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2013 DIGILAW 1030 (HP)

URMILA DEVI v. STATE OF H. P.

2013-12-18

RAJIV SHARMA, SANJAY KAROL

body2013
JUDGEMENT SANJAY KAROL, J.- 1. IN this petition filed under Article 226 of Constitution of India, petitioner Smt. Urmila Devi has assailed the order dated 10.1.2012 (Annexure P-1), passed by the Authorized Officer-cum-Sub Divisional Officer (Civil), Nurpur, District Kangra, H.P., in Election Petition No.18 of 2011, titled as Rasaldar Dev Raj versus Urmila Devi, whereby petitioner stands disqualified, under the provisions of Section 122(1)(c) of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as the Act) and her election set aside. Her appeal also stands rejected by the Deputy Commissioner, Kangra at Dharamshala, in case No.5 of 2012, titled as Smt. Urmila Devi versus Sh. Rasaldar Dev Raj, vide order dated 3.6.2013 (Annexure P-3). Whether reporters of the local papers may be allowed to see the judgment? 2. PETITIONER Smt. Urmila Devi, contested and was elected as Member of the Block Development Committee (BDC), Gram Panchayats Ladori and Chowki, Tehsil Nurpur, District Kangra, H.P. Private respondent No.4 Shri Rasaldar Dev Raj challenged her election by filing an election petition under the provisions of Section 163 of the Act. The Authorized Officer allowed the same, holding that at the time of filing of nomination papers, petitioner was an encroacher on Government land and as such, entailed disqualification under the provisions of Section 122(1)(c) of the Act. She encroached Government land bearing Khasra No.113, measuring 0-16-18 HM situated in Mohal Sudial, P.O. Ladori, Tehsil Nurpur, District Kangra, H.P. Findings of fact stand affirmed by the lower appellate authority. Undisputedly, on 19.7.2002, petitioner filed an application, seeking regularization of such encroachment, in terms of regularization policy of 2002 framed by the State of Himachal Pradesh. Outcome of such application has not been disclosed by her. Be that as it may, the factum of unauthorized encroachment at a certain point in time, on Government land, cannot be disputed. 3. UNDISPUTED facts have to be appreciated in the backdrop of relevant statutory provision, which is reproduced herein under: "122. Disqualifications.-(1) A person shall be disqualified for being chosen, as and for being, an office bearer, of a Panchayat- (a) and (b) XXXXX (c) if he or any of his family member(s) has encroached upon any land belonging to, or . UNDISPUTED facts have to be appreciated in the backdrop of relevant statutory provision, which is reproduced herein under: "122. Disqualifications.-(1) A person shall be disqualified for being chosen, as and for being, an office bearer, of a Panchayat- (a) and (b) XXXXX (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 ha 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;" (Emphasis supplied) 4. LANGUAGE of the Statute is unambiguously clear. If a candidate or his family member, has encroached upon any public land, he/she is disqualified from being chosen, as an office bearer of a Panchayat, for a period of six years, from the date of cessation of such encroachment. Undisputedly, application for regularization of encroachment of Government land was filed in the year 2002 and elections were held in the year 2011. 5. ACCORDING to learned counsel for the petitioner, period of six years has to be counted from the date of submission of application for regularization of encroachment, hence, bar of disqualification would become in-operational. The submission only merits rejection. Period of six years, making the bar of disqualification to become inoperative would commence from the date of cessation of encroachment from public land. Language of the statute is unambiguously clear. Any other interpretation would lead to absurdity, rendering the statute to be redundant and infructuous, also defeating its object, purpose and intent of preventing persons with dishonest intent, holding public offices. 6. LEARNED counsel further invited our attention to the statement, recorded by the revenue authorities (Annexure P-4) showing that on the land in question, there is neither any possession nor any encroachment of the petitioner. We clarify that even though this document was not placed before the authorities below, yet we have gone through the same only to satisfy our conscience and meet the submissions. Noticeably, petitioner filed his nomination prior to 1.1.2011, the date when elections were held and Annexure P-4 is dated 21.1.2011, which is much after the election process was over. Provisions entailing disqualification are abundantly clear. Section 122 of the Act visualized two situations. Noticeably, petitioner filed his nomination prior to 1.1.2011, the date when elections were held and Annexure P-4 is dated 21.1.2011, which is much after the election process was over. Provisions entailing disqualification are abundantly clear. Section 122 of the Act visualized two situations. One, where a person is ejected by a process of law, and second, where he voluntarily removes encroachment, which can be by handing over possession of the land or abandoning the same. There can be both voluntary and involuntary acts, whereby an encroacher on public land can be evicted. Why is it that petitioner did not place on record the outcome of her application for regularization? When did she actually surrender possession or voluntarily vacate the encroached land? What was the need for her to have got prepared Annexure P-4? These are questions, which she has left unanswered. The moot point is as to when she surrendered possession of the encroached land. Is it that after winning she abandoned the land, only to hold public office? Relevancy of the date thus acquires significance for determining the statutory period of six years. 7. WE find that in similar circumstances, a Co- ordinate Bench of this Court in Kartar Chand versus State of H.P. and others, Latest HLJ 2009 (HP) 1187, while dealing with Section 122 of the Act, has held that a person, who himself applies for regularization of Government land encroached by him, automatically entails disqualification under the provisions of the Act. 8. STILL further, it is argued that impugned orders are contrary to the decision of Hon'ble the Supreme Court of India, rendered in State of H.P. and others versus Surinder Singh Banolta, (2006) 12 SCC 484 . We have carefully gone through the ratio decidendi laid down therein and more particularly para-17, to which our attention was specifically invited. The decision is clearly inapplicable to the given facts. The Court was not dealing with an admitted fact of encroachment by a candidate upon public land. The ambit and scope of provisions of Section 163 and 175 of the Act were under consideration. The decision is clearly inapplicable to the given facts. The Court was not dealing with an admitted fact of encroachment by a candidate upon public land. The ambit and scope of provisions of Section 163 and 175 of the Act were under consideration. Whether remedy of a private individual, to have the election of a successful candidate set aside, on the ground of disqualification entailed on account of encroachment of public land, prior to conduct of election, would lie by way of an Election Petition (Section 163) or before the Deputy Commissioner (Section 175) was the question, which came up for consideration before the Supreme Court. The Court was dealing with a case where prior to declaration of results, an elected candidate was declared to be an encroacher, and instead of filing an election petition, the aggrieved party approached the Deputy Commissioner, who in exercise of his powers under Section 175 of the Act, set aside the election of the successful candidate. In our considered view, Court did not hold, as is so canvassed before us, that till such time there is declaration of an unauthorized encroachment by a competent authority under the Act, a candidate would not entail automatic disqualification, even though he may have admitted such fact to be so. In the instant case, petitioner herself had applied for regularization of encroachment of Government land and as such there was neither any requirement nor any necessity of passing any order by the authorities, holding her to be an encroacher. Hence, for all the aforesaid reasons, we find no merit in the petition which is dismissed. Interim order stands vacated. Pending application(s), if any, also stand disposed of accordingly.