Civil Writ Petition No. 12764 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No. 12764 of 2008
Date of decision:- 4.2.2009
Gram Panchayat Nangal Chhanga ...petitioner.
Versus
The State of Punjab and others ...respondents.
CORAM: HON'BLE MR. JUSTICE RANJIT SINGH
Present: Mr.T.P. singh, Advocate
for the petitioner.
Mr. Parveen Chander Goyal, Addl.A.G., Punjab
for respondents No. 1 to 5.
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.
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.
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.
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
Civil Writ Petition No. 12764 of 2008 2
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 re-
heard 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
Civil Writ Petition No. 12764 of 2008 3
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.
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.
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
Civil Writ Petition No. 12764 of 2008 4
appellant was advised to file application for restoration which he did
and ultimately the appeal was restored.
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.
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:
“(1) the judgment needs to be drawn up containing the
points for determination, the decision thereon and the
reasons in support of the decision;
(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;
(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;
(4) when the “judgment” is pronounced by reading out the
Civil Writ Petition No. 12764 of 2008 5relevant 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.”
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.
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
Civil Writ Petition No. 12764 of 2008 6
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.
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
Civil Writ Petition No. 12764 of 2008 7
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.
The writ petition is, accordingly, disposed of.
February 4, 2009 ( RANJIT SINGH ) rts JUDGE