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2017 DIGILAW 1106 (HP)

Sushil Kumar v. Sham Kumar

2017-09-21

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. Under Annexure P-2, one Kamla Devi, for herself besides for her son one Sham Kumar, claimed from petitioner Susheel Kumar, also her son, a share in the rentals received by the latter from M/s Bharti Televenture Limited, in respect of the latter raising a tower upon land jointly owned and possessed by the claimants/respondents herein and by the petitioner herein. On hearing the parties at contest, the Gram Panchayat concerned proceeded, to, record an order on 21.07.2012, in respect of apposite conjoint entitlement(s) of the claimants vis-a-vis “rentals” received by the petitioner herein from M/s Bharati Televenture Limited, in respect of the towner erected upon the land comprised in khasra No.3303. 2. The learned counsel appearing for the petitioner has contended that the order pronounced by the Gram Panchayat concerned, being vitiated with a stain of, its, infracting the principle of natural justice, especially when the petitioner herein was, not, heard nor obviously was given any opportunity to project his stand before the Gram Panchayat concerned. However, the aforesaid submission is not valid, given a perusal of the relevant proceedings, held by the Gram Panchayat concerned upon the petition at hand, making a vivid disclosure, of, the petitioner herein being summoned by the Gram Panchayat concerned, whereafter, he proceeded to record his presence before the Bench of the Gram Panchayat concerned. Consequently, the order recorded on 21.07.2012 by the Gram Panchayat concerned, is, not stained with the aforesaid vice. The aforesaid order(s) was/were sustained/affirmed by the learned Civil Judge, (Sr. Division), Court No.1, Amb. The objection aforesaid reared therebefore by the petitioner herein also, stood, for valid alike herewith reasons, hence, rejected by the aforesaid. 3. The learned counsel appearing for the petitioner has alluded to the provisions occurring in Section 41, of, The Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as the Act), provisions whereof stand extracted hereinafter:- “41. The objection aforesaid reared therebefore by the petitioner herein also, stood, for valid alike herewith reasons, hence, rejected by the aforesaid. 3. The learned counsel appearing for the petitioner has alluded to the provisions occurring in Section 41, of, The Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as the Act), provisions whereof stand extracted hereinafter:- “41. Extent of jurisdiction.(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 there of; (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 subsection (3) of section 58 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (8 of 1974). (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).” wherein, there is a statutory bar against the Gram Panchayat(s) entertaining any lis, subject matter whereof exceeds to Rs.2,000/-, thereupon, he contends that with the subject matter of the lis set up by the claimants/respondents herein, before, the Gram Panchayat concerned, holding a value of more than Rs.2000/-, thereupon the order recorded thereon by the Gram Panchayat concerned, hence suffering from a vice of jurisdictional disempowerment. However, the aforesaid submission warrants rejection, as, it has been made by the learned counsel for the petitioner herein, from his gross unawareness vis-a-vis provisions occurring in Section 53 of the Act, provisions whereof stand extracted hereinafter:- “53. Institution of suits and cases.- (1) Any person may institute a case, a suit or a proceeding before a Gram Panchayat by an oral or written application to the Pradhan, or in his absence to the Up-Pradhan, of the Gram Panchayat and shall at the same time pay the prescribed fee. The Himachal Pradesh Court Fees Act, 1968(8 of 1968) shall not apply to Gram Panchayat except as may be prescribed. The Himachal Pradesh Court Fees Act, 1968(8 of 1968) shall not apply to Gram Panchayat except as may be prescribed. (2) In every suit the plaintiff shall state its value.” also is made in isolation therefrom, significantly when, therein liberty is preserved vis-a-vis the aggrieved, to, file a case or a suit or proceedings, before, the Gram Panchayat concerned either by an oral or written application addressed to the Pradhan or in his absence to the Up-Pradhan of the Gram Panchayat concerned. Since, liberty is reserved to the aggrieved, to, apart from instituting a case or a suit, to, also in the statutory manner institute proceedings before the Gram Panchayat concerned, thereupon, with the aggrieved in consonance therewith rearing a proceeding before the Gram Panchayat concerned, conspicuously also with apparently, the proceedings comprised in Annexure P-2, not, tantamounting to institution of a suit or rearing of a case by the aggrieved, thereupon, the bar engrafted in Section 41 of the Act is rendered not attracted vis-a-vis, it, especially when the mandate thereof, covers, only a suit instituted by the aggrieved before the Gram Panchayat concerned, whereas, it excludes proceedings alike the one reared by the claimants. Since, as aforetstated, the aggrieved constituted proceeding or a case before the Gram Panchayat concerned, whereas they did not rear a suit therebefore, thereupon, the bar enshrined in Section 41 of the Act, is, squarely not attracted qua the proceedings instituted by the aggrieved. 4. The learned counsel appearing for the petitioner has also contended that the bar of limitation enshrined in Section 46 of the Act, provisions whereof stand extracted hereinafter:- “46. Limitation.-Every suit instituted before a Gram Panchayat after the period of limitation prescribed therefor in Schedule-IV shall be dismissed, even though limitation has not been set up as a defence: Provided that in computing the period of limitation prescribed for any suit the time during which the plaintiff has prosecuted with due diligence the suit against the defendant in any court shall be excluded where such suit is founded upon the same cause of action and was prosecuted in good faith in a court which from defect of jurisdiction or any cause of like nature was unable to entertain it.” was attracted vis-a-vis the suit reared by the aggrieved, before the Gram Panchayat concerned. Again the aforesaid submission of the learned counsel appearing for the petitioner, is fallacious given its being founded upon the counsel for the petitioner misconstruing qua the aggrieved instituting a suit before the Gram Panchayat concerned. A first glance at the provisions of Section 46 of the Act per se make(s) a visible display of their mandate being attracted vis-a-vis suit(s), whereas, with the aggrieved rearing a proceeding or a case before the Gram Panchayat concerned hence, with both being “not a suit” within the ambit of Section 46 of the Act, thereupon, the period of limitation prescribed under Article -2, of Schedule -IV, appended to the “Act” is rendered not attracted vis-a-vis the proceedings initiated by the aggrieved against the petitioner herein. 5. For the foregoing reasons, there is no merit in the instant petition and it is dismissed accordingly. In sequel, the impugned orders are maintained and affirmed. No order as to costs. All pending applications also stand disposed of.