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2019 DIGILAW 1778 (HP)

Parvinder Singh v. Swai Ram

2019-11-25

AJAY MOHAN GOEL

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JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this petition filed under Article 227 of the Constitution of India, the petitioner has, inter alia, prayed for the following relief: “It is, therefore, respectfully prayed that this petition may be allowed and order dated 29.05.2018, passed by the learned Judicial Magistrate 1st Class, Court No. II, Amb, District Una, Himachal Pradesh in Panchayat Appeal No. 4-XX/2015, titled as Parvinder Singh Vs. Swai Ram, whereby orders dated 21.5.2015 and 25.7.2015 passed by Gram Panchayat, Ghanari, Tehsil Amb, District Una, Himachal Pradesh and a fine of Rs.25/- has been imposed upon the petitioner may be quashed and set aside and petitioner be acquitted of the offence alleged against him.” 2. For the purpose of adjudication of the present petition, this Court had requisitioned the record of the Panchayat Appeal, i.e., Panchayat Appeal No. 4-XX/2015. 3. Brief facts necessary for the adjudication of present petition are that a Complaint was filed by respondent-Swai Ram against the petitioner alleging therein that the petitioner had constructed an “Atli” on the back side of his house, purportedly on the land of the complainant, as a result of which, free flow of the water through “Gali” was disrupted and the water had entered into the property of the complainant, causing damage to the same. The prayer made was for taking appropriate action against the petitioner. Thereafter, the site was visited by the members of the Gram Panchayat on 23rd March, 2015 in the presence of the parties after issuance and service of a proper notice upon the petitioner. The Gram Panchayat, after visiting the spot, came to the conclusion that the petitioner had wrongly disrupted the flow of the water, as a result of which, water had entered into the house of the respondent causing dampness in the same. This was followed by a direction by the Panchayat to the petitioner to remove the “Atli”. As the same was not done, the Gram Panchayat passed an order on 25.07.2015 (Annexure P-2), in which, it was mentioned that as the petitioner had not informed the Gram Panchayat with regard to the compliance of the order passed by it qua removal of “Atli”, therefore, the petitioner was fined Rs.25/- and Rs.1/- thereafter per day till the order was not complied with by the petitioner. 4. 4. Feeling aggrieved, the petitioner filed an appeal against the Orders dated 21.05.2015 and 25.07.2015 in the Court of learned Judicial Magistrate, 1st Class, Court No. 2, Amb, District Una, H.P. under Section 67 of the Himachal Pradesh Panchayati Raj Act, 1994. Vide order dated 29.05.2018, this appeal stands dismissed by the learned Appellate Court. 5. Feeling aggrieved, the petitioner has filed this petition. 6. Learned counsel for the petitioner has argued that the order which has been passed by the learned Appellate Court is not sustainable in the eyes of law, as learned Appellate Court erred in not appreciating that the orders passed by the Gram Panchayat were voidabinitio as the same stood passed by the Gram Panchayat ignoring the fact that it had no jurisdiction to adjudicate a suit wherein there was a dispute of boundaries. No other point was urged. 7. On the other hand, learned counsel for the respondent has argued that there was no perversity with the orders passed either by the learned Appellate Authority or the Gram Panchayat, because the Complaint was filed by the complainant before the Gram Panchayat in terms of the provisions of the Himachal Pradesh Panchayati Raj Act, which have to be read harmoniously with the Schedule appended thereto and no suit as alleged by the petitioner was filed before the Gram Panchayat. He further argued that the issue which has been raised by the learned counsel for the petitioner before this Court was neither a ground in appeal nor any such objection at any stage was taken before the Gram Panchayat and therefore also, the present petition deserves dismissal, as the petitioner cannot be permitted to rake up a new issue before this Court and challenge the orders passed by the Gram Panchayat or the Appellate Authority on the grounds which were never agitated before them. 8. I have heard learned counsel for the parties and have also gone through the impugned orders as well as record of the case. 9. Record demonstrates that orders were passed by the Gram Panchayat on a complaint which was filed by the respondent before it. The complaint was to the effect that on account of construction of an “Atli” at the back side of his house, the petitioner had interfered with the free flow of water which had caused damage to the property of the respondent. The complaint was to the effect that on account of construction of an “Atli” at the back side of his house, the petitioner had interfered with the free flow of water which had caused damage to the property of the respondent. After issuance of notice by the Gram Panchayat to the petitioner, the spot was inspected by the Gram Panchayat and the allegations were found to be correct. Thereafter directions were passed by the Gram Panchayat to the petitioner to dismantle the “Atli”. This order was neither assailed nor complied with by the petitioner. In this background, Gram Panchayat imposed fine upon the petitioner in terms of Section 33 of the Himachal Pradesh Panchayati Raj Act, 2012. Thereafter, the petitioner filed an appeal before the Appellate Authority envisaged under the Act challenging the action of the Gram Panchayat, inter alia, on the following three grounds: A. Violation of the principles of natural justice; B. Imposition of fine was illegal as no provision of law stood mentioned in the order; and C. There was no direction ever passed by the Gram Panchayat for removal of the Atli. All these points were negated by the learned Appellate Court. Learned Appellate Court, on the basis of the record, held that after receipt of the complaint, firstly, a Notice was issued to the petitioner on 19.03.2015, which was duly received by him. Thereafter, both the parties appeared before the Bench of Gram Panchayat on 23.03.2015. On the said date, it was decided that the Bench would visit the spot. Thereafter, the Bench visited the spot in the presence of the parties on 23.03.2015. Thereafter, when the matter was taken up by the Panchayat on 06.04.2015, petitioner did not appear and the matter was listed for hearing on 21.04.2015. Thereafter, the matter was taken up on 12.05.2015 and 21.05.2015 and after hearing the petitioner, the Bench decided the matter in favour of the complainant. On these basis, learned Appellate Court held that the contention of the appellant before it that he was condemned unheard was incorrect. During the course of arguments before this Court, it could not be pointed out on behalf of the petitioner that the findings which stand returned by the learned Appellate Authority to this effect are perverse and not borne out from the record. 10. During the course of arguments before this Court, it could not be pointed out on behalf of the petitioner that the findings which stand returned by the learned Appellate Authority to this effect are perverse and not borne out from the record. 10. With regard to the contention of the petitioner that imposition of fine by the Gram Panchayat was bad as there was no provision of law permitting the Gram Panchayat to do so, learned counsel Appellate Court has referred to Section 33 of the Himachal Pradesh Panchayati Raj Act, 2012, which provides as under: “33. Penalties.- A Gram Panchayat may impose a fine not exceeding one hundred rupees but shall not inflict a sentence of imprisonment either substantive or in default of payment of fine.” On the basis thereof, learned Appellate Court held that the imposition of fine by the Gram Panchayat was within its domain. While dealing with the last contention of the petitioner that there was no direction passed by the Gram Panchayat for removal of “Atli”, learned Appellate Court with reference to the record of the case, held that there was indeed a direction passed by the Gram Panchayat against the petitioner for removal of the “Atli”, which was not complied with by him. During the course of arguments before this Court, it could not be demonstrated by the petitioner that the findings which were returned by the learned Appellate Court with regard to the second and third contentions raised before it by the petitioner are perverse and not borne out from the record of the case. A perusal of the record demonstrates that at no stage any plea was raised by the petitioner either before the Gram Panchayat or before the Appellate Authority that the grievance which stood raised by the complainant before the Gram Panchayat was beyond the jurisdiction, as grievance raised was a boundary dispute. Therefore, this Court concurs with the submissions made by the learned counsel for the respondent that this is a new plea, which was neither raised before the Gram Panchayat nor the Appellate Authority and, therefore, the petitioner cannot be permitted to raise this plea before this Court. Therefore, this Court concurs with the submissions made by the learned counsel for the respondent that this is a new plea, which was neither raised before the Gram Panchayat nor the Appellate Authority and, therefore, the petitioner cannot be permitted to raise this plea before this Court. De hors this fact, a perusal of the record further demonstrates that the complainant had not filed any suit as is envisaged in Section 41 of the Gram Panchayat Act and the issues which he had raised by way of complaint were well within the jurisdiction of the Gram Panchayat as is borne out from Schedule-III of the Statute, which makes offences mentioned therein cognizable by a Gram Panchayat and these offences include negligently doing an act dangerous to human life and committing a public nuisance etc. The act of the petitioner of constructing an “Atli” which has caused damage and danger to the property of the respondent amounts to committing a public nuisance and therefore also, the Panchayat was well within its domain and jurisdiction to have had passed appropriate orders on the complaint so filed by the respondent. 11. In view of the observations made hereinabove, as this Court finds no merit in the present petition, the same is dismissed, so also pending miscellaneous applications, if any. No order as to costs.