Yuva Sangathan Seobagh And ... vs State Of H.P. & Ors
2021 Latest Caselaw 490 HP

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CWP No. 4024 of 2020 Reserved on: 06.01.2021 Decided on: 08.01.2021.

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Yuva Sangathan Seobagh and another                                           .....Petitioners





                                      Versus
State of H.P. & 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 Petitioners: Mr. Gautam Sood, Advocate.

For the Respondents: Mr. Ashok Sharma, A.G. with Mr. Vinod Thakur, Mr. Vikas Rathore, Mr. Shiv Pal Manhans, Addl. A.Gs., Mr.

Bhupinder Thakur and Mr.Yudhvir Singh Thakur, Dy.A.Gs. for respondents No. 1 to 3/State.

Mr. Dalip K. Sharma, Advocate, for respondent No.4.

Mr. V.S. Chauhan, Senior Advocate with Mr. Ajay Singh Chauhan, Advocate, for respondent No.5.

(Through Video Conferencing) _____________________________________________________________________ Justice Tarlok Singh Chauhan, Judge

The precise case of the petitioners is that they and

other residents of village Seobagh made several representations to

the respondents with regard to declaration and formulation of

village Seobagh as a new Gram Sabha area.

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

2. On 22.08.2020, respondent No.1 issued notification

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thereby bifurcating and reorganizing various Gram Sabhas within

District Kullu, however, village Seobagh is not included in the said

notification. Therefore, the petitioners alongwith about 445

residents of village Seobagh made representations to the

Government at State and District level for formulation and

declaration of village Seobagh as a new Gram Sabha area.

3. It is pleaded by the petitioners that in the last week of

August, 2020 concerned officials alongwith residents of village

Seobagh submitted a detailed report and certificate by completing

all codal formalities to the Block Development Officer for

formulation of village Seobagh as Gram Sabha and consequent

Panchayat. On 01.09.2020, detailed report of the officials

alongwith representations of the petitioners and residents of

village Seobagh was forwarded to the District Panchyat Officer,

Kullu, i.e. respondent No.3, who in­turn, vide his letter dated

02.09.2020 returned the aforesaid letter with the objections that

the representation was not signed by the Pradhans and

Secretaries of Gram Panchayats Kias and Gahar. It is further case

of the petitioners that the Pradhans and Secretaries of the Gram

Panchayats Kias and Gahar refused to sign the representation

stating that there is no resolution of Gram Sabhas for formulation

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and declaration of village Seobagh as a new Gram Sabha, which

according to them was a condition precedent.

4. On 03.09.2020, the Block Development Officer again

sent a representation alongwith detailed report of the officials to

respondent No.3 and asked him to process the same in

accordance with law. However, respondent No.3 did not comply

with the said instructions and informed the petitioners that their

representation cannot be processed in absence of resolution of

Gram Sabha and signatures of Pradhans and Secretaries of both

Gram Panchayats Kias and Gahar.

5. It is in this background that the instant writ petition

has been filed for the grant of following substantive relief:

"It is, therefore, prayed that the present writ petition

may very kindly be allowed and writ of mandamus or any other appropriate, writ order or direction be issued thereby directing the respondents to declare village Seobagh, Tehsil and District Kullu as Gram Sabha area as per Section 3 of the Himachal Pradesh Panchayati Raj Act, 1994, letter and detailed report of the officials (Annexure P­6) and notification dated (Annexure P­3) and further issue any appropriate and necessary orders and directions that resolution of existing Gram

Sabha for constitution and declaration of new Gram

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Sabha Area is not a condition precedent or mandatory

requirement for declaration and formation of new Gram Sabha area, demand of any such resolution as a

condition precedent or a mandatory requirement for declaration and formation of New Gram Sabha Area is illegal and ultra­vires of The Himachal Pradesh

Panchayati Raj Act, 1994 or such other orders, direction or writ as this Hon'ble Court deems fit and proper to

meet the ends of justice be also passed on this petition

in the ends of law and justice. Costs of the petition be also allowed to the petitioners against the respondents."

6. Respondents No. 1 to 3 contested the petition by filing

reply wherein it is averred that the proposal for bifurcation/ re­

organization of Gram Panchayats Kais and Gahar was received

through the Block Development Officer on 01.09.2020 whereby it

was proposed to constitute a new Gram Sabha, Seobagh by

bifurcating some part of Gram Panchayat Kias and part of Gram

Panchayat Gahar, but this proposal was found incomplete as per

the criteria laid down by the competent authority. The

Government has laid down the criteria for creation of new Gram

Sabhas vide letter dated 20th August, 2020 in which the criteria

for non­tribal areas (this criteria also applicable to backward area)

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described as, the new Gram Sabhas from those existing Gram

Sabhas will be created, total population 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 Sabha is equal

to and more than 5 Km subject to the condition that minimum

resultant population of the existing and newly Gram Sabha before

and after bifurcation is minimum 600. This criteria has again

been amended by the Government vide letter dated 04.08.2020

and 04.09.2020. This proposal was submitted without due

signatures of the Pradhans /Secretaries of the Gram Panchayats

Kais and Gahar and further this proposal was also not signed

/verified by the concerned Block Development Officer. Even the

land details with regard to the villages mentioned in the proposal

and the resolutions of Gram Sabha Gahar and Kais were also not

enclosed. Due to these shortcomings, the proposal was returned,

in original, to the concerned Block Development Officer vide letter

dated 02.09.2020.

7. Gram Panchayat, Kais which has been arrayed as

respondent No.4 contested the petition by filing reply wherein

preliminary objection qua maintainability of the petition was

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raised. In addition thereto, it is claimed that in absence of

mandatory provisions of Section 3 of the Himachal Pradesh

Panchayati Raj Act, 1994 (for short 'Act') and in absence of any

resolution of Gram Sabha, new Gram Sabha in village Seobagh

cannot be constituted. It is averred that in Gram Panchayat Kais,

Panchayat office is situated in the middle of Seobagh itself and,

therefore, there is no question of any hardship or inconvenience

caused to the people of Seobagh village or the residents of Gram

Panchayat Kais.

8. Gram Panchayat, Gahar has though not filed any

formal reply, but has placed on record certain documents, which

clearly prove that as regards this Gram Panchayat, it is not at all

in favour of bifurcation for the purpose of creating and

constituting a new Gram Sabha, Seobagh.

9. We have heard learned counsel for the parties and

have gone through the material placed on record.

10. Section 3 of the Act, reads as under:­

3. Declaration of Sabha area.­ (1) The Government may, by notification, declare any village or group of contiguous villages with a population of not less than one thousand and not more than five thousand to constitute one or more

Sabha areas for the purposes of this act and also specify its

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headquarter:

Provided that in a Scheduled area the Government may by order declare any village or group of contiguous villages

with a population of less than one thousand to constitute a Sabha area:

Provided further that the Government may, after having

due regard of the geographical location, lack of means of transport and communication and administrative convenience, declare an area comprising a village or group

of contiguous villages having a population either less than

one thousand or more than five thousand to constitute a Sabha area.

(2) The Government may, at the request of the Gram Sabha

concerned or otherwise, and after previous publication of a proposal by a notification, at any time,­

(a) increase any Sabha area by including within such

Sabha area any village or group of villages; or

(b) diminish any Sabha area by excluding from such Sabha area any village or group of villages; or

(c) alter the headquarter of any Sabha area; or

(d) alter the name of any Sabha area; or

(e) declare that any area shall cease to be a Sabha area: 2[***********] 3[(2­A) When on account of the reason that the Sabha area is, during the term of the Gram Panchayat, increased or diminished or ceased under sub­section (2), the increase or diminution or cessation of the Sabha area shall not affect the term of the office bearers of Gram Panchayat, till the expiration of the duration of the Gram Panchayat specified

in sub­section (1) of section 120 or its dissolution under

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section 140 of this Act.]

(3) If the whole of the Sabha area is included in a municipality, the Sabha area shall cease to exist and its

assets and liabilities shall in the manner prescribed be disposed of.

11. It would be noticed that unlike other provisions of the

Act, Section 3 thereof does not envisage impliedly muchless

expressly postulate an opportunity for inhabitants of the area to

file objections and being heard before ordering bifurcation of the

Panchayat(s).

12. Once the legislature, in its wisdom, has not chosen to

provide for any opportunity of hearing for inhabitants of the area

and to file objections, as aforesaid, the same cannot be presumed

or read into as it would amount to legislating or re­writing the

provision, which indisputably is beyond the domain of this Court.

What is not expressly provided cannot be presumed by necessary

implication.

13. It cannot even be remotely suggested that the

legislature by default omitted to provide the right to file objections

and be heard under Section 3 of the Act. In fact, it is by a

conscious legislative decision that such a right is designedly not

acknowledged under Section 3 of the Act. Procedural requirement

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of hearing is not required in the exercise of legislative power

unless such a right or hearing was expressly provided.

14. In coming to such conclusion, we are fortified by the

decision rendered by the Hon'ble Supreme Court in State of

Punjab vs. Tehal Singh and ors. (2002) 2 SCC 7, wherein it was

held that determining the territorial area of a Gram Sabha and

thereafter establishing a Gram Sabha for that area is an act,

legislative in character, in the context of the provisions of the Act

and hence, does not subject to rules of natural justice. It was

further held that the enactment may provide for observance of

principles of natural justice and if the provisions are there, the

same should be observed and if provisions do not provide for the

same, the residents of the area cannot insist for giving an

opportunity of hearing. It shall be apt to reproduce relevant

observations as contained in paras 5 to 9, which read as under:­

5. Before we consider the main question, it is necessary to trace out the nature of power, that the State Government exercises under provisions of Sections 3 and 4 of the Act. The said power could either be legislative, administrative or quasi­judicial.

6. In Rameshchandra Kachardas Porwal and Ors. etc. v.

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State of Maharashtra and Ors. etc., [1981] 2 SCC 722, it

was held that making of a declaration by notification that certain place shall be principal market yard for a market

area under the relevant agricultural produce Market Act was an act legislative in character. In Union of India and Anr. v. Cynamide India Ltd. and Anr., [1987] vol. 2 SCC

720, this Court while making distinction between legislative, administrative and quasi­judicial held thus:

"A legislative act is the creation and promulgation of a general

rule of conduct without reference to particular cases; an

administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in accordance with the requirements of policy.

Legislation in the process of formulating a general rule of conduct without reference to particular cases and usually operating in future; administration is the process of

performing particular acts, of issuing particular orders or of a making decisions which apply general rules to particular

cases'. It has also been said: "Rule making is normally directed toward the formulation or requirements having a

general application to all members of a broadly identifiable class" while, "an adjudication, on the other hand, applies to specific individuals or situation". But, this is only a broad distinction, not necessarily always true. Administration and administrative adjudication may also be of general application and there may be legislation of particular application only. That is not ruled out. Again, adjudication determines past and present facts and declares rights and liabilities while legislation indicates the future cause of action. Adjudication is determinative of the past and the present while legislation in indicative of future. The object of the rule, the reach of its

application. The rights and obligations arising out of it. Its

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intended effect on past, present and future events, its form,

the manner of its promulgation are some factors which may help; in drawing the line between legislative and non­

legislative acts".

7. The principles of law that emerge from the aforesaid decisions are­(l) where provisions of a statute provide for

the legislative activity, i.e. making of a legislative instrument or promulgation of general rule of conduct or a declaration by a notification by the Government that

certain place or area shall be part of a Gram Sabha and on

issue of such a declaration certain other statutory provisions come into an action forthwith which provide for certain consequences; (2) where the power to be exercised

by the Government under provisions of a statute does not concern with the interest of an individual and it relates to public in general or concerns with a general direction of a

general character and not directed against an individual or

to a particular situation and (3) lay down future course of actions, the same its generally held to be legislative in

character.

8. Viewed in the light of the statement of law stated hereinbefore, we find that the provisions of Sections 3 and 4 of the Act which provide for declaring territorial area of a Gram Sabha and establishing a Gram Sabha for that area do not concern with the interest of an individual citizen or a particular resident of that area. Declaration contemplated under Sections 3 of the Act relates to an area inhabited by the residents which is sought to be excluded or included in a Gram Sabha. The declaration under Section 3 of the Act

by the Government is general in character and not directed

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to a particular resident of that area. Further, the

declarations so made under Sections 3 and 4 of the Act do not operate for the past transactions but for future

situations. Under the aforesaid situation, when declarations by issue of notifications by the Government are made under Sections 3 and 4 of the Act respectively,

determining the territorial area of a Gram Sabha and establishing a Gram Sabha for that area, such declarations become operative at one. Once declarations are made

under Sections 3 and 4 of the Act respectively and

thereafter a Gram Panchayat is constituted under Section 10 of the Act, the entire remaining provisions of the Act becomes operative. On such declarations by a notification

in the gazette, the Gram Sabha­a body corporate comes into being with a number of powers and functions conferred upon it under the Act. As soon as a Gram Sabha

is established and Gram Panchayat is constituted, they are

entrusted with many general functions viz., constructions, repair, and maintenance of community assets, agriculture

including agriculture extension, animal husbandry, dairy and poultry, fisheries, social and farm forestry, minor forest produce fuel and fodder, khadi, village and cottage industries, rural housing, rural electrification including distribution of electricity, non­ conventional energy source, poverty alleviation programme, education including primary and secondary schools, adult and non­formal education, promotion of adult literacy, cultural activities, fairs and festivals, public health and family welfare; women and child development, social welfare etc. Further, Gram

Sabhas and Gram Panchayats have been conferred

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numerous other powers and duties enumerated in Section

35 of the Act. Besides that, the Gram Panchayat is entrusted with the judicial functions which are civil and

criminal in nature. The power exercisable under Sections 3 and 4 of the Act respectively by the Government was, therefore, not an exercise of a judicial or quasi­judicial

function where the very nature of function involves the principle of natural justice or in any case of an administrative function effecting the rights of an individual.

We are, therefore, of the view that on making of declaration

under Section 3 of the Act determining the territorial area of a Gram Sabha and thereafter establishing a Gram Sabha for that area is an act legislative in character in the context

of the provisions of the Act.

9. Once it is found that the power exercisable under

Sections 3 and 4 of the Act respectively is legislative in character, the question that arises is whether the State

Government, while exercising that power, the rule of natural justice is required to be observed? It is almost

settled law that an act legislative in character­primary or subordinate, is not subjected to rule of natural justice. In case of legislative act of legislature, no question of application of rule of natural justice arises. However, in case of subordinate legislation, the legislature may provide for observance of principle of natural justice or provide for hearing to the resident of the area before making any declaration in regard to the territorial area of a Gram Sabha and also before establishing a Gram Sabha for that area. We have come across many enactments where an

opportunity of hearing has been provided for before any

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area is excluded from one Gram Sabha and included it in

different Gram Sabhas or a local authority. However, it depends upon the legislative wisdom and the provisions of

an enactment. Where the legislature has provided for giving an opportunity of hearing before excluding an area from a Gram Sabha and including it in another local authority or

body, an opportunity of hearing is sine qua non and failure to give such an opportunity of hearing to the residents would render the declaration invalid. But where the

legislature in its wisdom has not chosen to provide for any

opportunity of hearing or observance of principle of natural justice before issue of a declaration either under Section 3 or Section 4 of the Act, the residents of the area cannot

insist for giving an opportunity of hearing before the area where they are residing is included in another Gram Sabha or local authority. In Rameshchandra Kachardas Porwal

and Ors. v. State of Maharashtra (supra), this court held as

thus:

"In one of the Bihar cases it was further submitted that

when a market yard was disestablished at one place and established at another place, it was the duty of the concerned authority to invite and hear objections. Failure to do so was a violation of the yard at one place and establishing it elsewhere was, therefore, bad. It was objections before a "market area" was declared under the Act, so should objection be invited and heard before a 'market yard' was established at any particular place. The principles of natural justice demanded it. We are unable to agree. We are here not concerned with the exercise of a judicial or quasi­judicial function where the very nature of

the function involves the application of the rules of natural

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justice, or of an administrative function affecting the rights

of persons, wherefore, a duty to act fairly. We are concerned with legislative activity; we are concerned with the making of

a legislative instrument, the declaration by notification of the Government that a certain place shall be a principal market yard for a market area, upon which declaration certain statutory provisions at once spring into action and certain

consequences prescribed by statute follow forthwith. The making of the declaration, in the context, is certainly an act legislative in character and does not oblige the observance of

the rules of natural justice."

15. In view of aforesaid exposition of law, we are clearly of

the view that the power exercisable under Section 3 of the Act by

the Government is not an exercise of a judicial or quasi­judicial

function, where the very nature of function involves the principles

of natural justice or in any case of an administrative function

affecting the rights of an individual. As observed above, the

function is legislative in character.

16. In this background, further question which arises for

consideration is - whether Gram Panchayats Kais and Gahar

were under any legal obligation to have attended to the objections

that were raised by respondent No.3 on the resolution that was

forwarded by the petitioners and other residents.

17. Gram Panchayats and Gram Sabhas are legally

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constituted bodies, whereas the associations, societies are not

bodies that are recognized under the Act. This is primarily based

upon the concept of democracy "of the people" "by the people" and

"for the people". The resolution seeking bifurcation of a Gram

Sabha has to be backed by majority of people and should

invariably be moved by Gram Sabha as it represents the voice of

the majority of the persons to a democratic elected institution of

Gram Panchayat. However, we could visualize a case where an

elected representatives have with course of time lost the

confidence of the people or such majority of persons could by

authorisation of the break away group from one or more

Panchayat in which they are currently residing like the

Government to constitute a separate Gram Sabha and they also

fulfill all eligibility conditions as stipulated in the Act/Rules. It

would only be in such an exceptional circumstance, that too, after

weighing all pros and cons that competent authority or Court may

entertain the writ petitions and pass necessary directions.

18. However, in the instant case, it would be noticed that it

is the specific case of the petitioners that it has backing of about

445 residents of the village which clearly falls short of the criteria

of population for creation of a new Gram Sabha as prescribed in

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the Government instructions issued vide letters dated 19.01.2019,

11.12.2019, 04.08.2020 and amended vide letter dated

02.09.2020.

19. In the given circumstances, we are clearly of the

opinion that in the instant case the Presidents and Secretaries of

respondents No. 4 and 5 were well within their rights of not

removing the queries/objections as forwarded to them as they did

not and cannot be compelled to support the claim of the

petitioners.

20. 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)
8   th
         January, 2021                                  Judge
           (GR)