, Addl.A.G., Punjab for respondents No. 1 to 5.

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Mr. J.R. Mittal, Senior Advocate with Mr. Kashmir Singh, Advocate and Mr. M.L. Saini, Advocate for respondents No. 6.

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RANJIT SINGH J.

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The petitioner has filed a writ petition seeking writ of certiorari for quashing the order dated 23.5.2008 containing endorsement dated 24.6.2008 whereby the appeal filed by respondent No. 6 has been restored.

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It is alleged that the original zimni order dated 23.5.2008, Annexure P-4, was tampered. Plea is that the appeal filed by respondent No.6 was dismissed on merit but subsequently it was shown as having been dismissed for non prosecution due to absence of the counsel.

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The case relates to a petition filed by respondent No.6 under Section 11 of Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter called the Act) for declaring him owner of 34 kanals

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Civil Writ Petition No. 12764 of 2008 2

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of a land belonging to Gram Panchayat. This application was dismissed by the Collector against which respondent No.6 filed a statutory appeal. This appeal was numbered as 188 of 2007. The appeal was heard on 3.5.2008 when the counsel for respondent No. 6 did not come present. The Joint Development Commissioner exercising the powers of Commissioner (Respondent No.2) after hearing the appeal and perusing the record, dismissed the same. It is alleged that the zimni order in this regard was recorded and was signed also. It is pleaded that the counsel for Gram Panchayat filed an application for supplying certified copy of the detailed judgment. The Reader of the Court of respondent No.2 continued to tell the counsel of the Gram Panchayat that the detailed order was being dictated and is under preparation. Respondent No.6 subsequently appears to have filed an application, copy of which was supplied to the counsel for the Gram Panchayat, praying that the appeal be reheard and it was wrongly dismissed in his absence. The counsel for the Gram Panchayat statedly informed the counsel for respondent No.6 to file the same application later as the High court was on vacation. The counsel for the Gram Panchayat was later handed over the copy of order dated 23.5.2008 containing an endorsement dated 24.6.2008, which was an order restoring the appeal though he was awaiting to receive certified copy of the detailed judgment deciding the appeal on merits. It is thus urged that original order dated 23.5.2008 was tampered with and the appeal was shown to have been dismissed in default in stead of being dismissed on merit. It is averred that the petitioner has been able to obtain the copy of the order with great difficulty and has filed the present writ petition

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Civil Writ Petition No. 12764 of 2008

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making prayer for quashing the order, Annexures P-2 and P-4. Prayer further is to issue writ of mandamus directing respondent No.1 to take legal action against all the persons involved.

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During the course of arguments, learned counsel for the petitioner has drawn my attention to Annexure P-7, which is an application given by the Sarpanch of the Gram Panchayat seeking inquiry against respondent No.2. Annexure P-7 contains an endorsement reading “to enquire into the role of reader and submit report within 10 days”. From this, counsel submits that the inquiry in this case has already been held, which is pending decision before the Secretary. It is in this background, the prayer is for issuance of a mandamus to the official respondent to take action against respondent No.2 or the Reader for the illegality committed as disclosed in the petition.

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The facts as disclosed in the petition may indicate that disputed questions of facts are being raised but the reply filed on behalf of respondent No.2 would show that these averments as made in the petition have almost been conceded in the reply filed by respondent No.2. In the preliminary objection, it is stated that the allegations are totally incorrect but at the same time it is conceded that originally the appeal was ordered to be dismissed orally. It is thus stated that after some time the counsel for the appellant came and brought to the notice of respondent No.2 that in the absence of appellant's counsel, the appeal could be dismissed in default only and not on merits. Respondent No.2 then states to have changed the order dismissing the appeal as entered in the zimni order to that of dismissed in default. It is also disclosed that counsel for the

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Civil Writ Petition No. 12764 of 2008

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appellant was advised to file application for restoration which he did and ultimately the appeal was restored.

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This reply would not leave any doubt about the factual position and would reveal serious illegality. This action on the part of respondent No.2 being illegal cannot be sustained. It may have now to be seen as to what would be the fate of the case where an order is pronounced but Judgment is not written. The submission by the learned counsel for the petitioner is that the order pronounced should be given effects to. This may not be a course which can legally be adopted.

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While dealing with somewhat similar situation Division Bench of this Court in Civil Writ Petition No. 12912 of 2003 titled Court of its own motion versus State of Haryana and others decided on 15.10.2004 has held after referring to various provisions of law and cases that mandatory ingredients for a 'judgment' to be valid in the eyes of law are as under:

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“(1) the judgment needs to be drawn up containing the points for determination, the decision thereon and the reasons in support of the decision;

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(2) the judgment is to be written in the language of the Court or in English and has to be of a specific date and duly signed by the Presiding Officer of the Court at the time it is to be pronounced as well;

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(3) the judgment is required to be pronounced in an open court either by dictation or by reading out the relevant and operative/concluding part thereof;

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(4) when the “judgment” is pronounced by reading out the

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Civil Writ Petition No. 12764 of 2008

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relevant and/or operative part thereof, the whole judgment or its copy is required to be made available immediately for the perusal of the parties or their advocates.”

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The Division Bench has also referred to large number of precedents to explain the meaning of word 'judgment', ultimately to hold that mere pronouncement of a judgment could not amount to judgments either in terms of the expression 'judgment' as defined in the Code of Civil Procedure or in Section 353 of the Code of Criminal Procedure, 1973. It is also observed that where not even a single mandatory step was taken which finally culminates into a valid 'judgment', it may not be open to be called a 'judgment'. Such a judgment was held to be in flagrant violation of various judicial pronouncements made by different Courts explaining as to what constitute a valid 'judgment'. Court ultimately observed that it would not have any hesitation in holding that by signing and delivering the judgments and at the same time pronouncing them, the person has committed fraud on its own Court. Subsequently this view of the Division Bench was followed in another Civil Writ Petition No. 12055 of 2005 decided on 14.5.2008 titled Court of its own motion versus State of Punjab and others .

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As to what course now is required to be adopted can also be discerned from the observation made by this Court in CWP No. 12912 of 2003. The Court observed that by mere pronouncing of a judgment which never existed either factually or in the eyes of law, the person pronouncing the same may give rise to a legitimate expectations to one or other litigant party. However, the Court went on to observe that it cannot overlook the fact that the party who had

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Civil Writ Petition No. 12764 of 2008

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suffered this illusory judgment had a right to know the reasons which went against him so as to propound its case before the appellate forum. It was accordingly noticed that the hardship, if at all, would lie on both sides. The Court ultimately viewed that to stop perpetuating fraud upon judicial system as a whole and to show brave and honest face to the litigants, it must knock down the needle of suspicion created by reckless, irresponsible and fraudulent acts of the Court concerned in the said case by pronouncing a series of non-existent 'judgment'. It accordingly directed that all those 'judgment' shown to have been decided where there was no judgment in existence would stand revived forthwith. All such cases were re-listed for adjudication before the competent Court and the dates in this regard were duly notified and intimated to the litigant parties through their counsel.

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Thus this Court opted for fresh adjudication by the present Presiding Officers of the Court though the cases were such where judgments were pronounced but not written or delivered. This seems to be a fair course open to be adopted. As held, mere pronouncing of a judgment cannot be termed as a 'judgment' in the eyes of law and to give fair chance to both the litigating parties, the matter must receive a fresh look by the present competent authority. The present writ petition would deserve to be allowed and the impugned order is set aside. The case is remanded back to the present incumbent (respondent No.2) to decide the same afresh after affording opportunity of hearing to both the parties. It may cause hardship to the petitioner but this is the fair course open. This situation is because of the doing of the authority and the party has no contribution in it. The action of respondent No.2 which has led to this

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Civil Writ Petition No. 12764 of 2008

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unsavoury situation cannot be left at that. He is the senior officer of Indian Administrative Service and is expected to be aware of the procedures. Even otherwise he was required to acquaint himself with the legal procedures as he was exercising quasi judicial functions. He would have known the legal position that order once pronounced could not have been changed in the manner he did. He has not acquitted himself well even if he has done so being ignorant of the legal position. It is for the competent authority to see what action is called for. On an application made by the petitioner, the inquiry has already been directed. It is expected from the State that it will take this inquiry to logical conclusion and take action against all responsible for this illegality committed.

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The writ petition is, accordingly, disposed of.

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February 4, 2009 ( RANJIT SINGH ) rts JUDGE

Gram Panchayat Nangal Chhanga v. State of Punjab and Ors.

Case brief

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Gram Panchayat Nangal Chhanga v. State of Punjab and Ors.

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