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2018 DIGILAW 1724 (HP)

Surinder Singh v. State of H. P.

2018-09-25

AJAY MOHAN GOEL, TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. This is second round of litigation between the parties. The petitioner had earlier filed CWP No.368 of 2012, which was disposed of by this Court vide its judgment dated 12.10.2015, which reads as under: “The petitioner, by the medium of this writ petition, has sought a writ of mandamus commanding the Gram Panchayat to stop the construction of path in middle of the play ground of the school and any construction raised may be demolished and also the inquiry be conducted for misusing the public money, on the grounds taken in the writ petition. 2. It is moot question whether the writ petitioner has any interest; however, we treat this writ petition in the public interest. Thus, we deem it proper not to discuss and decide the rights and interest of the petitioner in this writ petition. 3. The respondents have filed the reply and have explained their position. Vide order dated 4.4.2012 the Executive Chairman, District Legal Services Authority, Una was asked to visit the spot and has submitted his report. While going through the report and pleadings of the parties we deem it proper to direct the Deputy Commissioner, Una to examine the matter afresh, hear the parties and pass appropriate orders and submit compliance report within six weeks from today before the Registrar (Judicial). Ordered accordingly. 4. Accordingly, the petition stands disposed of, as indicated hereinabove, alongwith pending applications, if any. Copy dasti.” 2. It would be noticed from the aforesaid that even though the petition at the instance of the present petitioner was held to be not maintainable, yet the writ petition was treated in public interest and accordingly the aforesaid directions came to be passed. 3. The dispute relates to a path which according to the petitioner has been constructed in the middle of the playground of Govt. Middle School, Bhaira and, therefore, it should have been directed to be removed. But the petitioner has not disclosed that the path so constructed was with the consent of the Gram Sabha of which the petitioner was the Up Pradhan and was present when such decision was taken by the Gram Sabha. Thus, we have no hesitation to conclude that the petition has been filed with oblique motive and therefore, is gross abuse of the Court. 4. Thus, we have no hesitation to conclude that the petition has been filed with oblique motive and therefore, is gross abuse of the Court. 4. In addition thereto, we find that the spot in question was inspected by the Additional District Magistrate, Una, who submitted his report to the Deputy Commissioner and the same reads thus: “No. 805/ST/ADM Dated:15.03.16. To The Deputy Commissioner, Una, District Una, H.P. Subject: Spot inspection report regarding CWP No.268/2012 Sh. Surinder Singh V/S State of H.P. and others (in the matter of construction of path in the middle of Ground of Govt. Middle School, Bhaira). Sir, Reference is made to your office letter No.218/Reader/DC dated 1.3.2016 on the subject cited above. As per instructions, I visited the spot alongwith all concerned on 10.03.2016. List of participants in the presence of whom the spot inspection was made is enclosed at Annexure ‘A’. Revenue record was inspected from the Patwari, Government Middle School, Bhaira as shown in photographs at Annexure’ B’ exists in Khasra No. 3810 & 3813. School grounds exists partially in Khasra No. 3810 & 3813 in the ownership of Education Department and larger portion of this school ground exists in Khasra No. 3810 owned by the Govt. of H.P.” Tabe Hakook Bartandaran”. At the edge of the school ground is a pucca path about 10 feet vide leading to residential houses beyond the school. As per the proceeding book of Gram Sabha Bhaira vide Resolution No.01 dated 16.01.2008, it was decided by the Gram Sabha to construct a path through the area near school ground boundary. This path lies in Khasra No. 3820 owned by Govt. of H.P. “Tabe Hakook Bartandaran” as such the Gram Sabha was competent to decide the usage of the land in question. As is seen in photographs at Annexure “C” and “D” the path does not run through the ground but is at the edge of the ground. The situation on the spot, however, shows that had the path not been constructed, the larger area for the playfield would be available. Apart from the school staff and the Panchayati Raj functionaries, a large number of villagers had gathered at the spot. Except for a few people, others were pressing that the path should remain where it is and the school ground is sufficient for the school children. Apart from the school staff and the Panchayati Raj functionaries, a large number of villagers had gathered at the spot. Except for a few people, others were pressing that the path should remain where it is and the school ground is sufficient for the school children. The school staff agreed that most of the school ground was not owned by the Education Department but they requested that a boundary wall separating the path from the ground should be erected for the safety of the students. Sh. Surinder Singh told that there is an alternative path for the houses connected with the impugned path. I inspected this alternative path also. This path starts from the road at a distance of about 500 meters and leads to the village. There is a gap of about 200 meters between the place where the alternative path ends and the houses that are connected with the path passing from the edge of the school ground. This 200 meters gap is a private land. The alternative path does not serve those houses which are connected with the school path. To conclude, the path constructed by the Panchayat from the school ground side, has been constructed with the approval of the Gram Sabha and serve the purpose for which it was constructed. However, had the path not been constructed, a larger area would have been available for the school children as a play ground. Most of the land of the school ground and entire land of impugned path is owned by the Government of H.P. ‘Tabe Hakook Bartandaran” and it is not on the name of Education Department. Construction of boundary wall alone the path, can ensure safety to the students and can avoid possible encroachments in future. A representation of the school management committee received on 13.03.2016 is also enclosed please. Yours faithfully. Sd/- Additional District Magistrate, Una, District Una, H.P.” 5. Based upon the aforesaid report, the Deputy Commissioner, in compliance to the orders passed by this Court on 12.10.2015, directed the School Management Committee, Govt. Middle School, Bhaira and Deputy Director Elementary Education, Una to construct a boundary wall along the path. 6. Yours faithfully. Sd/- Additional District Magistrate, Una, District Una, H.P.” 5. Based upon the aforesaid report, the Deputy Commissioner, in compliance to the orders passed by this Court on 12.10.2015, directed the School Management Committee, Govt. Middle School, Bhaira and Deputy Director Elementary Education, Una to construct a boundary wall along the path. 6. Yet, inspite of these directions, the petitioner has filed the instant petition only on the ground that on earlier occasion, this Court had called for the report of the Executive Chairman of the District Legal Services Authority, Una and the same has not been taken into consideration by the Deputy Commissioner while passing the impugned order. 7. However, we really do not find any merit in such contention for the simple reason that this Court after going through the report and pleadings of the parties, had thought it proper to direct the Deputy Commissioner, Una to examine the matter, that too, after hearing the parties and thereafter pass appropriate orders and no where it held that the report submitted by the Chairman, would be taken into consideration or shall form the basis of the decision and shall be binding on the Deputy Commissioner. 8. In addition thereto, it has categorically been found in the spot inspection report that the path in question does not run through the ground, but is at the edge of the ground and in absence of anything to suggest to the contrary, we have no option but to accept this position. 9. Lastly and most importantly, we are of the firm view that the petitioner as Up Pradhan being a privy to the decision of Gram Sabha wherein it decided to construct the path in question cannot turn around and question the same. For it is well settled that the decision in a democratic institutions are taken by majority, therefore, even if it is assumed that the petitioner was not privy to the decision and had not consented to the same, even then his dissenting opinion cannot furnish him a cause of action to approach this Court or else encouraging this type of litigation would amount to unnecessarily interfering with the majority decision taken by these institutions unless and until the decision so taken is per se contrary to law or opposed to public policy etc. which is not the fact situation obtaining in the instant case. 10. which is not the fact situation obtaining in the instant case. 10. The trite saying that “democracy is for the people, of the people and by the people” has to be remembered for ever. In a democratic republic, it is the will of the people that is paramount and becomes the basis of the authority of all democratic institutions like Gram Sabha, Municipal Corporation, Municipal Council, Nagar Parishad etc. and therefore, no office bearer of these institutions can assail the decision of such bodies except on the grounds mentioned above or that too would amount to permitting the person to do indirectly what he could not do directly on the floor of the house before these institutions. In addition thereto, it would otherwise be a clear case of conflict of interest and duties. 11. For the reasons stated above, we find no merit in this petition and the same is accordingly dismissed, so also the pending applications if any.