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2012 DIGILAW 874 (HP)

Kameshwar Sharma v. State of H. P

2012-11-23

DHARAM CHAND CHAUDHARY

body2012
Judgment Dharam Chand Chaudhary, J. The only direction, in the nature of mandamus, sought against the respondents in this writ petition is that they should hold an emergent meeting of Gram Sabha for discussion on agenda items, pertaining to shifting of the headquarters of Gram Panchayat Dadhogi from Dadhogi to Bag-ka-Jubbar in the presence of a responsible officer and also for quashing impugned order Annexure P-12 whereby the meeting of Gram Sabha earlier fixed on 4.3.2012 for discussion on this agenda item, was cancelled. 2. However, in view of the chequered history of this case hereinbelow, it may not be appropriate for a single Bench of this Court to entertain and decide the fate of this writ petition and rather to issue a direction to the Registry to place the same before Hon’ble the Chief Justice for referring the matter to a Division Bench for adjudication of the point in issue, in accordance with law. 3. Admittedly, the State Government, vide notification No. PCH-HA(4)-12/2005 dated 20.5.2008 (Annexure R-I to the reply filed on behalf of respondents No. 1 to 4) constituted a Gram Panchayat with headquarters at Dadhogi under Development Block Kunihar, District Solan. Consequently, a piece of Government land measuring 0-6 Biswas bearing Khasra No.88/1 situated in Mouza Dadhogi, Tehsil Arki, District Solan was transferred vide mutation No.396 dated 18.11.2006 in the name of Panchayati Raj Department for construction of a Panchayat Ghar thereon. After the general elections held in the year 2005-06, Gram Panchayat Dadhogi came to be constituted under the Presidentship of the 1st petitioner. The Gram Sabha in its meetings held on 2.4.2006, 2.7.2006 and 10.7.2006 (figured in the order Annexure P-3 passed by the Principal Secretary, Panchayati Raj) had resolved to shift the headquarters of the Gram Panchayat to Baag-ka-Jubbar from Dadhogi and for construction of a Panchayat Ghar there, a piece of land measuring 2 Biswas was donated by one Smt. Amrawati of the said village. However, before any action could be taken on such resolution by the competent authority, one Smt. Vidya Sharma (5th respondent in the present writ petition) approached this Court by filing CWP No.2097 of 2008, with the following prayer: “That writ of Mandamus may be issued directing the respondent to construct the Panchayat Ghar at Dhadogi as per the Notification No. PCH-HA(4)-12/2005 dated 20th of August, 2005.” 4. In the reply filed by the respondents on the affidavit of the Deputy Commissioner, Solan (the 2nd respondent in that writ petition and 3rd respondent herein), their stand was as under: “4. That the contents of Para-4 of the petition are matter of record. It is wroth mentioning here that the construction of Panchayat Ghar at Dadogi was notified at the insistence of Panchayat vide resolution, accordingly the land was transferred in the name of Panchayat to be constructed at Dadogi. A sum of rupees 2 lacs was sanctioned for the construction of Panchayat Ghar at Dadogi. The resolution was passed by the former Gram Sabha i.e. Kotli prior to formation of new Panchayat as notified vide Government Notification PCH-HA-12/2005 dated 20.8.2005 and accordingly land and funds were provided for the construction of Panchayat Ghar at place named Dadhogi. After the formation of New Panchayat its Gram Sabha is passed its resolution dated 27.6.2007 proposed the construction of new Panchayat Ghar at place named Bag-Ka-Jubbar. The construction of Panchayat Ghar at new place even after sanction the land & the funds for the construction of Panchayat Ghar at earlier proposed place Dadhogi is a result of misunderstanding & confrontation among them. The respondent has acted in a prospective manner” 5. Learned Single Judge disposed of the writ petition vide judgment Annexure P-1, directing thereby respondent State to implement the Notification Annexure R-I, i.e. the construction of Panchayat Ghar at Dadhogi. The petitioner herein though was not party in the earlier writ petition, however, preferred a Letter Patent Appeal bearing registration No.258/2010, against the judgment Annexure P-1, which was disposed of by a Division Bench of this Court vide judgment dated 4.7.2011, Annexure P-2. Relevant portion thereof reads as follows: “Appellant submits that pursuant to issuance of the aforesaid Notification, Gram Sabha as well as Gram Panchayat have passed Resolutions shifting the Headquarters of Gram Panchayat from Dadhogi to Bag-ka-Jubbar. This aspect of the matter, according to the appellant, has not been considered by the State so far. Accordingly, as prayed for, a direction is issued to the State to take a decision on the Resolutions passed by the Gram Sabha and Gram Panchayat, which are stated to be yet pending before the appropriate authority. As agreed, parties shall appear before respondent No.2 on 18th July, 2011, who shall take a decision on or before 23rd July, 2011.” 6. As agreed, parties shall appear before respondent No.2 on 18th July, 2011, who shall take a decision on or before 23rd July, 2011.” 6. In the LPA, a Division Bench of this Court had passed interim order on 25.11.2010, which reads as follows: “Maintain status quo qua implementation of Annexure P-3 till further orders. Copy Dasti.” 7. The 1st respondent alleged violation of the interim order hereinabove in Contempt (Civil) No.160/2011, which ultimately was disposed of vide order dated 4.7.2011, which reads as follows: “Pursuant to our order dated 28th June, 2011, we have been informed that one meeting of the Panchayat has taken place at Bag-Ka-Jubbar. Consequently, no further orders are required to be passed in the present petition and the same is closed.” 8. It is seen that the contempt petition was disposed of on the impression given to this Court that the Gram Panchayat had started functioning at Bag-Ka-Jubbar, where a Panchayat Ghar is stated to be already constructed at such a stage when the 1st petitioner was Pradhan of the Gram Panchayat. 9. Pursuant to the judgment Annexure P-2, passed in the Letter Patent Appeal by this Court, the 1st respondent had passed a speaking order, leaving open the question of shifting of the headquarters of Gram Panchayat to some other location, other than Dadhogi, to be considered in terms of the provisions under Section 3(2) of the Panchayati Raj Act, at an appropriate stage, i.e. on receipt of the recommendation of the Gram Sabha in this behalf by the State Government. The relevant portion of the order Annexure P-3 is extracted herein-as-under: “ The plea of the appellant is that the Headquarter of the Gram Sabha should be shifted to Bag-Ka-Jubbar is not tenable, as the Headquarter of a Gram Sabha could be at any location as decided by the State Government as per Section 3(2) of H.P. Panchayati Act, 1994. also agree with the contention of the ld. Counsel for present Pradhan that if the appellant had any objections, then that should have been filed before the Deputy Commissioner Solan before the final notification of Gram Panchayat Dadhogi was issued on 20.08.2005. It appears that the appellant had not filed any objections at that time. also agree with the contention of the ld. Counsel for present Pradhan that if the appellant had any objections, then that should have been filed before the Deputy Commissioner Solan before the final notification of Gram Panchayat Dadhogi was issued on 20.08.2005. It appears that the appellant had not filed any objections at that time. Hence, now the shifting of Panchayat Head Quarter cannot be considered at this stage, as the Hon’ble High Court vide its judgment dated 12.08.2010 has directed that the notification dated 20.08.2005, be implemented in letter and spirit. However, if the Gram Sabha proposes for the shifting of the Headquarter at some other location other than Dadhogi, the recommendations of the Gram Sabha may be sent to the State Government to decide theh Headquarter as per Section 3(clause-2) of H.P. Panchayati Raj Act, 1994 which provides for the previous publication of the proposal for inviting objections and suggestions. Before parting with, the concerned authorities/quarters are directed to examine and consider the resolution, as per the provisions of ibid Section and forward the same to the State Government, for the decision in accordance with law.” (emphasis supplied) 10. On the other hand, the 6th respondent (petitioner in previous writ petition No.2097 of 2008) preferred contempt petition No.495 of 2011, with the prayer to initiate contempt proceedings against the respondents for violation of judgment dated 12.8.2010, passed in that writ petition, behind the back of the petitioner, who as a matter of fact, was appellant in LPA No.258/2010, disposed of vide judgment Annexure P-2. The judgment passed by this Court in the LPA was also not annexed to the contempt petition as the judgment passed in the writ petition had merged into the judgment Annexure P-2 of this Court in the Letter Patent Appeal. Contempt Petition No.495/2011 ibid, came to be disposed of vide order dated 29.12.2011, which reads as follows: “Deputy Commissioner, Solan, shall release the sanctioned amount for the construction of Panchayat Ghar at Dadhogi, Tehsil Arki, District Solan, as per Notification dated 20th August, 2005, within a week from the date of production of the copy of this judgment by the petitioner before the Deputy Commissioner, Solan. Subject to above, the COPC is disposed of.” 11. Subject to above, the COPC is disposed of.” 11. Consequently, the 3rd respondent vide impugned order dated 29.2.2012, Annexure P-12, cancelled the meeting of the Gram Sabha, which as a matter of fact, was scheduled to be held on 4.3.2012 for discussion on agenda items qua shifting of the headquarters of Gram Panchayat from Dadhogi to Baag-ka-Jubbar, pursuant to the order Annexure P-3, passed by the 1st respondent in compliance to the judgment Annexure P-2 of this Court in LPA No.258/2010. 12. Not only this, but pursuant to the order ibid passed in the contempt petition, the 4th respondent, BDO Kunihar, had also released the funds vide letter dated 3012 dated 27.1.2012 (Annexure-C to the supplementary affidavit dated 31.5.2012 filed by the 3rd respondent in this writ petition). The affidavit further reveals that the construction work of Panchayat Ghar commenced at village Dadhogi on 29.1.2012 and the construction on the day of filing of the affidavit was complete upto the laying of RCC slab by making an investment of Rs.2,19,887/-. Respondent No.6 has even annexed photographs Annexure R6/D also to the reply he filed in this writ petition. 13. Although this Court has passed interim order in this writ petition on 13.3.2012 that the construction, if any, made will be at the risk of the 6th respondent-Pardhan, yet according to the affidavit filed by the 3rd respondent the construction upto the laying of RCC slab of the building of Panchayat Ghar at Dadhogi was already complete well before the passing of the interim order by this Court. 14. The stand of respondents No.1 to 4, as emerges from the perusal of the reply filed in this writ petition, reads as follows: “3. That the contents of para-3 of petition are a matter of record. As regards contention of the petitioner as to the non suitability of present place of Panchayat Headquarter at Dadhogi, it is submitted that due to non co-ordination and vested interest of the people of Panchayat concerned, the fruitful consent and agreement of the people Panchayat regarding the Headquarter of Panchayat, has not come out. The determination of the Panchayat Headquarter has not been decided by the people of Gram Panchayat Dadhogi. The one group of the people intends the Headquarter of Panchayat at Dadhogi whereas the other group intends the same at Bag-Ka-Jubbar. The determination of the Panchayat Headquarter has not been decided by the people of Gram Panchayat Dadhogi. The one group of the people intends the Headquarter of Panchayat at Dadhogi whereas the other group intends the same at Bag-Ka-Jubbar. In vide of such circumstances the Headquarter of Gram Panchayat Dadhogi as notified vide notified dated 20.8.2005 (A copy of notification is annexed as annexure R-1), could not be changed as the same was also not objected to by the people at the time of creation of Gram Panchayat at Dadhogi. The Hon’ble High Court of H.P. vide judgment passed on 29.12.2011 in COPC No.495 of 2011, has ordered to release (copy enclosed as Annexure R-II), the grant for the construction of Panchayat Ghar at Dadhogi. Accordingly, the same has been released and an amount of Rs.2,19,887/- has been incurred on the construction work of Panchayat Ghar at Dadhogi. (A copy of expenditure is annexed as Annexure R-III). Now the petitioners have approached this Hon’ble Court with claim for the construction of Panchayat Ghar at Bag-Ka-Jubbar and to stop the construction work at Dadhogi. It is further submitted that the amount has been released in compliance to the orders of this Hon’ble court and further the construction work of Panchayat Ghar at Dadhogi has been carried out accordingly prior to the orders of this Hon’ble Court passed on 13.3.2012 in the instant petition No.1282 of 2012, filed by the petitioners. That the contents of para-6 of petition are also a matter of record. However, it is further submitted that the petitioners if aggrieved should assail first the orders of respondent No.1 and by not doing so transpires the agreement of petitioners with respect to the orders of respondent No.1 passed after inquiry and examination of the case in compliance to orders of Hon’ble High Court of H.P. passed in LPA No.258.10. Now the petitioners have filed the present petition which is based on some vested interest. However, it is further submitted that whatsoever decision of General House of Gram Panchayat in fixing the Headquarter of Gram Panchayat and the orders of this Hon’ble Court would be implemented in letter and spirit.” 15. The 5th and 6th respondents have also filed separate replies, highlighting therein that since Gram Panchayat was created with headquarters at Dadhogi, therefore, the Govt. The 5th and 6th respondents have also filed separate replies, highlighting therein that since Gram Panchayat was created with headquarters at Dadhogi, therefore, the Govt. land being available was transferred in favour of Panchayati Raj Department and the funds were also sanctioned for construction of a Panchayat Ghar thereon. The said respondents have also taken the shelter of order Annexure P-9 passed in COPC No.495/2011, as extracted ibid and urged that consequent upon the order ibid, the respondent-State has rightly released the funds and raised construction of Panchayat Ghar at Dadhogi. 16. What emerges from the reply to the writ petition filed on behalf of respondents No.1 to 4 and also from the order Annexure P-3 passed by the 1st respondent pursuant to judgment Annexure P-2 in LPA No. 258 of 2010, is that the decision to raise construction of Panchayat Ghar at Baag-ka-Jubbar could not be taken by the competent authority, because despite resolutions passed for shifting of headquarters of Gram Panchayat from Dadhogi to Baag-Ka-Jubbar in the year 2006-07, the matter was not processed nor forwarded to the State Government for taking final decision thereon in accordance with sub-Section 2(c) of Section 32 of the Panchayati Raj Act, which reads as follows: “3(2): The Government may, at the request of Gram Sabha concerned or otherwise, and after previous publication of a proposal by a notification, at any time: (a) xxxxx (b) xxxxx (c) Alter the headquarter of any Sabha area; or (d) xxxx (e) xxxx” 17. It is for the above reason, the 1st respondent had left open the question of shifting of the headquarters of Gram Panchayat to a place other than Dadhogi to be considered on receipt of the resolution of the Gram Sabha by the State Government. Pursuant to such order, the 3rd respondent had arranged to convene the general house of Gram Sabha on 4.3.2012 for discussion on the agenda item pertaining to shifting of the headquarters of the Gram Panchayat, but subsequently cancelled the said meeting vide impugned order Annexure P-12 in view of the order Annexure P9 passed by this Court in Contempt Petition (Civil) No. 495/2012. 18. As a matter of fact, the order passed in the earlier writ petition had merged in the judgment passed by the Division Bench of this Court in LPA No.258 of 2010. 18. As a matter of fact, the order passed in the earlier writ petition had merged in the judgment passed by the Division Bench of this Court in LPA No.258 of 2010. However, Contempt Petition (Civil) No.495/2011 was filed by the petitioner in the earlier writ petition for direction to initiate contempt proceedings against the respondents for violation of judgment dated 12.8.2010, Annexure P-1 and this fact was either not brought to the notice of the Court or escaped its notice at the time of disposal of COPC No.495/2011 vide order Annexure P-9. On the other hand, from the perusal of this order it is writ large that while disposing of the contempt petition vide the order ibid, a direction was issued for release of the sanctioned amount for construction of Panchayat Ghar at Dadhogi, as per notification dated 20.8.2005 (Annexure R-I to the reply filed on behalf of respondents No. 1 to 4), which leads to the only conclusion that the judgment Annexure P-1 passed by the learned Single Judge in the earlier writ petition, was ordered to be implemented and not the one passed by a Division Bench of this court in LPA No.258 of 2010. 19. This Court, as pointed out at the out set, however, is not in a position to form an opinion and comment upon the point in issue in this writ petition, because the judgment passed by this Court in LPA No.258 of 2010 and the order in Contempt Petition No.495/2011, have direct bearing and implication thereon. On one hand, Panchayat Ghar has already been constructed at Bag-Ka-Jubbar at such a stage when the 1st petitioner was Pardhan of Gram Panchayat, may be without approval of the competent authority. On the other, consequent upon the order passed by this Court in COPC No.495/2011, the building of Panchayat Ghar at Dadhogi upto laying of RCC lintel stands completed allegedly well before 13.3.2012, the day when the interim order was passed in this writ petition. 20. In such a situation, to form an opinion in the matter either way by this Bench will definitely be against all decency and judicial discipline/hierarchy. The propriety thus demands that in the peculiar facts and circumstances, discussed supra, this writ petition is heard by an appropriate Bench, however, at the pleasure of Hon’ble the Chief Justice. Ordered accordingly. 21. Registry to take necessary follow up action in the matter.