CWP/4419/2020 of SURESH KUMAR Vs STATE OF HP AND ORS on 31 December 2020

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CWP No. 4419 of 2020Reserved 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. through Video Conference.

For the respondents:Ms. Shruti Sharma, Advocate, for respondent No. 6, through Video Conference.

Mr. Ashok Sharma, Advocate Generalwith Mr. Yudhvir Singh Thakur, DeputyAdvocate General, for respondents No. 1 to 4-State.

Mr. Ashok Kumar Verma, Advocate, for respondent No. 5.

Mr. Ajeet Singh Saklani, Advocate, forrespondent No. 7.

Jyotsna Rewal Dua, Judge

The petitioner has challenged notification dated3.10.2020, whereby existing Gram Sabha Pandwin in1Whether the reporters of the local papers may be allowed to see theJudgment?

development block, Bhoranj, District Hamirpur has beenbifurcated and petitioner’s village Droundla (both upper andlower) which were part of old Gram Sabha Pandwin have nowbecome part of newly created Gram Sabha Bhagetu.

2. Petitioner’s allegation is that the entire exercise ofbifurcation/separation of old Gram Sabha Pandwin and mergingof Droundla villages (upper and lower) with newly created GramSabha Bhagetu has been carried out on the basis of a fictitiousresolution dated 7.1.2020, therefore, all subsequent actions ofofficial respondents based on this resolution are illegal and liableto be quashed. On the strength of an authorization by theresidents of the concerned villages in his favour, the petitionerhas filed instant writ petition for retaining Droundla villages(upper and lower) in old Gram Sabha Pandwin. It has been urgedthat distance of Droundla village from newly created GramPanchayat Bhagetu is much more than from old Gram Panchayat,Pandwin and post their merger with newly created GramPanchayat Bhagetu, the development of these villages shallsuffer.

3. The stand of respondent-State is that:- (a)After due deliberation and in consonance withprovisions of Section 3 of H.P. Panchayat Raj Act, 1994 ( in short‘the Act’) following revised criteria has been made for creation ofnew Gram Sabha for non-tribal and non-backward areas:- “New Gram Sabhas from those existing Gram Sabhaswill be created, total population of which is equal to and more than2000, number of household equal to and more than 500, number ofvillages equal to and more than 5 and distance of the farthestvillage from the existing headquarter of the Gram Sabhas is equal toand more than 5 kms. Subject to the condition that minimumresultant population of the existing and newly proposed GramSabhas before and after bifurcation is minimum 1000 (Annexure R-III).”

(b) Population as per 2011 Census has been taken intoconsideration for purpose of ensuing elections for the officebearers of Panchayati Raj Institutions in the State.

(c) Draft notification under Section 3 of the Act wasissued on 14.9.2020 inviting suggestions/objections within aperiod of seven days to the proposed bifurcation/separation ofold and creation of new Gram Sabha areas. Old Gram SabhaPandwin 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 Droundlaagainst the above draft notification were received by thedepartment on 16.9.2020. The inquiry was got conductedthrough Panchayat Inspector, office of Development Block,Bhoranj, District Hamirpur on the allegations contained thereinmore specifically about the alleged fictitious resolution dated

7.1.2020 and the distance between the concerned villages andthe newly created Gram Panchayat, Bhagetu. Statements ofPradhan and Panchayat Secretary, Pandwin were recorded.Inquiry report was submitted on 24.9.2020. The allegations ofresidents of Droundla villages were found to be incorrect. As perthe inquiry report, resolution No. 3 dated 19.11.2019 and7.1.2020 were entered and registered in ‘Karyawahi’ register ofthe Gram Panchayat. The resolution for separation of old GramSabha and creation of a new Gram Sabhawas unanimouslypassed alongwith other resolutions. It was clarified that newlycreated Gram Panchayat Bhagetu is at a shorter distance to itsconstituent villages Droundla (upper and lower) as compared totheir distance from old Gram Panchayat, Pandwin.

(e) The Deputy Commissioner, District Hamirpur on25.9.2020 recommended for approving the draft notificationdated 14.9.2020. Droundla villages were recommended to beincluded in new Gram Panchayat Bhagetu. Accordingly, finalnotification was issued on 3.10.2020 bifurcating/separatingexisting Gram Sabha Pandwin and creating new Gram SabhaBhagetu with Droundla villages as part of its constituents.

(f) The assertion of the petitioner that no developmentshall be carried out in the newly created Gram Sabha Bhagetu,has been denied being absurd apprehension. It has beensubmitted 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 mergerwith newly created Gram Sabha Bhagetu.

4. It shall be apposite to refer to a judgment in CWPNo. 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 oneof us (Tarlok Singh Chauhan, J.) wherein it was held thatdeclaration of Sabha area is a legislative function to whichprinciples of natural justice would not apply. The notificationconstituting or abolishing a Gram Sabha is a legislative act,which cannot be impugned on the grounds available forchallenging an administrative or quasi judicial order. Theoperative part of the judgment runs as under:- “25. Thus, what can be deduced from the aforesaiddiscussions is that declaration of Sabha area is a legislative functionand the principles of natural justice would not apply to the same.The notification constituting a Gram Sabha or abolishing a GramSabha is an act of legislature and, thus, cannot be impugned on thegrounds, which are available for an administrative or quasi judicialorder. The maxim audi alteram partem is not applicable, even onnecessary implication, meaning thereby, declaration of Sabha area,in terms of Section 3 of the Act, does not contemplate muchlessenvisages issuance of notice, opportunity of filing objections andeven hearing before ordering bifurcation of the Panchayat(s). Sincebifurcation or the Panchayat itself is a legislative act, no mala fidescan be attributed to the legislative act. Therefore, we answer thepreliminary submission concluding that all these petitions are notmaintainable.”

The main ground raised by the petitioner foropposing the final notification dated 3.10.2020 is that genesis ofcreation of new Gram Sabha and bifurcation/separation of oldGram Sabha is a resolution, which was factually never passed.This factual basis of the petition is hotly contested by the officialrespondents. The inquiry conducted by the respondents on theobjections raised by Droundla villagers disproved the factualcontention. In exercise of extra ordinary jurisdiction under Article226 of Constitution of India, this Court cannot venture into,muchless ascertain the disputed factual position of the natureraised in the instant writ petition.

5. The official respondents have also submitted that theState Election Commissioner had issued a communication dated20.10.2020 intimating that Electoral Roll in respect of more than2728 Panchayats was being prepared for ensuing elections tothe Panchayati Raj Institutions and, therefore, requested therespondents not to re-organize/bifurcate any Panchayat asreorganization/bifurcation of even a single Panchayat will affectthe entire composition of Panchayati Raj Institutions of thedistrict concerned and shall also disturb the Electoral Roll. Sincethe Election Commission is constitutionally bound to holdelections to the Panchayati Raj Institutions before the expiry ofterms of existing PRIs, therefore, the respondents decided thatonly those panchayats, which were finally notified till 20.10.2020

or excluded from Urban areas will be considered for the ensuingGeneral Elections. Petitioner’s attempt in challenging thecommunication dated 20.10.2020 is of no help to him in view ofsettled legal position.

In the background of above extracted legal principleand factual position of the case, this writ petition is notmaintainable. The remedy of the petitioner, if any, lieselsewhere. Consequently, instant writ petition is dismissed onthis short ground. All the pending application(s), if any, shallalso stand disposed of.

(Tarlok Singh Chauhan), Judge.

December 31[st] , 2020, (vs)

(Jyotsna Rewal Dua), Judge.