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2018 DIGILAW 40 (HP)

Gram Panchayat, Thunag v. State Of H. P.

2018-01-04

SANDEEP SHARMA, SANJAY KAROL

body2018
JUDGMENT Sanjay Karol, C. J. - Gram Panchayat, Thunag, District Mandi, Himachal Pradesh, through its Pradhan and duly authorized representative, has filed the instant petition, inter alia, praying for the following reliefs: "i) To call for the record of the case pertaining to the decision taken with respect to the Advertisements (Annexures P-1 and P6) and after seeing the same to quash and set aside the decision taken for establishing the office of Sub-Divisional Magistrate-cumSub-Divisional Officer (Civil) at Tehsil Thunag. ii) To direct the respondents to consider the representation of the various Panchayats and its locality (Annexure P-5/A to Annexure P-5/X) and the Resolution of the Zila Parishad (Annexure P-5/Y) as also the representation of the Vayapar Mandal (Annexure P-5/ZZ) and after giving personal hearing to take decision accordingly for the establishment of the office of the Sub-Divisional Magistrate-cumSub-Divisional Officer (Civil) at Janjehli instead of Tehsil Thuna. iii) to quash the notifications (Annexures P9 and P-10), which have been issued by the respondents without recourse of procedure and without giving personal hearing to the affected general public and being contrary to the representations and the Resolutions of the various Gram Panchayats, Zila Parishads and Vyapar Mandal. " 2. Annexures P-1 to P-6 are simply newspaper reports and notices. We need not elaborate the same, for they directly relate to the notifications (Annexure P-9 & P-10). 3. Annexures P-5/A to P-5/ZZ are representations and resolutions of various bodies, including Panchayati Raj Institutions. 4. Annexure P-9 is the Notification dated 27. 6. 2016, issued by the Chief Secretary to the Government of Himachal Pradesh, whereby a new Sub Division (Civil), known as "Janjehli" is created by reorganizing certain areas of Tehsil Thunag and Tehsil Bali Chowki. Annexure P-10, dated 21. 4. 2016, is the Notification, creating Sub-Tehsil at Chhatri. In effect, this Court is called upon to adjudicate the action of the State in issuing Annexures P-9 and P-10. 5. Annexure P-10, dated 21. 4. 2016, is the Notification, creating Sub-Tehsil at Chhatri. In effect, this Court is called upon to adjudicate the action of the State in issuing Annexures P-9 and P-10. 5. At this point in time, it be only observed that earlier attempt of the State, in taking the aforesaid action, was assailed before the Court, which petition being CWP No. 1272 of 2016, titled as Gram Panchayat Thunag v. State of H. P. & others, was disposed of in the following terms, for at that point in time, the Court was assured that no notification stands issued, with regard to the opening of Office of Sub Divisional Officer (Civil) at Janjehli and that question of unilateral decision to open the office does not arise at all: "2. The petitioners have sought the following main reliefs on the grounds taken in the memo of the writ petition: "(i) To call for the record of the case pertaining to the decision taken with respect to the Advertisements (Annexures P Annexures P Annexures P-1 and P 1 and P 1 and P-7) and after seeing the same to quash and set aside the decision taken for establishing the office of SubDivisional Magistrate-cum-SubDivisional Officer (Civil) at Janjehli instead of Tehsil Thunag. (ii) To direct the respondents to consider the representation of the various Panchayats and its locality (Annexure P Annexure P Annexure P6/A to Annexure P 6/A to Annexure P 6/A to Annexure P-6/X) and the Resolution of the Zila Parishad (Annexure P Annexure P Annexure P6/Y) as also the representation of the Vayapar Mandal (Annexure P Annexure P Annexure P6/zz) and after giving personal hearing to take decision accordingly for the establishment of the office of the Sub-Divisional Magistrate-cumSubDivisional Officer (Civil) at Tehsil Thunag instead of Janjehli. " 3. Respondents No. 1 to 3 have filed reply. It is apt to reproduce paras 3 & 6 of the reply herein: "3. In reply to Para No. 3 of the civil writ petition it is submitted that while opening new Govt. Offices at any place all aspects are being kept in mind and no unilateral decision or proposals are being taken. However, it is submitted that no notification has been issued by the Govt. about the functioning of Sub Divisional Office (C) at Janjehli, so far. 4 & 5. 6. That the contents of Para No. 6 are not admitted. Offices at any place all aspects are being kept in mind and no unilateral decision or proposals are being taken. However, it is submitted that no notification has been issued by the Govt. about the functioning of Sub Divisional Office (C) at Janjehli, so far. 4 & 5. 6. That the contents of Para No. 6 are not admitted. In this context it is submitted that no notification has been passed by the Himachal Pradesh Govt. so far regarding opening of new SDM cum SDO (C) office at Thunag or Janjehli. So the question of unilateral decision to open this office does not arise at all. " 4. Keeping in view the reply filed by respondents No. 1 to 3, this writ petition does not survive. The same is disposed of accordingly alongwith pending applications, if any. " 6. It is in this backdrop, we now proceed to examine the issue raised before us. 7. Certain facts are not in dispute. Tehsil Thunag comprises of 19 Patwar Circles, having population of approximately 30000 people. Janjehli is just at a distance of 14 kms from Thunag. Since the very beginning, residents of Tehsil Thunag had been resisting creation of Sub Division at Janjehli and opening of Sub Tehsil at Chhatri. In fact, all the Panchayats, falling within Tehsil Thunag, had been passing resolutions since the year 2016, asking the Government not to go ahead with the proposal, if any. 8. From the response-affidavit dated 26. 10. 2017 that of the Deputy Commissioner, Mandi, all these facts are abundantly clear. 9. From the petition, it is also evident, which fact is not disputed by the State, that at Thunag there are several offices and space is available for future expansion and development. Geographically, it is Thunag which is central and caters to the larger section of the people. 10. It be only observed that breaking up of Thunag as a Gram Panchayat and creating a separate Sub Division at Janjehli, has in fact aggravated the problem and agony of the residents of the area. 11. This Court is not oblivious of the fact that decision to create a Sub Division and place headquarters at a particular place is the sole prerogative of the State, but then such actions have to be based on sound principles of law. There has to be rationality and logic in the same. 11. This Court is not oblivious of the fact that decision to create a Sub Division and place headquarters at a particular place is the sole prerogative of the State, but then such actions have to be based on sound principles of law. There has to be rationality and logic in the same. Also such decision ought to be based on some objective material. 12. One finds that not only the assurance meted out to this Court that no decision on unilateral basis shall be taken by the State, stands breached, but apart from the fact that principles of natural justice stand not complied with, inasmuch as views of the local people were not even considered, to the contrary one finds the record to be conspicuously absent, explaining the public interest involved in taking such action. 13. What is that "public interest" remains shrouded with mystery. Record is not reflective of the same. It may be in the memory of the decision maker, but then, in law, one cannot trace it to the same, for it is the record which must speak and not the person. Resolutions of the Gram Panchayats have not been considered, muchless responded to. There is no application of mind and the decision, it appears has been taken in hot haste, only to achieve certain oblique ends, as alleged by the petitioner. Consciously, we are not dwelling on the political consideration being one of them. However, we are concerned that even otherwise the democratic Will and voice of the people stands ignored and not considered, apart from the fact that the decision is totally illogical and arbitrary. 14. Newly created Sub Division at Janjehli, with its headquarters at the same place, now comprises of 14 Patwar Circles of Tehsil Thunag. What is the justification for doing the same, and that too, when Janjehli is just at a distance of 14 kms from Thunag, remains undisclosed. Most of the population is towards Thunag. Geographically, Thunag is well connected. Even climatically, it is Thunag which is best suited, for during winters Janjehli, quite often, is covered by snow, making things difficult from the viewpoint of administration. 15. Public action has to be exercised in good faith. It cannot be based on extraneous factors and considerations. Arbitrariness cannot be allowed to prevail. It should not be dependent upon whims and caprice of an individual. 16. 15. Public action has to be exercised in good faith. It cannot be based on extraneous factors and considerations. Arbitrariness cannot be allowed to prevail. It should not be dependent upon whims and caprice of an individual. 16. In view of the peculiar facts and circumstances, we are inclined to interfere in the present writ petition and, as such, quash Notification (Annexure P-9), dated 27. 6. 2017, regarding creation of Sub Division at Janjehli, District Mandi, Himachal Pradesh; and Notification (Annexure P-10) dated 21. 4. 2016, regarding creation of new Sub Tehsil at Chhatri, District Mandi, Himchal Pradesh, both issued by the Chief Secretary to the Government of Himachal Pradesh. Present writ petition stands allowed. Pending application(s), if any, stand disposed of.