Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 1786 (HP)

Desh Raj v. Rattan Chand

2015-12-04

P.S.RANA

body2015
ORDER : 1. Heard. Present petition is filed under Article 227 of the Constitution of India for quashing and setting aside the order dated 31.10.2013 passed by learned Sub Divisional Officer (Civil) Nadaun District Hamirpur Himachal Pradesh in Case No. 3 of 2011 titled Rattan Chand vs. Desh Raj. It is observed by Court that appeal was filed against the order of Gram Panchayat under Panchayati Raj Act 1994 under Section 12(3) of Act before SDO Nadaun District Hamirpur Himachal Pradesh. The order of the Panchayat was dated 23.7.2011 relating to public nuisance under Section 12 of Act and appeal was filed on 3.10.2011 under Section 12(3) of Himachal Pradesh Panchayati Raj Act 1994. As per Section 12(3) Panchayati Raj Act 1994 appeal against the order of Panchayat passed under Section 12 of Act should be filed within 30 days from the date of order before SDO relating to public nuisance matters in Panchayat. Appeal was not filed within 30 days before the learned SDO and application under Section 5 of the Limitation Act was filed before the learned SDO Nadaun District Hamirpur Himachal Pradesh. Learned SDO without disposing of application filed under Section 5 of the Limitation Act decided appeal No. 3 of 2011 on merits and remanded back the case to Panchayat. It is well settled law that main appeal cannot be decided on merits until application filed under Section 5 of the Limitation Act is not disposed of in accordance with law. In view of above stated facts following order passed:- (i) Order of learned Sub Divisional Officer dated 31.10.2013 passed in appeal No. 3 of 2011 titled Rattan Chand vs. Desh Raj is set aside and case is remanded back to learned Sub Divisional Officer Nadaun District Hamirpur Himachal Pradesh with direction to dispose of application filed under Section 5 of the Limitation Act firstly in accordance with law placed on record and if application filed under Section 5 of the Limitation Act is allowed by the SDO thereafter Sub Divisional Officer will decide the appeal on merits in accordance with law under Section 12(3) of Himachal Pradesh, Panchayati Raj Act 1994. (ii) Learned Sub Divisional Officer (Civil) Nadaun District Hamirpur Himachal Pradesh is directed to dispose of the matter within two months after receipt of file. (iii) Parties are directed to appear before the Sub Divisional Officer (Civil) Nadaun District Hamirpur Himachal Pradesh on 4.1.2016. (ii) Learned Sub Divisional Officer (Civil) Nadaun District Hamirpur Himachal Pradesh is directed to dispose of the matter within two months after receipt of file. (iii) Parties are directed to appear before the Sub Divisional Officer (Civil) Nadaun District Hamirpur Himachal Pradesh on 4.1.2016. File of learned Sub divisional Officer Naduan District Hamirpur Himachal Pradesh and Panchayant concerned be sent back forthwith along with certified copy of this order. 2. CMPMO No. 131 of 2014 is disposed of accordingly. No order as to costs. Pending applications if any also disposed of.