Gram Panchayat, Dhaniri vs State Of H.P. & Ors

Jyotsna Rewal Dua, J

Challenge in this petition is to an order dated 04.09.2024 passed by the Divisional Commissioner, Kangra, allowing an appeal preferred by respondent No.6-Vijay Kumar under Section 148 of the Himachal Pradesh Panchayati Raj Act, 1994 (for short ‘the Act’). In terms of the aforesaid order, an order passed by Deputy Commissioner, Kangra on 15.03.2024, was set aside and the case was remanded back to the Deputy Commissioner, Kangra, with direction to carry out fresh proceedings in accordance with law and to pass a reasoned order within 45 days after conducting  an  inquiry  and  affording  due  opportunity  of hearing to all the parties.

Facts.

2(i). Respondent No.6 is the Up Pardhan, Gram Panchayat Dhaniri, Tehsil Jaisinghpur, District Kangra. The Gram Panchayat passed resolution No.4 on 22.12.2023 resolving removal of respondent No.6 from the post, primarily citing the reason of his not attending the meetings of Gram Panchayat for past about an year. The Block Development Officer, Lambagaon, District Kangra, forwarded this resolution on 02.01.2024 to the District Panchayat Officer, Kangra.

2(ii). The Deputy Commissioner, Kangra-respondent No.3, on 16.01.2024 issued notice under Section 131(2) of the Act to respondent No.6 that he had not replied to four notices issued to him by the Gram Panchayat in respect of his remaining absent from proceedings of the Gram Panchayat w.e.f. 01.01.2023 to 31.12.2023; That respondent No.6’s attitude in not attending the meeting shows his irresponsible behaviour, which in turn had been affecting the functioning of the Gram Panchayat. The Deputy Commissioner also observed that respondent No.6 was not serious about his duties and was not fit enough to be an office bearer of the Gram Panchayat; Respondent No.6 was directed to furnish his reply to the notice within 15 days.

2(iii). It appears from the record that respondent No.6 did not furnish his reply. Consequently, the Deputy Commissioner, Kangra, passed an order on 15.03.2024 under Section 131(2) of the Act declaring the post of Up Pardhan as vacant.

2(iv). Feeling aggrieved against the order dated 15.03.2024 passed by the Deputy Commissioner, Kangra, respondent No.6 preferred as appeal under Section 131(3) of the Act before the Director, Panchayati Raj, Himachal Pradesh. The Director, Panchayati Raj, refused to admit the appeal of respondent No.6 under Section 131(3) of the Act. He directed respondent No.6 to file appeal under Section 148 of the Act before the Divisional Commissioner, being the competent authority. Confronted with this situation, respondent No.6 preferred appeal under Section 148 of Act before the Divisional Commissioner against the order dated 15.03.2024.

2(v). The Divisional Commissioner entertained the appeal under Section 148 of the Act. The appeal was held to be maintainable. The Divisional Commissioner considered the facts and circumstances of the case that:- Respondent No.6 vide his letter dated 09.03.2024 addressed to the Hon’ble Chief Minister had raised his concerns that he was not being intimated about the activities of Panchayat; The husband of the Pradhan and Secretary used to quarrel with him upon his entering the Panchayat ‘Ghar’; His chair had been removed from the Panchayat Ghar. That the District Panchayat Officer, Kangra, had already directed the Block Development Officer, Lambagaon to inquire into the matter pointed out by respondent No.6 by hearing both the parties, however, no action was taken by the concerned Block Development Officer into the complaint and concerns raised by respondent No.6. No inquiry was conducted by the concerned Block Development Officer.

The Divisional Commissioner also held that respondent No.3-the Deputy Commissioner, Kangra, had adopted shortsighted approach by merely seeing the matter as one involving casual absence of respondent No.6, an office bearer of the Gram Panchayat and treating the same within the confines of Section 131 of the Act, whereas, the foundation upon which the proceedings had started before the Deputy Commissioner was a resolution dated 22.12.2023 passed by the concerned Gram Panchayat levelling allegations against respondent No.6 and the fact of the matter was that even before passing of this resolution, respondent No.6 had already lodged his complaint to the Hon’ble Chief Minister raising his own concerns against the Pradhan, her husband and Secretary of the Gram Panchayat.

The Divisional Commissioner on the basis of allegations and counter-allegations held that an inquiry under Section 146 of the Act was necessitated in the matter and it was only after conducting such inquiry, the Deputy Commissioner should have proceeded to pass appropriate order after affording an opportunity of hearing to the affected parties including respondent No.6, which recourse had not been taken in the instant case.

With the above reasoning, the appeal preferred by respondent No.6 under Section 148 of the Act was allowed on 04.09.2024 in the following manner:-

“Hence, on the basis of the above discussion the instant appeal is allowed and the order No. Panch K.G.R.-Dhaniri-2509 dated 15-03-2024 passed by the Deputy Commissioner, Kangra at Dharamshala, whereby the post of Up Pradhan is declared vacant, is quashed. The case is remanded back to the District Collector, Kangra with a direction that fresh proceedings be carried out in the case and a reasoned order be passed within 45 days after conducting an inquiry and affording due opportunity of being hard to all the parties. During the course of the proceedings one important fact has been brought into the knowledge of this court that after the passing of the impugned order, the process of filling up the post of the Up Pradhan has been started and notification in this regard has also been issued. Therefore, it is also directed that no further proceedings regarding filling up the post should be carried out till the matter is finalized. Since the case was reserved for orders, parties be informed of the decision through their counsels. The file of the lower court be returned with a copy of this order and the file of this court be consigned to the record room after due completion.”

Feeling aggrieved against the aforesaid order dated 04.09.2024 passed by the Divisional Commissioner, Kangra, the concerned Gram Panchayat has preferred this writ petition. The contention urged by learned counsel for the petitioner is that appeal preferred by respondent No.6 before the Divisional Commissioner, Kangra, under Section 148 of the Act was not maintainable. The only course of action available to respondent No.6 against the order dated 15.03.2024 passed by Deputy Commissioner, Kangra, was in terms of an appeal which could be preferred under Section 131(3) of the Act before the Director, Panchayati Raj, Himachal Pradesh. Hence, the Divisional Commissioner, Kangra, committed an error in entertaining the appeal under Section 148 of the Act.

I have heard learned counsel for the petitioner and considered the case file.

4(i). Section 131 of the Act reads as under:-

“131. Casual vacancies.- (1) If any person having been elected as an office bearer of a Panchayat-

(a) subsequently becomes subject to any of the disqualification mentioned in section 122 and such disqualifications is not removable or being removable is not removed;

(b) absents himself from three consecutive meetings of the Panchayat or its Committee or does not attend half the number of meetings held during the period of six months without the leave of the Panchayat; he shall, subject to the provisions of sub-section (2), cease to be such office bearer and his office shall become vacant:

Provided that where an application is made by an office bearer to the Panchayat for leave to absent himself under clause (b) and the Panchayat fails to inform the applicant of its decision on the application within a period of one month from the date of receipt of the application, the leave applied for, shall be deemed to have been granted by the Panchayat.

(2) In every case the authority competent to decide whether a vacancy has occurred under sub-section (1) shall be the Deputy Commissioner in respect of Gram Panchayat and Panchayat Samiti and the Director in respect of Zila Parishad who may give his decision either on an application made to him by any person or on his own motion. Until the Deputy Commissioner or the Director, as the case may be, decides that the vacancy has occurred, the person shall not cease to be an office bearer:

Provided that no order shall be passed under this sub-section against any office bearer without giving him a reasonable opportunity of being heard.

(3) Any person aggrieved by the decision of the Deputy Commissioner or the Director, as the case may be, under sub-section (2) may, within a period of 30 days from the date of such decision, appeal to the Director or the State Government respectively, whose orders on such appeal shall be final.

(4) In the event of death, resignation or removal of an office bearer or his ceasing to be an office bearer under sub-section (1) or his becoming a Member of State Legislative Assembly or a Member of either House of Parliament before the expiry of his term, a casual vacancy shall be deemed to have occurred in his office and such vacancy shall be filled as soon as may be by election, in accordance with the provisions of the Act and the rules made thereunder. A person elected to fill the vacancy shall take office forthwith for the unexpired term of his predecessor.

(5) In the event of casual vacancy occurring simultaneously in the office of the Pradhan and Up-Pradhan of a Gram Panchayat, Chairman and Vice-Chairman of Panchayat Samiti or Zila Parishad, the Gram Panchayat or the Panchayat Samiti or the Zila Parishad shall elect an office bearer qualified to hold the office of Pradhan or Chairman, as the case may be, till new Pradhan or Chairman is elected in accordance with the provisions of this Act and the rules made thereunder.

(6) In the event of occurrence of casual vacancies in a Panchayat to the extent that the number of the remaining elected office bearers do not fulfill the quorum required for convening a meeting of the Panchayat then the State Government or the prescribed authority may nominate persons to fill the casual vacancies occurred in a Panchayat till new members are elected in accordance with the provisions of this Act and the rules made thereunder:

Provided that the State Government will nominate only that person to fill a particular casual vacancy who is eligible to be elected as an office bearer of a Panchayat and to hold office of that particular Panchayat in accordance with the provisions of this Act.”

Section 131 of the Act pertains to casual vacancies. In terms of Section 131(1), if any person having been elected as an office bearer of a Panchayat, subsequently becomes subject to any of the disqualifications mentioned in Section 122; absents himself from three consecutive meetings of the Panchayat or its Committee or does not attend half the number of meetings held during the period of six months without the leave of the Panchayat, he shall, subject to the provisions of sub-section (2), cease to be such office bearer and his office shall become vacant.

In terms of Section 131(2), the Deputy Commissioner in respect of Gram Panchayat is the competent authority to decide as to whether a vacancy has occurred under sub-section (1) of Section 131 of the Act.

Section 131(3) of the Act provides that any person aggrieved by the decision of the Deputy Commissioner may within a period of 30 days from the date of such decision, prefer an appeal to the Director, whose orders on such appeal shall be final.

4(ii). In the instant case, petitioner-Gram Panchayat had passed a resolution on 22.12.2023 alleging absence of respondent No.6 from meetings of Gram Panchayat for a period of about one year without there being any reasonable cause whatsoever. Whereas, respondent No.6 had been raising his own grievances in writing against the Gram Panchayat & some of its office bearers and relations of the Pradhan about his being not allowed to participate in the meetings of the Gram Panchayat. The Divisional Commissioner also noticed in the impugned order that the complaint of respondent No.6 had already been taken cognizance of by the District Panchayat Officer, Kangra. He had directed the Block Development Officer, Lambagaon, to inquire into the complaint preferred by respondent No.6 by hearing both the parties and to submit the report within 45 days. It is not in dispute that no such inquiry was conducted by concerned Block Development Officer. The grievances and complaints of respondent No.6 against the petitioner, its office bearers & their relations were not inquired into and had gone un-redressed.

4(iii) In the aforesaid circumstances, the Divisional Commissioner was justified to treat the matter in light of Section 146 of the Act, which reads as under:-

“146. Removal of office bearers of Panchayats.- (1) The State Government, in the case of office bearers of Panchayats, the Divisional Commissioner having jurisdiction, in the case of office bearers of Zila Parishad, and the Deputy Commissioner having jurisdiction, in the case of office bearers of Panchayat Samiti and Gram Panchayat, as the case may be, may after such enquiry as it may deem fit to make at any time, remove an office bearers.-

(a) if he has incurred any disqualification under this Act; or

(b) if he has been guilty of misconduct in the discharge of his duties; or

(c) if he refuses to act or becomes incapable of acting or is adjudged an insolvent; or

(d) if he without reasonable cause absents himself from more than half of the meetings convened within a period of six months; or

(e) if his continuance in office is undesirable in the interest of the public:

Provided that no person shall be removed unless he has been given an opportunity to show cause why he should not be removed from his office.

Explanation.- For the purpose of this sub-section “misconduct” shall include-

(a) any action which adversely affects-

(i) the sovereignty, unity and integrity of India; or

(ii) the harmony and the spirit of common brotherhood amongst all the people of State transcending religious, linguistic, regional, caste, or sectional diversities ; or

(iii) the dignity of women;

(b) gross negligence in the discharge of the duties under this Act;

(c) the failure of the Pradhan of a Gram Panchayat, or Chairman of Panchayat Samiti or Zila Parishad, to convene the meeting of the Gram Sabha, Gram Panchayat, Panchayat Samiti or Zila Parishad, as the case may be, at regular intervals as specified under this Act.

(1-A) The State Government, the Divisional Commissioner or the Deputy Commissioner, as the case may be, may, on consideration of the enquiry report or if it thinks proper, for reasons to be recorded in writing, revoke the suspension order and instead of removing an office bearer, warn him to be vigilant in the discharge of his duties or may also debar him from taking part in any act or proceedings of the Panchayat for the period of six months.

(2) A person who has been removed under sub-section (1) shall forthwith cease to be a member of any other Panchayat of which he is a member, such person shall also be disqualified for a period of six years to be elected as office bearer of a Panchayat under this Act.”

Section 146 pertains to removal of office bearers of Panchayat. In terms of Section 146(1)(d), the Deputy Commissioner having jurisdiction, in the case of office bearers of Gram Panchayat may after such enquiry as it may deem fit to make at any time, remove an office bearer, if he without reasonable cause absents himself from more than half of the meetings convened within a period of six months. Appeal against such an order passed by Deputy Commissioner in terms of Section 148 of the Act is to lie before the competent authority. It is not in dispute that appeal against the order passed by the Deputy Commissioner under Section 146 of the Act would lay before the Divisional Commissioner in terms of H.P. Panchayati Raj Rules.

4(iv). The impugned order reflects that respondent No.6 had in fact filed an appeal under Section 131(3) of the Act before the Director, Panchayati Raj. It was the Director, Panchayati Raj, who refused to admit the appeal preferred under Section 131(3) and directed respondent No.6 to prefer the appeal under Section 148 of the Act, taking into notice the contours of facts & circumstances of the case and the consequences of the order passed by the Deputy Commissioner on 15.03.2024. In terms of the order dated 15.03.2024, the Deputy Commissioner in purported exercise of powers under Section 131(2) of the Act, had declared the post of Pradhan of Gram Panchayat Dhaniri as vacant, however, the given fact situation and the order had the trappings of Section 146 of the Act. But the procedure prescribed therein had not been followed. The affected person-respondent No.6 justly assailed the order dated 15.03.2024 by preferring appeal as provided under Section 148 of the Act.

In the given facts and circumstances, the impugned order passed by the Divisional Commissioner on 4. 09.2024 cannot be said to be suffering from any error. Under the impugned order, the case has been remanded back to the Deputy Commissioner, Kangra, with directions to carry out fresh proceedings in accordance with law and to pass a reasoned order within 45 days after conducting an inquiry by affording due opportunity of hearing to all the parties. The order is in consonance with law and in accordance with principles of natural justice.

No other point was urged.

For the foregoing reasons, I do not find any merit in the petition. The same is accordingly dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of.