Himachal Pradesh High Court
Smt. Rajvinder Kaur vs State Of Himachal Pradesh on 7 September, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 7th DAY OF SEPTEMBER 2021
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
.
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION No. 3450 OF 2021
Between:-
GRAM PANCHAYAT SIRINAGAR,
BLOCK KANDAGHAT,
OFFICE AT MAIN BAZAR,
KANDAGHAT, MOHAL SIRINAGAR,
TEHSIL KANDAGHAT, DISTICT SOLAN,
H.P. THROUGH ITS PRADHAN/PRESIDENT
SMT. RAJVINDER KAUR,
W/o SHRI GURVINDER SINGH R/o VILLAGE
DOLAG, TEHSIL KANGAGHAT, DISTRICT
SOLAN, H.P.
......PETITIONER
(BY SH. P.S, GOVERDHAN, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH THE CHIEF SECRETARY
TO THE GOVERNMENT OF HIMAHCAL
PRADESH.
2. THE PRINCIPAL SECRETARY
(URBAN DEVELOPMENT) GOVERNMENT
OF HIMACHAL PRADESH SHIMLA H.P.
3. THE SECRETARY RURAL DEVELOPMENT
AND PANCHAYATI RAJ DEPARTMENT,
GOVERNMENT OF H.P. SHIMLA.
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4. THE DIRECTOR, URBAN DEVELOPMENT
HIMACHAL PRADESH, SHIMLA.
5. THE DEPUTY COMMISSIONER SOLAN,
DISTRICT SOLAN H.P.
6. THE NAGAR PANCHAYAT KANDAGHAT,
.
MAIN BAZAR KANDAGHAT, TEHSIL
KANGAGHAT, DISTRICT SOLAN H.P.,
THROUGH ITS SECRETARY.
.....RESPONDENTS
(SH. ASHOK SHARMA, ADVOCATE GENERAL WITH SH.
RAJENDER DOGRA, SENIOR ADDITIONAL ADVOCATE
GENERAL, SH. VINOD THAKUR, SH. HEMANSHU MISRA,
SH. SHIV PAL MANHANS, ADDITIONAL ADVOCATE
GENERALS AND SH. BHUPINDER THAKUR, DEPUTY
ADVOCATE GENERAL, FOR RESPONDENTS NO.1 TO 5)
(BY SH. VINOD CHAUHAN, ADVOCATE, FOR RESPONDENT
NO.6)
RESERVED ON : 01.09.2021
DECIDED ON: 07.09.2021
This petition coming on for admission this day,
Hon'ble Mr. Justice Satyen Vaidya, passed the following:
ORDER
The municipality of Nagar Panchayat Kandaghat came into being under Section 3 of the Himachal Pradesh Municipal Act 1994 (for short, "Municipal Act") on publication of Notification dated 28.10.2020. Vide same notification, the Government of Himachal Pradesh declared some parts of local areas of Gram Panchayat Sirinagar and Kawarag as ::: Downloaded on - 31/01/2022 23:01:30 :::CIS -3- municipal area of Nagar Panchayat Kandaghat under Section 4(6) of the Act ibid.
3. In sequel to Constitution of Nagar Panchayat .
Kandaghat and inclusion of local areas of Gram Panchayat Sirinagar in said municipality, Deputy Commissioner, Solan on 15.06.2021 ordered the transfer of all assets and liabilities of Rural Development and Panchayati Raj Department in favour of Urban Development Department, Himachal Pradesh, pertaining to such local area of Gram Panchayats Sirinagar and Kawarag which had been declared as municipal area of Nagar Panchayat Kandaghat.
4. Petitioner, by way of instant petition, has assailed the action of respondents whereby moveable and immovable assets earlier held by it have been ordered to be transferred in the manner above mentioned and has prayed for following substantive reliefs:
"(i). To issue writ of certiorari thereby quashing and setting aside the impugned office letters dated 15.05.2021, 17.05.2021 and 04.06.2021, Annexures P-6, P-7 P-8, and the impugned office order dated 15.06.2021, Annexure P-9, being wrong arbitrary and legally not tenable.
(ii) To issue appropriate writ, direction and order thereby ::: Downloaded on - 31/01/2022 23:01:30 :::CIS -4- restraining respondents No.1, 2 and 4 to 6 from dispossessing the petitioner from the office building (two storeyed) situated over abadi deh land comprising Khasra No.794 precisely denoted by Khasra No.794/1 (Annexure P-5), situated in Mauja Sirinagar, Tehsil .
Kandaghat, District Solan, H.P. and other assets mentioned in the list annexed with Annexure P-9 along with the vehicle bearing registration HP-13-3807, till the final disposal of the present writ petition".
5. As per petitioner, the impugned communications and order are bad in law for want of prior consent of Government of Himachal Pradesh as required by Section 112 of the Himachal Pradesh Panchayati Raj Act (for short, "Panchayati Raj Act"). Petitioner has also contended that transfer of moveable assets was without jurisdiction and authority. Further, the action of respondents in transferring the assets of petitioner in favour of Nagar Panchayat Kandaghat have been assailed to be in violation of Section 57 of the Municipal Act.
6. In addition, petitioner has also taken exception to impugned action of respondents on the ground that petitioner had only suitable place for its office in building constructed on Khasra No. 794/1 in Kandaghat and after its transfer petitioner will not be left with any other suitable and ::: Downloaded on - 31/01/2022 23:01:30 :::CIS -5- convenient place for its office.
7. Respondents while contesting the claim of petitioner have averred that action of respondents in .
transferring of assets from Gram Panchayat Sirinagar to Nagar Panchayat Kandaghat was perfectly legal. Petitioner has been alleged to be guilty of suppression of true and immaterial facts on the ground that it had already exhausted the remedy by filing CWP No.6044 of 2020 which was dismissed by this Court on 7.1.2021. It has been contended that funds amounting to Rs.54,23,727/- were provided by the Rural Development and Panchayati Raj Department in the year 2018-19 and the office building of petitioner on Khasra No.794/1 was constructed with this amount. The said asset now stands transferred to Urban Development Department on the strength of the decision of the Government in that behalf conveyed by Secretary Urban Development vide communication dated 15.05.2021. Ground of non-
maintainability of petition has also been raised in view of availability of alternative remedy under section 143 of Panchayati Raj Act.
8. We have heard learned counsel for petitioner as well as learned Advocate General for the state and have also ::: Downloaded on - 31/01/2022 23:01:30 :::CIS -6- gone through the records.
9. This court has already upheld validity of the Notification dated 28.10.2020, whereby Nagar Panchayat .
Kandaghat came to be constituted and some parts of local area of Gram Panchayat Sirinagar were declared to be the Municipal Area. That being so, by implication of law, immovable assets earlier held by petitioner in the local area declared as municipal area, came to be vested in the Nagar Panchayat Kandaghat under Section 57 of the Municipal Act.
The relevant extract of said provision reads as under:
"57. Property vested in a municipality.
(1) Subject to any special reservation made or to any special conditions imposed by the State Government, all property of the nature hereinafter in this section specified and situated within the municipal area, shall vest in and be under the control of the municipality and with all other property which has already vested, or may hereafter vest in the municipality shall be held and applied by it for the purpose of this Act, that is to say-
(a) all public town-walls, gates markets, stalls, slaughter houses manure and night soil depots and public buildings of every description which have been constructed or are maintained out of the municipal fund;
(b) to ( e ) xxx xxx xxx
(f) All land or other property transferred to the municipality by the State Government or ::: Downloaded on - 31/01/2022 23:01:30 :::CIS -7- acquired by gift, purchase or otherwise for local public purposes.
(g) xxx xxx xxx (2) Where any immovable property is transferred .
otherwise than by the sale by the State Government to a municipality for public purposes, it shall be deemed to be a condition of such transfer, unless specifically provided to the contrary that should the property be at any time resumed by the State Government, the compensation payable thereto, shall, in no case exceed the amount, if any, paid to the State Government, the compensation payable therefor shall, in no case exceed the amount, if any, paid to the State Government for the transfer, together with the cost or the present value which ever shall be less, of any together with the cost or the present value, of any buildings erected on other works executed on the land by the municipality.
(3) & (4). xxx xxx xxx Provided that the mode and condition precedent to the transfer of immovable property, shall be governed by regulations or bye-laws made by the municipality."
10. Petitioner has failed to place any material on record to prove its title over the land comprised in Khasra No.794/1 or the building constructed thereon. On the other hand, the fact that the building was constructed in 2018-19 with the money provided by Rural Development and Panchayati Raj Department has remained un-rebutted. In the given facts, the office building in which Gram Panchayat ::: Downloaded on - 31/01/2022 23:01:30 :::CIS -8- Sirinagar was running its office can be stated to be the asset of the Government of Himachal Pradesh though vested in the Panchayat. As per Section 111(2) of the Panchayati Raj Act, .
Government is entitled to resume the property so vested in the Panchayat subject to the conditions prescribed therein.
11. Section 111(2) of the Panchayat Raj Act, reads as under: -
"111. State Government may vest certain property (1) (2) r xxx in Panchayats:
xxx xxx The State Government may resume any property vested in the Panchayat under sub-section (1). No compensation other than the amount paid by the Panchayat for such transfer or the market value at the date of resumption of any building or works erected or executed on such property by the Panchayat shall be payable.
Provided that no compensation shall be payable in respect of building, structure or works constructed or erected in contravention of the terms and conditions of the vesting."
12. In above noted context, Rule 3 (2) of the Himachal Pradesh Panchayati Raj General Rules 1997 needs attention, which reads as under:
"3. Disposal of assets and liabilities of Gram Sabhas.-
(1) xxx xxx "(2) If any village, sub-village or patti thereof, ::: Downloaded on - 31/01/2022 23:01:30 :::CIS -9- wherein immovable property is located is excluded from the Sabha area and included in the limits of municipality, the immovable property of the transferred area of that Gram Sabha may be transferred to the municipality and either the municipality or the Government shall pay to the .
Gram Panchayat concerned such compensation in lieu of immovable property, not lesser than the market values, as may be determined by the Government or the officer authorized by it, in this behalf. In case of income generating assets transferred to the municipality, the municipality shall continue to pay 50% of the net income accrued from such assets or more as may be determined by the Government, or the officer authorized by it to the Gram Panchayat".
13. Thus, in the given facts of the case, petitioner does not have any right to challenge the transfer of immovable assets held by it in favour of Nagar Panchayat Kandaghat.
Petitioner only has a right to claim compensation and/or share in income from income generating assets, that too if found permissible and payable under above noted provisions of law.
14. On plain reading of Section 112 of the Panchayati Raj Act it becomes clear that it deals with the situation where assets of Gram Panchayat are transferred as result of voluntary action of the Panchayat. It does not deal with the situation as has arisen in the present case whereby the erstwhile assets of Gram Panchayat Sirinagar have come to ::: Downloaded on - 31/01/2022 23:01:30 :::CIS
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be vested in Nagar Panchayat Kandaghat by implication of law. Section 112 of the Panchayati Raj Act, reads as under: -
"112. The transfer of immovable property:
.
(1) No immovable property vested in or belonging to a Panchayat shall be transferred by sale, gift, mortgage or exchange or by lease or otherwise except with the sanction of the State Government or any officer authorized by it in this behalf.
(2) The procedure of transfer of immovable property shall be such as may be prescribed."
15. The claim of the petitioner in this regard otherwise also cannot be sustained due to the reason that the Principal Secretary Urban Development, Himachal Pradesh vide letter dated 15.05.2021 had already conveyed approval of Government for transfer of erstwhile assets of Panchayati Raj and Rural Development Department in favour of department of Urban development.
16. Petitioner also does not have right to run its office only from the building constructed on Khasra No. 794/1 as alleged by it. Petitioner has to maintain its office within the existing jurisdiction of Gram Panchayat Sirinagar. The petitioner in no manner can gainfully run the establishment of its office from a place which is outside the jurisdiction of its local area.
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17. Under the constitutional scheme, the institution of Panchayats can find its origin in the concept of providing machinery for governance at grass root level. The Panchayati .
Raj institutions are extended wings of Government. The dispute raised by the petitioner in present proceedings runs counter to the purpose of creation of such institutions. The justiciability of such disputes is seriously questionable.
Petitioner had alternative remedy under section 143 of the
18.
r to Panchayati Raj Act and its omission to avail such remedy provides reasons to doubt the bona fides of petitioner.
As regards the action of respondents in ordering the transfer of moveable assets of petitioner to Nagar Panchayat Kandaghat, it is held that no such power is vested in respondents. Law does not authorize such transfer and thus the action of respondents to that extent is held to be bad in law.
19. Thus, the petition is allowed to the limited extent only. Transfer of moveable assets of petitioner by respondents in favour of Nagar Panchayat Kandaghat are held to be bad in law and hence unsustainable. Remaining reliefs as prayed by the petitioner are rejected.
20. The petition is accordingly disposed of in the ::: Downloaded on - 31/01/2022 23:01:30 :::CIS
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aforesaid terms, so also the pending miscellaneous application(s), if any, leaving the parties to bear their own costs.
.
(Tarlok Singh Chauhan) Judge (Satyen Vaidya) Judge 7th September, 2021 (tarun) r to ::: Downloaded on - 31/01/2022 23:01:30 :::CIS