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2012 DIGILAW 133 (HP)

Swarna Devi v. State of Himachal Pradesh

2012-03-27

DEEPAK GUPTA, V.K.AHUJA

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JUDGMENT : Deepak Gupta, J. This letters patent appeal is directed against the judgment dated 11th December, 2008, whereby a learned Single Judge of this Court dismissed the writ petition filed by the present appellant (hereinafter referred to as the petitioner) and held that a person who has encroached upon Government land is not eligible to fight an election under the Himachal Pradesh Panchayati Raj Act. 2. The question raised in this appeal is whether a person, who has applied for regularization of encroachment of the land can be deprived of his right to fight an election under the provisions of the Himachal Pradesh Panchayati Raj Act, 1944? 3. At the very outset it would be apposite to make reference to the relevant provisions of the H.P. Panchayati Raj Act. Section 122 of the H.P. Panchayati Raj Act, 1994 sets out various disqualifications for contesting elections to the Panchayati Raj Institutions. Section 122(1)( c) of the said Act reads as under:- “122. Disqualifications-(1) A person shall be disqualified for being chosen, as and for being, an office bearer, of a Panchayat- (a) xxx xxx xxx xxx xxx xxx xxx xxx (b) xxx xxx xxx xxx xxx xxx xxx xxx (bb) xxx xxx xxx xxx xxx xxx xxx xxx (c) if he or any of his family member(s) 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 or any of his family member, as the case may be, is ejected there from or ceases to be the encroacher; or xxx xxx xxx xxx xxx” 4. The State of Himachal Pradesh also framed Rules for regularization of encroachments which were known as the Himachal Pradesh Regularization of Encroachments (in Certain Cases) on Government Land and Disposal of Government Land Rules, 2002 (hereinafter referred to as the Rules of 2002). 5. It would be pertinent to mention that after these Rules were notified, a number of persons, who had encroached upon Government land, filed applications for regularization in terms of the aforesaid Rules. These Rules have, however, been stayed by this Court in CWP No.1028 of 2002. 5. It would be pertinent to mention that after these Rules were notified, a number of persons, who had encroached upon Government land, filed applications for regularization in terms of the aforesaid Rules. These Rules have, however, been stayed by this Court in CWP No.1028 of 2002. The State also amended the Panchayati Raj Act and the disqualification aforesaid was introduced with the intention of debarring the encroachers of Government land from contesting elections to the Panchayati Raj institutions. 6. In the present case, the petitioner submitted the nomination paper for 34-Gummer Constituency of Zila Parishad Kangra. Respondent No. 7, Sarla Devi, filed an application praying that the nomination paper of the petitioner be rejected mainly on the ground that the petitioner had encroached upon the Government land. Sarla Devi alongwith her application filed a certified copy of the application preferred by Baldev Raj, husband of the petitioner, alongwith some other plea before the Tehsildar, Khundian with certified copy of the revenue papers seeking regularization of the land. The Returning Officer passed an order on 06.12.2005 holding that the husband of the petitioner had encroached upon Government land and, therefore, rejected the nomination paper of the petitioner. The petitioner filed an Election Petition before the Deputy Commissioner, Kangra, in which she claimed that neither she nor her husband had encroached upon Government land. It was also claimed that her husband had not filed any application for regularization. However, Smt. Roma Koundal, respondent No. 6, appeared as RW-1 and one Smt. Baljeet Kaur appeared as RW-2. Both of them have stated that Baldev Raj, husband of the petitioner, had applied for regularization of the Government land and they had also put their signatures on the said application. 7. All the authorities below including the learned Single Judge of this Court have come to the conclusion that Baldev Raj had applied for regularization of the encroachment and, therefore, a presumption arose that he was an encroacher upon the Government land. It was held that the self serving statement of PW-1 and PW-2 that they have not encroached upon the Government land in teeth of the tangible documentary evidence to the contrary cannot be accepted. It was held that the self serving statement of PW-1 and PW-2 that they have not encroached upon the Government land in teeth of the tangible documentary evidence to the contrary cannot be accepted. The learned Single Judge further went on to hold as follows: “The intention of sub section (c) of section 122 of the Himachal Pradesh Panchayati Raj Act, 1994 is to deter the persons from encroaching upon the Government land. The same has to be construed strictly to safeguard the property of the State from unscrupulous persons. The provisions like sub section (c) of section 122 of the Himachal Pradesh Panchayati Raj Act, 1994 will definitelydeter the person from encroaching upon the Government land fully realizing that they will not be eligible to be elected in any of the Himachal Pradesh Panchayati Raj bodies if they or their relations encroach upon the Government land. The rigours of section 122 (c) of the Act cannot be diluted or supplemented by subsequent notification like dated 4.12.2005.” 8. Faced with this situation, Mr. B.C. Negi, learned counsel appearing on behalf of the appellant, urged that the State with a view to end litigation had enacted the Regularization of Encroachment Rules and now it would be highly unfair for any party to take advantage of the willingness of one party to negotiate under the said Rules. 9. We are unable to accept the contention of Mr. B.C. Negi, Advocate. Section 122(1)(c) is a salutary provision. It provides that no person who or whose family members have encroached upon the Government land should be permitted to contest an election to the Panchayat. There can be no dispute with the proposition that persons who hold public or elected offices should be above board. Probity and transparency of public officials is necessary to maintain our democracy. Any effort by the State to ensure that persons who have grabbed public property or persons with criminal background are ineligible to fight elections should be lauded and in such cases a more purposive interpretation should be given so that the purpose behind making such laws is achieved. 10. Dealing with these provisions, a Division Bench of this Court in Kartar Chand versus State of H.P. and others, Latest HLJ 2009 (HP) 1187, held as follows: “10. This Court must keep in mind the fact that the disqualification provided for in Section 122(1)(c) is a salutary provision. 10. Dealing with these provisions, a Division Bench of this Court in Kartar Chand versus State of H.P. and others, Latest HLJ 2009 (HP) 1187, held as follows: “10. This Court must keep in mind the fact that the disqualification provided for in Section 122(1)(c) is a salutary provision. By means of this provision, persons who have engaged in illegal activity of encroaching upon Government land are debarred from contesting the elections to Panchayati Raj Institutions.” 11. Section 122 of the Act lays down various disqualifications and encroachment is also one of such disqualification. A person who has been convicted of any offence involving moral turpitude cannot contest elections for a period of six years from the date of his conviction. A person who has been ordered to give security for good behaviour has been debarred from contesting the elections. A person who grabs property which does not belong to him is an encroacher upon the land and can definitely be barred from holding elective office. 12. Keeping in view the aforesaid discussions, we find no merit in the appeal, which is accordingly dismissed.