CWP/4419/2020 on 31 December 2020

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CWP No. 4419 of 2020 Reserved on: 29.12.2020.

Decided on: 31.12.2020. Suresh Kumar …...Petitioner. Versus State of Himachal Pradesh & ors. .....Respondents.

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting? 1 No. For the petitioner : Mr. Vir Bahadur Verma, Advocate, through Video Conference. For the respondents : Ms. Shruti Sharma, Advocate, for respondent No. 6, through Video Conference. Mr. Ashok Sharma, Advocate General with Mr. Yudhvir Singh Thakur, Deputy Advocate General, for respondents No. 1 to 4-State. Mr. Ashok Kumar Verma, Advocate, for respondent No. 5. Mr. Ajeet Singh Saklani, Advocate, for respondent No. 7. Jyotsna Rewal Dua, Judge The petitioner has challenged notification dated 3.10.2020, whereby existing Gram Sabha Pandwin in 1 Whether the reporters of the local papers may be allowed to see the Judgment?

development block, Bhoranj, District Hamirpur has been bifurcated and petitioner’s village Droundla (both upper and lower) which were part of old Gram Sabha Pandwin have now become part of newly created Gram Sabha Bhagetu.

2. Petitioner’s allegation is that the entire exercise of bifurcation/separation of old Gram Sabha Pandwin and merging of Droundla villages (upper and lower) with newly created Gram Sabha Bhagetu has been carried out on the basis of a fictitious resolution dated 7.1.2020, therefore, all subsequent actions of official respondents based on this resolution are illegal and liable to be quashed. On the strength of an authorization by the residents of the concerned villages in his favour, the petitioner has filed instant writ petition for retaining Droundla villages (upper and lower) in old Gram Sabha Pandwin. It has been urged that distance of Droundla village from newly created Gram Panchayat Bhagetu is much more than from old Gram Panchayat, Pandwin and post their merger with newly created Gram Panchayat Bhagetu, the development of these villages shall suffer.

3. The stand of respondent-State is that:-

(a) After due deliberation and in consonance with provisions of Section 3 of H.P. Panchayat Raj Act, 1994 ( in short ‘the Act’) following revised criteria has been made for creation of new Gram Sabha for non-tribal and non-backward areas:-

“New Gram Sabhas from those existing Gram Sabhas will be created, total population of which is equal to and more than 2000, number of household equal to and more than 500, number of villages equal to and more than 5 and distance of the farthest village from the existing headquarter of the Gram Sabhas is equal to and more than 5 kms. Subject to the condition that minimum resultant population of the existing and newly proposed Gram Sabhas before and after bifurcation is minimum 1000 (Annexure R- III).”

(b) Population as per 2011 Census has been taken into consideration for purpose of ensuing elections for the office bearers of Panchayati Raj Institutions in the State.

(c) Draft notification under Section 3 of the Act was issued on 14.9.2020 inviting suggestions/objections within a period of seven days to the proposed bifurcation/separation of old and creation of new Gram Sabha areas. Old Gram Sabha Pandwin consisting of villages; Chontra, Pandwin, Maidh, Bhagetu, Jhinjkari, Bhola, Plasi, Droundla (lower) and Droundla (upper) was proposed to be bifurcated and villages Bhagetu, Jhinjkari, Bhola, Plasi, Droundla (lower) and Droundla( upper) were to become part of newly created Gram Sabha Bhagetu.

(d) The objections of residents of village Droundla against the above draft notification were received by the department on 16.9.2020. The inquiry was got conducted through Panchayat Inspector, office of Development Block, Bhoranj, District Hamirpur on the allegations contained therein more specifically about the alleged fictitious resolution dated

7.1.2020 and the distance between the concerned villages and the newly created Gram Panchayat, Bhagetu. Statements of Pradhan and Panchayat Secretary, Pandwin were recorded. Inquiry report was submitted on 24.9.2020. The allegations of residents of Droundla villages were found to be incorrect. As per the inquiry report, resolution No. 3 dated 19.11.2019 and 7.1.2020 were entered and registered in ‘Karyawahi’ register of the Gram Panchayat. The resolution for separation of old Gram Sabha and creation of a new Gram Sabha was unanimously passed alongwith other resolutions. It was clarified that newly created Gram Panchayat Bhagetu is at a shorter distance to its constituent villages Droundla (upper and lower) as compared to their distance from old Gram Panchayat, Pandwin.

(e) The Deputy Commissioner, District Hamirpur on 25.9.2020 recommended for approving the draft notification dated 14.9.2020. Droundla villages were recommended to be included in new Gram Panchayat Bhagetu. Accordingly, final notification was issued on 3.10.2020 bifurcating/separating existing Gram Sabha Pandwin and creating new Gram Sabha Bhagetu with Droundla villages as part of its constituents.

(f) The assertion of the petitioner that no development shall be carried out in the newly created Gram Sabha Bhagetu, has been denied being absurd apprehension. It has been submitted by the respondents in the reply that developmental

activities will also take place in newly created Gram Panchayat, Bhagetu and Droundla villages will not suffer after their merger with newly created Gram Sabha Bhagetu.

4. It shall be apposite to refer to a judgment in CWP No. 3895 of 2020, titled Vijay Kumar & ors. Versus State of H.P. & ors. alongwith other connected matters, delivered by a Co- ordinate Bench of this Court on 23.12.2020 and authored by one of us (Tarlok Singh Chauhan, J.) wherein it was held that declaration of Sabha area is a legislative function to which principles of natural justice would not apply. The notification constituting or abolishing a Gram Sabha is a legislative act, which cannot be impugned on the grounds available for challenging an administrative or quasi judicial order. The operative part of the judgment runs as under:- “25. Thus, what can be deduced from the aforesaid discussions is that declaration of Sabha area is a legislative function and the principles of natural justice would not apply to the same. The notification constituting a Gram Sabha or abolishing a Gram Sabha is an act of legislature and, thus, cannot be impugned on the grounds, which are available for an administrative or quasi judicial order. The maxim audi alteram partem is not applicable, even on necessary implication, meaning thereby, declaration of Sabha area, in terms of Section 3 of the Act, does not contemplate muchless envisages issuance of notice, opportunity of filing objections and even hearing before ordering bifurcation of the Panchayat(s). Since bifurcation or the Panchayat itself is a legislative act, no mala fides can be attributed to the legislative act. Therefore, we answer the preliminary submission concluding that all these petitions are not maintainable.”

The main ground raised by the petitioner for opposing the final notification dated 3.10.2020 is that genesis of creation of new Gram Sabha and bifurcation/separation of old Gram Sabha is a resolution, which was factually never passed. This factual basis of the petition is hotly contested by the official respondents. The inquiry conducted by the respondents on the objections raised by Droundla villagers disproved the factual contention. In exercise of extra ordinary jurisdiction under Article 226 of Constitution of India, this Court cannot venture into, muchless ascertain the disputed factual position of the nature raised in the instant writ petition.

5. The official respondents have also submitted that the State Election Commissioner had issued a communication dated 20.10.2020 intimating that Electoral Roll in respect of more than 2728 Panchayats was being prepared for ensuing elections to the Panchayati Raj Institutions and, therefore, requested the respondents not to re-organize/bifurcate any Panchayat as reorganization/bifurcation of even a single Panchayat will affect the entire composition of Panchayati Raj Institutions of the district concerned and shall also disturb the Electoral Roll. Since the Election Commission is constitutionally bound to hold elections to the Panchayati Raj Institutions before the expiry of terms of existing PRIs, therefore, the respondents decided that only those panchayats, which were finally notified till 20.10.2020

or excluded from Urban areas will be considered for the ensuing General Elections. Petitioner’s attempt in challenging the communication dated 20.10.2020 is of no help to him in view of settled legal position. In the background of above extracted legal principle and factual position of the case, this writ petition is not maintainable. The remedy of the petitioner, if any, lies elsewhere. Consequently, instant writ petition is dismissed on this short ground. All the pending application(s), if any, shall also stand disposed of. (Tarlok Singh Chauhan), Judge. (Jyotsna Rewal Dua), Judge. December 31st , 2020,

(vs)