Himachal Pradesh High Court
Parkash Chand vs State Of Himachal Pradesh And Others on 27 November, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 185 of 2017 Decided on: November 27, 2018 .
________________________________________________________________ Parkash Chand .. Petitioner Versus State of Himachal Pradesh and others ..........Respondents ________________________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 yes. ________________________________________________________________ For the petitioner : Mr. Romesh Verma, Advocate.
For the respondents : Mr. Dinesh Thakur, Additional Advocate General with Mr. Amit Kumar, Deputy Advocate General, for respondents No.1 and 2.
None for respondent No.3.
Mr. Sunny Dhatwalia, Advocate, for respondent No.4.
________________________________________________________________ Sandeep Sharma, Judge:(oral) By way of present petition filed under Art. 227 of the Constitution of India, petitioner, while raising an important question with regard to competence of a Gram Panchayat to adjudicate a dispute inter se two individuals with regard to encroachment over private land, has laid challenge to order dated 18.10.2016 (Annexure P-5) passed by the learned Sub Divisional Magistrate, Tehsil Barsar, District Hamirpur, Himachal Pradesh, in Case No. 5 of 2015 and order dated 7.7.2010 (Annexure P-1) 1 Whether the reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 2
passed by the Gram Panchayat, Sour, Tehsil Barsar, District Hamirpur, Himachal Pradesh.
.
2. For having a bird's eye view, facts in brief, as emerge from the record are that respondent No.3, Gram Panchayat, Sour, taking cognizance of a complaint having been filed by respondent No.4, to the effect that the petitioner has encroached upon certain portion of his private land, initiated proceedings for encroachment against the petitioner, under the provisions of Himachal Pradesh Panchayati Raj Act, 1994. Careful perusal of order dated 7.7.2010, passed by Gram Panchayat, Sour, respondent No.3, suggests that the demarcation of the land in dispute was got conducted by the Panchayat itself in the presence of the parties, wherein, allegedly, petitioner agreed to vacate the land encroached upon by him. Since, despite assurance having been given by petitioner, he failed to vacate the encroachment, Gram Panchayat, Sour passed an order dated 7.7.2010, whereby it directed the petitioner to remove Palli from the land of respondent No.4, within a period of 30 days. Perusal of impugned order referred to herein above, further reveals that the Gram Panchayat imposed a penalty of `10/- under Ss. 180 and 228 of the Act ibid.
3. Aggrieved with the passing of order dated 7.7.2010, petitioner preferred an appeal in the court of learned Judicial ::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 3 Magistrate 1st Class Barsar, District Hamirpur, Himachal Pradesh under S.67 of the Act, however, the fact remains that the .
same was partly allowed, whereby order dated 7.7.2010 passed by Gram Panchayat, Sour, to the extent of imposition of fine to the tune of `10/- upon the petitioner, was set aside, whereas remaining order was upheld. It is also not in dispute that against aforesaid order passed by the Judicial Magistrate 1st Class, Barsar, petitioner has not filed any appeal or any other proceedings in any court of law.
4. In the year 2015, respondent No.4 filed an application (Annexure P-3) under S.71 of the Act ibid in the court of learned Sub Division Collector-cum-Sub Divisional Magistrate, Barsar, District Hamirpur, Himachal Pradesh, praying therein for execution/implementation of order dated 7.7.2010 passed by the Gram Panchayat Sour, Tehsil Barsar, District Hamirpur, Himachal Pradesh. Learned Sub Divisional Magistrate, Barsar, vide order dated 18.10.2016 (Annexure P-5) allowed the aforesaid application and directed the Gram Panchayat concerned to execute the order dated 7.7.2010. In the aforesaid background, petitioner has approached this court in the instant proceedings, praying therein for setting aside order dated 7.7.2010 passed by Gram Panchayat Sour (Annexures P-1), order dated 4.1.2012(Annexure P-2) passed by Judicial Magistrate 1st Class ::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 4 Barsar in Panchayat Appeal No. 04/2010 and order dated 18.10.2016(Annexure P-5) passed by Sub Divisional Magistrate, .
Barsar, District Hamirpur, Himachal Pradesh in Case No. 05/2015, being illegal, without any jurisdiction and contrary to the provisions of law.
5. I have heard the learned counsel for the parties and gone through the record carefully.
6. Having heard the learned counsel representing the parties and perused the various provisions contained under the Act ibid, this court is persuaded to agree with the contention of Mr. Romesh Verma, learned counsel representing the petitioner that order dated 7.7.2010 (Annexure P-1) passed by Gram Panchayat Sour on the complaint of respondent No.4, is without any jurisdiction or authority. There appears to be no provision under the Act ibid authorizing the Gram Panchayat to adjudicate a private dispute of land inter se parties. At this stage, following provisions of the Act ibid, can usefully be extracted hereunder:
"11. Functions of Gram Panchayat.-
[(1) The Gram Panchayat shall perform the functions specified in Schedule-I.]the functions specified in Schedule-I.] (2) Notwithstanding anything contained in this Act the State Government may, by general or special order, entrust to the Gram Panchayat preparation of plans and implementation of schemes for economic development and social justice [including those matters specified in ::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 5 Schedule-II and the Gram Panchayat shall perform such functions.] (3) The State Government may, by general or special .
order, add to any of the functions of the Gram Panchayat or withdraw the functions and duties entrusted to such a Gram Panchayat, when the State Government under takes the execution of any of the functions entrusted to the Gram Panchayat, the Gram Panchayat shall not be responsible for such functions so long as the State Government does not re-entrust such functions to the Gram panchayat.
(4) The Government may, by notification and subject to such conditions as may be specified therein ,-
(a) transfer to any Gram Panchayat the r management and maintenance of a forest situated in the Gram Sabha area ;
(b) make over the Gram Panchayat the management of waste lands, pasture lands or vacant lands belonging to the Government situated within the Gram Sabha area ;
(c) transfer to the Gram Panchayat the protection of any irrigation work and its execution and the regulation/distribution of water from any such work ;
(d) transfer to the Gram Panchayat any public property situated within the jurisdiction of the Gram Sabha ;
(e) entrust the gram Panchayat with the collection of land revenue on behalf of the Government and the maintenance of such records as are connected therewith; and
(f) entrust such other functions as may be prescribed:
Provided that when any transfer of the management and maintenance of a forest is made under clause (a) or the transfer of any irrigation work is made under clause (c), the Government shall direct that any amount required for such management and maintenance or an adequate portion of the income from such forest or irrigation work be placed at the disposal of the Gram Panchayat.::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 6
(5) A Gram Panchayat shall have powers to do all acts necessary for or incidental to the carrying out of the functions entrusted, assigned or delegated to it and, in .
particular, and without prejudice to the foregoing powers, to exercise all powers specified under this Act. 1 [(11-A). Registration of cattle and maintenance of record therefor.-
(1) Head of every family shall be responsible to give or cause to be given, either orally or in writing, the details of cattle owned by his family to the concerned Pradhan or the Panchayat Secretary of the Gram Panchayat, within a period of one month from the commencement of the Himachal Pradesh Panchayati Raj (Amendment) Act, 2006, and thereafter every time as and when any change in the number of cattle takes place by any reasons. (2) On receipt of the details of cattle under sub-section (1), the Gram Panchayat shall register cattle and shall maintain records thereof in such form as may be notified by the State Government:
Provided that the Gram Panchayat may charge registration fee at such rate as may be fixed by the Gram Panchayat.
(3) It shall be the duty of the Gram Panchayat to assist the officials or persons engaged by the Animal Husbandry Department for applying appropriate identification mark on each cattle and to maintain the record of identification. (4) It shall be the duty of every Gram Panchayat to assist the officials or representatives of the Animal Husbandry Department in identifying the stray cattle within its jurisdiction.
(5) If any cattle with identification mark is found stray, the owner of the cattle shall be identified by the Gram Panchayat from the record maintained by it and such ::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 7 owner shall be liable to a fine of 2 [five hundred] rupees for the first offence and 3 [seven hundred] rupees in the event of second or subsequent offence, which shall be .
imposed by the Gram Panchayat.
(6) If the Gram Panchayat fails in identifying such stray cattle due to tampering with identification mark or mutilation thereof, it shall report the matter to the In-
charge of the nearest Animal Husbandry Dispensary who shall lodge the stray cattle to the nearest Gosadan or Goshala.]
12. Power of removal of encroachments and nuisance.-
(1) A Gram Panchayat, on receiving a report or other information and on taking such evidence, if any, as it thinks fit, may make a conditional order requiring, within a time to be fixed in the order-
(a) The owner or the occupier of any building or land-
(i) to remove any encroachment on a public street, place or drain;
(ii) to close, remove, alter, repair, cleanse, disinfect or put in good order any latrine, urinal, water closet, drain, cesspool or other receptacle for filth, sullage-water, rubbish or refuse or to remove or alter any door or trap or construct any drain for any such latrine, urinal or water closet which opens on to a street, drain or to shut off such latrine, urinal, water closet by a sufficient roof and wall or fence from the view of persons passing by or dwelling in the neighborhood;
(iii) to cleanse, repair, cover, fill up, drain off, deepen or to remove water from a private well, tank, reservoir, pool, pit, ditch, depression or excavation therein which may appear to the Gram Panchayat to be injurious to health or offensive to the neighborhood;
(iv) to remove any dirt, dung, night soil, manure or any noxious or offensive matter ::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 8 therefrom and to cleanse the land or building;
(b) the owner of any wall or building which is deemed by the Gram Panchayat to be in any way .
dangerous, to remove or repair such wall or building;
(c) the owner or occupier of any building or property to keep his building or property in a sanitary state;
(d) the owner of any dog or other animal suffering or reasonably suspected to be suffering from rabbis or which is dangerous, to destroy or confine or cause to be destroyed or confined such dog or animal;
(e) the owner or occupier of any agricultural land to r destroy harmful weeds from such land;
(f) the owner or occupier concerned to reclaim an unhealthy place;
(g) the owner or occupier of any building or land to maintain in proper repair the level and surface of any road or street passing in front of the building or through his land; and
(h) the owner or person-in-charge of a private water channel to keep it in a state of reasonable repair;
or, if he objects so to do, to appear before it, at a time and place to be fixed by the order and to move to have the order set aside or modified in the manner hereinafter provided. If he does not perform such act or appear and show cause, the order shall be made absolute. If he appears and shows cause against the order, the Gram Panchayat shall take evidence and if it is satisfied that order is not reasonable and proper, no further proceedings shall be taken in the case. If it is not so ::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 9 satisfied, the order shall be confirmed or modified as it deems fit.
(2) if such act is not performed within the time fixed, the .
Gram Panchayat may cause it to be performed and may recover the costs of performing it from such person in the prescribed manner.
(3) Any person aggrieved by an order under sub-section (1) may file an appeal within thirty days of the passing of such order before the Sub Divisional Officer who after holding such enquiry as he may deem fit, may set aside, modify or confirm the said order and his decision thereon shall be final.
13. Power to make general orders.- A Gram Panchayat may by general order to be published in the manner prescribed, -
(a) prohibit the use of water of a well, pond or other excavation suspected to be dangerous to the public health;
(b) regulate or prohibit the watering of cattle or bathing or washing at or near wells, ponds or other excavations reserved for drinking water;
(c) regulate or prohibit the steeping of hemp or any other plant in or near ponds or other excavations within two hundred and twenty metres of the residential area of a village;
(d) regulate or prohibit the dyeing or tanning of skins within four hundred and forty meters of the residential area of a village;
(e) regulate or prohibit the excavation of earth or stone or other materials, within two hundred and twenty meters of the residential area of a village:
Provided that nothing shall be done under this clause to prevent excavations meant to be filled by the foundation of buildings or other structures;::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 10
(f) regulate or prohibit the establishment of brick kilns and charcoal kilns within eight hundred and eighty meters and pottery kilns within two hundred and twenty .
metres of the residential area of a village;
(g) direct that the carcasses of all animals dying within the village, except animals slaughtered for consumption shall not be disposed of within a radius of four hundred and forty metres of the residential area of the village; (h) regulate the construction of new buildings or the extension or alterations of any existing building or the abadi;
(i) regulate with the previous permission of the Government, the parking of public vehicles;
(j) regulate such matters as may be necessary for the general protection of standing trees and trees on common land and the planting of such trees;
(k) regulate the observance of sanitation and taking curative and preventive measures to remove and prevent the spread of epidemics;
(l) regulate the maintenance of water courses meant for irrigation purposes; (m) regulate the killing of stray dogs;
(n) regulate the slaughter of animals;
(o) prohibit beggary; (p) direct the taking of measures for the prevention of water-logging;
(q) regulate the flaying and disposal of dead animals;
(r) prohibit the sale of harmful eatables within the Sabha area; and
(s) regulate offensive and dangerous trades or practices; 1 [(t) protect public property such as sign boards, mile- stones on public roads, paths, irrigation and water supply schemes, public taps, public wells, hand pumps, community centres, mahila mandal bhawans, school buildings, Health/Veterinary/Ayurvedic Institution buildings.] ::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 11
41. Extent of jurisdiction.-
(1) The jurisdiction of a Gram Panchayat shall extend to .
any suit of the following description if its value does not exceed two thousand rupees:-
(a) a suit for money due on contract other than a contract in respect of immovable property;
(b) a suit for the recovery of movable property or for the value there of;
(c) a suit for compensation for wrongfully taking or damaging a moveable property;
(d) a suit for damages caused by cattle trespass;
and
(e) a suit under clauses (f) and (i) of sub-section (3) of section 58 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (8 of 1974).
(2) Notwithstanding anything contained in sub-section (1), the State Government or the prescribed authority may, by notification in the Official Gazette, extend the pecuniary jurisdiction of Gram Panchayat to five thousand rupees in respect of any or all the suits of the description mentioned in subsection (1).
71. Execution of decrees.-
(1) A decree or order passed by a Gram Panchayat shall be executed in such manner as may be prescribed. If the property of the defendant [or respondent, as the case may be,] is situated outside the jurisdiction of the Gram Panchayat passing such order or decree, it may transfer the decree or order for execution in the prescribed manner to the Gram Panchayat within whose jurisdiction the property may be situated and if there be no such Gram Panchayat then to the court of the Sub-Judge [or the Judicial Magistrate] within whose jurisdiction it may be situated and the said Gram Panchayat or the Sub- Judge 3 [or the Judicial Magistrate], as the case may be, ::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 12 shall execute the decree or order as if it were a decree or order passed by it or him.
.
[(2) If a Gram Panchayat finds any difficulty in executing a decree or order, it may forward the same to the Sub- Judge or the Judicial Magistrate concerned and the Sub- Judge or the Judicial Magistrate, as the case may be, shall than execute the decree or order as if it were a decree or order passed by him.] (3) An order under the Himachal Pradesh Land Revenue Act, 1953 (6 of 1954), shall, as far as possible, be executed as provided in sub-sections (1) and (2). Sub- section (2) shall be read and construed as if for the word "Sub Judge" the words "Collector concerned" were substituted.
7. Careful perusal of aforesaid provisions of law, especially Ss. 11 and 12, nowhere suggests that the Gram Panchayat is competent or empowered to take cognizance of a private dispute inter se parties qua the land or immovable property falling in the territorial jurisdiction of the Gram Panchayat concerned. Though S.12 empowers a Gram Panchayat to order for removal of encroachment after receiving report or other information, but it clearly speaks of encroachment over government land/Panchayat land. Similarly, S.13 empowers a Gram Panchayat to make general orders to regulate use of water bodies, regulate watering of cattle or bathing or washing, steeping of hemp, dying/tanning of skins, excavation of earth, establishment of brick kilns, ::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 13 disposal of carcasses, parking of public vehicles, protection of trees, sanitation, irrigation etc. S.14 authorises a Gram .
Panchayat to have a check on unauthorized construction in its area. As per S.14, construction, if any, can be raised within the limits of Gram Panchayat strictly as per plan approved by the Gram Panchayat. This court, was unable to lay its hand to any provision of law in the aforesaid Act, suggestive of the fact that Gram Panchayat has power to determine rights of private parties especially encroachment over private land.
8. At this stage it would be relevant to refer to S.41, which has been otherwise reproduced herein above. Save and except under S.44, there is no specific mention, if any, with regard to kind/nature of litigation Gram Panchayat can have/entertain, while exercising powers vested in it under various provisions of law contained under the Act. As per S.41, following suits can be tried by Gram Panchayat, that too, subject to the condition that its value should not exceed `2000/-:
"(a) a suit for money due on contract other than a contract in respect of immovable property;
(b) a suit for the recovery of movable property or for the value there of;
(c) a suit for compensation for wrongfully taking or damaging a moveable property;
(d) a suit for damages caused by cattle trespass; and ::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 14
(e) a suit under clauses (f) and (i) of sub-section (3) of section 58 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (8 of 1974)."
.
9. Careful perusal of aforesaid provision of law i.e. S.41, nowhere provides that a suit, if any, qua dispute with regard to immovable property can be tried/entertained by a Gram Panchayat. Under S.44 of the Act ibid, Gram Panchayat has been specifically barred to take cognizance of following suits:
"a suit for a balance of partnership account;
(b) a suit for a share or part of a share under intestacy or for a legacy or part of legacy under a will;
(c) a suit by or against the State or a public servant for acts done in his official capacity; and
(d) a suit by or against a minor, or a person of unsound mind"
10. Argument having been raised by the learned counsel representing the respondent No.4 that since suit with regard to immovable property triable by Gram Panchayat has not been specifically excluded under S.44, it can be safely inferred that the Gram Panchayat has/had jurisdiction to entertain suit with regard to immovable property, is not at all tenable because, under S.41, legislation, while determining the extent of jurisdiction, has nowhere specifically included the suit qua immovable property. Once, suit for immovable property has not been included in the jurisdiction of the Gram Panchayat as ::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 15 provided in S.41 of the Act, there was no occasion for the legislation to specifically provide/mention the same, in the .
exclusion clause in the Act i.e. under S.44.
11. Having carefully perused the various provisions contained under the Act and heard the learned counsel representing the parties, this court is not persuaded to agree with Mr. Dinesh Thakur, learned Additional Advocate General appearing for respondents No.1 and 2 and Mr. Sunny Dhatwalia, learned counsel representing respondent No.4 that the Gram Panchayat was well within its right to determine private rights of the parties, while exercising powers vested in it under the Act.
12. At the cost of repetition, it may be observed that it has been nowhere provided under the functioning of the Gram Panchayat i.e. Ss. 11, 12, 13 and 14 that the Gram Panchayat shall have the jurisdiction to adjudicate the dispute, if any, inter se parties with regard to immovable property. Leaving everything aside, this court having carefully gone through order dated 7.7.2010 (Annexure P-1), is not able to decipher, under which provision of law/Act, Gram Panchayat Sour proceeded to initiate proceedings against the petitioner. Similarly, there is no mention that for the infraction of which provision of the Act, penalty came to be imposed upon the petitioner.
::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 1613. In view of the discussion made herein above as well as provisions of law as reproduced herein above, this court has no .
hesitation to conclude that the Gram Panchayat under the Act ibid, had no power to adjudicate upon the private dispute inter se parties with regard to immovable property.
14. Now, the question, which remains to be decided by this court is, whether the order dated 7.7.2010, which otherwise has attained finality as far as main order is concerned, can be set aside in the present proceedings, especially when petitioner failed to lay challenge to the same, for almost eight years? Similarly, yet another question, requiring adjudication in the present proceedings is that whether the petitioner, after having availed remedy of appeal can be allowed to raise question with respect to jurisdiction/authority of the Gram Panchayat to pass the order dated 7.7.2010.
15. As has been held herein above, the Gram Panchayat Sour, had no authority or jurisdiction to determine private dispute inter se parties, with regard to immovable property as such, one thing can be safely concluded that the order dated 7.7.2010 is without jurisdiction.
16. Question, whether the order passed without jurisdiction/ authority is required to be assailed or laid challenge, is no more res integra. Hon'ble Apex Court and this ::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 17 court have repeatedly held in a catena of judgments that an order passed without jurisdiction is not required to be laid challenge, .
being a nullity in the eye of law.
17. Reliance is placed upon decision of the Hon'ble Apex Court in Chandrika v. Bhaiyalal AIR 1973 SC 2391, wherein it has been held as under:
"6. It is from this Order that the present appeal has been filed by special leave. It is to be noticed that the suit had been filed in a Civil Court for possession and the Limitation Act will be the Act which will 'govern such a suit. It is not the case that U.P. Act No. 1 of 1951 authorises the filing of the suit in a Civil Court and prescribes a period of limitation for granting the relief of possession superseding the one prescribed by the Limitation Act. It was, therefore, perfectly arguable that if the suit is one properly entertainable by the Civil Court the period of limitation must be governed by the provisions of the Limitation Act and no other. In that case there would have been no alternative but to pass a decree for possession in fayour of the Plaintiffs. But the unfortunate part of the whole case is that the Civil Court had no jurisdiction at all to entertain the suit. It is true that such a contention with regard to the jurisdiction had not been raised by the defendant in the Trial Court but where the court is inherently lacking in jurisdiction the plea may be raised at any stage, and, it is conceded by Mr. Yogheshwar Prasad, even in execution proceedings on the ground that the decree was a nullity. If one reads sections 209 and 331 of the U.P. Act No. 1 of 1951 together one finds that a suit like the one before us has to be filed before a Special Court created under the Act ::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 18 within a period of limitation specially prescribed under the rules made under the Act and the jurisdiction of the ordinary civil Courts is absolutely barred. Section 209 so .
far as we are concerned reads as follows "209 Ejectment of persons occupying land without title (1) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and-
(a) where the land forms part of the holding of a bhumidhar, sirdar or asami, without the consent of such bhumidhar, sirdar or asami, and r (b)..............................
shall be liable to ejectment on the suit in cases referred to in clause (a) above, of the bhumidhar, sirdar or asami concerned, and shall also be liable to pay damages.
(2) To every suit relating to a land referred to in clause (a) of sub-section (1) the State Government shall be impleaded as a necessary party."
In the present case it has been held that the defendant has been re that the land is bhumidhari land and the plaintiffs are bhumidhars. taining possession of the land contrary to law being a trespasser; Therefore, the suit was of a description falling under section 209. Section 331 so far as it is relevant is as follows :
"331. Cognizance of suits, etc., under this Act.
(1)...Except as provided by or under this Act no Court than a Court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908, take cognizance of any suit, application, or proceedings mentioned in column 3 thereof."::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 19
Schedule II at serial no. 24 shows that a suit for ejectment of persons occupying. land without title under section 209 should be filed in the court of the Assistant Collector, First Class, which .
is described as the Court of Original Jurisdiction. In view of Section 331 (1) quoted above it is evident that the suit made cognizable by a special court i.e. the Court of the Assistant Collector, First Class, could not be filed in a Civil Court and the Civil Court was, therefore,, inherently lacking in Jurisdiction to entertain such a suit. it is unfortunate that this position in law was not noticed in the several Courts through which this litigation has passed, not even by the High Court which had specifically come to the conclusion that the period of limitation was the one laid down by the rules under U.P. Act No. 1 of 1951. Since the Civil Court which entertained the suit suffered from an inherent lack of jurisdiction, the present appeal filed by the plaintiffs will have to be dismissed."
18. Reliance is also placed upon judgment rendered by the Hon'ble Apex Court in The Rajasthan State Industrial Development and Investment Corporation Vs. Subhash Sindhi Cooperative Housing Society Jaipur & Ors., 2013 (2) Civil Court Cases 766, wherein it has been held as under:
"8. Thus, in the instant case, the respondent-society, and its members, have to satisfy the court as regards their locus standi with respect to maintenance of the writ petition on any ground whatsoever, as none of the original khatedars has joined the society in subsequent petition.
9. In Smt. Kalawati v. Bisheshwar, AIR 1968 SC 261, this Court held:::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 20
"Void means non-existent from its very inception."
10. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) & Ors., AIR 1996 SC .
906, this Court held:
"The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity or the infirmity, as to whether it is, fundamental or otherwise."
11. The word, "void" has been defined as: ineffectual;
nugatory; having no legal force or legal effect; unable in law to support the purpose for which it was intended. (Vide: Black's Law Dictionary). It also means merely a nullity, invalid; null; worthless; sipher; useless and ineffectual and may be ignored even in collateral proceeding as if it never were. The word "void" is used in the sense of incapable of ratification. A thing which is found non-est and not required to be set aside though, it is sometimes convenient to do so.
There would be no need for an order to quash it. It would be automatically null and void without more ado. The continuation orders would be nullities too, because no one can continue a nullity. (Vide: Behram Khurshid Pesikaka v. State of Bombay, AIR 1955 SC 123; Pankaj Mehra & Anr. v. State of Maharashtra & Ors., AIR 2000 SC 1953; Dhurandhar Prasad Singh v. Jai Prakash University & Ors., AIR 2001 SC 2552; and Government of Orissa v. Ashok Transport Agency & Ors., (2002) 9 SCC
28).
19. It is quite apparent from the aforesaid exposition of law that an order passed without any jurisdiction/authority need not ::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 21 be laid challenge to, being a nullity in the eye of law because it would become automatically null and void, without much ado.
.
20. True it is that in the instant case, petitioner after having suffered order dated 7.7.2010, which was a nullity in the eye of law, filed an appeal under S.67 of the Act ibid in the court of Judicial Magistrate 1st Class, Barsar, but that cannot be a ground to outrightly reject the plea having been raised by the petitioner in the instant petition that the order dated 7.7.2010 passed by the Gram Panchayat, Sour, deserves to be quashed and set aside being void because, as has been categorically held in aforesaid judgments, there is no need to lay challenge to such an order, which is passed without any jurisdiction.
21. Thus, order dated 7.7.2010 (Annexures P-1) passed by Gram Panchayat Sour, can not be allowed to sustain, being without jurisdiction. Consequently, the order dated 4.1.2012(Annexure P-2) passed by Judicial Magistrate 1st Class Barsar in Panchayat Appeal No. 04/2010 and order dated 18.10.2016(Annexure P-5) passed by Sub Divisional Magistrate, Barsar, District Hamirpur, Himachal Pradesh in Case No. 05/2015 have also become null and void.
22. Though this court has no second thought about the competence and jurisdiction of a Gram Panchayat to try/entertain the suit with regard to immovable property but ::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 22 there is yet another aspect of the matter i.e. in the instant case, respondent No.4, after three years of passing of the order dated .
4.1.2012 by Judicial Magistrate 1st Class, Barsar, in the appeal having been filed by petitioner, preferred an execution petition under S. 71 of the Panchayati Raj Act, 1994, in the court of Sub Division Collector-cum-Sub Divisional Magistrate Barsar for the execution and implementation of order dated 7.7.2010 passed by the Gram Panchayat, which, in my considered view, was not maintainable because careful perusal of S.71 suggests that a decree/order passed by a Gram Panchayat is to be executed /implemented by the Gram Panchayat, within whose jurisdiction property is situate. S.71 provides that if the property of the defendant is situate outside the jurisdiction of Gram Panchayat, which passed such an order, it can transfer the order/decree for execution to the Gram Panchayat within whose jurisdiction, it may be situate. In the case at hand, it is not the case of the respondent No.4 that the order dated 7.7.2010 passed by Gram Panchayat Sour could not be executed/implemented by Gram Panchayat, Sour itself. Similarly, it is not the case of respondent No.4 that the property in dispute is/was not situate within the jurisdiction of Gram Panchayat and as such, it is not understood, how execution petition came to be filed in the court of Sub Divisional Magistrate, Barsar, which had no authority to take ::: Downloaded on - 28/11/2018 22:57:02 :::HCHP 23 cognizance of the execution petition, which was otherwise triable by Gram Panchayat, Sour, which had passed the order sought to .
be implemented/ executed.
It has also been brought to the notice of this court that a civil suit is also pending between the private parties qua the same land.
23. Consequently, in view of the discussion made herein above, this court sees substantive force in the present petition and deems it fit to accept the same. Accordingly, the petition is allowed and order dated 7.7.2010(Annexure P-1) passed by the Gram Panchayat, Sour, Tehsil Barsar, District Hamirpur, Himachal Pradesh, is quashed and set aside. Consequently, the order dated 4.1.2012(Annexure P-2) passed by Judicial Magistrate 1st Class Barsar in Panchayat Appeal No. 04/2010 and order dated 18.10.2016(Annexure P-5) passed by Sub Divisional Magistrate, Barsar, District Hamirpur, Himachal Pradesh in Case No. 05/2015 are also quashed and set aside.
24. The petition stands disposed of accordingly. All pending applications stand disposed of. Interim directions, if any, are vacated. Record, if any received, be sent back forthwith.
(Sandeep Sharma) Judge November 27, 2018 (vikrant) ::: Downloaded on - 28/11/2018 22:57:02 :::HCHP