What is not expressly provided cannot be presumed by necessary implication : Himachal Pradesh High Court
Nothing can be presumed from the provision until and unless it is expressed clearly as that would constitute legislating or re-writing the provision. The High Court bench consisting of J. Tarlok Singh Chauhan and J. Jyotsana Rewal Dua decided upon the criteria for the creation of a new Gram Sabha in the matter of Yuva Sangathan Seobagh and Anr. v. State of Himachal Pradehs &amp; Ors. [CWP No. 4024 of 2020]. The respondents issued a notification thereby bifurcating and reorganising various Gram Sabhas within the District Kullu, however, not including the village Seobagh in the same. The petitioners therefore, along with about 445 residents of the village made representations to the Government at the State and District lebel for the formulation and declaration of the village as a new Gram Sabha area. A detailed report and certificate by completing all codal formalities was submitted to the Block Developmental Officer which was later forwarded to the District Panchayat Officer for formulating the village as Gram Sabha. The respondent did sent back the letter and stated that the representation cannot be processed in the absence of resolution of Gram Sabha and the signatures of Pradhans and Secretaries of both Gram Panchayats Kias  and Gahar. The respondents argued before the court that the proposal was incomplete as per the criteria laid down by the competent authority. Gram Panchayat Kais, another respondent filed a reply to the petition wherein preliminary objection qua maintainability of the petition was raised it was also claimed that in the absence of mandatory provisions of Section 3of the Himachal Pradesh Panchayati Raj, 1994 and in absence of any resolution of Gram Sabha, new Gram Sabha in the village Seobagh could not be constituted.
 Hig h C o urt of H.P on 14 01 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACWP No. 40220Reserved on: 06.01.2021 Decided on: 08.01.2021.Yuva Sangathan Seobagh and another …..PetitionersVersusState of H.P. & ors. ….RespondentsCoram:The Hon’ble Mr. Justice Tarlok Singh Chauhan Judge.The Hon’ble Ms. Justice Jyotsna Rewal Dua Judge.Whether approved for reporting 1 NoFor the Petitioners:Mr. Gautam Sood Advocate.For the Respondents: Mr. Ashok Sharma A.G. with Mr.Vinod Thakur Mr. Vikas Rathore Mr.Shiv Pal Manhans Addl. A.Gs. Mr.Bhupinder Thakur and Mr.YudhvirSingh Thakur Dy.A.Gs. forrespondents No. 1 to 3 State.Mr. Dalip K. Sharma Advocate forrespondent No.4.Mr. V.S. Chauhan Senior Advocatewith Mr. Ajay Singh Chauhan Advocate for respondent No.5.(Through Video Conferencing) _____________________________________________________________________Justice Tarlok Singh Chauhan Judge The precise case of the petitioners is that they andother residents of village Seobagh made several representations tothe respondents with regard to declaration and formulation ofvillage Seobagh as a new Gram Sabha area. 1 Whether reporters of the local papers may be allowed to see the judgment Yes. Hig h C o urt of H.P on 14 01 HCHP 22.On 22.08.2020 respondent No.1 issued notificationthereby bifurcating and reorganizing various Gram Sabhas withinDistrict Kullu however village Seobagh is not included in the saidnotification. Therefore the petitioners alongwith about 445residents of village Seobagh made representations to theGovernment at State and District level for formulation anddeclaration of village Seobagh as a new Gram Sabha area.3.It is pleaded by the petitioners that in the last week ofAugust 2020 concerned officials alongwith residents of villageSeobagh submitted a detailed report and certificate by completingall codal formalities to the Block Development Officer forformulation of village Seobagh as Gram Sabha and consequentPanchayat. On 01.09.2020 detailed report of the officialsalongwith representations of the petitioners and residents ofvillage Seobagh was forwarded to the District Panchyat Officer Kullu i.e. respondent No.3 who in­turn vide his letter dated02.09.2020 returned the aforesaid letter with the objections thatthe representation was not signed by the Pradhans andSecretaries of Gram Panchayats Kias and Gahar. It is further caseof the petitioners that the Pradhans and Secretaries of the GramPanchayats Kias and Gahar refused to sign the representation Hig h C o urt of H.P on 14 01 HCHP 3stating that there is no resolution of Gram Sabhas for formulationand declaration of village Seobagh as a new Gram Sabha whichaccording to them was a condition precedent.4.On 03.09.2020 the Block Development Officer againsent a representation alongwith detailed report of the officials torespondent No.3 and asked him to process the same inaccordance with law. However respondent No.3 did not complywith the said instructions and informed the petitioners that theirrepresentation cannot be processed in absence of resolution ofGram Sabha and signatures of Pradhans and Secretaries of bothGram Panchayats Kias and Gahar.5.It is in this background that the instant writ petitionhas been filed for the grant of following substantive relief:“It is therefore prayed that the present writ petitionmay very kindly be allowed and writ of mandamus orany other appropriate writ order or direction be issuedthereby directing the respondents to declare villageSeobagh Tehsil and District Kullu as Gram Sabha areaas per Section 3 of the Himachal Pradesh PanchayatiRaj Act 1994 letter and detailed report of the officials(Annexure P­6) and notification datedand in absence of anyresolution of Gram Sabha new Gram Sabha in village Seobaghcannot be constituted. It is averred that in Gram Panchayat Kais Panchayat office is situated in the middle of Seobagh itself and therefore there is no question of any hardship or inconveniencecaused to the people of Seobagh village or the residents of GramPanchayat Kais. 8.Gram Panchayat Gahar has though not filed anyformal reply but has placed on record certain documents whichclearly prove that as regards this Gram Panchayat it is not at allin favour of bifurcation for the purpose of creating andconstituting a new Gram Sabha Seobagh.9.We have heard learned counsel for the parties andhave gone through the material placed on record.10.Section 3 of the Act reads as under:­3. Declaration of Sabha area.­The Government may bynotification declare any village or group of contiguousvillages with a population of not less than one thousandand not more than five thousand to constitute one or more Hig h C o urt of H.P on 14 01 HCHP 7Sabha areas for the purposes of this act and also specify itsheadquarter:Provided that in a Scheduled area the Government may byorder declare any village or group of contiguous villageswith a population of less than one thousand to constitute aSabha area:Provided further that the Government may after havingdue regard of the geographical location lack of means oftransport and communication and administrativeconvenience declare an area comprising a village or groupof contiguous villages having a population either less thanone thousand or more than five thousand to constitute aSabha area.(2) The Government may at the request of the Gram Sabhaconcerned or otherwise and after previous publication of aproposal by a notification at any time ­(a) increase any Sabha area by including within suchSabha area any village or group of villages or(b) diminish any Sabha area by excluding from such Sabhaarea any village or group of villages or(c) alter the headquarter of any Sabha area or(d) alter the name of any Sabha area or(e) declare that any area shall cease to be a Sabha area:2[ ]3[(2­A) When on account of the reason that the Sabha areais during the term of the Gram Panchayat increased ordiminished or ceased under sub­sectionthe increase ordiminution or cessation of the Sabha area shall not affectthe term of the office bearers of Gram Panchayat till theexpiration of the duration of the Gram Panchayat specified Hig h C o urt of H.P on 14 01 HCHP 8in sub­sectionof section 120 or its dissolution undersection 140 of this Act.](3) If the whole of the Sabha area is included in amunicipality the Sabha area shall cease to exist and itsassets and liabilities shall in the manner prescribed bedisposed of.11.It would be noticed that unlike other provisions of theAct Section 3 thereof does not envisage impliedly muchlessexpressly postulate an opportunity for inhabitants of the area tofile objections and being heard before ordering bifurcation of thePanchayat(s). 12.Once the legislature in its wisdom has not chosen toprovide for any opportunity of hearing for inhabitants of the areaand to file objections as aforesaid the same cannot be presumedor read into as it would amount to legislating or re­writing theprovision which indisputably is beyond the domain of this Court.What is not expressly provided cannot be presumed by necessaryimplication. 13.It cannot even be remotely suggested that thelegislature by default omitted to provide the right to file objectionsand be heard under Section 3 of the Act. In fact it is by aconscious legislative decision that such a right is designedly not Hig h C o urt of H.P on 14 01 HCHP 9acknowledged under Section 3 of the Act. Procedural requirementof hearing is not required in the exercise of legislative powerunless such a right or hearing was expressly provided.14.In coming to such conclusion we are fortified by thedecision rendered by the Hon ble Supreme Court in State ofPunjab vs. Tehal Singh and ors.2 SCC 7 wherein it washeld that determining the territorial area of a Gram Sabha andthereafter establishing a Gram Sabha for that area is an act legislative in character in the context of the provisions of the Actand hence does not subject to rules of natural justice. It wasfurther held that the enactment may provide for observance ofprinciples of natural justice and if the provisions are there thesame should be observed and if provisions do not provide for thesame the residents of the area cannot insist for giving anopportunity of hearing. It shall be apt to reproduce relevantobservations as contained in paras 5 to 9 which read as under:­5. Before we consider the main question it is necessary totrace out the nature of power that the State Governmentexercises under provisions of Sections 3 and 4 of the Act.The said power could either be legislative administrative orquasi­judicial. Hig h C o urt of H.P on 14 01 HCHP 106. In Rameshchandra Kachardas Porwal and Ors. etc. v.State of Maharashtra and Ors. etc. 2 SCC 722 itwas held that making of a declaration by notification thatcertain place shall be principal market yard for a marketarea under the relevant agricultural produce Market Actwas an act legislative in character. In Union of India andAnr. v. Cynamide India Ltd. and Anr. vol. 2 SCC720 this Court while making distinction betweenlegislative administrative and quasi­judicial held thus: "A legislative act is the creation and promulgation of a generalrule of conduct without reference to particular cases anadministrative act is the making and issue of a specificdirection or the application of a general rule to a particularcase in accordance with the requirements of policy.Legislation in the process of formulating a general rule ofconduct without reference to particular cases and usuallyoperating in future administration is the process ofperforming particular acts of issuing particular orders or of amaking decisions which apply general rules to particularcases . It has also been said: "Rule making is normallydirected toward the formulation or requirements having ageneral application to all members of a broadly identifiableclass" while "an adjudication on the other hand applies tospecific individuals or situation". But this is only a broaddistinction not necessarily always true. Administration andadministrative adjudication may also be of general applicationand there may be legislation of particular application only.That is not ruled out. Again adjudication determines pastand present facts and declares rights and liabilities whilelegislation indicates the future cause of action. Adjudicationis determinative of the past and the present while legislationin indicative of future. The object of the rule the reach of its Hig h C o urt of H.P on 14 01 HCHP 11application. The rights and obligations arising out of it. Itsintended effect on past present and future events its form the manner of its promulgation are some factors which mayhelp in drawing the line between legislative and non­legislative acts". 7. The principles of law that emerge from the aforesaiddecisions are­(l) where provisions of a statute provide forthe legislative activity i.e. making of a legislativeinstrument or promulgation of general rule of conduct or adeclaration by a notification by the Government thatcertain place or area shall be part of a Gram Sabha and onissue of such a declaration certain other statutoryprovisions come into an action forthwith which provide forcertain consequences where the power to be exercisedby the Government under provisions of a statute does notconcern with the interest of an individual and it relates topublic in general or concerns with a general direction of ageneral character and not directed against an individual orto a particular situation andlay down future course ofactions the same its generally held to be legislative incharacter. 8. Viewed in the light of the statement of law statedhereinbefore we find that the provisions of Sections 3 and4 of the Act which provide for declaring territorial area of aGram Sabha and establishing a Gram Sabha for that areado not concern with the interest of an individual citizen ora particular resident of that area. Declaration contemplatedunder Sections 3 of the Act relates to an area inhabited bythe residents which is sought to be excluded or included ina Gram Sabha. The declaration under Section 3 of the Act Hig h C o urt of H.P on 14 01 HCHP 12by the Government is general in character and not directedto a particular resident of that area. Further thedeclarations so made under Sections 3 and 4 of the Act donot operate for the past transactions but for futuresituations. Under the aforesaid situation whendeclarations by issue of notifications by the Governmentare made under Sections 3 and 4 of the Act respectively determining the territorial area of a Gram Sabha andestablishing a Gram Sabha for that area such declarationsbecome operative at one. Once declarations are madeunder Sections 3 and 4 of the Act respectively andthereafter a Gram Panchayat is constituted under Section10 of the Act the entire remaining provisions of the Actbecomes operative. On such declarations by a notificationin the gazette the Gram Sabha­a body corporate comesinto being with a number of powers and functionsconferred upon it under the Act. As soon as a Gram Sabhais established and Gram Panchayat is constituted they areentrusted with many general functions viz. constructions repair and maintenance of community assets agricultureincluding agriculture extension animal husbandry dairyand poultry fisheries social and farm forestry minor forestproduce fuel and fodder khadi village and cottageindustries rural housing rural electrification includingdistribution of electricity non­ conventional energy source poverty alleviation programme education includingprimary and secondary schools adult and non­formaleducation promotion of adult literacy cultural activities fairs and festivals public health and family welfare womenand child development social welfare etc. Further Gram Hig h C o urt of H.P on 14 01 HCHP 13Sabhas and Gram Panchayats have been conferrednumerous other powers and duties enumerated in Section35 of the Act. Besides that the Gram Panchayat isentrusted with the judicial functions which are civil andcriminal in nature. The power exercisable under Sections 3and 4 of the Act respectively by the Government was therefore not an exercise of a judicial or quasi­judicialfunction where the very nature of function involves theprinciple of natural justice or in any case of anadministrative function effecting the rights of an individual.We are therefore of the view that on making of declarationunder Section 3 of the Act determining the territorial areaof a Gram Sabha and thereafter establishing a Gram Sabhafor that area is an act legislative in character in the contextof the provisions of the Act. 9. Once it is found that the power exercisable underSections 3 and 4 of the Act respectively is legislative incharacter the question that arises is whether the StateGovernment while exercising that power the rule ofnatural justice is required to be observed It is almostsettled law that an act legislative in character­primary orsubordinate is not subjected to rule of natural justice. Incase of legislative act of legislature no question ofapplication of rule of natural justice arises. However incase of subordinate legislation the legislature may providefor observance of principle of natural justice or provide forhearing to the resident of the area before making anydeclaration in regard to the territorial area of a GramSabha and also before establishing a Gram Sabha for thatarea. We have come across many enactments where an Hig h C o urt of H.P on 14 01 HCHP 14opportunity of hearing has been provided for before anyarea is excluded from one Gram Sabha and included it indifferent Gram Sabhas or a local authority. However itdepends upon the legislative wisdom and the provisions ofan enactment. Where the legislature has provided for givingan opportunity of hearing before excluding an area from aGram Sabha and including it in another local authority orbody an opportunity of hearing is sine qua non and failureto give such an opportunity of hearing to the residentswould render the declaration invalid. But where thelegislature in its wisdom has not chosen to provide for anyopportunity of hearing or observance of principle of naturaljustice before issue of a declaration either under Section 3or Section 4 of the Act the residents of the area cannotinsist for giving an opportunity of hearing before the areawhere they are residing is included in another Gram Sabhaor local authority. In Rameshchandra Kachardas Porwaland Ors. v. State of Maharashtrathis court held asthus: "In one of the Bihar cases it was further submitted thatwhen a market yard was disestablished at one place andestablished at another place it was the duty of theconcerned authority to invite and hear objections. Failure todo so was a violation of the yard at one place andestablishing it elsewhere was therefore bad. It wasobjections before a "market area" was declared under theAct so should objection be invited and heard before a market yard was established at any particular place. Theprinciples of natural justice demanded it. We are unable toagree. We are here not concerned with the exercise of ajudicial or quasi­judicial function where the very nature of Hig h C o urt of H.P on 14 01 HCHP 15the function involves the application of the rules of naturaljustice or of an administrative function affecting the rightsof persons wherefore a duty to act fairly. We are concernedwith legislative activity we are concerned with the making ofa legislative instrument the declaration by notification of theGovernment that a certain place shall be a principal marketyard for a market area upon which declaration certainstatutory provisions at once spring into action and certainconsequences prescribed by statute follow forthwith. Themaking of the declaration in the context is certainly an actlegislative in character and does not oblige the observance ofthe rules of natural justice." 15.In view of aforesaid exposition of law we are clearly ofthe view that the power exercisable under Section 3 of the Act bythe Government is not an exercise of a judicial or quasi­judicialfunction where the very nature of function involves the principlesof natural justice or in any case of an administrative functionaffecting the rights of an individual. As observed above thefunction is legislative in character.16.In this background further question which arises forconsideration is whether Gram Panchayats Kais and Gaharwere under any legal obligation to have attended to the objectionsthat were raised by respondent No.3 on the resolution that wasforwarded by the petitioners and other residents. Hig h C o urt of H.P on 14 01 HCHP 1617.Gram Panchayats and Gram Sabhas are legallyconstituted bodies whereas the associations societies are notbodies that are recognized under the Act. This is primarily basedupon the concept of democracy “of the people” “by the people” and“for the people”. The resolution seeking bifurcation of a GramSabha has to be backed by majority of people and shouldinvariably be moved by Gram Sabha as it represents the voice ofthe majority of the persons to a democratic elected institution ofGram Panchayat. However we could visualize a case where anelected representatives have with course of time lost theconfidence of the people or such majority of persons could byauthorisation of the break away group from one or morePanchayat in which they are currently residing like theGovernment to constitute a separate Gram Sabha and they alsofulfill all eligibility conditions as stipulated in the Act Rules. Itwould only be in such an exceptional circumstance that too afterweighing all pros and cons that competent authority or Court mayentertain the writ petitions and pass necessary directions. 18.However in the instant case it would be noticed that itis the specific case of the petitioners that it has backing of about445 residents of the village which clearly falls short of the criteria Hig h C o urt of H.P on 14 01 HCHP 17of population for creation of a new Gram Sabha as prescribed inthe Government instructions issued vide letters dated 19.01.2019 11.12.2019 04.08.2020 and amended vide letter dated02.09.2020.19.In the given circumstances we are clearly of theopinion that in the instant case the Presidents and Secretaries ofrespondents No. 4 and 5 were well within their rights of notremoving the queries objections as forwarded to them as they didnot and cannot be compelled to support the claim of thepetitioners.20.In view of the aforesaid discussion we find no merit inthe instant petition and the same is accordingly dismissed so alsothe pending miscellaneous application(s) if any. Judge 