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2001 DIGILAW 381 (HP)

PARKASH CHAND v. SAROJ KUMARI

2001-12-13

KAMLESH SHARMA

body2001
JUDGMENT Kamlesh Sharma J.-. In this petition under Article 227 of the constitution of India, the petitioners have assailed the order dated 4.7.1998, passed by the Sub Divisional Officer (C), Barsar, exercising the powers of the Collector, Sub Division Barsar, District Hamirpur, whereby their appeal was dismissed and the order dated 19.7.1997 of Gram Panchayat Jamli, Development block, Bijhari, Teshil Barsar, District Hamirpur, was upheld. By its order dated 19.7.1997, the Gram Panchayat, Jamli, had held the Petitioners guilty of disobedience of its earlier order and imposed upon each of them a fine of Rs. 25/- and ordered them to deposit the same with the Panchayat immediately. It was further ordered that the petitioners in accordance with the earlier decision of the Panchayat will fix the boundary and remove the stones lying on the land of Smt. Saroj Kumah wife of Ramesh Chand within a period of one month, failing which penalty of Rs. 1/- per day subject to maximum of Rs. 500/- will be imposed upon them. The earlier order of the Gram Panchayat is dated 4.6.1997. 2. The brief facts of the case are that petitioner No. 1 is son and petitioner No. 2 wife of petitioner No.1, is the daughter-in-law of respondent No. 3, whereas respondent No. 1 is his widowed daughter-in-law. In 19.1.1997, respondent No. 3 filed an application before the Gram Panchayat requesting that the land adjacent to his house (on the front as well as on the back) may be partitioned between his daughter-in-law Smt. Saroj Kumari and his son Parkash Chand in equal share in order to avoid dispute between them. It was admitted in the application that about 8-9 years ago, a family settlement of abadi land had taken place, but the vacant land around the house could not be partitioned. It was further stated that in view of the requirement of land by Saroj Kumari to construct a cow-shed, the land adjacent to her house may be partitioned between her and Parkash Chand. 3. It was further stated that in view of the requirement of land by Saroj Kumari to construct a cow-shed, the land adjacent to her house may be partitioned between her and Parkash Chand. 3. From the record it appears that in pursuance to the application of respondent No. 3 Panchayat Pardhan, up Pardhan and Ward Members visited the spot on 4.6.1997 in the presence of respondent No. 1 and 3 and others and fixed the boundary in the compound as well as on the back portion of the house of Smt. Saroj Kumari to the extent of 16.6 feet by putting stones and 3 marlas of land of the compound of Smt. Saroj Kumari was also given to her Further 3 feet wide path in the compound of Smt. Saroj Kumari leading to govt. forest, was demarcated by putting stones for the use of Parkash Chand. Smt. Saroj Kumari was directed to cut trees planted by her on the said path within a period of one week and Parkash Chand was directed to remove the stones and wood kept by him on the land of Smt. Saroj Kumari within a period of 7 days. These directions of the Panchayat were written down in its order dated 4.6.1997, which was read over to the persons present on the spot. It was also explained that those who will disobey the said order, will be brought to book in accordance with law. This order is not signed by Parkash Chand and his wife Simro Devi, the petitioners before this Court, which shows that they were not present on the spot. 4. Again, on 20.6.1997 respondent No. 3 filed another application complaining that the petitioners had not removed the stones and the wood from the piece of land given to Smt. Saroj Kumari within a period of 7 days as directed by the panchayat but had pulled off stones affixed for the demarcation of the land. In his application, respondent No. 3 further requested the panchayat to visit the spot again and repartition the land by giving land falling on the back of the house of Smt. Saroj Kumari to her and the land falling on the back of the house of Parkash Chand, to him. In his application, respondent No. 3 further requested the panchayat to visit the spot again and repartition the land by giving land falling on the back of the house of Smt. Saroj Kumari to her and the land falling on the back of the house of Parkash Chand, to him. Accepting the request of respondent No. 3 the panchayat again visited the spot on 2.7.1997 and after noticing that its order dated 4.6.1997 was not obeyed by the petitioners, gave notice to them to show cause on or before 19.7.1997. 5. In their explanation recorded on 19.7.1997, the petitioners stated that the order dated 4.6.1997 was passed behind their back and they were not given an opportunity of being heard/According to them, in view of the family settlement in respect of their movable and immovable property, which had taken place in the presence of elders of the village between Parkash Chand and his brother Ramesh Chand in the month of February, 1989, it was not proper for the Gram Panchayat to make further partition. The panchayat did not accept the explanation of the petitioners and passed the impugned order dated 197.1997 holding them guilty of disobedience of their earlier order and imposed upon each of them a fine of Rs. 25/- and directed them to deposite the same with the panchayat immediately. They were further directed to fix the boundary as per their earlier order and remove the stones lying on the land of Smt. Saroj Kumari within a period of one month, failing which penalty of Rs. 1/- per day subject to maximum of Rs. 500/- would be imposed upon them. 6. Feeling agrieved the petitioners filed an appeal against the order dated 19.7.1997 before the collector, which was dismissed by order dated 47.1998, inter-alia holding that the Gram Panchayat was competent to pass the impugned order under Section 59 of the Himachal Pradesh Panchayati Raj, Act, 1994 (hereinafter called the Act1). 7. This Court has heard the learned counsel for the parties and gone through the record. 8. Learned counsel for respondents No 1 and 3 has raised some preliminary objections to the maintainability of the present petition. The first preliminary objection is that since the petitioners had not assailed the order dated 4.6.1997 before the Collector, it has become final between the parties and even if the subsequent order dated 19 7.1997. 8. Learned counsel for respondents No 1 and 3 has raised some preliminary objections to the maintainability of the present petition. The first preliminary objection is that since the petitioners had not assailed the order dated 4.6.1997 before the Collector, it has become final between the parties and even if the subsequent order dated 19 7.1997. is set aside, they are hound to pay obey. The order dated 4.6 1997, To this preliminary objection, the submission of the learned counsel for the petitioners is that the petitioners had not accepted the order dated 4.6.1997 and has assailed it before the Gram Panchayat on 19.7.1997 on the grounds that it was passed behind their back and it was not proper for the panchayat to order partition despite the family settlement arrived at as far back as in February, 1989. The same objections were reiterated by them in appeal before the Collector and it is immaterial if specifically the order dated 4.6.1997 was not assailed, as the impugned order dated 197.1997, was passed as a consequence of order dated 4.6.1997. 9. After giving its best consideration, this court is of the view that technically the learned counsel for respondents No. 1 and 3 may be right, but in view of the allegations that order dated 4.6.1997 was passed without notice to the petitioners behind their back and without jurisdiction, this Court is inclined to entertain this petition to examine the proceedings of the Gram Panchayat. 10. Another preliminary objection is that respondent No. 3 was not made party in the appeal before the collector to which the reply on behalf of the petitioners is that since no allegations were made against him, he was not a necessary party and moreover, having failed to raise this objection in the appeal, respondents 1 and 3 are not entitled to raise this objection in this petition. 11. After considering is respective contentions of learned counsel for the parties, this court is of the view that Since the allegations of the petitioners were against the Gram Panchayat only, the absence of respondent No. 3 whose interest was common with respondent No. I, is not such a defect as to debar the petitioners from filing the present petition. 12. After considering is respective contentions of learned counsel for the parties, this court is of the view that Since the allegations of the petitioners were against the Gram Panchayat only, the absence of respondent No. 3 whose interest was common with respondent No. I, is not such a defect as to debar the petitioners from filing the present petition. 12. The main ground on which the impugned orders have been assailed is that the Gram Panchayat has no jurisdiction to entertain the request of respondent No. 3 to partition the land between petitioner No. 1 and respondent No. 1. In support of his submission, the learned counsel for the petitioners has referred to various provisions of the Act prescribing judicial functions and powers of the Gram Panchayat. It is further argued that if the order dated 4.6.1997 was without jurisdiction, the Gram Panchayat could not force its complacence and impose fine for its disobedience. According to the learned counsel for the petitioners, the only provision under which the fine can be imposed for the disobedience of the orders of the Gram Panchayat, is Section 15 of the Act, but the order dated 4.6.1997 is not covered under this Section. 13. In reply to the aforesaid submission, the learned counsel for respondents No. 1 and 3 has submitted that by order dated 4.6.1997, the Gram Panchayat had not partitioned the land, but had only demarcated it for the use of petitioner No. 1 and respondent No. 1 as per the wish of respondent No. 3 and the Gram Panchayat had jurisdiction to pass such order and also punish for its disobedience under Section 15 of the Act. 14. In order to appreciate the respective contentions of the learned counsel for the parties, this Court will examine the relevant provisions of the Act. 15. 14. In order to appreciate the respective contentions of the learned counsel for the parties, this Court will examine the relevant provisions of the Act. 15. The perusal of Section 12 shows that the 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, the owner/occupier of any building or land to comply with the directions given in respect of encroachment and nuisance as specified in Section 12(1) (a) to (h) after giving him notice to show cause and any person aggrieved by such directions, may file appeal within 30 days before the sub Divisional Officer, who may pass appropriate order after holding inquiry. Under Section 15, the Gram Panchayat is empowered to impose penalty which may extend to twenty five rupees for the disobedience of its order passed under Sections 12 and 13 and if the breach is continuing breach, further penalty which may extend to one rupee for every day not exceeding five hundred rupees, may be imposed by the Gram Panchayat. By no stretch of imagination it can be held that the order dated 4.6.1997 is covered under Section 12 for disobedience of which penalty could be awarded under Section 15. In fact, Section 15 is the only section for imposing penalty for disobedience of the order or direction of the Gram Panchayat, but these orders are required to be passed under Section 12 and 13 of the Act. 16. In this view of the matter, the order dated 19.7.1997 of the Gram Panchayat is not sustainable having been passed without jurisdiction, with the result the order of the collector dated 4.7.1997, is also liable to be set aside. 17. So far the submission of the learned counsel for respondents 1 and 3 that the order dated 4.6.1997 partitioning the land between petitioner No. 1 and respondent No. 1 may be as per the wish of respondent No. 3, is concerned, it is also not covered under any or the provisions under Chapter IV of the Act prescribing judicial functions of the Gram Panchayat. The extent of jurisdiction of a Gram Panchayat in respect of civil matters is prescribed under Section 41. The extent of jurisdiction of a Gram Panchayat in respect of civil matters is prescribed under Section 41. It is: "(1) The jurisdiction of a Gram Panchayat shall extend to any suit of the following description if its value does not exceed two thousand rupees: (a) a suit for money due on contract other than a contract in respect of immovable property; (b) a suit for the recovery of movable property or for the value thereof; (c) a suit for compensation for wrongfully taking or damaging a moveable property; (d) a suit for damages caused by cattle trespass; and (e) a suit under clauses (f) and (i) of sub-section (3) of Section 58 of the Himachal Pradesh Tenancy and Land Reforms Act, 19972. (2) Notwithstanding anything contained in sub-section (1), the State Government or the prescribed authority may, by notification in the Official Gazette, extend the pecuniary jurisdiction of Gram Panchayat to five thousand rupees in respect of any or all the suits of the description mentioned in sub-section (1). The perusal of this Section leaves no doubt that the Gram Panchayat has no jurisdiction to entertain the dispute pertaining to partition of the property. 18. The extension of jurisdiction by agreement of parties, is provided under Section 42. It is: "Parties to a suit may, by a written agreement, refer any suit of the nature mentioned in Section 59 to a Gram Panchayat for decision by it and the Gram Panchayat shall, subject to the rules prescribed determine and dispose of such suit under this Act 19. The perusal of this section shows that the extension of jurisdiction is only in respect of dispute of the nature mentioned in Section 59 which prescribes: "(1) Notwithstanding anything contained in this Act or in any other law for the time being in force, a Gram Panchayat may decide any civil or revenue dispute arising in its local area and not pending in any court in accordance with any settlement or promise or oath agreed upon by the parties and likewise decide a case if compoundable. (2) For the removal of doubts, it is hereby declared that a Gram Panchayat shall exercise the power vested in it under subsection (1) in respect of such cases, suits or proceedings with reference to which it has power to decide." 20. (2) For the removal of doubts, it is hereby declared that a Gram Panchayat shall exercise the power vested in it under subsection (1) in respect of such cases, suits or proceedings with reference to which it has power to decide." 20. Sub-section (2) of Section 59 makes it clear that the Gram Panchayat shall exercise the powers vested in it under sub-section (1) in respect of such cases, suits or proceedings with reference to which it has power to decide. For civil disputes, the powers of the Gram Panchayat, are given under Section 41 which does not cover the| disputes regarding partition of property. 21. Therefore, this Court has no hesitation to hold that the Gram Panchayat could not pass the order dated 4.6.1997 partitioning the land even with the consent of respondent No. 3. Moreover, while passing the said order, petitioner No. 1 was not given an opportunity of hearing, as such, the said order was violative of the principles of natural justice and does not stand the scrutiny of this Court. 22. In view of the above findings, there is no substance in the submission made by the learned counsel for respondents No. 1 and 3 that it is not a fit case to exercise jurisdiction under Article 227 of the constitution of India, the law laid down in the judgements in Rena Drego (Mrs) Vs. Lal chand Soni and others, (1998) 3 Supreme Court Cases 341 and Chandra Bhushan (deceased) by LRs Vs. Beni Prasad and others, (1999) 1 Supreme Court Cases 70 cited by the learned counsel for respondents No. 1 and 3, is not applicable in the facts and circumstances of this case. The ratio of these judgments is that the High Court cannot interfere with the findings of fact arrived at by the fact finding authority upon the evidence on record in exercise of its supervisory jurisdiction under Article 227 of the constitution of India. But in the present case, as held herein above, the impugned orders are found to be without jurisdiction as well as violative of principles of natural justice, as such, these are liable to be quashed in exercise of supervisory jurisdiction under Article 227. 23. Another submission that the objection of lack of jurisdiction was required to be taken at the earliest, is also without any force. 23. Another submission that the objection of lack of jurisdiction was required to be taken at the earliest, is also without any force. It should not be forgotten that this Court is dealing with the proceedings before the Gram Panchayat where the parties are not assisted by lawyers, even then the petitioners did take this objection before the Gram Panchayat as well as the collector that in view of family settlement arrived at as far back as in. February, 1989, it was not proper for the Gram Panchayat to repartition the property, but neither the Gram Panchayat nor the collector took that into consideration. 24. The result of above discussion is that there is merit in this petition and it is allowed and the orders dated 4.6.1997 and 19.7.1997 passed by the Gram Panchayat and order dated 4.7.1998 passed by the Collector, Sub Division, Barsar, are set aside and quashed. There is no order as to costs.