IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 335 of 2008 Judgment reserved on : 9.3.2010 Date of decision : 5.4.2010 ____________________________________________________ Gian Chand …Petitioner. Versus Raj Kumar & Ors. …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the petitioner : Mr. K.S. Banyal, Advocate. For the Respondents : Mr. Ajay Sharma, Advocate, for respondents No.1 to 4. Mr. P.M. Negi, Deputy Advocate General with Mrs. Shubh Mahajan, Dy. Advocate General for respondent No.6. Kuldip Singh, Judge This is a petition under Article 227 of the Constitution of India and has been filed for setting aside the order dated 11.9.2008 passed by Sub Division Officer ( C ) exercising the powers of Collector, Barsar, Distt Hamirpur (HP) in case No.21/2005/2/2007. 2. The facts in brief are that petitioner had filed an application before respondent No.5 Gram Panchayat, Nanawan on 10.5.2001 requesting that Jagdish Chand predecessor-in-interest of respondents No.1 to 3 had blocked the drain (challa) due to which all dirty water had been spreading over in the courtyard of the petitioner. The Bench of the Panchayat had inspected the spot on 17.6.2001 and on 27.6.2001 ______________________ ¹ Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2 ordered that Jagdish Chand should clear the drain (challa) for the free flow of dirty water of cow dung and urine. The Panchayat gave notice to Jagdish Chand but of no consequence, Jagdish Chand wanted that Panchayat should get the land divided which is within red line ( Lal Laqir). On 15.1.2002 Panchayat had imposed a fine of Rs.25/- on Jagdish Chand for blocking the drain. Jagdish Chand had filed an appeal before Sub Divisional Officer ( C ), Barsar which was decided on 23.9.2002 and the order of the Panchayat was set aside and the case was remanded to Panchayat with a direction to decide the same within three months. 3. It has been alleged that the file was received by the Panchayat on 25.1.2003 and notice was sent to Jagdish Chand for presence on 10.2.2003, on which date both the parties were present. But due to lack of quorum the case was adjourned to 10.3.2003, on that date petitioner was present but Jagdish Chand was not present. The statement of Gian Chand was recorded on 10.3.2003 and the case was adjourned to 25.3.2003, on which date both the parties were present and Jagdish Chand took the stand that he had not blocked the drain. The petitioner was asked to produce witness on 9.4.2003. On 9.4.2003 Gian chand was present but Jagdish Chand was not present, he had sent an application for adjournment and therefore, the case was adjourned to 25.4.2003. On 25.4.2003, both the parties were present and evidence was recorded. Jagdish Chand refused to bring any witness. On 25.4.2003 Panchayat also visited the spot. 4. On 9.5.2003 petitioner was present but Jagdish Chand was not present. Panchayat ordered that Jagdish Chand should 3 remove the blockade and clear the drain within 15 days so that dirty water is drained out, failing which, legal action would be taken against Jagdish Chand. On 26.5.2003 the petitioner was present but Jagdish Chand was not present despite notice nor had he removed the blockade of the drain. Therefore, Jagdish Chand was fined Rs.25/- under Section 15 of the H.P. Panchayati Raj Act, 1994 ( for short Act) It was further ordered that in case obstruction was not removed and fine not deposited within same period then Jagdish Chand would pay Rs.5/- per day. Thereafter the matter was fixed for removal of obstruction and payment of fine on several dates. It has come on record that in the meantime on 19.6.2003 Jagdish Chand had died. On 12.5.2004 a sum of Rs.1000 + Rs.25/- fine total amounting to Rs.1025/- was recoverable from respondents No.1 to 3, the file was sent to District Collector, Hamirpur through Block Development Officer, Bijhari. 5. On 8.6.2004 an appeal under Section 12(2) of the Act was filed by respondents No.1 to 3 before respondent No.6 alongwith application under Section 5 of the Act which was allowed on 25.5.2006. The petitioner filed CMPMO No.209 of 2006 in this Court against the order dated 25.5.2006. CMPMO No.209 of 2006 was allowed on 28.7.2006 and the case was remanded to respondent No.6, who after remand decided the appeal on 11.9.2008 by setting aside orders dated 9.5.2003, 26.5.2003. The petitioner has assailed the order dated 11.9.2008 in the present petition. 6. The respondents No.1 to 4 have contested the petition by filing reply and have taken preliminary objection of maintainability. It 4 has been stated that respondent No.6 has remanded the case to the Panchayat. The respondent No.6 has given the reason in the impugned order. It has been submitted that in case, petitioner intends to invoke proceeding under Section 133 Cr.P.C. then he shall have to proceed in accordance with Section 133 Cr.P.C. The order dated 11.9.2008 is legal, legal representatives of deceased Jagdish Chand were not brought on record and the orders were passed behind the back of Jagdish Chand. The Court below has rightly condoned the delay. On merits, respondents No.1 to 4 have justified the order dated 11.9.2008. 7. On 8.12.2009 Shri Ashok K. Tyagi, Advocate was appointed as Local Commissioner who has submitted his report dated 8.1.2010. The Local Commissioner has reported that according to the spot and photographs annexed with the report there is no drain on the spot as alleged by the petitioner. The petitioner is claiming drain in Annexure A-1 shown by doted (red line) 8. I have heard learned counsel for the parties and have also gone through the record. The petitioner vide application dated 10.5.2001 addressed to President Gram Panchayat, reported that there is house of Jagdish Chand in front of the old house of the petitioner. In between the two houses there is old challa in the courtyard which is the boundary of both the parties. The dirty water used to drain out from that challa but now Jagdish Chand had removed that challa and dirty water is stagnating in the courtyard of the petitioner. He requested the Panchayat to look into the grievance after inspecting the spot. The respondent No.5 Panchayat initiated the 5 proceedings and on 15.1.2002 had imposed a fine of Rs.25/- on Jagdish Chand. This was assailed by Jagdish Chand by way of appeal before respondent No.6 and the appeal was accepted on 23.9.2002, order dated 15.1.2002 was set aside and the case was remanded to Panchayat to decide the case on merits in accordance with the Act. 9. On 9.5.2003 Panchayat ordered Jagdish Chand that the drain which has been closed by Jagdish Chand on the spot be cleared within 15 days, failing which Panchayat shall proceed in accordance with law and imposed fine. On 26.5.2003 respondent No.5 had passed another order and imposed fine Rs.25/- under Section 15 of the Act and ordered that in case Jagdish Chand would not clear the drain and deposit the fine then he would pay Rs.5/- per day. The orders dated 9.5.2003 and 26.5.2003 were assailed in appeal by respondents No.1 to 3 alongwith condonation of delay application. The respondent No.6 vide order dated 25.5.2006 has accepted the appeal and set aside the orders dated 9.5.2003 and 26.5.2003. The order dated 25.5.2006 was set aside on 28.7.2006 in CMPMO No.209 of 2006 and the case was remanded to respondent No.6 for afresh consideration and disposal after affording opportunity to hear the parties. 10. The respondent No.6 after remand has decided the appeal again on 11.9.2008. A copy of grounds of appeal filed by respondents No.1 to 3 before respondent No.6 has been placed on record as Annexure P-4. In Annexure P-4 prayers has been made for setting aside order dated 9.5.2003 and 26.5.2003. It has also been prayed that no notice was issued to respondents No.1 to 3 by Panchayat before 6 claiming Rs.1000 + Rs.25/- total Rs.1025/-which is also wrong and illegal. 11. The respondent No.6 in the impugned order has observed that the Panchayat has not mentioned any Section of the Act under which order dated 9.5.2003 has been passed. It has also been observed that order dated 26.5.2003 has been passed against Jagdish Chand in his absence. The legal representatives of Jagdish Chand were not brought on record. It has also been observed that penalty was imposed upon Jagdish Chand by Panchayat but during the proceedings of the case he had died, no opportunity of hearing was given to the legal representatives of Jagdish Chand. The notice for recovery of penalty which was imposed upon Jagdish Chand was wrongly and illegally issued to legal representatives of Jagdish Chand. On these grounds the order dated 9.5.2003 and 26.5.2003 was set aside and the limitation was also condoned. The case was remanded to the Panchayat with a direction to hear the case afresh and to decide it on merits after affording full opportunities to all the interested parties in the case. The Panchayat was also directed to decide the jurisdiction point first. 12. The perusal of order dated 11.9.2008 indicates that respondent No.6 has set aside the orders dated 9.5.2003 and 26.5.2003 of the Panchayat. The respondent No.6 has not set aside any other order. The grounds of appeal Annexure P-4 of respondents No. 1 to 3 filed before respondent No.6 indicate that as per respondents No.1 to 3 Jagdish Chand had died on 19.6.2003 after the orders dated 9.5.2003 and 26.5.2003 passed by the Panchayat. 7 There is an application dated 9.5.2003 of Jagdish Chand on record wherein he had requested that he was not in a position to appear before the Panchayat on 9.5.2003 due to his sickness. Similarly on 22.5.2003 on the notice issued to Jagdish Chand for appearance on 26.5.2003 by the Panchayat he had shown his inability to put his appearance in the Panchayat on 26.5.2003 due to sickness. In other words Jagdish Chand was served for the dates 9.5.2003 as well as 26.5.2003. 13. The Section 58 of the Act provides that any party to a suit, case or proceeding may appear before a Gram panchayat either in person or by such servant (not being a tout or a petition writer), partner or relation authorized by him and permitted by Gram Panchayat to represent him. The Section 57 bars the appearance of legal practitioner before the Panchayat. On 9.5.2003 and 26.5.2003 Jagdish Chand was served but he opted not to send his representative or put appearance before the Panchayat in terms of the Section 58 of the Act. The Panchayat was justified in proceedings against Jagdish Chand on 9.5.2003 and 26.5.2003 when he did not appear before the Panchayat though he was served. It is not a case that Panchayat proceeded against Jagdish Chand without serving any notice on him for 9.5.2003 and 26.5.2003. The Panchayat had no option but to proceed in the case when Jagdish Chand did not appear in the Panchayat on 9.5.2003 and 26.5.2003 though he was served. It has been established on record that Jagdish Chand was served for the date 9.5.2003 and 26.5.2003 and no fault can be found with the orders 8 dated 9.5.2003 and 26.5.2003 when these orders were passed by the Panchayat in absence of Jagdish Chand or his representative. 14. The observation of the respondent No.6 that Panchayat has not indicated any Section in the impugned order under which the orders have been passed. In the order dated 26.5.2003 Section 15 of the Act has been mentioned, however in the order dated 9.5.2003 no Section has been mentioned, but respondent No.6 has not recorded a finding that Panchayat otherwise has no power under the Act to pass orders dated 9.5.2003 and 26.5.2003. The Panchayat is not expected to write judgment like a Court. The case has been remanded by the respondent No.6 to Panchayat primarily on the ground that Jagdish Chand had died and his legal representatives were not brought on record. It is case of the respondents No.1 to 3 themselves that Jagdish Chand had died on 19.6.2003 after the passing of orders dated 9.5.2003 and 26.5.2003. Hence on 9.5.2003 and 26.5.2003 there was no question of brining on record the legal representatives of Jagdish Chand who died on 19.6.2003. Thus, from any angle the order dated 11.9.2008 is not sustainable and is liable to be set aside. 15. No other point was urged. 16. The result of the above discussion, the petition is allowed. The order dated 11.9.2008 is set aside and the case is remanded to Sub Divisional Officer ( C ), Barsar, Distt Hamirpur with a direction to decide the appeal afresh in accordance with law. The appeal is old; therefore, respondent No.6 is directed to decide the appeal by or before 31.7.2010. The parties through counsel are directed to appear before Sub Divisional Officer (C), Barsar on 26.4.2010. The record of 9 Sub Divisional Officer (C), Barsar, be sent back immediately, so as to reach before the date fixed. 17. In view of disposal of main petition the CMP No.762 of 2008 is rendered infructuous. April 5, 2010 (Kuldip Singh) (sks) Judge.