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2003 DIGILAW 143 (HP)

SURINDER SINGH BANOLTA v. STATE OF H. P.

2003-06-10

A.K.GOEL, V.K.GUPTA

body2003
JUDGMENT V.K. Gupta, CJ. - In this petition filed under Article 226 of the Constitution, the petitioner has challenged the order dated June 27, 2002 passed by the Deputy Commissioner, Shimla (respondent No. 4 in this petition) whereby in exercise of its power under Section 122(2)(ii) of the Himachal Pradesh Panchayati Raj Act, 1994 ("1994 Act" for short) the Deputy Commissioner (respondent No. 4) by declaring the petitioner disqualified for being chosen as a Member of the Zila parishad from Ghoond Ward No. 15 set aside his election as such a Member to the said Zila Parshad. The facts revolve around a chequered history of this case, which may be briefly stated as under:- The petitioner was elected as a Member of Zila Parishad from Ward No. 15-Ghoond Tehsil Theog District Shimla. The result of this election was declared on January 5, 2001. The petitioner belongs to Harijan community. Respondent No. 2 Daulat Ram filed an application before respondent No. 4 under the provisions of Section 122(2)(ii) of the 1994 Act on the allegation that the petitioner was an encroacher of land belonging to the Municipal Council Theog in so far as it related to khasra No. 461/463, 465/32/3/2 measuring 0-13 biswas in Chak Janog, Tehsil Theog District Shimla and that Municipal Council filed a case under Sections 4 and 7 of H.P. Public Premises Act, 1971 before Collector, Theog, which was registered as case No. 34/Misc./95 dated October 28, 1995 and the same was also allowed by him by an order passed on June 25, 1997. Appeal filed by the petitioner against the aforesaid order was dismissed by the Deputy Commissioner, Shimla on August, 6, 1998. The aforesaid application filed by respondent No. 2 in terms of Section 122(2) (ii) (supra) was to the effect that the petitioner was disqualified for being elected as an office bearer of a Panchayat or a Zila Parishad in terms of the provision contained in 1994 Act and, therefore, his election deserved to be quashed. The petitioner submitted his reply to the said application of respondent No. 2 and on consideration, respondent No. 4 vide an order dated June 25, 2001, dismissed the aforesaid application of respondent No. 2, inter alia, holding that the respondent No. 2s application was not maintainable and that his remedy lay in filing an Election Petition. The petitioner submitted his reply to the said application of respondent No. 2 and on consideration, respondent No. 4 vide an order dated June 25, 2001, dismissed the aforesaid application of respondent No. 2, inter alia, holding that the respondent No. 2s application was not maintainable and that his remedy lay in filing an Election Petition. Against the aforesaid order respondent No. 2 filed Writ Petition, being CWP No. 967 of 2001 in this Court. A learned Division Bench of this Court vide judgment dated June 4, 2002 set aside the aforesaid order of respondent No. 4 passed on June 25, 2001 directing him to readmit case No. 1 of 2001 (which was filed by respondent No. 2 before him (respondent No. 4) in terms of Section 122(2) (ii) supra) to its original position and thereafter to dispose it of on or before June 29, 2002. In the course of the aforesaid judgment dated June 4, 2002 the Division Bench came to make some observations to the effect that respondent No. 4 - Deputy Commissioner did not properly appreciate the provisions of Section 122(2)(ii) (supra) which, in other words, meant that perhaps respondent No. 2s application filed under this provision of law (Section 122(2)(ii) was maintainable before respondent No. 4 and, therefore, respondent No. 4 was in error in dismissing this application vide order dated June 25, 2001 by holding that the proper remedy lay in filing the Election Petition against the petitioner. 2. In compliance with the aforesaid Division Bench order dated June 4, 2002, as noticed at the outset and, as observed earlier, respondent No. 4 declared the petitioner having been disqualified for being chosen as a Member of Zila Parishad and also consequently his election as such a Member was set aside. It is this order dated June 27, 2002, which is under challenge in this petition filed by the petitioner. 3. It is this order dated June 27, 2002, which is under challenge in this petition filed by the petitioner. 3. Section 122 of 1994 Act in so far as it is relevant and material for our purposes is reproduced hereunder :- "Section 122(1): A person shall be disqualified for being chosen as, and for being, an office bearer, of a Panchayat (a) if he is so disqualified by or under any law for the time being in force for the purposes of the election to the State Legislature Provided that no person shall be disqualified on the ground that he is less than 25 years, if he has attained the age of 21 years; (b) xx xx xx (c) if he has encroached upon any land belonging to, or taken on lease or requisitioned by or on behalf of, the State Government, a Municipality, a Panchayat or a Co-operative Society unless a period of six years has elapsed since the date on which he is elected therefrom or he ceases to be the encroacher; (2) The question whether a person is or has become subject to any of the disqualifications under sub-section (1), shall after giving an opportunity to the person concerned of being heard, be decided - (i) if such question arises during the process of an election, by an officer as may be authorized in this behalf by the State Government, in consultation with the State Election Commission; and (ii) If such question arises after the election process is over, by the Deputy Commissioner." 4. Chapter XI of 1994 Act deals with the subject matter of disputes relating to elections. Section 162 clearly lays down that no election under this Act shall be called in question except by an Election Petition presented in accordance with the provisions of Chapter XI. Section 163 provides that any elector of a Panchayat may, in a prescribed manner present within 30 days of the publication of, the result an Election Petition, in writing, against the election of any person under the Act. Section 174 lays down that an Election Petition which is not dismissed under Section 165 (on technical grounds etc.), it shall be enquired into and at the conclusion of the inquiry, the authorised officer bearing the Election Petition shall by an Order, either dismiss the Election Petition or set aside the election. Section 174 lays down that an Election Petition which is not dismissed under Section 165 (on technical grounds etc.), it shall be enquired into and at the conclusion of the inquiry, the authorised officer bearing the Election Petition shall by an Order, either dismiss the Election Petition or set aside the election. For ready reference we reproduce the aforesaid Sections of 1994 Act or the relevant extracts of some of them. 162. No election under this Act shall be called in question except by an election petition presented in accordance with the provisions of this Chapter. 163. (1) Any elector of a Panchayat may, on furnishing the prescribed security in the prescribed manner, present within thirty days of the publication of the result, on one or more of the grounds specified in sub-section (1) of Section 175, to the authorized officer an election petition in writing against the election of any person under this Act. (2) The election petition shall be deemed to have been presented to the authorized officer - (a) When it is delivered to him - (i) By the person making the petition; or (ii) By a person authorised in writing in this behalf by the person making petition; or (b) When it is sent by registered post and is delivered to the authorized officer or any other person empowered to receive it. 174. (1) where an election petition has not been dismissed under Section 165, the authorized officer shall inquire into the election petition and at the conclusion of the inquiry shall make an order - (a) Dismissing the election petition; or (b) Setting aside the election." 5. We may also at this stage notice Article 243-0 of the Constitution of India under which it has clearly been provided that no election to any Panchayat shall be called in question except by an Election Petition presented to such an authority and in such a manner as is provided for, by or under any law made by the Legislature of a State. Article 243-0 read thus:- "243 O. Bar to interference by courts in electoral matters. -Notwithstanding anything in this Constitution. - (a) The validity of. Article 243-0 read thus:- "243 O. Bar to interference by courts in electoral matters. -Notwithstanding anything in this Constitution. - (a) The validity of. Any law relating to the delamination of constituencies or the allotment of seats to such constituencies; made or purporting to be made under Art. 243K shall not be called in question in any Court; (b) No election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State." 6. Apparently Chapter XI of 1994 Act is a law which is enacted by the Legislature of H.P. State providing for the resolution of disputes relating to elections and also specifying the machinery, the method and procedure under which the Election Petition can be presented to an authorized officer. 7. Whether the petitioner had encroached upon any land belonging to a municipality etc. or not, indeed was an issue which was relevant in so far as time period was concerned, in the sense that if he had encroached upon the land (and was thus an encroacher) before or during the process of his election as an office bearer or Member of Zila Parishad, his case fell under Clause (1) of sub-section (2) of Section 122 and, therefore,, in terms of that clause the authorized officer could have decided that issue before or during the process of election itself. In other words, if during the process of Election or even before the election had started (at the stage of filing of nomination papers etc.) if it was brought to the notice of the authorized officer that the petitioner had encroached upon the land and was thus an encroacher and, hence disqualified for being chosen as a member of the Zila Parishad, such a question could have been adjudicated upon at that stage and the authorised officer could have debarred the petitioner from contesting the election by declaring him disqualified for being chosen as such a Member. 8. Clause (ii) of sub-section (2) of Section 122, however, deals with the issue of the person encroaching upon any land belonging to the municipality etc. but, at a point of time after the election process is over. 8. Clause (ii) of sub-section (2) of Section 122, however, deals with the issue of the person encroaching upon any land belonging to the municipality etc. but, at a point of time after the election process is over. It is in this context that the expression "for being" as occurring in clause (1) of Section 122 (supra) in so far as an office bearer is concerned assumes relevance because there can be situations where a person after having been, elected as a Member of Zila Parishad encroaches upon any land belonging to a municipality and in such a fact situation, a question may arise as to whether, at a stage when the election process is already over, he has encroached upon such a land and that issue, in terms of Clause (ii) (supra) would be decided by the Deputy Commissioner. At the risk of repetition, we may reiterate the legal position and summaries it as precisely as possible, in the following para. 9. If the issue of encroachment upon a land relates to a time period prior to the holding of the election or during the process of election, it can be decided by the authorized officer and if the authorized officer comes to a conclusion that the person who proposes to contest the election has encroached upon the land in question, he being disqualified in terms of clause (c) of sub-section (1) of Section 122, an order can be passed by the authorized officer declaring him to be so disqualified and then debarring him from contesting the election (see clause, .(i) of sub-section (2) of Section 122 (supra). 10. 10. If, however, a person who was not an encroacher of the land in question at a stage during the process of the election or prior to it, (as far as the election goes), and if the allegation is that he encroached upon the land after the election process is over, in other words, the allegation is that he encroached upon the land after having been chosen as a Member of the Zila Parishad, such a question has to be referred to the Deputy Commissioner for being decided by him and if he comes to a conclusion and renders a finding that indeed such a person had encroached upon the land after having been chosen as a member of Zila Parishad, he is disqualified "for being" a member of Zila Parishad and thus the natural consequence would follow. This is the mandate and the scope, of clause (i) of sub-section (2) of Section 122 (supra). 11. What would be the natural consequence and in what manner the Deputy Commissioner decided such an issue in terms of clause (2) (supra) has been indicated in Section 131 of the 1994 Act, relevant extract whereof reads thus :- "(1) If any person having been elected as an officer bearer of a (a) Subsequently becomes subject to any of the disqualification mentioned in Section 122 and such disqualifications is not removable or being removable is not removed; (b) absents himself from three consecutive meetings of the Panchayat or its Committee or does not attend half the number of meetings held during the period of six months without the leave of the Panchayat; He shall, subject to the provision of sub-section (2) cease to be such officer bear and his office shall be vacant: Provided that where an application is made by an Office bearer to the Panchayat for leave to absent himself under clause (b) and the Panchayat fails to inform the applicant of its decision on the application within a period of one month from the date of receipt of the application, the leave applied for, shall be deemed to have been granted by the Panchayat. (2) In every case the authority competent to decide whether a vacancy has occurred under sub-section (1) shall be the Deputy Commissioner in respect of Gram Panchayat and Panchayat Samiti and the Director in respect of Zila Parishad who may give his decision either on an application made to him by any person or on his own motion. Until the Deputy Commissioner or the Director, as the case may be, decides that the vacancy has occurred, the person shall not ceased to be an officer bearer: Provided that no order shall be passed under this sub-section against any office bearer without giving him a reasonable opportunity of being heard." 12. It, therefore, clearly emerges from a combined reading of subsection (2) of Section 122 and sub-sections (1) and (2) of Section 131 that if any person having been elected as a Member of Zila Parishad subsequently "becomes subject to a disqualification", including a disqualification mentioned in clause (c) of sub-section (1) of Section 122 the Deputy Commissioner may decide the issue and also decide that a vacancy has occurred and that the person chosen shall cease to be a member or office bearer, as the case may be. Proviso to subsection (2) of Section 131 clearly lays down that no order shall be passed against such a person without giving him a reasonable opportunity of being heard. 13. It would thus be clear that the scope of clause (ii) of sub-section (2) of Section 122 is limited only to such fact situations where the allegations of encroachment upon the land of a municipality relates to a period of time after the election process was over, and not before the election process had started or during its pendency. 14. It would thus be clear that the scope of clause (ii) of sub-section (2) of Section 122 is limited only to such fact situations where the allegations of encroachment upon the land of a municipality relates to a period of time after the election process was over, and not before the election process had started or during its pendency. 14. Having noticed the aforesaid two facts situations, one where the encroachment issue related to a time period during the election process or prior to same and" having been brought to the notice of the authorized officer, and the second fact situation where the-encroachment issue related to a time period after the election process was over, we now turn to a 3rd fact situation where even though the allegation of encroachment relates to a time period prior to the holding of the election or even during the process of the election but no complaint was made to the authorized officer in terms of clause (i) of sub-section (2) of Section 122 (supra) and because of the absence of any such allegation, complaint or information, the person concerned was allowed to contest the election and also to be chosen as a member of the Zila Parishad despite the fact that he was an encroacher of the land. The fact remains that an encroacher of the land was always disqualified to be chosen as a member but this information was either not available at the relevant time, or not having been furnished to the authorized officer, the fact situation allowed such a person to be chosen as a Member. 15. It is not that the law did not stipulate or provide for, any remedy against such a person and in such a fact situation. The remedy lay in Chapter XI of the 1994 Act wherein it has clearly been provided that the election of any person chosen under this act can be called in question through an election petition on one or the other of some of the grounds specified in sub-section (1) of Section 175. For ready reference, we reproduce herein below Section 175 which reads thus:- "175. For ready reference, we reproduce herein below Section 175 which reads thus:- "175. (1) if the authorized officer is of the opinion - (a) That on the date of his election person was not qualified or was disqualified to be elected under this Act; or (b) That any corrupt practice has been committed by the elected person or his agent or by any other person with the consent of the elected person or his agent; or (c) That any nomination has been improperly rejected, or (d) That the result of the election, in so far as it concerns the elected person, has been materially affected - (1) By the improper acceptance of any nomination, or (ii) By the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iii) By any non-compliance with the provisions of this Act or of any rule made under this Act, the authorized officer shall be set aside the election of the elected person. (2) When an election has been set aside under sub-section (1), a fresh election shall be held. 16. Clause (a) of sub-section (1) of Section 175 clearly stipulates that if on the date of his election, the elected person was not qualified, or was disqualified to be elected; his election is liable to be set aside. If, therefore, as on the date of the election a person was an encroacher of land in terms of clause (c) of sub-section (1) of Section 122 of 1994 Act, he was disqualified to be chosen as a member and, therefore, in terms of Chapter XI of the Act (Section 175), his election was liable to be set aside. 17. If, therefore, as on the date of the election a person was an encroacher of land in terms of clause (c) of sub-section (1) of Section 122 of 1994 Act, he was disqualified to be chosen as a member and, therefore, in terms of Chapter XI of the Act (Section 175), his election was liable to be set aside. 17. Based on the aforesaid reasoning we have no hesitation in holding that the order dated June 27, 2002 as passed by respondent No. 4 declaring the petitioner as disqualified and setting aside his election, was patently erroneous and invalid because this order was passed by him in purported exercise of the power under clause (ii) of sub-section (2) of Section 122 of the Act, but as noticed above, such a remedy was not available because the question of the petitioner being an encroacher upon the land of the municipality had not arisen after the election process was over because it was very much in existence, as per the allegation of respondent No. 2 himself, much prior to the stage of the election process, and the only remedy therefore which was available to respondent No. 2, was by way of filing an election petition under Section 163 of 1994 Act. 18. By way of a passing reference, we may observe that the judgment of the Division Bench passed in June 4, 2002 in CWP No. 967 of 2001 cannot be said to have any binding effect and in fact did not have any binding effect, either upon respondent No. 4 or upon the parties because this judgment was delivered per in curium as, in our respectful opinion, the Division Bench did not take notice of the aforesaid provisions as occurring in Chapter XI of 1994 Act and because of not having taken notice of the said provisions, disposed of CWP No. 967 of 2001 by merely relying upon clause (ii) of sub-section (2) of Section 122 of the Act in isolation, without any reference to either Section 131 or Chapter XI of 1994 Act. 19. For the reasons stated above, this petition is accordingly allowed and the impugned order dated June 27, 2002 is set aside with all consequences. No order as to costs. CMP No. 1360 of 2003 20. In view of the disposal of the writ petition, the present application is also disposed of.