Himachal Pradesh High Court
Ashwani Kumar vs State Of H.P. And Others on 31 October, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.: 840 of 2019
.
Decided on: 31.10.2019
Ashwani Kumar ....Petitioner.
Versus
State of H.P. and others ...Respondents.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the petitioner : Mr. Ajay Sharma, Sr. Advocate
r with Mr. Amit Jamwal, Advocate.
For the respondents : Mr. Dinesh Thakur, Additional
Advocate General with M/s Amit
Kumar Dhumal and Divya Sood,
Deputy Advocate Generals and
Mr. Sunny Datwalia, Assistant
Advocate General.
:
Mr. K.D. Sood, Sr. Advocate with
M/s H.R. Thakur and Sukrit
Sood, Advocates for the caveator.
Ajay Mohan Goel, Judge (Oral)
By way of this writ petition, petitioner has inter alia prayed for the following substantive reliefs:-
"a) That impugned orders dated 28.11.2018 passed by learned Deputy Commissioner, Kangra at Dharamshala and orders dated 15.03.2019, ::: Downloaded on - 01/11/2019 20:24:22 :::HCHP Annexure P-5, passed by learned Divisional Commissioner, Kangra at Dharamshala may very .
kindly be quashed and set aside with directions to the respondents to allow the petitioner to continue functioning as Up Pradhan of Gram Panchayat, Chaplah, Block Pragpur, Tehsil Dehra, District Kangra, H.P. in accordance with the provisions of the Act and Rules, to secure the ends of law and justice;
(b) That in the alternative, impugned orders dated 25.03.2019, Annexure P-5, passed by learned Divisional Commissioner, Kangra at Dharamshala being without jurisdiction, may very kindly be quashed and set aside and directions may be issued to learned Divisional Commissioner, Kangra at Dharamshala to return back the Memo of Appeal alongwith other documents to the petitioner for presenting the same before the competent authority as per provisions of the Act."
2. When this case was taken up for consideration, learned Senior Counsel appearing for the petitioner has argued that Annexure P-5, which is the order passed by the Divisional Commissioner, Kangra at Dharamshala, in the ::: Downloaded on - 01/11/2019 20:24:22 :::HCHP appeal, which was filed under Section 181 of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as .
the 'Panchayati Raj Act' for short) by the present petitioner is non est in the eyes of law as the order which stood impugned before the Divisional Commissioner, Kangra at Dharamshala, by way of said appeal, in fact, was appelable under the provisions of Section 131 of the Panchayati Raj Act before Director, Panchayati Raj and not before the Divisional Commissioner. In order to substantiate his contention, learned Senior Counsel for the petitioner has referred to Section 131 (3) of the Panchayati Raj Act, which inter alia provides that any person aggrieved by the order of the Deputy Commissioner, which might have been passed under Section 131 (2) of the Panchayati Raj Act, may within 30 days from the date of decision, file an appeal to the Director or the State Government, whose orders on such appeal shall be final. On this count alone, learned Senior Counsel for the petitioner submits that present petition be allowed and order passed by the Divisional Commissioner, Kangra at Dharamshala, dated 15.03.2019 (Annexure P-5), be quashed and set aside so that ::: Downloaded on - 01/11/2019 20:24:22 :::HCHP petitioner can approach the authority for filing the appeal, as is envisaged under the Panchayati Raj Act.
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3. Learned Additional Advocate General as also Mr. K.D. Sood, learned Senior Counsel appearing for the caveator have submitted that because the appeal before the Divisional Commissioner was preferred by the present petitioner, after dismissal of the said appeal on merit, he cannot be permitted to take said plea. As per them, petitioner is indulging in the abuse of process of law.
4. I have heard learned Counsel for the parties and also gone through the impugned orders, including Annexure P-5 as well as other documents appended with the petition.
5. Record demonstrates that the petitioner, who was elected as Up Pradhan of Gram Panchayat Chaplah, Block Pragpur, Tehsil Dadasiba, District Kangra, H.P was removed from the said office by the Deputy Commissioner, Kangra, by invoking powers conferred upon the said authority under Sub section (2) of Section 131 of the Panchayati Raj Act. Rather than assailing the said order in terms of Sub section (3) of Section 131 of the Panchayati Raj Act, petitioner filed an appeal under Section 181 of the Panchayati Raj Act before the ::: Downloaded on - 01/11/2019 20:24:22 :::HCHP Divisional Commissioner. Said appeal, on merit, stood decided against the present petitioner, who was the appellant .
before the Divisional Commissioner, vide Annexure P-5, i.e. order dated 15.03.2019, so passed in Case No. 22/2019, titled as Ashwani Kumar versus The State of Himachal Pradesh and others.
6. It is settled law that right to file appeal is not a common law right but a statutory right. In the present case, Section 131 of Panchayati Raj Act itself provides that decision taken by the Deputy Commissioner in exercise of power conferred upon said authority under Section 131(2) of the Act was appelable under Section 131(3) of the Panchayati Raj Act before the Director. That being the case, petitioner could not have had invoked the provisions of Section 181 of the Act, which Section provides for an appeal against the order passed by an Authorized Officer under Chapter 11 of the Panchayati Raj Act, which Chapter deals with disputes relating to elections. In this background, it is but apparent that the order which stood passed by the Divisional Commissioner in the appeal so filed by the present petitioner was per se bad in law as no appeal was maintainable before the said authority ::: Downloaded on - 01/11/2019 20:24:22 :::HCHP under Section 181 of the Panchayati Raj Act against an order passed by the Deputy Commissioner under Section 131(2) of .
the Panchayati Raj Act.
7. In view of aforesaid, this petition is allowed to the limited extent that Annexure P-5, i.e. the order passed by the Divisional Commissioner, Kangra at Dharamshala, in case No. 22/2019, which was preferred by the present petitioner under Section 181 of the Himachal Pradesh Panchayati Raj Act, decided on 15.03.2019, is quashed and set aside on the ground that appeal filed before the said authority was not maintainable. Liberty is granted to the petitioner to invoke the right of appeal as stands provided under Section 131(3) of the Himachal Pradesh Panchayati Raj Act. In the event of any such appeal being filed by the petitioner, the time, which petitioner has spent while pursuing his appeal under Section 181 of the Panchayati Raj Act before the Divisional Commissioner as also the present writ petition, shall be excluded while calculating the limitation.
8. At this stage, learned Senior Counsel for the Caveator submits that the conduct of the petitioner cannot be lost sight because, not only at the first instance, he preferred ::: Downloaded on - 01/11/2019 20:24:22 :::HCHP an appeal under Section 181 of the Act but he also hastened to come to this Court by filing a writ petition No. 70 of 2019, .
titled as Ashwani Kumar versus State of Himachal Pradesh and others, in which, this Court itself directed the Divisional Commissioner to adjudicate the appeal so filed by the present petitioner within a period of three months as from the date of passing of the order. Mr. Sood accordingly submits that petitioner cannot be permitted to go scot free and he should be burdened with heavy cost.
9. Mr. Ajay Sharma, learned Senior Counsel for the petitioner submits that though it is a matter of record that petitioner did approach this Court for speedy disposal of the appeal which stood filed by the petitioner before the Divisional Commissioner but this fact also cannot be lost sight of that the petitioner in his capacity as a litigant acted on the advice which was given to him by his Counsel and if cost is imposed, he will be made to suffer for the acts of omission of his Counsel.
10. In my considered view, whether the provision of Section 181 of the Panchayati Raj Act was invoked by the petitioner on his own or under the instructions of his ::: Downloaded on - 01/11/2019 20:24:22 :::HCHP Counsel, yet, it remains a matter on record that certain parties have been subjected to futile litigation at the behest of .
the petitioner. Accordingly, the petitioner is burdened with cost to the tune of 10,000/-, which he shall deposit with the H.P. High Court Bar Association. It is clarified that if the cost so imposed by the Court is not deposited by the petitioner against proper receipt, then, the liberty which has been granted to him to prefer an appeal under Section 131 (3) of the Panchayati Raj Act shall cease to operate. In other words, alongwith the appeal, which may be filed by the present petitioner under Section 131 (3) of the Act, he shall have to append a receipt to demonstrate that he has deposited the cost as imposed by this Court with Himachal Pradesh High Court Bar Association.
11. Learned Senior Counsel for the petitioner submits that it may be ordered that the order so passed by the Deputy Commissioner shall not be given effect to till the petitioner approaches the Director, Panchayati Raj, under Section 131(3) of the Act. His said submission is seriously opposed by learned Additional Advocate General and learned Senior Counsel for the Caveator. Be that as it may, this Court is not ::: Downloaded on - 01/11/2019 20:24:22 :::HCHP making any observation on the prayer of learned Senior Counsel for the petitioner, save and except that the petitioner .
shall be at liberty to move an application before the Appellate Authority praying for grant of interim orders.
The petition stands disposed of in above terms, so also pending miscellaneous application(s), if any.
(Ajay Mohan Goel) Judge October 31, 2019 (narender) ::: Downloaded on - 01/11/2019 20:24:22 :::HCHP