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2023 DIGILAW 516 (HP)

Jairam Mehta v. State of H. P.

2023-12-13

AJAY MOHAN GOEL

body2023
JUDGMENT : (Ajay Mohan Goel, J.) Petitioners, who are the residents of Gram Panchayat Tikkar, Tehsil Theog, District Shimla, have filed this writ petition primarily praying for the following reliefs:- “(A) To issue writ of mandamus or the direction in the nature thereof to direct the respondent authorities to raise construction of the Panchayat Ghar of newly constituted Panchayat Charain-Tikkar at place Khagna which is decided by the Government vide Annexure P-1 and restrain respondent No.4 and 5 from raising the construction of Panchayat Ghar at Jhamar. (B) To direct the respondent No.3 to take appropriate action against all concerned for doing illegal construction of road over Forest Land.” 2. Learned Senior Counsel for the petitioners has submitted that in terms of Annexure P-1, which is notification dated 23.09.2020, the Headquarter of the newly constituted Gram Sabha Ghoond Tikkar was fixed at Khagna. However, without this notification having been rescinded or any fresh notification having been issued in terms of the provisions of Section 3 of the Panchayati Raj Act, 1994, the respondents-State at the behest of respondents No.4 and 5 unilaterally changed the Headquarter of Gram Panchayat Charain-Tikkar from Khagna to village Jhamhar, which was bad in law. 3. When this case was listed before this Court on 11.12.2023, the following order was passed:- “On the request of learned Additional Advocate General, list on 13.12.2023, to enable him to have instructions.” 4. Today learned Additional Advocate General has handed over a copy of instructions imparted to the office of learned Advocate General by the office of the Additional Director (PR) Himachal Pradesh, Shimla-9, dated 12.12.2023, which instructions are ordered to be taken on record. On the strength of these instructions, learned Additional Advocate General has informed the Court that vide final notification dated 23.09.2020 (Annexure P-1), the Headquarter of Gram Panchayat Charain-Tikkar was fixed at Khagna and the Government has not issued any other notification to change the Headquarter of Gram Panchayat Charain-Tikkar. He further apprised the Court on the basis of the instructions that a representation has been received from Gram Panchayat Charain Tikkar regarding objection for construction of Panchayat Ghar in Gram Panchayat Charain Tikkar. Vide letter dated 10.11.2023, the same was forwarded to Block Development Officer Theog, District Shimla, H.P., with the request to inquire into the matter and send detailed inquiry report so that requisite action could be taken. 5. Vide letter dated 10.11.2023, the same was forwarded to Block Development Officer Theog, District Shimla, H.P., with the request to inquire into the matter and send detailed inquiry report so that requisite action could be taken. 5. Learned counsel for respondents No.4 and 5 have submitted that the reason as to why the construction of the Panchayat Ghar has been started at village Jhamhar is on account of the non-availability of land in Khagna. 6. This is seriously disputed by the learned Senior Counsel for the petitioners. 7. Be that as it may, it is not in dispute that in terms of notification dated 23.09.2020, the Headquarter of Gram Panchayat Ghoond Tikkar was fixed at Charain Tikkar. Section 3 of the Himachal Pradesh Panchayati Raj Act, 1994 deals with declaration of Sabha area wherein inter alia it is provided that in a Scheduled area the government may by order declare any village or group of contiguous villages with a population of less than one thousand to constitute a Sabha area for the purpose of the Act and also specify its Headquarter, Sub-section (2) thereof provides that the Government may, at the request of the Gram Sabha concerned or otherwise, and after previous publication of a proposal by a notification, at any time, inter alia, alter the headquarter of any Gram Sabha. As per the H.P., General Clauses Act, 1968, previous publication has been dealt with under Section 22 thereof and the same reads as under:- “22. As per the H.P., General Clauses Act, 1968, previous publication has been dealt with under Section 22 thereof and the same reads as under:- “22. Provisions applicable to making of rules or bye-laws after previous publication.- Where, by any Himachal Pradesh Act, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then, unless such Act otherwise provides, the following provisions shall apply, namely:- (1) the authority having power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye -laws for the information of persons likely to be affected thereby; (2) the publication shall be made in such manner as that authority deems to be sufficient, or, if the conditions with respect to previous publication so requires, in such manner as the Government[* * *] prescribes; (3) there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration; (4) the authority having power to make the rules or bye-laws, and, where the rules or bye-laws are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the rules or bye-laws from any person with respect to the draft before the date so specified; (5) The publication in the Official Gazette of a rule or bye-law purporting to have been made in the exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made.” 8. In the present case, admittedly, after the issuance of notification dated 23.09.2020, in terms whereof, the Headquarter of Gram Panchayat Ghoond Tikkar was fixed at Khagna, no notification has been issued by the Government in consonance with the provisions of Section 3(2) (c) of the Himachal Pradesh Panchayati Raj Act, 1994. 9. In this background, but, obvious, the Headquarter of the Gram Panchayat Tikkar as has been fixed in terms of notification dated 23.09.2020 cannot be altered. 10. 9. In this background, but, obvious, the Headquarter of the Gram Panchayat Tikkar as has been fixed in terms of notification dated 23.09.2020 cannot be altered. 10. Accordingly, this writ petition is disposed of with the direction that the construction work of Panchayat Ghar of Gram Panchayat shall not be carried out at any other place except the Headquarter already fixed until and unless the Headquarter of Gram Panchayat Tikkar is altered in accordance with law. 11. With these observations, this writ petition is disposed of, so also the pending miscellaneous application(s), if any.