Purshotam Dass vs Smt. Ganesh Bhagti and Others

C.R. Thakur, J.—Parshotam Dass feeling aggrieved against the dismissal of his revision petition filed by him under the provisions of Section 28 of the Himachal Pradesh Panchayati Raj Act (hereinafter called the Act) against the order passed by the Nayaya Panchayat on 10-8-1974(sic) accepting the application of Smt. Ganesh Bhagti who claims herself to be the legally married wife of Parshotam Dass for maintenance. The Naya Panchayat awarded Rs. 70/- per month as maintenance to Smt. Ganesh Bhagti and her children alleged to have been born to her from the loins of Parshotam Dass during their lawful wedlock.

This petition has been filed under the provisions of Article 227 of the Constitution read with Section 561-A of the Code of Criminal Procedure, 1898 and Section 482 of the Code of Criminal Procedure, 1973 for setting aside the order on a number of grounds.

I have heard the Counsel for the parties. The first submission made by the learned Counsel for the Petitioner is that the oral evidence is not admissible in respect of a matter which is reduced to writing. There can be no dispute with the principle. But oral evidence can be led to prove facts about the paternity or marriage. From the record of the Panchavat which is before this Court, I find that the Naya Panchayat has made a reference to the fact that Parsmotan Dass had produced two exerpts from the revenue record in which Smt. Ganesh Bhagti was shown as the wife of Kripa Sindhu. There is no that this Court cannot set aside or interfere with the order in any proceeding of a Court or a tribunal even if the daemon may be wrong, but in the instant case what appears is that the Panchayat has not recorded any evidence at all. The Petitioner gave his statement and also produced these two documents to show that Smt. Ganesh Bhagti was recorded as the wife of Kripa Sindhu. Apart from there was no evidence either produced by the Petitioner or by the Respondent Smt. Ganesh Bhagti. The Panchayat proceeded on some enquiry which was held previously and the record of which it appears was not before the Panchayat. They have made reference that previously the case was before the District Magistrate who had sent the same to the Nayaya Panchayat and in that also during the course of enquiry the Petitioner, Parshotam Dass had denied that Smt. Ganesh Bhagti was his wife and the children were his and then they have referred to the evidence of one Kanak Lal, Up-Pradhan of the Gram Panchayat who had stated in that enquiry that he was sent to negotiate the marriage by Parshotam Dass. Besides this, the Panchayat have introduced their own personally knowledge in their judgment and which of course could not be considered to be a proper evidence and, therefore, in these circumstances when the judgment is without any evidence at all and the evidence produced by the Petitioner was not considered then really a grave injustice has been committed. There is no doubt that the Panchayat is not to record the evidence in the manner as the Court has to do but still it has to prepare a memoranda of the statements of the witnesses and had to examine some witnesses but in the absence of any evidence the Nayaya Panchayat could not come to any finding on the basis of its own personal knowledge and this is really nothing but a flagrant abuse of the process of the Court and, therefore, such a miscarriage and dereliction of duty cannot be permitted and the order also cannot be sustained.

The learned Sub-divisional Judge, Shri Raja Ram, Chief Judicial Magistrate of Kinnaur District also has erred when he says that from the Panchayat no irregularity or miscarriage of justice appears to have been done. The error is quite apparent on the face of the record, inasmuch as no evidence of any kind was recorded or produced by the Respondent and the case was decided purely on some extraneous considerations and personal knowledge of the Panches. Therefore, this order passed by the learned Sub-Divisional Judge is also not sustainable.

In view of the fact that this order passed by the Panchayat is wholly illegal, the High Court in exercise of its inherent powers and also in exercise of its powers of superintendence under Article 227 has to interfere in order to bring the tribunal within the bounds of their jurisdiction and see that it functions not in an arbitrary and caprious manner but functions quite impartially and quided by principles of natural justice and fair play. It is no use to refer to the authorities cited by the learned Counsel for the Petitioner to show that the conclusion arrived at by the Panchavat should not be set aside. In my opinion, there is a glaring and a patent error on the record and in which this Court must exercise its inherent powers to rectify the wrong done to the Petitioner.

The result, therefore, is that the proceedings are set aside and the case is remitted back to the Naya Panchayat for proceeding afresh and to give opportunity to the parties to produce their evidence and to decide the case on merits.