Yash Paul vs Sate of H.P. and Others

Deepak Gupta, J.—By means of this petition, the Petitioner, who at the relevant time was a member of the BDC, Kala Amb, prays that the order passed by the Sub Divisional Officer (Civil), Nahan dated 18.2.2008 quashing the resolution No. 4 dated 26.1.2007 passed by the Gram Sabha be set-aside. The Gram Sabha Kala Amb passed a resolution No. 4 on 26.1.2007 against Respondent No. 4 Sunil Kumar, relevant portion of the resolution reads as follows:

Shri Sunil Kumar, who is Excise and Taxation Officer and posted at Kala Amb Barrier is unnecessarily harassing the people of Kala Amb and people of area bring Tudi and Bhoos and water tankers and pass through barrier and bribe is demanded from them hence unanimously it is decided to request for the transfer of above person from present place and disciplinary action be taken against him. Copy of resolution be sent to the Excise and Taxation Commissioner, Himachal Pradesh for further action.

Shri Sunil Kumar approached the Sub Divisional Officer (Civil), Nahan challenging the said order though in his appeal he stated that the order has been passed by the Gram Panchayat and not by the Gram Sabha. Notice was issued to the Gram Sabha and after issuing notice the Sub Divisional Officer held that the resolution was beyond the scope of the Gram Sabha and hence quashed the same.

The main contention raised by Shri Ajay Sharma, learned Counsel for the Petitioner is that Respondent No. 2 SDO had no jurisdiction to pass the order in question and only the senior officials of the excise department could investigate the resolution passed by the Gram Sabha.

Functions of the Gram Sabha have been set out in Section 7 of the Panchayati Raj Act, which reads as follows:

Function of Gram Sabha.

(1) The Gram Sabha shall perform the following functions, namely-

(a) mobilise voluntary labour and contribution in kind and cash for the Community Welfare Programmes;

(b) identification of beneficiaries for the implementation of developmental schemes pertaining to the village;

(c) rendering assistance in the implementation of developmental schemes pertaining to the village;

(c-a) approve plans, programmes and budget, prepared by the Gram Panchayat for economic development and social justice;

(c-b) authorize, after being satisfied, issuance of utilization certificate of funds spent on the implementation of the plans, projects and programmes of the Gram Panchayat;

(d) promotion of unity and harmony among all sections of society in the Sabha area;

(e) seek clarifications from the Pradhan, Up-Pradhan and members of the Gram Panchayat about any particular activity, scheme, income and expenditure; and (f) such other matters as may be prescribed.

(2) The Gram Sabha shall consider the following matters, and make recommendations and suggestions to the Gram Panchayat, namely:

(a) the annual statement of accounts of the Gram Panchayat, the report of the administration of the preceding financial year and the last audit note and replies, if any, made thereto;

(b) the report in respect of development Programmes of the Gram Panchayat relating to the preceding year and development Programmes proposed to be undertaken during the current year;

(c) the promotion of unity and harmony among all sections of society in the village;

(d) the programme of adult education within the village;

(e) any other matter which the Panchayat Samiti, Zila Parishad the Deputy Commissioner or any other officer authorised in this behalf may require to be placed before the Gram Sabha; and

(f) such other matters as may be prescribed.

(3) The Gram Panchayat shall give due consideration to the recommendations and suggestions of the Gram Sabha.

(4) The Gram Sabha may also form one or more vigilance committee(s) consisting of not less than five persons who are not members of the Gram Panchayat, to supervise the Gram panchayat works, schemes and other activities and to put up reports concerning them in its meeting and shall also send a copy of the said report to such an authority as may be prescribed for this purpose.

(5) The Village level functionaries of the Agriculture, Animal Husbandry, Primary Education, Forest, Health and Family Welfare, Horticulture, Irrigation and Public health, Revenue and Welfare Departments shall attend the meetings of the gram Sabha in whose jurisdiction they are posted, and if such village level functionaries fail to attend the meetings the Gram Sabha shall report the matter to their controlling officer through the Gram Panchayat who shall take disciplinary action against such functionaries within one month from the date of receipt of the report and shall intimate the action taken on such report to the Gram Sabha through the Gram Panchayat.

A bare perusal of Section 7 clearly shows that in terms of Sub-section (1) of Section 7 the Gram Sabha could perform certain functions which are set out in that section. As far as those matters which are covered by Sub-section (2) are concerned, the Gram Sabha can only consider the same and make recommendations to the Gram Panchayat and under Sub-section (3) the Gram Panchayat is to give due consideration to the recommendations and suggestions of the Gram Sabha.Under Sub-section (4), the Gram Sabha can form one or more vigilance committee to supervise functioning of the Gram Panchayat. Under Sub-section (5), the village level functionaries of the Agriculture, Animal Husbandry, Primary Education, Forest, Health and Family Welfare, Horticulture, Irrigation and Public Health, Revenue and Welfare Departments are required to attend the meetings of the Gram Sabha and in case these village functionaries do not attend the meeting then the Gram Sabha can report to their controlling officer who shall take disciplinary action against such officers.

The question that arises in this petition is whether the Gram Sabha had the power and jurisdiction to pass the resolution No. 4 which has been quoted in detail hereinabove.

Shri Ajay Sharma, learned Counsel for the Petitioner submits that in terms of Rule 18 of the H.P. Panchayati Raj (General) Rules, 1997 the Gram Sabha has the authority to take up all matters relating to local problems and the resolution so passed in respect of local problems being faced by the members of the area which constituted the Gram Sabha in question.

I am unable to accept the contention raised by Shri Ajay Sharma, Advocate. The act specifies the role of the Gram Sabha. It can mobilize voluntary labour, identify beneficiaries for implementation of developmental schemes, render assistance in the implementation of the developmental schemes pertaining to the village; approve plans, programmes and budgets prepared by the Gram Panchayat, satisfy that the funds have been properly utilized by the Gram Panchayat and it can seek clarifications from the Pradhan, Up-Pradhan and members of the Gram Panchayat but it has no jurisdiction in this behalf with regard to the other officers of the Government. With regard to the other officers of the Government the only power vested with the Gram Panchayat is in respect of village level functionaries of the departments specified therein who are required to attend the meetings of the Gram Sabha. Here also the only action which the Gram Sabha can take is that in case of non attendance of the village functionaries, it can report the matter to the higher authorities, who in turn may take action against the same.

The Gram Sabha has no jurisdiction under the act to pass a resolution castigating any government official that too behind his back and branding a government official to be a corrupt without giving him an opportunity of even appearing before the Gram Sabha. This resolution which was passed, was beyond the scope of the Gram Sabha and therefore, Respondent No. 2 was well within his powers u/s 13(3) of the Rules to hold that such resolution was beyond the scope of powers of the Gram Sabha. Even in case of Rule 18 the Sub Division Officer has the power to decide whether the dispute is of the nature which could be raised before the Gram Sabha or not. Therefore, there is no error of jurisdiction.

Furthermore, in my opinion, the petition does not survive at all. Respondent No. 4 is no longer posted in the area in question. Even if the allegation of the Gram Sabha was right, the Respondent had to be posted out and since he is no longer functioning, there is no reason why these proceedings should be continued any further. Therefore, I find no merit in the petition, which is accordingly rejected. No costs.