Read Order: Shiv Kumar And Others v. State Of Haryana And Others

Monika Rahar

Chandigarh, March 23, 2022: While dealing with an appeal against the ejectment of the petitioners from the common land of the panchayat and imposition of penalty for illegal cultivation on the said land, the Punjab and Haryana High Court has held that in case an application is moved for waiver of deposit of the penalty amount, as mandated by proviso to Section 13-B of the Punjab Village Common Lands (Regulation) Act, 1961, the appellate authority while deciding the same, may grant some time for deposit of the amount and on deposit thereof, the appellate authority may proceed to decide the appeal. 

However, the Bench of Justice Augustine George Masih and Justice Sandeep Moudgil also added that in case of non-deposit of the said amount by the appellant, the appeal can be dismissed because of non-compliance with the provisions of the Statute, as laid down in Section 13-B of the 1961 Act, but where no such prayer was even made along with the reasons as to why such waiver is sought, the appellate authority can insist upon deposit of the penalty amount as a pre-condition for entertaining the appeal. 

The Court was dealing with an application under Section 7 (2) of the Punjab Village Common Lands (Regulation) Act, 1961 for ejectment from the land in dispute of the respondents (petitioners in the present writ petition), preferred by the Gram Panchayat of the village concerned. 

The said application was allowed by the Assistant Collector, First Grade-cum-District Development and Panchayat Officer, Yamuna Nagar while holding that the land in dispute was covered under the definition of ‘Shamlat Deh‘ and thus was for the common purpose meant for the use of all villagers and hence, the Gram Panchayat was vested with the power of ordering ejectment of the petitioners. Since the petitioners were found to be in illegal cultivating possession of the said land, the penalty was imposed upon them. 

Aggrieved, the petitioners preferred an appeal, which was dismissed on the ground that the amount of penalty was not deposited and the appeal was not maintainable, especially in the light of Section 13-B of the 1961 Act, which clearly states that no appeal shall lie unless the amount of penalty, if any, imposed under sub-section (2) of Section 7 is deposited with the Collector. 

The petitioners, thereafter, preferred a revision petition which was also dismissed on the ground that there was no illegality in the impugned order. Thus, the instant Writ Petitions were filed before the High Court challenging the orders of the revenue authorities. 

The petitioner’s counsel argued that the power of waiver can be exercised by the appellate authority. The counsel also argued that because of the non-deposit of the amount, the appeal itself cannot be dismissed and it is not the mandatory requirement while entertaining an appeal, to deposit the amount. The counsel insisted on to project as if no amount is required to be deposited at all at the time of filing the appeal or during the pendency of the appeal and the appellate authority is bound to entertain the appeal on merits. 

The question before the Court was whether there was any requirement of deposit of penalty amount prior to the entertainment of the appeal and in case of failure to deposit the amount, whether the appeal could be dismissed for such non-deposit of the said amount.

From the proviso appended to Sub-section (1) of Section 13-B of the Act, the Court opined that the said proviso would lead to an undisputed conclusion that there would be no appeal maintainable without deposit of the amount of penalty as imposed by the Assistant Collector, 1st Grade by an order under Section 7 (2) which is the subject matter of the said appeal. 

Relying upon the judgment of the Supreme Court in Sunil Batra vs. Delhi Administration and others, AIR 1978 Supreme Court 1675, the Court observed that therein it was recognised that the principle of reading down the provision so as to render it constitutional by putting certain riders thereto. The Court also observed that the discretion was left to the appellate authority to exercise the power of waiver or a part waiver in the deposit of penalty at the stage of entertaining an appeal dependent upon the facts and circumstances of the case mandating upon the appellate authority to give reasons why it proposes to dispense with the normal procedure of insistence of pre-deposit. 

“Meaning thereby, where an appellant, in a particular case, seeks interim relief of stay on deposit of the amount of penalty or waiver thereof by giving therein the reasons and the extra-ordinary circumstances which would include the inability to deposit the said amount pleading therein his financial condition, the appellate authority could exercise its powers for grant of such interim stay/waiver”, asserted the Bench. 

Additionally, the Bench opined that in case such a prayer is made along with the reasons, it is mandated upon the appellate authority to consider the same and pass appropriate orders. The Court held that in case an application is moved for waiver of deposit of the amount assigning reasons for such a prayer, the appellate authority while deciding the same, may grant some time for deposit of the amount and on deposit thereof, the appellate authority may proceed to decide the appeal. 

However, it was also added by the Court that in case of non-deposit of the said amount by the appellant, the appeal can be dismissed because of non-compliance of the provisions of the Statute, as laid down in Section 13-B of the 1961 Act, but where no such prayer was even made, what to say of along with the reasons as to why such waiver is sought, the appellate authority can insist upon deposit of the penalty amount as a pre-condition for entertaining the appeal. 

Coming to the present Writ Petitions, the Court opined that there was nothing on the record to indicate that an application before the appellate authority was moved by the petitioners mentioning the reasons and/or their inability to deposit the amount of penalty, nor the petitioners highlighted in their pleadings before the High Court the said aspect leading to a conclusion that the petitioners proceeded to not depositing the amount of penalty and insisted upon the hearing of the appeal without deposit of the said amount. 

Thus, the Court concluded that the appellate authority was fully justified, in such circumstances, to dismiss the appeal for non-deposit of the amount of penalty. Therefore, finding no illegality in the impugned orders, the Court dismissed the Writ Petitions. 

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