BALI RAM Vs. STATE OF HIMACHAL PRADESH ETC.

JUDGEMENT

(1.) The Petitioner is a resident of village Kanswala Parnoo situated in Tehsil Arki, District Solan. He alleges that he is a voter duly entered in the electoral roll of the Himachal Pradesh Legislative Assembly and, by virtue of Sec. 5(3) of the Himachal Pradesh Panchayati Raj Act, 1968, he is entitled to membership of the Gram Sabha in which his village is included. The Petitioner is aggrieved by the elections held in respect of the Gram Sabha Kanswala Parnoo and prays for relief against the notification No. 7 -Solan (Panch -Elect) 52/72, dated October 9, 1972, declaring the results of that election.

(2.) The village Kanswala Parnoo and certain other villages were originally included in the Gram Sabha Darla. By notification No. 28 -3/69 Panch, dated July 1, 1972, the Himachal Pradesh Government declared that these villages would be excluded from the Gram Sabha Darla with effect from such date as the Government appointed by subsequent notification. A notification issued on the same date included the villages in the Gram Sabha Kanswala Parnoo. The latter notification was also to come into force on a date to be notified by the Government. Subsequently on July 20, 1972, another notification was issued by the State Government declaring that the two aforesaid notifications of July 1, 1972, would come into force with immediate effect. The Petitioner says that the notification of July 1, 1972, constituting the Gram Sabha Kanswala Parnoo and the notification, dated July 20, 1972, were never published in the Official Gazette, and therefore, the Gram Sabha Kanswala Parnoo was never validly constituted and consequently the elections held therein are void.

(3.) Sec. 4(2) of the Himachal Pradesh Panchayati Raj Act provides that the Government may, by notification, include any area in, or exclude any area from the Sabha area. The notifications dated July 1, 1972, excluding villages from the Gram Sabha Darla and including them in the Gram Sabha Kanswala Parnoo were incomplete inasmuch as a further notification was required for bringing them into force. The two notifications of July 1, 1972, and the notification of July 20, 1972, all constituted essential components of an effective exercise of the power conferred by Sec. 4(2) of the Act. If the notification dated July 20, 1972, suffers from legal infirmity there can be no doubt that the notifications of July 1, 1972, as they represent an incomplete process, must remain legally ineffective. It is admitted by the Respondents that the notification of July 20, 1972, was not published in the Official Gazette, but the contention is that the omission to so publish it is of no consequence. Now, if regard is had to Sec. 2(3) of the Himachal Pradesh General Clauses Act, 1968, it is apparent that the expression "notification", when used in a Himachal Pradesh Act, must mean "a notification published under proper authority in the Official Gazette". In order to be effective in law the notification dated July 20, 1972, had to be published in the Official Gazette. It was only then that it could be construed as a notification for the purpose of Sec. 4(2) of the Himachal Pradesh Panchayati Raj, Act. It also appears that the second notification of July 1, 1972, including the villages in the Gram Sabha Kanswala Parnoo was not published in the Official Gazette. In the circumstance that neither this notification of July 1, 1972, nor the notification of July 20, 1972, was published in the Official Gazette, it must be taken that there is no valid constitution of the Gram Sabha Kanswala Parnoo.