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 & 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.
The High Court looked into Section 3 of the act and postulated that it did not even remotely express or suggest that the inhabitants of the area had no right to file objections and hence, the same could not be presumed as it would amount to legislating or re-writing the provision, which was beyond the domain of the court. Relying on State of Punjab v. Tehal Singh and Ors. [(2002) 2 SCC 7]¸ “the power exercisable under Section 3 of the Act by the Government is not an exercise of a judicial or quasijudicial function, where the very nature of function involves the principles of natural justice or in any case of an administrative function affecting the rights of an individual. As observed above, the function is legislative in character”. The court eventually held that the applicable clearly fell short of the criteria of population for the creation of a new Gram Sabha and hence, dismissed the petition.