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2025 DAILYLAW 3583 (HP)

Ramesh Kumar v. Gautam Singh

2025-09-15

Ajay Mohan Goel

body2025
JUDGMENT : Ajay Mohan Goel, J. By way of this petition, filed under Article 227 of the Constitution of India, the petitioner has assailed judgment dated 27.09.2016, passed by learned Civil Judge, Senior Division, Kinnaur, in Case No. 1-2/2014, titled Gautam Singh Versus Ramesh Kumar, exercising appellate powers under Section 67 of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as ‘the 1994 Act’), in terms whereof, the Appeal filed by the respondent herein, has been allowed by the learned Appellate Court by setting aside judgment dated 26.11.2014, passed by Judicial Bench, Gram Panchayat, Sunnam. 2. Learned counsel for the petitioner argued that the appellate order is not sustainable in the eyes of law for the reason that learned Appellate Court has erred in not appreciating that the concerned Panchayat had the authority to transfer the case in terms of the provisions of Sections 40 and 43 of the 1994 Act and further in light of the fact that the complaint was filed alleging violation of the provisions of the Indian Penal Code and Schedule 3, Serial No.11 of the 1994 Act, the Appellate Court had no jurisdiction to entertain and hear the Appeal on merit. No other point was urged. 3. On the other hand, learned Senior counsel for respondent No.1 drew the attention of the Court to the documents appended with the petition, including impugned order passed by the Judicial Bench of Gram Panchayat, Sunnam, dated 26.11.2014 and submitted that therein the case was registered as a “Diwani case”, which means a “Civil Case” bearing No.1/2012. Accordingly, he submitted that as it was a “Diwani case”, registered and tried by the Judicial Bench of the Gram Panchayat, therefore, rightly the Appeal was filed in terms of Section 67 of the 1994 Act before the Sub-Judge. He further submitted that as far the findings returned by the learned Appellate Court, qua there being lack of jurisdiction with the Gram Panchayats to transfer the case, same are based on the language of Sections 30 and 43 of the 1994 Act and the same call for no interference as the findings are correct. 4. I have heard learned counsel for the petitioner as well as learned Senior Counsel for respondent No.1 and have also gone through the order passed by the Appellate Court as well as the Judicial Bench of the Gram Pacnahayt and documents appended with the petition. 4. I have heard learned counsel for the petitioner as well as learned Senior Counsel for respondent No.1 and have also gone through the order passed by the Appellate Court as well as the Judicial Bench of the Gram Pacnahayt and documents appended with the petition. 5. The order challenged in Appeal was passed by the Judicial Bench of the concerned Gram Panchayat is dated 26.11.2014. This order is on record at Page No.18 of the paper book, appended as Annexure P-4. Perusal thereof demonstrates that the matter was registered with the Gram Panchayat as “Diwani Case No. 1/2012”. This means that the case was registered as a civil case and were decided as such. Section 67 of the 1994 Act provides that any person aggrieved by an order or decree of a Bench of the Gram Panchayat, may file an Appeal within a period of 30 days from the date of such order or decree to the Judicial Magistrate/Sub-Judge, in respect of any case or suit, as the case may be and the Collector concerned in respect of any proceedings under Himachal Pradesh Land Revenue Act, 1953. 6. In light of the fact that the proceedings before the Gram Panchayat were not proceedings under the Himachal Pradesh Land Revenue Act, obviously, the same were to be assailed before the Judicial Magistrate/Sub-Judge. 7. In light of the fact that the case was registered and decided as a civil case by the Judicial Bench of the Gram Panchayat, the Appeal was rightly filed before and decided by learned Civil Judge and, therefore, this Court finds no merit in the contention of the petitioner that the learned Civil Judge did not have any Authority to deal with the matter. 8. As far as the findings returned by the learned Appellate Court qua no jurisdiction being vested with the Gram Panchayat to transfer the case are concerned, this Court is of the considered view that there is no infirmity therein. In order to appreciate this aspect of the matter, the relevant provisions of the 1994 Act i.e. Sections 30 and 43 are being quoted hereinbelow:- Section 30 of the 1994 Act provides as under:- “30. In order to appreciate this aspect of the matter, the relevant provisions of the 1994 Act i.e. Sections 30 and 43 are being quoted hereinbelow:- Section 30 of the 1994 Act provides as under:- “30. Bar for Panches to take part in certain cases.- (1) No Panch shall take part in any case, suit or proceedings to which he or she or his or her near relation, employed or employee, or partner in business is a party or in which any of them is personally interested. (2) If by reason of the number of Panches disqualified under sub-section (1) there remains no quorum the Gram Panchayat shall send the case or the suit to the Judicial agistrate or the Sub-Judge or the Collector having jurisdiction, as the case may be, for disposal in accordance with law. Explanation.- ‘near relation’ means father, grandfather, father-in-law, maternal or paternal uncle, son, grandson, son- in-law, brother, nephew, brother-in-law, wife, sister, sister’s husband, mother, daughter, niece, mother-in-law, daughter- in-law and husband. Section 43 of the 1994 Act provides as under:- 43. Application for transfer of cases from one Gram Panchayat to another Gram Panchayat.- (1) Notwithstanding anything to the contrary contained in this chapter, if in any criminal case or civil suit or revenue proceeding before a Gram Panchayat any party intimates, at any stage before the pronouncement of the final order or decree, that it intends to put up an application under this section to the Judicial Magistrate or the Sub-Judge or the Collector, as the case may be, for transfer of the case, suit or proceeding, the Gram Panchayat shall direct the applicant to make such application within a reasonable time to be fixed by the Gram Panchayat, which shall not be less than fifteen days and adjourn the case, suit or proceeding for such period as will afford sufficient time for the application to be put up and an order to be obtained thereon: Provided that nothing herein contained shall require the gram Panchayat to adjourn the case, suit or proceeding upon a second or subsequent intimation form the same party. (2) The Judicial Magistrate or the Sub-Judge or the Collector, as the case may be, may upon such application, for reasons to be recorded in writing, transfer the case, suit or proceeding to another Gram Panchayat within his jurisdiction which shall try or hear the case, suit or proceeding, as the case may be.” 9. In terms of the provisions of Section 30 of the 1994 Act, no Panch shall take part in any case, suit or proceeding to which he or she or his or her near relation, employed or employee, or partner in business etc. is personally interested. It is further provided in the Section that if by reason of the number of Panches disqualified under sub-Section (1) there remains no quorum, the Gram Panchayat shall send the case or the suit to the Judicial Magistrate or the Sub-Judge or the Collector having jurisdiction, as the case may be, for disposal in accordance with law. Similarly, Section 43 of the 1994 Act provides that notwithstanding anything to the contrary contained in Chapter-IV of the 1994 Act, if in any criminal case or civil suit or revenue proceeding before a Gram Panchayat any party intimates, at any stage before the pronouncement of the final order or decree, that it intends to put up an application under this Section to the Judicial Magistrate or the Sub-Judge or the Collector, for transfer of the case, suit or proceeding, the Gram Panchayat shall direct the applicant to make such application within a reasonable time, which shall not be less than fifteen days and adjourn the matter. Sub-Section (3) of Section 43 of the 1994 Act further provides that the Judicial Magistrate or the Sub-Judge or the Collector, as the case may be, may upon such application, for reasons to be recorded in writing, transfer the case, suit or proceeding to another Gram Panchayat. 10. Thus, in terms of Section 30 of the 1994 Act, there is no power suo moto vested in any Gram Panchayat to transfer the case. The intent of the section is that someone who has an interest in the cause to be decided by the Gram Panchayat, should not participate in the proceedings. 10. Thus, in terms of Section 30 of the 1994 Act, there is no power suo moto vested in any Gram Panchayat to transfer the case. The intent of the section is that someone who has an interest in the cause to be decided by the Gram Panchayat, should not participate in the proceedings. Further intent of this section is that in case, the number of Panches disqualified under sub-Section (1) of Section 30 of the 1994 Act, lead to a situation that there is no quorum, then the Gram Panchayat is to send the matter to the Judicial Magistrate of Sub-Judge or Collector, as the case may be for the disposal of the matter in accordance with law. However, there is no power vested in the Panchayat to transfer the case. 11. Similarly, under the provisions of Section 43 of the 1994 Act, it is not the Gram Panchayat which is vested with the Authority to transfer the case. In terms of this section, if an intent is shown before the Gram Panchayat by an applicant that he wants to file an application for the transfer of the proceedings then the Gram Panchayat has to defer the matter and the application has to be decided by the the Judicial Magistrate or Sub-Judge or Collector, as the case may be. 12. Therefore, in the light of the above observations, obviously, as a Gram Panchayat neither under Section 30 nor under Section 43 of the 1994 Act, has any suo moto power to transfer the proceedings before it, in the present case, the act of the transfer of the proceedings by Gram Panchayat, Pooh to Gram Panchayat, Sunnam, was void ab initio being without jurisdiction. The findings recorded to this effect by the Appellate Authority, call for no interference. 13. At this stage, learned counsel for the petitioner submitted that assuming the Gram Panchayat did not have any jurisdiction to transfer the case, then learned Appellate Court should have had remanded the matter back to Gram Panchayat but it could not have consigned the same to the record room. 14. 13. At this stage, learned counsel for the petitioner submitted that assuming the Gram Panchayat did not have any jurisdiction to transfer the case, then learned Appellate Court should have had remanded the matter back to Gram Panchayat but it could not have consigned the same to the record room. 14. Learned  Senior  Counsel  for  respondent  No.1 submitted that the Appellate Authority has rightly consigned the case because that in terms of Section 41 of the 1994 Act, a dispute relating to immovable property is not within the domain of the Gram Panchayat and this so held affirmed by this Court also in CMPMO No. 185/2017, titled Prakash Chand Vs. State of H.P. & Ors. 15. This Court is of the considered view that when the learned Appellate Court came to the conclusion that Gram Panchayat, Pooh had no jurisdiction to transfer the matter to Gram Panchayat, Sunnam, it ought to have had set aside the order passed by Gram Panchayat, Sunnam and remanded the matter back to Gram Panchayat, Pooh to proceed with the matter in accordance with law. This not having been done by the learned Appellate Court, it renders the order passed by it to this extent bad. As far as the contention raised by learned Senior Counsel for respondent No.1 is concerned, same can be raised by the respondent before the Gram Panchayat Pooh, which obviously would have to take this contention of respondent No.1 into consideration. 16. In  light  of  above  observations,  this  petition  is disposed of by observing that this Court is not interfering with the order passed by the Appellate Authority, in terms where of, it has set aside the order passed by the Gram Panchayat, Sunnam and also held that Gram Panchayat, Pooh did not have any jurisdiction to transfer the case to Gram Panchayat, Sunnam. However, the order to the extent that it consigned the case to the record room, is held to be bad. This matter is remanded back to the Gram Panchayat, Pooh with the direction that it should take an appropriate call on the proceeding initiated before it by the petitioner. Of course, the contention of respondent No.1, with regard to the lack of jurisdiction, will be gone into by it. 17. The petition is disposed of in above terms. Pending miscellaneous application(s), if any, also stand disposed of accordingly.