Rakesh Sharma And Another vs State Of H.P. And Others
2021 Latest Caselaw 14 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CWP No. 4882 of 2020

Reserved on: 30.12.2020.

Decided on: 01.01.2021 _________________________________________________________________

Rakesh Sharma and another ...Petitioners Versus State of H.P. and others. ...Respondents Coram:

Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.

Whether approved for reporting? 1 No

For the Petitioners : Ms. Bhavana Datta, Advocate.

For the Respondents: Mr. Ashok Sharma, Advocate General,

with Mr. Vinod Thakur, Mr. Shiv Pal Manhans, Addl. A.Gs., Mr. Bhupinder Thakur, Ms. Seema Sharma and Mr. Yudhvir Singh Thakur, Dy. A.Gs., for

respondents No. 1 to 5/State.

Mr. Ajeet Singh Saklani, Advocate, for respondent No.6­ Election Commission.

Proceedings convened through Video Conferencing.

Tarlok Singh Chauhan, Judge:

The petitioners have filed the instant petition for the

grant of following substantive reliefs:

i) That the impugned notification dated 18.09.2020 (Annexure P­11) may kindly be quashed and set­ aside and in the alternate village Badnoo be kept out

Whether reporters of the local papers may be allowed to see the judgment? yes

of the purview of the new notifiation and kept with the old Panchayat Suin Surhar.

b) That implementation of first notification vide

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Annexure P­2 dated 27.08.2020 in its true letter and spirit."

2. Brief facts of the case are that the Gram Sabha Suri

Surhad, Development Block Sadar Bilaspur, Distt. Hamirpur in its

meeting held on 25.08.2019 unanimously passed a Resolution

No. 14 in the presence of 176/784 members under the

Chairmanship of concerned Pradhan for bifurcation of Gram

Sabha Suri Surhad into newly proposed Gram Sabha Digthali with

its headquarter at Tunnighat. This resolution was alongwith

prescribed Format No.1, wherein it was reflected that out of 10

villages of Gram Sabha Suri Suhad, 5 villages namely -

Bhandokhar, Digthali, Bhojpur, Ghanser and Badnoo were

proposed to be included into newly proposed Gram Sabha Digthali

sent to the competent authority. Subsequently the said proposal of

the Gram Sabha was sent by Deputy Commissioner, Bilaspur, i.e.

respondent No.2, vide communication dated 18.1.2020 to

respondent No.3 on prescribed Format No.1. Accordingly, draft

notification dated 27.8.2020 (Annexure P­2) was notified for

inviting suggestions/objections within stipulated period of seven

days.

3. On 2.9.2020, residents of Gram Panchayat, Badnoo

filed objections before respondent No.2, on the ground sthat the

population and geographical conditions of Gram Panchayat,

Digthali are not suitable to them and therefore, proposed the

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headquarter to be at Badnoo. Similarly, 41 villagers of village

Palangiri Odi objected and submitted that they be retained at

Surisuhad Panchayat. Pursuant to the same, on the direction of

respondent No.2, the Sub Divisional Magistrate, Sadar Bilaspur

enquired into the matter and reported that as per draft

notification, it would be appropriate to rename proposed Digthali

to Badnoo as village Badnoo is larger in population as well as in

area and suggested that headquarter be fixed at Dhansehard being

a central place.

4. The recommendation of respondent No.2 dated

14.9.2020 was received in the Department wherein, it was

submitted that the total area of newly proposed Digthali is about 8

to 9 Kms and as per suitability, the newly proposed Panchayat be

renamed as Badnoo Digthali and its headquarter be fixed at

Balhardi as it being main junction and thus, having road

connectivity and public facilities. Consequently, the final

notification dated 18.09.2020 (Annexure P­11) was issued.

5. It is vehemently contended by Ms. Bhavana Datta,

learned counsel for the petitioners that the impugned notification

dated 18.9.2020 (Annexure P­11) is absolutely illegal and does not

reflect the will of the people, more particularly, village Badnoo and

other villages comprised of the old Panchayat Suin Surhar. It is

only at the instigation of one person namely Hans Raj Thakur,

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resident of village Ghanserh, who connived with the government

officials and manipulated and impugned notification was issued. It

is averred that the residents of village Bhandokhar, Digthali and

Bhojpur have been neglected since long and no development

activities has taken place in the area and on account of these

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r to difficulties of the residents of that area, had insisted on the

implementation of the first notification dated 27.8.2020.

We have heard learned counsel for the parties and

have gone through the material placed on record.

7. In CWP No. 3895 of 2020, titled Vijay Kumar and

others Versus State of H.P. & others, alongwith other connected

matters, a judgment delivered by a Division Bench of this Court on

23.12.2020 and authored by one of us (Justice Tarlok Singh

Chauhan, J.), it was held that declaration of Sabha area is a

legislative function to which principles of natural justice would not

apply. It was further held that 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.

8. It shall be apt to reproduce the relevant observations

as contained in para­25 of the judgment, which reads as under:

"25. Thus, what can be deducted 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

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Gram Sabha or abolishing a Gram Sabha is an act of

legislative 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 of 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."

9. It would be noticed that the grounds raised in this

petition, more particularly, with regard to the backwardness of

village Badnoo, lack of facility of transport etc. are all disputed

facts, which cannot be ascertained or even gone into in exercise of

extra­ordinary jurisdiction under Article 226 of the Constitution of

India.

10. Importantly, the Election Commission had issued a

communication dated 20.10.2020 intimating that Electoral Rolls

in respect of more than 2728 Panchayats were being prepared for

ensuing elections to the Panchayati Raj Institutions and, therefore,

requested the respondents not to re­organize/bifurcate any

Panchayat as re­organization/ bifurcation of even a single

Panchayat would effect the entire composition of Panchayati Raj

Institutions of the District concerned and shall also disturb the

Electoral Roll.

11. In addition to the aforesaid, we otherwise do not find

the petition to be maintainable as the same has been filed by the

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two residents. No doubt, reference has been made to the certain

resolutions passed by the Gram Panchayat recommending therein

its bifurcation. However, it is more than settled that if the officials

of the State do not act upon the resolutions, then the aggrieved, if

any, shall only be the Gram Panchayat and not any individual. If

the Gram Panchayat is no longer in existence on account of its

bifurcation, then a petition can only be filed after authorisation by

majority of the people of the area.

12. In the instant case, there is no resolution authorising

the petitioners to file the petition on behalf of the residents of the

area has been annexed with the petition. However, the petitioners

have filed an application being CMP No.14207 of 2020 for bringing

on record additional documents wherein they have filed some sort

of Mukhtiarnama (power of attorney), but the same is undated and,

therefore, cannot be considered to be a valid authorisation.

13. In view of the aforesaid discussion, we find no merit in

the instant petition and the same is accordingly dismissed, so also

the pending miscellaneous application(s), if any.

(Tarlok Singh Chauhan) Judge

(Jyotsna Rewal Dua) 1 January, 2021.

st Judge (GR)