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Himachal Pradesh High Court · body

1998 DIGILAW 193 (HP)

THUNIA RAM v. GAGAN SINGH

1998-10-15

R.L.KHURANA

body1998
JUDGMENT R.L.Khurana, J. : This petition has been preferred under Article 227 of the Constitution of India for quashing the order dated 24.4.1997 of the Gram Panchayat, Panyali, Tehsil Nudaun, District Hamirpur as contained in Annexure P.I and that of the Sub Divisional Collector, Nadaun, passed in appeal on 15.9.1997 as contained in Annexure P.2 to the petition. 2. . The parties are residents of village Baloh, Tappa Galore, Tehsil Nadun of District Hamirpur. Their houses adjoin each other. The respondent on 9.8.1996 presented a petition before the Gram Panchayat complaining that on old wall belonging to the respondent was standing near the place where he. was tethering his buffaloes and that there was-every likelihood of the wall falling down and there was a constant danger to his house and buffaloes. He accordingly prayed that immediate directions be issued to the respondent to remove the wall. 3. The Gram Panchayat after summonging the respondent inspected the spot recorded the statement of the parties and purporting to act under Section 12 of the Himachal Pradesh Panchayati Raj Act, 1994, hereinafter referred to as the Act, on 24.12.1996 passed an order directing the respondent to remove the wall in question within a period of one month. 4. It appears that the respondent failed to comply with the directions of the Panchayat as contained in its order dated 24.12.1996. The Panchayat accordingly on 24.4.1997 (order as at Annexure P.I) imposed a fine of Rs. 25/-on the respondent. A further fine of Rs. 1/- per day was also imposed for the period the respondent failed to comply with the directions for removal of the .wall. 5. The respondent feeling aggrieved preferred an appeal before the learned Sub Division Collector. His appeal was dismissed on 15.9.1997 vide order as at Annexure P.2. Hence, the present petition. 6. In assailing the impugned order of the Gram Panchayat and the learned Sub Divisional Collector, it has been inter alia, contended on behalf of the petitioner that the whole proceedings stood vitiated inasmuch as the procedure prescribed under the law was not followed. No enquiry were conducted nor any opportunity was given to the petitioner to cross-examine the respondent and /or his witnesses. 7. No enquiry were conducted nor any opportunity was given to the petitioner to cross-examine the respondent and /or his witnesses. 7. Section 12 of the Act insofar as it is material for the purpose of the present case reads :- "12.(1) A Gram Panchayat, on receiving a report or other information , and on taking such evidence, if any, as it thinks fit, may make a conditional order requiring, within a time to be fixed in the order - (b) the owner of any wall or building which is deemed by the Gram Panchayat to be in any way dangerous, to remove or repair such wall or building; (c).............................; (d).............................; (e).............................; (0.............................; (g).............................; (h).............................; or, if he objects so to do, to appear before it, at a time and place to be fixed by the order and to move to have the order let aside or modified in the manner hereinafter provided. If he does not perform such act or appear and show cause, the order shall be made absolute. If he appears and shows cause against the order, the Gram Panchayat shall take evidence and if it is satisfied that order is not reasonable and proper, no further proceedings shall be taken in the case. If it is not so satisfied, the order shall be confirmed or modified as it deems fit (2) If such act is not performed within the time fixed, the Gram Panchayat may cause it to be performed and may recover the costs of performing it from such person in the prescribed manner. (3) Any person aggrievediy_aiijndcjuun4ei_ subjection (1) may file an appeal within thirty days of the passing of such order before the Sub-Divisional Officer who after holding such enquiry as he may deem fit, may set aside, modify or confirm the said order and his decision thereon shall be final." 8. Section 15 of the Act further provides that any person who disobeys on order of the Gram Panchayat made under Section 12 and 13 shall be liable to a penalty which shall be imposed by the Gram Panchayat and may extend to twenty five rupees and if the breach is a continuing one, with further penalty which may extend to one rupees for every days after the first during which the breach continues. However, the penalty for such continuing breach is not to exceed the sum of rupees five hundred. 9. However, the penalty for such continuing breach is not to exceed the sum of rupees five hundred. 9. A bare reading of the provisions contained in Section 12 of the Act shows that upon receiving a report or other information and on taking of such evidence, if any, as it thinks fit, the Gram Panchayat is to make a conditional order requiring within a time to be fixed by it in the order, the owner of any wail or building which is deemed by the Gram Panchayat to be dangerous, to remove or repair such wall or building. And in case such owner of the wall or building objects so to do, to appear before it at a time and place to be fixed by it and to move to have such conditional order set aside or modified. If, however, such owner either does not appear and show cause or fails to perform such act as directed in the conditional order, the Gram Panchayat is to make the conditional order absolute. In case such owner appears and shows cause against the conditional order, the Gram Panchayat then is required to take evidence and upon consideration of such evidence, if it is - (a) Satisfied that the conditional order is not reasonable and proper, no further proceedings shall be taken in the case; or (b) Satisfied that the conditional order is reasonable and proper, it shall confirm or modify such conditional order as it deems fit 10. A perusal of the record of the Panchayat shows that the application was made by the respondent to the Pradhan of the dram Panchayat on 9.8.1996. On the same day a notice was issued by the Pradhan to the petitioner asking him to appear before the Panchayat on 24.9.1996 at 10 AM. On this date an application was made by the petitioner and the case was adjourned by the Pradhan to 23.10.1996. The necessary bench of the Panchayat was constituted by the Pradesh on 23.10.1996 and on the same day the statements of the parties were recorded and the case was adjourned to 23.11.1996 for spot inspection by the Panchayat. Since the Corum of the bench was not complete on 23.11.1996, the case was adjourned to 24.12.1996. On this date the Panchayat after inspection of the spot passed an order directing the respondent to remove the wall within one months. 11. Since the Corum of the bench was not complete on 23.11.1996, the case was adjourned to 24.12.1996. On this date the Panchayat after inspection of the spot passed an order directing the respondent to remove the wall within one months. 11. Thus it is apparent that no conditional order as required under Section 12(1) of the Act Was passed by the Panchayat Nor such conditional order was ever served upon the petitioner so as to enable him to show cause against it. 12. Even after the petitioner has put in appearance, no opportunity was . Afforded to him to lead evidence. The Panchayat appears to have passed the order on 24.12.1996 solely on the basis of spot inspection carried out by it. Therefore, the order dated 24.12.1996 which is in the form "of a final order, having been passed without following the prescribed proceeding is bad and cannot be sustained. 13. Resultantly, the order dated 24.4.1997 as at Annexure P.I imposing penalty on the petitioner for non-compliance of the order dated 24.12.1996, and the appellant order dated 15.9.1997 as at Annexure P.2 are also bad and liable to be set-aside.