Rakesh Sharma And Another vs State Of H.P. And Others

Tarlok Singh Chauhan, J

The petitioners have filed the instant petition for the grant of following substantive reliefs:

i) That the impugned notification dated 18.09.2020 (Annexure PÂ11) may kindly be quashed and set aside and in the alternate village Badnoo be

kept out of the purview of the new notifiation and kept with the old Panchayat Suin Surhar.

b) That implementation of first notification vide Annexure PÂ​2 dated 27.08.2020 in its true letter and spirit.â€​

Brief facts of the case are that the Gram Sabha Suri Surhad, Development Block Sadar Bilaspur, Distt. Hamirpur in its meeting held on 25.08.2019

unanimously passed a Resolution No. 14 in the presence of 176/784 members under the Chairmanship of concerned Pradhan for bifurcation of Gram

Sabha Suri Surhad into newly proposed Gram Sabha Digthali with its headquarter at Tunnighat. This resolution was alongwith prescribed Format No.1,

wherein it was reflected that out of 10 villages of Gram Sabha Suri Suhad, 5 villages namely â€" Bhandokhar, Digthali, Bhojpur, Ghanser and Badnoo

were proposed to be included into newly proposed Gram Sabha Digthali sent to the competent authority. Subsequently the said proposal of the Gram

Sabha was sent by Deputy Commissioner, Bilaspur, i.e. respondent No.2, vide communication dated 18.1.2020 to respondent No.3 on prescribed

Format No.1. Accordingly, draft notification dated 27.8.2020 (Annexure PÂ2) was notified for inviting suggestions/objections within stipulated period

of seven days.

On 2.9.2020, residents of Gram Panchayat, Badnoo filed objections before respondent No.2, on the ground sthat the population and geographical

conditions of Gram Panchayat, Digthali are not suitable to them and therefore, proposed the headquarter to be at Badnoo. Similarly, 41 villagers of

village Palangiri Odi objected and submitted that they be retained at Surisuhad Panchayat. Pursuant to the same, on the direction of respondent No.2,

the Sub Divisional Magistrate, Sadar Bilaspur enquired into the matter and reported that as per draft notification, it would be appropriate to rename

proposed Digthali to Badnoo as village Badnoo is larger in population as well as in area and suggested that headquarter be fixed at Dhansehard being

a central place.

The recommendation of respondent No.2 dated 14.9.2020 was received in the Department wherein, it was submitted that the total area of newly

proposed Digthali is about 8 to 9 Kms and as per suitability, the newly proposed Panchayat be renamed as Badnoo Digthali and its headquarter be

fixed at Balhardi as it being main junction and thus, having road connectivity and public facilities. Consequently, the final notification dated 18.09.2020

(Annexure PÂ​11) was issued.

It is vehemently contended by Ms. Bhavana Datta, learned counsel for the petitioners that the impugned notification dated 18.9.2020 (Annexure

PÂ11) is absolutely illegal and does not reflect the will of the people, more particularly, village Badnoo and other villages comprised of the old

Panchayat Suin Surhar. It is only at the instigation of one person namely Hans Raj Thakur, resident of village Ghanserh, who connived with the

government officials and manipulated and impugned notification was issued. It is averred that the residents of village Bhandokhar, Digthali and

Bhojpur have been neglected since long and no development activities has taken place in the area and on account of these difficulties of the residents

of that area, had insisted on the implementation of the first notification dated 27.8.2020.

We have heard learned counsel for the parties and have gone through the material placed on record.

In CWP No. 3895 of 2020, titled Vijay Kumar and others Versus State of H.P. & others, alongwith other connected matters, a judgment delivered

by a Division Bench of this Court on 23.12.2020 and authored by one of us (Justice Tarlok Singh Chauhan, J.), it was held that declaration of Sabha

area is a legislative function to which principles of natural justice would not apply. It was further held that the notification constituting or abolishing a

Gram Sabha is a legislative act, which cannot be impugned on the grounds available for challenging an administrative or quasi judicial order.

It shall be apt to reproduce the relevant observations as contained in paraÂ​25 of the judgment, which reads as under:

 “25. Thus, what can be deducted from the aforesaid discussions is that declaration of Sabha area is a legislative function and the principles of

natural justice would not apply to the same. The notification constituting a Gram Sabha or abolishing a Gram Sabha is an act of legislative and, thus,

cannot be impugned on the grounds, which are available for an administrative or quasi judicial order. The maxim audi alteram partem is not applicable,

even on necessary implication, meaning thereby, declaration of Sabha area, in terms of Section 3 of the Act, does not contemplate muchless envisages

issuance of notice, opportunity of filing objections and even hearing before ordering bifurcation of the Panchayat(s). Since bifurcation of the

Panchayat itself is a legislative act, no mala fides can be attributed to the legislative act. Therefore, we answer the preliminary submission concluding

that all these petitions are not maintainable.â€​

It would be noticed that the grounds raised in this petition, more particularly, with regard to the backwardness of village Badnoo, lack of facility of

transport etc. are all disputed facts, which cannot be ascertained or even gone into in exercise of extraÂordinary jurisdiction under Article 226 of the

Constitution of India.

Importantly, the Election Commission had issued a communication dated 20.10.2020 intimating that Electoral Rolls in respect of more than 2728

Panchayats were being prepared for ensuing elections to the Panchayati Raj Institutions and, therefore, requested the respondents not to reÂ‐

organize/bifurcate any Panchayat as reÂorganization/ bifurcation of even a single Panchayat would effect the entire composition of Panchayati Raj

Institutions of the District concerned and shall also disturb the Electoral Roll.

In addition to the aforesaid, we otherwise do not find the petition to be maintainable as the same has been filed by the two residents. No doubt,

reference has been made to the certain resolutions passed by the Gram Panchayat recommending therein its bifurcation. However, it is more than

settled that if the officials of the State do not act upon the resolutions, then the aggrieved, if any, shall only be the Gram Panchayat and not any

individual. If the Gram Panchayat is no longer in existence on account of its bifurcation, then a petition can only be filed after authorisation by majority

of the people of the area.

In the instant case, there is no resolution authorising the petitioners to file the petition on behalf of the residents of the area has been annexed with

the petition. However, the petitioners have filed an application being CMP No.14207 of 2020 for bringing on record additional documents wherein they

have filed some sort of Mukhtiarnama (power of attorney), but the same is undated and, therefore, cannot be considered to be a valid authorisation.

In view of the aforesaid discussion, we find no merit in the instant petition and the same is accordingly dismissed, so also the pending

miscellaneous application(s), if any.