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2014 DIGILAW 671 (HP)

Duni Chand v. State of H. P.

2014-05-29

RAJIV SHARMA, SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, J. : ” The petitioner was elected as Pradhan of the Gram Panchayat, Ghanala, Sub Tehsil Sandhol, District Mandi, H.P.. His election as Pradhan, Gram Panchayat, Ghanala was set aside by orders comprised in Annexure P-4 and Annexure P-6. The petitioner had filed nomination papers for contesting elections to the post of Pradhan, Gram Panchayat, Ghanala, on 15.12.2010. At that stage, respondent No.4 had filed a objection with the Assistant Returning Officer (Election) divulging therein that with the existence of an ejectment order from government land, rendered against the petitioner, by the Assistant Collector, 2nd Grade, Sandhol, hence, his nomination papers, be rejected. However, the above objection raised, to the vitiation of the nomination papers filed by the petitioner comprised, in the fact of his being an encroacher at that time, came to be overlooked by the Assistant Returning Officer. On 1-1-2011, the petitioner was elected as Pradhan of the Gram Panchayat. An election petition was filed by respondent No.4 challenging the election of the petitioner. The challenge was laid under Sections 122(1)(c) and 175 of the Himachal Pradesh Panchayati Raj Act, 1994 (herein-after referred to as ' the Act” ). The election petition is annexed as Annexure P-1. The ejectment order from government land, as rendered by the Assistant Collector 2nd Grade, Sandhol, in Missal No.6, is on dated 12.4.2010, whose rendition at the stage of filing of the nomination papers, by the petitioner, rendered him disqualified under Section 122(1)(c) of the Act, to contest election, was challenged by the petitioner before the Sub-Divisional Officer (Civil), Sarkaghat, District Mandi. The latter officer, before whom the petitioner had challenged the order of his eviction/ejectment from government land, came to accept the appeal on 30-7-2011 preferred by the petitioner against the impugned order of ejectment. Besides, during the pendency of the appeal aforesaid preferred by the petitioner against the order of his ejectment from government land as rendered by Assistant Collector 2nd Grade, Sandhol, the Sub Divisional Officer (Civil ) Sarkaghat, District Mandi, also on 20-12-2010 is orally submitted to have stayed the operation of order of his ejectment from government land. Besides, during the pendency of the appeal aforesaid preferred by the petitioner against the order of his ejectment from government land as rendered by Assistant Collector 2nd Grade, Sandhol, the Sub Divisional Officer (Civil ) Sarkaghat, District Mandi, also on 20-12-2010 is orally submitted to have stayed the operation of order of his ejectment from government land. The election petition as instituted before the Sub Divisional Officer, Sarkaghat by respondent No.4, against the petitioner, sequeled an adverse decision to the petitioner, inasmuch as, the election petition came to be accepted and the election of the petitioner as Pradhan of Gram Panchayat, Ghanala, was set aside under orders comprised in Annexure P-4. The petitioner, subsequently instituted an appeal before the Appellate Authority. The Appellate Authority came to under order, Annexure P-6, dismiss the appeal preferred by the petitioner against the orders rendered by the Sub Divisional Officer (Civil), Sarkaghat. Hence, affirmed the orders of the Sub Divisional Officer, Sarkghat allowing the election petition filed by respondent No.4, challenging the election of the petitioner to the post of Pradhan, Gram Panchayat Ghanala. Resultantly, the petitioner has filed the instant petition before this Court, wherein, he has prayed that the impugned orders comprised in Annexures P-4 and P-6 be set aside. 2. The respondents have filed a reply to the petition wherein they have unequivocally and categorically contended that the impugned orders rendered by the Sub Divisional Officer (Civil), Sarkaghat and Deputy Commissioner, Mandi comprised in Annexures P-4, dated 4-9-2012, and P-6, dated 25-06-2013, do not merit interference, as, they are based on a proper evaluation and appreciation of the facts as also on an appropriate application of law. 3. In short, it is contended in the reply of the respondents that the petitioner was initially barred from contesting the elections as at the relevant stage he was declared as an encroacher on government land, comprised, in, the fact of his being ordered to be ejected from government land by the Assistant Collector 2nd Grade, Sandhol, under orders rendered, on, 12.4.2010. Hence, it is contended that at the time of the petitioner filing his nomination paper for election for the post of Pradhan, Gram Panchayat, Ghanala, he attracted the statutory bar envisaged, under the provisions of Sections 122(1)(c) and 175 of the Act. Hence, it is contended that at the time of the petitioner filing his nomination paper for election for the post of Pradhan, Gram Panchayat, Ghanala, he attracted the statutory bar envisaged, under the provisions of Sections 122(1)(c) and 175 of the Act. Consequently, the effect of acceptance of appeal, on 30.7.2011 by the Sub Divisional Officer (Civil), Sarkaghat, against the orders of the eviction/ejectment from government land, on 12-4-2010, is inconsequential, and would not render the election of the petitioner to the post of Pradhan, Gram Panchayat, Ghanala, previously held on 1-1-2011 to be validated, as the reckonable material date, for determining the eligibility of the petitioner, to contest the elections was on the date of filing of the nomination papers, on which date there existed an order of eviction/ejectment of the petitioner, from government land. Besides this, it is contended, in denial to the averments of the petitioner that the election petition being, in absolute non-conformity with the mandate of Section 164 of the Act, inasmuch as, in violation to the mandate enshrined therein, of the election petition being signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for verification of the pleadings, as also, schedule or annexures to the petition being, also signed by the petitioner and verified in the same manner as the petition. Therefore, the petitioner having omitted to comply with the mandate of statute, as such, the election petition was not maintainable, it has been replied by the respondents that there was compliance at the instance of respondent No.4 with the mandate of the aforesaid provisions of Section 164 of the Act. As such, it is contended that the election petition preferred by respondent No.4, challenging the election of the petitioner being in order, did not necessitate its being dismissed, as envisaged under Section 165 of the Act. 4. The petitioner did not choose to file any rejoinder to controvert the contentions averred in the reply of the respondents. 5. The petitioner had filed his nomination papers for election to the post of Pradhan, Gram Panchayat, Ghanala, on 15.12.2010. The Assistant Collector 2nd Grade, Sandhol, District Mandi had previously, on 12.4.2010 rendered an order of his ejectment from government land. 5. The petitioner had filed his nomination papers for election to the post of Pradhan, Gram Panchayat, Ghanala, on 15.12.2010. The Assistant Collector 2nd Grade, Sandhol, District Mandi had previously, on 12.4.2010 rendered an order of his ejectment from government land. Therefore, at the stage of furnishing or filing of the nomination papers by the petitioner for election to the post of Pradhan, Gram Panchayat, Ghanala, before the Assistant Returning Officer (Elections), he was an encroacher upon/on government land. The petitioner orally submits, that the Sub Divisional Officer, Sarkaghat, District Mandi on being seized with the appeal preferred by the petitioner against the orders of his ejectment from government land, previously rendered by the Assistant Collector 2nd Grade, Sandhol, on 12.4.2010, during the pendency of the appeal stayed/suspended on 20.12.2010 operation of the order of his ejectment from government land. Therefore, it is contended before this Court that since the orders of eviction from the government land rendered against the petitioner by the Assistant Collector, 2nd Grade, Sandhol, came to be stayed on 20.12.2010, consequently, he was elected to the post of Pradhan, Gram Panchayat, Ghanala, on 1.1.2011, as such, in view of the provisions enshrined in Section 175 of the Act which provisions are extracted hereinafter:- 175. Grounds for declaring elections to be void.” (1) if the authorized officer is of the opinion” (a). that on the date of his election the elected 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” (i) by the improper acceptance of any nomination, or (ii) by the improper reception, refusal or rejection of any vote or the reception, refusal or rejection 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 declare the election of the elected persons to be void. (2). (2). Subject to the provisions of Section 175-A, when an election of an elected person has been declared to be void under sub-section (1), a fresh election shall be held under this provisions of this Act and the rules made thereunder. He, on the date of election did not either incur any legal disability or had earned/incurred a disqualification. In other words, it is contended that the relevant reckonable date for determining his eligibility or his being eligible, for holding the post of Pradhan of the Gram Panchayat concerned, was, the date of his election to the said post, hence, when on the date of his election to the post of Pradhan on 1.1.2011, he was not under a legal disability nor under a disqualification, in- asmuch as previously, on 20.12.2010 the Appellate Authority having suspended/stayed the operation of the order rendered by the Assistant Collector, 2nd Grade, Sandhol, ordering his ejectment from government land. As a concomitant and as a natural corollary, then, he had a legal right to hold the post. Therefore, the orders comprised in Annexures P-4 and P-5 obviously misreading of and in transgression of the mandate of law enshrined, in Section 175 of the Act, hence, necessitate theirs being quashed. 6. The above ground, as urged before this Court to invalidate/quash the impugned annexures comprised in Annexures P-4 and P-6, does not carry any weight with this Court. Much of the sheen which it carries on its face, pales in the face of the provisions of Section 122 of the Act. The provisions of Section 122(1)(c) of the Act are extracted hereinafter:- 122. Much of the sheen which it carries on its face, pales in the face of the provisions of Section 122 of the Act. The provisions of Section 122(1)(c) of the Act are extracted hereinafter:- 122. Disqualifications:” (1) A person shall be disqualified for being chosen, as and for being, an offence bearer, of a Panchayat- (a) (b) (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 lapsed 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;' The aforesaid provisions manifestly convey the fact of any person being disqualified, for being ' chosen' to any office of the Gram Panchayat concerned, if he or any of his family member has encroached upon any land belonging to the State Government. For determining, whether the petitioner was disqualified for being elected or being chosen to any office of the Gram Panchayat concerned, it is imperative, to, advert to the fact, that the petitioner had filed his nomination papers, for being elected to the post of Pradhan, Gram Panchayat, Ghanala on 15-12-2010. The Assistant Collector, 2nd Grade, Sandhol had ordered the ejectment of the petitioner from government land on 12.4.2010. Obviously, at the time of filing of nomination papers by the petitioner, for being elected or being chosen to the office/post of Pradhan, Gram Panchayat, Ghanala, he had incurred/earned a disqualification/disability prescribed under Section 122(1)(c) of the Act, inasmuch as on the germane and relevant date, he was declared to have encroached upon government land. Even though, the learned counsel for the petitioner contended with much force, before this Court, that, given the import of Section 175 of the Act, and its voicing the fact, that, an authorized officer, is competent to declare the election of a person to be void, in the event of the candidate having earned a disqualification on the date of election, cannot be under scored or belittled. Hence, when the petitioner was elected, on 1.1.2011, the Appellate Authority when previously seized with an appeal against, the orders of ejectment of the petitioner from government land, rendered by the Assistant Collector 2nd Grade, Sandhol, having, during its pendency, on 20.12.2010 stayed the operation of the ejectment orders, hence, did not render him to be disqualified on the material date. As such, the authorized officer could not, as unwarrantably done by him, declare his election to be void. The legal effect of the above oral submission addressed by the learned counsel for the petitioner is to be tested, in the face of the factual matrix of this case. The date of election of the petitioner to the post of Pradhan, Gram Panchayat, Ghanala, is 1.1.2011. Assuming that there is some legal vigour in the contention of the learned counsel for the petitioner that in the event of the Appellate Authority while being seized of the appeal, preferred by the petitioner against the order of his ejectment from government land, rendered by the Assistant Collector, 2nd Grade, Sandhol, had during its pendency, on 20.12.2010 stayed its operation, as such, purportedly, rendered him qualified on the date of his election. Consequently, assumingly, hence, rendering the acceptance of the election petition by the authorities, who rendered orders comprised in Annexure P-4 and P-6, to be untenable, inasmuch as, the disqualification arising from orders of the Assistant Collector, 2nd Grade, Sandhol, directing the ejectment of the petitioner from the government land having come to be stayed by the Appellate Authority under orders rendered on 20.12.2010, hence, prior to his election to the post of Pradhan Gram Panchayat, Ghanala, necessitated substantiation by placing on record such orders of stay. However, no such orders rendered by the Appellate Authority staying the operation of the order of ejectment rendered by the Assistant Collector 2nd Grade, Sandhol has been placed on record. Consequently, the vigour, if any, of the contention of the learned counsel for the petitioner in canvassing before this Court that on the date of his election to the post of Pradhan, Gram Panchayat, Ghanala, he had not earned/incurred any disqualification, inasmuch as, on the said date the Appellate Authority had stayed the operation of the disabling order of his ejectment from government land. Hence, it has been untenably submitted that it had no force. Hence, it has been untenably submitted that it had no force. Consequently, it has been also, without force been contended that his, election could not have been declared to be void, as purportedly untenably done by the officers, who pronounced the orders comprised in Annexures P-4 and P-6. 7. Even otherwise, the contention as laid before this Court, by the learned counsel for the petitioner is meritless, inasmuch as, he has concerted to read the provisions of Section 122(1) and the provisions engrafted in Section 175 of the Act, in an isolated manner and in mutually exclusivity thereof. The said manner of the construction of two different provisions engrafted in the Act, has untenably equipped him to advance a dichotomous argument. On the other hand, both the provisions of Sections 122 and 175 of the Act have to be read in an harmonious fashion, so as to give effect to the very object and intention of the legislature. Both have to be read in a manner so as to render them meaningful and are not to be read in a manner so as to render them redundant and unmeaningful. Section 122 of the Act prescribes the disqualification for rendering any person unfit for being chosen or being elected to any office of the Gram Panchayat concerned. The word ' chosen' occurring in sub- section (1) of Section 122 are ultra significant. Their import and effect, is, theirs rendering disqualified, disabled or unfit for being chosen such persons who have, at the stage of filing of nomination papers, hence, portraying their desire to be chosen or being elected to any office of the Gram Panchayat concerned, not incurred/earned any of the statutory disqualifications. If such a disability/disqualification occurs at the relevant date for determining his eligibility for being chosen or being elected to the office of Gram Panchayat, it would render such a person unfit to be chosen to the office of the Gram Panchayat. In other words, conversely he has to be on the relevant and germane date, not burdened with any disability or disqualification, if such a disability exists, he is barred from contesting election. In other words, conversely he has to be on the relevant and germane date, not burdened with any disability or disqualification, if such a disability exists, he is barred from contesting election. Further more elaborating upon the import of the word ' chosen' occuring in Section 122 of the Act, its incisive reading unfolds, that at the stage of furnishing of the nomination papers or at the stage of the commencement, of the election process for election to any office of the Gram Panchayat, a person has not to incur any of the disqualifications as prescribed under Section 122 of the Act. As such, even at the time of initiation of the election process or the petitioner aspiring to contest the election for his being chosen or being elected to the post of Pradhan, Gram Panchayat, Ghanala, he is not to be encumbered with any of the disqualifications, as prescribed under Section 122 of the Act. However, on the date of furnishing/filing of the nomination papers by the petitioner on 15.12.2010, he had incurred a disqualification, inasmuch as, the order of his ejectment from the government land was rendered on 12.4.2010, hence, was in force. 8. Even though, the learned counsel for the petitioner submits that the operation of the said orders having come to be stayed on 20.12.2010, yet, if assuming that operation of the order of ejectment of the petitioner from the government land, had been stayed by the Appellate Authority on 20.12.2010, yet, when the process for his being chosen/elected to the post of Pradhan, Gram Panchayat, Ghanala had been initiated on 15-12-2010, hence, some days prior to the purported suspension on 20.12.2010 of the orders of ejectment of the petitioner by the Appellate Authority, the petitioner was disqualified from contesting elections to the post of Pradhan Gram Panchayat, Ghanala. Consequently, when the purported stay of the operation/suspension of the orders of the ejectment of the petitioner from the government land was subsequent to the filing of the nomination papers by the petitioner, hence, it is to be concluded, that, on the relevant date or on the germane date for determining the qualification of the petitioner for his contesting election, the petitioner was disqualified to contest or being chosen to any office of the Gram panchayat, his having incurred a disqualification. The counsel for the petitioner anvils his contention that the relevant date for determining the eligibility of the petitioner for being qualified to hold the post of Pradhan, Gram Panchayat, Ghanala, was the date of election. He so anvils his contention on a reading of the provisions enshrined in sub-section (1)(a) of Section 175 of the Act, which enshrines that the authorized officer, empowered to declare void, the election of a person elected to any office of the pancha-yat concerned, has to, prior to his exercising such a power, ensure that on the date of his election, the elected person was not disqualified. Consequently, it is urged before this Court that since the order of the Assistant Collector, 2nd Grade, Sandhol, declaring the petitioner to be an encroacher of the government land, rendered on 12.4.2010, had come to be stayed on 20.12.2010, hence, prior to the date of his being declared elected, as such rendered him then eligible. Hence, the authorized officers, who were seized of the election petition laid before him by respondent No.4 for declaring the election of the petitioner to be void, in the face of his not an encroacher upon government land, as such, his not being disqualified, were legally incapacitated, to render, Annexures P-4 and P-6 or declare the election of the petitioner to be void. 9. The above contention of the learned counsel for the petitioner, if accepted, would lead to absurd results, inasmuch, it would render the provisions of Section 122(1) of the Act to be redundant and meaningless. Besides that, it would render both the provisions to be mutually exclusive. A purposive interpretation has to be given to each of the independent provisions engrafted in the Act. The import and significance carried by each of the provisions have to be given effect. Reading both separately and not harmoniously, would defeat the very purpose or the objective of the provisions comprised in Sections 122 and 175 of the Act. In the humble and modest view of this court, the provisions of Section 122 have not got to be rendered redundant and meaningless. They have to be lent a meaning as intended to be fastened to them by the legislature. In the humble and modest view of this court, the provisions of Section 122 have not got to be rendered redundant and meaningless. They have to be lent a meaning as intended to be fastened to them by the legislature. The clear and unambiguous meaning and import of Section 122 of the Act, is that the it bars and disqualifies a candidate from being chosen or seeking election to any office of the Gram Panchayat concerned in the event of his incurring a disqualification at the time of his seeking to contest election, inasmuch as, at the stage of his seeking election or chosen, he ought not to incur any of the disqualifications prescribed in Section 122 of the Act. In case he has incurred any of the disqualifications prescribed in Section 122 of the Act, his nomination papers necessitate their being rejected outrightly at the material point of time. Given the fact that on 15.12.2010, when he aspired to be chosen/elected to the office of Gram Panchayat, Ghanala, there was a preceding/previous order of the authority concerned, declaring the petitioner to be an encroacher upon the government land, hence, he had earned/incurred the disqualification/disability prescribed in sub-section 1(c) of Section 122 of the Act. Assuming that the said order was stayed by the Appellate Authority on 20.12.2010, yet, since, the suspension of the order by the Appellate Authority of the order rendered by the Assistant Collector, 2nd Grade, Sandhol, declaring the petitioner to be an encroacher upon the government land, succeeding and being subsequent, to the stage when the petitioner has furnished/submitted his nomination papers for his being ' chosen or elected' to the office of Pradhan of the Gram Panchayat concerned. Hence, in the face thereof, it entailed the Returning Officer (Elections) to reject his nomination papers. 10. The disqualification arising or existing in Section 122 of the Act, bars a candidate from being elected even if his disqualification exists at the stage of filing of nomination papers, on the part of any candidate aspiring to be chosen or elected to be an office bearer of the panchayat. 10. The disqualification arising or existing in Section 122 of the Act, bars a candidate from being elected even if his disqualification exists at the stage of filing of nomination papers, on the part of any candidate aspiring to be chosen or elected to be an office bearer of the panchayat. Such disqualification even if does not then exist may superveningly arise on the date of his being elected in case such a disqualification is earned on the date of his election to any office of the Gram Panchayat concerned, only in that event, the provisions of Section 175 shall come into play and force. Consequently, the import and meaning conveyed by Section 175 is supplementary to the import and significance of the provisions of 122 of the Act, inasmuch as the disqualification at the time of the filing of the nomination paper or at the time of the candidate aspiring to be chosen or to be a member of the Gram Panchayat is covered by or attracts the provisions of Section 122 of the said Act. However, when his disqualification does not exist at the stage of filing of the nomination papers or at the stage of the aspirant seeking election, then, when such a disqualification occurs subsequently, inasmuch, as it occurs at the time of his election in that event, the provisions of Section 175 acquire legal force. Hence in the above manner, reading of the provisions engrafted in Sections 122 and 175 of the Act, would a purposive and meaningful connotation be lent to both and also would obviate theirs being rendered mutually exclusive. Besides, would abort redundancy to each of the provisions. Therefore, it is held that the provisions of Section 175(1)(a) of the Act cannot be read in a manner so as to contradict the provisions of Section 122 of the Act, or in a manner so as to validate the filing of nomination papers by the petitioner, when at that stage of his aspiring to be chosen or being elected to the office of Pradhan of Gram Panchayat, Ghanala, he had earned a disqualification as prescribed under the provisions of sub-section 1(c) of Section 122 thereof. Consequently, the contention of the learned counsel for the petitioner built upon provisions of Section 175 (1)(a) are of no avail to him. Consequently, the contention of the learned counsel for the petitioner built upon provisions of Section 175 (1)(a) are of no avail to him. The effect of his having acquired eligibility, if any, at the time of his election, given his initially having earned a disqualification under the provisions of law would not render the act of the authorized officer, who rendered annexures P-4 and P-6, anchored upon the provisions of Section 122 of the Act, to be invalidated. 11. Furthermore, the counsel for the petitioner has contended that the election petition did not come to be cast in the manner, as, statutorily prescribed in Section 165 of the Act, as neither the petition came to be signed nor the schedule or annexures to the petition came to be signed by the petitioner or verified in the same manner as laid down in the Code of Civil Procedure. Hence, it is contended that with the petitioner having not complied with the mandatory and statutory requirement, as such, necessitated invocation of the provisions of Section 165 of the Act, inasmuch as the authority concerned being enjoined to dismiss the petition. His not having complied with the mandate of Section 165 of the Act, has sequeled miscarriage of justice. 12. The above argument of the learned counsel for the petitioner falls apart in the face of the reply filed by the respondents to the averments to the said effect comprised in the writ petition. The pointed denial by the respondents to the averments aforesaid has not been sought to be controverted by the petitioner by seeking an opportunity from this Court to controvert it by filing rejoinder. The said omission constrains this Court to form a conclusion that the petitioner admits the denial of the respondents to his corresponding averments in the writ petition. Therefore, it can be held that the petitioner is estopped from contending that for want of any compliance by respondent No.4, inasmuch as the election petition not being cast in the manner as enjoined by Section 165 of the Act, it hence legally obliged the authority before whom it was laid to invoke the provisions of Section 165 of the Act. 13. In view of the above, we find no merits in this petition which is accordingly dismissed, so also the pending applications, if any. No costs. Petition dismissed.