Punjab-Haryana High Court
Ram Sarup, Sarpanch, Gram Panchayat And ... vs State Of Haryana And Ors. on 27 July, 1999
Equivalent citations: (2000)124PLR535
Author: Mehtab Singh Gill
Bench: Mehtab Singh Gill
JUDGMENT G.S. Singhvi, J.
1. In the elections held in December, 1994, the petitioners were elected as sarpanch and Up-sarpanch of Gram Panchayat Bugana, Tehsil Barwala, District Hisar, Vide notice dated 13.8.1996, the Director, Development and Panchayats, Haryana (respondent No. 2) initiated proceedings against petitioner No. 1 under the Haryana Panchayat Raj Act, 1994 (hereinafter referred to as the Act) on the allegation that he was responsible for illegal occupation of Panchayat land by S/Shri Om Parkash son of Beg Raj, Inder son of Chandu, Manphool son of Chand, Balbir son of Karam Chand and Pertap son of Hari Singh. He submitted reply dated 27.8.1996 controverting the allegation enumerated in the notice. On the next date i.e. 28.8.1996, another show cause notice was issued to him by the Deputy Commissioner, Hisar with the following allegations:
a) that the petitioner is not taking interest in the National Programmes;
b) that in the previous year the petitioner did not lease out 1 kanal 10 marlas land and, thus, caused financial loss to the Gram Panchayat;
c) that after 29.7.95 you did not issue any agenda to the panches for the meetings and, thus, violated the rules."
2. After lapse of another 3 months, the Deputy Commissioner, Hisar, in exercise of the power vested in him under Section 51(1)(b) of the Act, suspended petitioner No. 1. His appeal was dismissed by the Financial Commissioner and Secretary to Government Haryana, Development and Panchayats department. Those orders were challenged by petitioner No. 1 in C.W.P. No. 3203 of 1997. One of the grievances made therein was that copy of the appellate order had not been served upon him but when the respondents produced copy of that order in the Court, petitioner No. 1 withdrew that petition and filed a fresh petition which was registered as C.W.P. No. 13414 of 1997. The second petition was disposed of by the High Court with the direction that the enquiry pending against petitioner No. 1 may be completed at an early date.
3. In the meanwhile, Bhag Chand and others filed an application under section 177 of the Act seeking disqualification of the petitioners. A perusal of the file produced by the learned Deputy Advocate General before the Court shows that on receipt Of the said complaint. Respondent No. 2 issued notice to the petitioners requiring them to appear and file reply on 11.6.1997. Therefore, the following proceedings were recorded in the file by the office of Respondent No. 2:
"Present: Both the parties.
Copy of complaint has been given to the respondent. To come up on 9.7.97 for reply/consideration.
Sd/-
D.P. 11.6.97.
Bhag Chand and others v.
Ram Sarup Sarpanch and Raj Mal Up-Sarpanch G.P. Bugana (Hisar).
Present: Both parties.
Reply not filed by the respondent. To come up on 23.7.97 for reply/argument instead of 3.9.97 as per request of applicant. Request accepted.
Sd/-
D.P. 9.7.97.
I am busy in Assembly business today. The case is adjourned to 30.7.97. Notice be issued.
Sd/-
D.P. 23.6.97.
Present: Both the parties.
Reply not filed by the respondent today. Case adjourned for 13.8.97 for reply as per request of counsel for the respondent.
Sd/-
D.P. 30.7.97.
Present: Both the parties.
Reply filed by the respondent today. To come up on 27.8.97 for argument.
Sd/-
D.P. 13.8.97.
Vide separate detailed order, application is accepted. To be communicated.
Sd/-
D.P. 20.11.97.
4. On a separate sheet, respondent No. 2 recorded the following proceedings in his own handwriting :
"Heard Today. To come up on 1.10.97 for orders.
Sd/-
D.P. 17.9.97.
There are two demarcation reports, one showing the illegal occupation of Sarpanch on G.P. land, other showing no such encroachment which is subsequent. Under the circumstances, the Tehsildar be asked to specifically report as to the question of illegal occupation of the respondent.
Sd/-
D.P. 7.10.97.
(In this order, the words 'of the' have been scored off with the same ink and in the same handwriting).
Report of the Tehsildar, Hisar received showing the respondent to be in illegal occupation. Orders to be issued.
5. Immediately thereafter, order Annexure P.4 dated 20.11.1997 was served upon the petitioners disqualifying them from the posts of Sarpanch and Up-Sarpanch respectively. The petitioners have challenged that order on the ground of violation of the principles of natural justice and also on the ground that the same is the end product of the mala fide exercise of power by respondent No. 2 at the instance of respondent No. 3. In support of the prayer made by them for invalidation of the impugned order, the petitioners have made the following averments in paragraphs 13 to 15 of the writ petition:
"13. That on 12.11.1997, the case was adjourned for filing replication by the complainants and the matter, thus, came up for hearing on 1.10.1997. The demarcation report submitted by the petitioners when did not show any unauthorised possession, respondent No. 2 ordered for a fresh demarcation from the Tehsildar, Hisar, and the case was adjourned to 12.11.1997.
14. That on 12.11.1997 the case was fixed for the report of the Tehsildar. When the petitioners reached the office of respondent No. 2 at 2.30 p.m., it was found that the learned officer was not holding the Court. Accordingly the petitioners contacted the Law officer who acts as Reader also and it transpired that the powers of respondent No. 2 have been delegated to the Deputy Commissioners of the Districts and as such all the cases were to be sent to the Deputy Commissioners concerned and the Deputy Commissioner would communicate the date of hearing and all such cases will be heard by the Deputy Commissioner concerned of the District. None of the case, thus, was taken up by respondent No. 7 on the said date. In view of the aforesaid circumstances the counsel for the petitioners returned the papers to the petitioners and asked them to approach the Deputy Commissioner, Hisar as and when they receive the communication.
15. That while the petitioners were waiting the communication from the Deputy Commissioner, Hisar, the petitioners were surprised to receive on 31.12.97 a copy of the order disqualifying them under Section 177 of the Act by the respondent No. 2 himself. A copy of the order dated 19.12.97 (received on 31.12.97 through post) is being annexed with this writ petition as annexure P.4. The order purported to have been passed on 20.11.97 but shown to have been issued vide endorsement dated 19.12.1997. In the impugned orders, presence of the counsel for the petitioner as well as reference of his so-called arguments has been made. As already submitted that when on 12.11.1997 the counsel for the petitioners was informed that the case has been transferred to the Deputy Commissioner, Hisar, he even returned the brief on 12.11.1997, question of his arguing the case on 20.11.1997 did not arise. The petitioners are annexing with this writ petition the photostat copy of the diary of the counsel, Shri. A.N. Sharma, Advocate, for 12.11.1997 and 20.11.1997 as Annexures P.5 and P.6. The petitioners are also annexing with this writ petition as Annexure P.7 the entry made by their counsel in the register maintained by the counsel showing the return of file on 12.11.1997 to the petitioners. A perusal of the aforesaid documents would show that there was no date 20.11.1997 fixed in this case and there was no reason/occasion for the counsel of the petitioners to appear and argue the case on 20.11.1997. This also shows that the action of respondent No. 2 was pre-determined and was on account of political considerations."
6. In the written statement filed by them through Shri M.S. Ansari, Deputy Director, Panchayats, respondents No. 1 and 2 have challenged the maintainability of the writ petition on the ground that the petitioners have failed to avail the alternative remedy available to them under section 177(2) of the Act. In paragraphs 13 to 15, they have averred as under :
"13. In reply to para 13 it is submitted that on 13.8.97, the case was adjourned to 27.8.97 for arguments. Therefore, the averments to the effect that the case was adjourned for filing replication is wrong and hence denied. On 27.8.97 the case was adjourned to 17.9.97 for arguments and on 17.9.97 the case was heard and was fixed for order on 1.10.97. On 1.10.97 Tehsildar was asked to specifically report before 12.11.97 as to the question of illegal occupation because on record there were two demarcation reports, one showing the illegal occupation of Sarpanch on Gram Panchayat land, other showing no encroachment.
14. In reply to para 14 of the writ petition it is submitted that on 1.10.97 Tehsildar, Hisar was directed to send his specific demarcation before 12.11.97 with regard to the illegal occupation of the petitioner on the land in dispute. The said report was received in the office of respondent No. 2 on 12.11.97 itself and thereafter on the basis of report received from Tehsildar final order was to be passed in this matter. The Court was not held on 12.11.97 by the respondent No. 2 because he was busy. The averments to the effect that the petitioner visited the office of the respondent No. 2 on 12.11.97 at 2.30 p.m. are denied for want of knowledge. However, it is correct that on 12.11.97 court was not held. Rest of the para is also not correct as alleged by the petitioner. It is correct that powers of respondent No. 2 have been delegated to the Deputy Commissioners concerned but only pending cases were to be sent to them, whereas in the present case final arguments were already heard on 17.9.97 and the matter was fixed for 1.10.97 for order. Therefore, the said case was not sent to the concerned Deputy Commissioner and consequently on the receipt of report from Tehsildar, Hisar order was passed on 20.11.97 and communicated to the concerned including the petitioners on 19.12.97.
15. That the contents of para 15 of the writ petition, as stated, are not correct. It is submitted that the reply to the averments of this paragraph has already been given in the preceding paragraphs."
7. In a separate written statement, respondent No. 3 has pleaded for dismissal of the writ petition on the ground of availability of alternative remedy. At the same time, he has tried to justify the order passed by respondent No. 2 by stating that this has been done after giving full opportunity of hearing to the petitioners.
8. The first contention urged by Shri Arun Jain is that the order passed by respondent No. 2 disqualifying the petitioners should be declared as void due to the violation of the principles of natural justice. He submitted that respondent No. 2 did not supply copy of the report submitted by the Tehsildar to the petitioners and, therefore, they could not submit their defence in the context of the findings recorded in that report. The second contention of Shri Jain is that the impugned order should be treated as vitiated by mala fides. In support of this argument he invited our attention to notification No. 110/H.A. 11/94/S.203/97 dated 10.11.1997 vide which respondent No. 2 had delegated the powers under section 53(3) and 177(2) of the Act to all the Deputy Commissioners and argued that after having delegated the power under section 177(2) of the Act to the Deputy Commissioner, Hisar, there was no occasion for respondent No. 2 to have retained the complaint made By Bhag Chand and others. Learned counsel laid emphasis on the fact that all other complaints filed under Section 177 of the Act which were pending before him were transferred to the Deputy Commissioner, Hisar but the complaint made against the petitioners was kept pending with him. He submitted that the unusual interest shown by respondent No. 2 in the complaint filed by Bhag Chand and others should be treated as sufficient to draw an inference that respondent No. 2 was acting under the influence and the dictates of respondent No. 3, who was then Minister, Development and Panchayats, Haryana and was interested in Bhag Chand and others.
9. Shri Jaswant Singh and Shri Ashish Aggarwal defended the impugned order by arguing that respondent No. 2 had given full opportunity of hearing to the petitioners. The learned Deputy Advocate General pointed out that hearing of the complaint made by Bhag Chand and others was concluded on 17.9.1997, i.e. before the issuance of notification dated 10.11.1997 and, therefore, it was not necessary to transfer the same to the Deputy Commissioner, Hissar. He submitted that by delegating the power vested in him under Section 177 of the Act upon the Deputy Commissioners, respondent No. 3 cannot be said to have denuded himself of the jurisdiction to pass appropriate order in a given case and, therefore, adjudication of the complaint of Bhag Chand and others should not be nullified on the ground of lack of jurisdiction.
10. We have thoughtfully considered the respective submissions. A careful reading of the record produced by the learned Deputy Advocate General strongly supports the plea set up by the petitioners that respondent No. 2 had shown unusual interest in deciding the application submitted by Bhag Chand and others. This inference is being drawn from the fact that in the first instance, he changed the date of hearing from 3.9.1997 to 23.7.1997 without any ostensible reason. Secondly, after receiving the report of Tehsildar on the issue of illegal occupation of land, he did not supply a copy there of to the petitioners so as to enable them to file reply or make representation in the context of the findings/observations of the Tehsildar. Not only this, without fixing the case for further hearing in the backdrop of the report of the Tehsildar, he passed the impugned order by placing reliance on the said report.
11. The extracts of the notings recorded by the office of respondent No. 2 and by the said respondent himself show that contradictory orders/notings were recorded on 12.11.1997. Respondent No. 2 recorded the following note:
"Report of the Tehsildar received showing the respondents to be in illegal occupation. Orders to be issued."
12. As against this, the Assistant to the Director recorded the following note:
"P.O. is busy. Court not held. To come up for orders."
13. The respondents have not given any explanation as to how two contradictory or ders/notings have been recorded for the same date. Therefore, we are inclined to agree with Shri Arun Jain that the record was manipulated to make a show of compliance of the principles of natural justice though, in fact, reasonable opportunity of hearing was denied to the petitioners. We, therefore, hold that the order passed by respondent No. 2 disqualifying the petitioners is vitiated due to violation of the principles of natural justice.
14. In view of the above conclusion, we do not consider it necessary to decide the question whether respondent No. 2 could decide the application filed by Bhag Chand am others after he had delegated the powers under Section 177(2) of the Act upon the Deputy Commissioners.
15. For the reasons mentioned, the writ petition is allowed. Order dated 20.11.1991 is declared illegal and quashed.