ORDER C. M. Lodha, J.- 1. This is a petition under Articles 226 and 227 of the Constitution of India directed against the order of the Sessions Judge, Morena, dated 18th August 1971, whereby the learned Judge set aside the Judgment of the Nyaya Panchayat, Porsa, dated 28th September 1969 and acquitted the accused-non-petitioner of an offence under section 52 (4) of the M. P. Panchayats Act (7 of 1962) (which will here-in-after be referred to as the Act). It may be mentioned here that the section has wrongly been described throughout the proceedings as 52 (2) but in fact it should be 52 (4). 2. The Gram Panchayat, Nagara, it appears, filed a comp1aint against the non-petitioner Nabab Singh under section 52 (4) of the Act on the allegation that the non-petitioner had encroached upon Panchayat land. The Nyaya Panchayat found the allegation proved and convicted the non-petitioner under section 52 (4) of the Act and sentenced him to pay a fine Rs. 25/-. It also imposed a recurring fine of Rs. 5/- every day on which the encroachment continues after the date of conviction. 3. Aggrieved by the order of the Nyaya Panchayat, the non-petitioner filed revision application in the Court of the Sessions Judge, Morena who held that it was necessary for the Gram Panchayat to obtain permission of the Collector before filing the complaint and, since that had not been done, the complaint was not maintainable. In this view of the matter, the learned Sessions Judge set aside the order of conviction and quashed the proceedings. 4. Learned counsel for the petitioner Gram Panchayat, has contended that it was not at all necessary for the Gram Panchayat to obtain permission of the Collector before instituting the complaint under section 52 (4) of the Act. 5. In this view of the matter, the learned Sessions Judge set aside the order of conviction and quashed the proceedings. 4. Learned counsel for the petitioner Gram Panchayat, has contended that it was not at all necessary for the Gram Panchayat to obtain permission of the Collector before instituting the complaint under section 52 (4) of the Act. 5. In order to appreciate this contention it may be useful to reproduce here sub-sections (2) and (4) of section 52 of the Act ;- Section 52 (1) * * * * "(2) The Gram Panchayat shall have power to remove any such obstruction or encroachment and to remove any crop unauthorisedly cultivated on grazing land or any other land not being private property, and shall have the like power to remove any unauthorised obstruction or encroachment of the like nature in any open site not being private property, whether such site is vested in Gram Panchayat or not, provided that if the site be vested in the State Government the permission of the Collector or any officer authorised by him in this behalf, shall have first been obtained. The expenses of such removal shall be paid by the person who has caused the said obstruction or encro chment and shall be recoverable in the same manner as an amount claimed on account of any tax recoverable under Chapter VII. (3) * * * * * (4) Whoever, not being duly authorised in this behalf, removes earth, sand or other material from, or makes any encroachment 10 or upon any open site which is not private property, shall on conviction be punished with fine which may extend to fifty rupees, and, in case of any encroachment, with further fine which may extend to five rupees for every day on which the encroachment continues after the date of first conviction." It appears to us that the learned Sessions Judge has imported the requirement contained in sub-section (2) of S. 52 into sub-section (4) of section 52 of the Act. It is only when proceedings are taken under sub-section (2) of section 52, that if the site be vested in the State Government that the permission of the Collector or any officer authorised by him in this behalf, shall have first to be obtained before the Gram Panchayat exercises the power to remove any unauthorised obstruction or encroachment in any open site not being private property. It may be pointed out that in the present case the Gram Panchayat did not act under sub-section (2) of section 52, but straightaway filed a complaint under section (4) of section 52. Sub-section (4) does not provide that before instituting a complaint there under, the permission of the Collector has to be obtained. 6. Shri N. K. Jain, learned counsel for the non-petitioner has, however, argued that the stage for filing a complaint can arise only after the Gram Panchayat has taken action under sub-section (2) of section 52, and since under sub• section (2) it was necessary for the Gram Panchayat to obtain the permission of the Collector, the complaint filed under sub-section (4) of section 52 of the Act would also not be maintainable in absence of permission of the Collector. We are unable to accept this contention as, in our opinion, subsection 4 is independent of sub-section (2). The Gram Panchayat had option to remove the encroachment itself under sub-section (2) or rile a complaint under sub-section (4) or it may have resorted to both the remedies simultaneously. But it chose to act under sub-section (4) and filed a complaint. In this view of the matter, we are of opinion that it was not necessary for the Gram Panchayat to have obtained permission of the Collector before filing the complaint under sub- section (4). Consequently, the order passed by the learned Sessions Judge cannot be maintained and must be set aside. 7. At this stage we may deal with one more point which has come to our notice. The Nyaya Panchayat while convicting the non-petitioner under section 52 (4) of the Act and sentencing him to pay a fine of Rs. 25/-, has also imposed a recurring fine of Rs. 5/- every day till the encroachment continues. 7. At this stage we may deal with one more point which has come to our notice. The Nyaya Panchayat while convicting the non-petitioner under section 52 (4) of the Act and sentencing him to pay a fine of Rs. 25/-, has also imposed a recurring fine of Rs. 5/- every day till the encroachment continues. In this connection we wish to point out that according to the wordings of sub-section (4) recurring fine extending to five rupees for every day on which the encroachment continues can be imposed only after the date of first conviction. In our opinion, recurring fine could not be imposed for a breach which had yet to take place in future. To pass a sentence in anticipation for future breach would be tantamount to treating the case of guilty and an innocent person alike. We are further of opinion that the Nyaya Panchayat could not under sub-section (4) of the Act at the time of passing an order imposing fine for encroachment direct that if the encroachment was continued the accused would be liable to pay additional fine per day, Passing of such an order is not warranted by law. Our conclusion, therefore, is that the Nyaya Panchayat had no power to impose a prospective recurring penalty at the stage of first conviction. The order of the Nyaya Panchayat so far as it imposes a recurring fine of Rs. 5/- per day is per se illegal. However, the question of the non-petitioner being guilty under section 52 (4) of the Act and whether the conviction and sentence passed by the Nyaya Panchayat were proper, have to be decided on merits by the learned Sessions Judge. 8. In the result, we allow this petition, set aside the order of the learned Sessions Judge, Morena, dated 18-8-1971 and direct him to restore the revision to its original number and decide it afresh en the lines indicated above and in accordance with law. There will be no order as to costs. There security amount may be refunded to the petitioner.