IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 4 of 2007 Date of Decision: 19th November, 2010 __________________________________________________________ Salochna Devi ….Petitioner. Versus Chander Kumari & others ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No ___________________________________________________________ For the Petitioner: Mr. Dhruv Shaunak, Advocate. For Respondent No.1: Mr. Ramakant Sharma, Advocate. For Respondent No. 2 & 3: Mr. P.K. Sharma, Addl. A.G. with Ms. Shubh Mahajan, Deputy A.G. __________________________________________________________ Dev Darshan Sud, J (oral). The petitioner is aggrieved by the order passed by the Sub Divisional Magistrate, Annexure P-7, recalling/reviewing his earlier order Annexure P-5 dismissing the petition instituted by respondent No.1 challenging the appointment of the petitioner. 2. By order Annexure P-5 passed on 8.5.2006, the Sub Divisional Magistrate ordered: “……8.5.2006: Case was put on board. Was called Plaintiff Chander Kumari is present. Respondent Sulochna Devi is present through Counsel. Applicant Chander Kumari requested that her counsel is not well but she did not put forth any evidence in that 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 regard. The counsel for the respondent argued that the applicant, without any reason delaying the proceedings again and again which is contrary to law. The counsel for the respondent also argued that the proper parties in the case have not been impleaded properly however the proper parties in the case are as followed, President, Panchayat Samiti Nichar, Pradhan Vill. Panchayat Mandi (Members) and B.D.O. Nichar were to be impleaded in whose presence this interview was conducted and the respondent Sulochna Devi was wrongly impleaded, therefore this case should be dismissed. The applicant has been made aware of this fact several time. Therefore, keeping in view the above mentioned circumstances this is true that the applicant has not made proper parties despite these instructions the applicant has not arrayed proper parties. Almost seven months have lapsed since the institution of this matter. Keeping in view the submissions made by the counsel for the respondent, it is not in interest of the justice to continue this matter. Therefore, the case is dismissed. The record may be consigned to the record room. Announced in the presece of parties………………………….” 3. It is undisputed before me that thereafter respondent No.1 again preferred an appeal before the Deputy Commissioner under Rule 13 of the Draft Rules Annexure P3-A. The case was sent back. According to the petitioner, another order allowing the prayer of respondent No.1 could not have been passed. Third point raised for consideration before this Court is, as to whether the Deputy Commissioner had powers to adjudicate on the entire controversy. 4. It is admitted by the parties that it is the draft rules which govern the case of the parties herein. What is strange and evident from 3 the proceedings is that the Magistrate while adjudicating the controversy has displayed a total lack of judicial discipline. 5. Rule 13 envisaged that only the appeal is maintainable before the Sub Divisional Magistrate. Infact what happened is that on remand, the Sub Divisional Magistrate has reviewed his order. In case respondent No.1 was aggrieved by the order passed by the Sub Divisional Magistrate, rejecting the claim, which was reviewed, he had to challenge the proceedings before a Court of competent jurisdiction. 6. I am unable to find anything in the draft rules, which vested the Sub Divisional Magistrate with the powers to review the order. The ground for exercising this power, even without any specific provision, has been made the grounds of challenge, which I do not find established on record. Moreover, I find that initially the appointment of petitioner herein was for a period of one year only, under Rule 8. That period has also expired. In these circumstances, Annexure P-7 is quashed and set aside. 7. If the respondent is aggrieved by the subsequent continuance of the petitioner for the period beyond one year, it will be open to the respondent to challenge such appointment in accordance with law. Petition stands disposed of. This order shall not be construed as validating the appointment of petitioner, beyond the period of one year, as envisaged by Rule 8. (Dev Darshan Sud) Judge November 19th, 2010(ms)