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2014 DIGILAW 702 (HP)

Dhani Ram v. State of H. P.

2014-06-03

RAJIV SHARMA, SURESHWAR THAKUR

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JUDGMENT Sureshwar Thakur, Judge. The petitioner contested elections to the office of Up-Pradhan, Gram Panchayat, Bagri. He was declared elected as Up- Pradhan on 10.01.2011. His, however, being an encroacher upon government land, provoked respondent No.4, to file an election petition under Section 163 of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as ‘the Act’), challenging his elections. Even at the time of the petitioner submitting his nomination papers, respondent No.4 had raised objections, to the acceptance of the nomination papers, of the petitioner by the Returning Officer, to contest elections to the office of Up-Pradhan, as, then, he was an encroacher upon government land. The petitioner was detected to have encroached upon government land, when settlement operations were underway, in the village, of which the petitioner is a resident. The election petition, as instituted by respondent No.4, is, comprised in Annexure P-1 and the reply to the petition comprised, in, Annexure P-2. The Sub Divisional Officer (Civil), Theog, who, was seized of the election petition, under orders, rendered/comprised in Annexure P-3, allowed the election petition and set aside the election of the petitioner to the office of Up-Pradhan, Gram Panchayat, Bagri. In an appeal, having been preferred by the petitioner, against the orders comprised in Annexure P-3, before the Deputy Commissioner, Shimla, resulted in the said preferred appeal, having come to be dismissed by the Appellate Authority. 2. The petitioner has contended that even, before, any competent authority had conclusively detected the fact of his having encroached upon government land, it was legally improper, as also, legally in-sagacious, for the authorities to conclude qua the encroachment upon government land by him, besides, this he avers that his sons, namely, Rajinder and Keshav, alleged to have encroached upon government land, are residing separately from him, hence, they do not constitute a part of his family, therefore, theirs having allegedly encroached upon government land, ought not to have visited him with the consequence, of his election being set aside. 3. The respondents have filed a detailed reply to the averments made in the writ petition categorically denying therein the stance as projected by the petitioner in the writ petition, rather, the respondents espoused the fact that the impugned orders, comprised in Annexures P-3 and P-4 are vindicable as well as tenable and deserves no interference. 4. 3. The respondents have filed a detailed reply to the averments made in the writ petition categorically denying therein the stance as projected by the petitioner in the writ petition, rather, the respondents espoused the fact that the impugned orders, comprised in Annexures P-3 and P-4 are vindicable as well as tenable and deserves no interference. 4. The factum of the petitioner, having encroached upon government land, is evident from a perusal of orders, comprised in Annexure P-3, wherein, at paragraph No.6 thereof, there is a narrative of the Patwari (Settlement) having submitted his report comprised in Ex.PW1/A against the petitioner and his report having sequeled, an order of the Naib Tehsildar, comprised in Ex.PW1/B. Even if, assumingly, detection of encroachment on government land by the petitioner , as noticed by the Patwari, on carrying out demarcation, may not acquire a hue of tenability, in as much, as it may have purportedly been carried out by an officer not competent to do so, in as much, as, given the petitioner purportedly owning land in contiguity to the State, necessitated its being carried out by the Assistant Collector, of either grade. Nonetheless, it having resulted, in the Naib Tehsildar, as palpable from a reading of paragraph No.6 of Annexure P-3 rendering orders comprised in Ex.PW1/B, on, report of PW-1 Sant Ram, Patwari (Settlement) comprised in Ex.PW1/A, does lend legal strength to the fact, of, demarcation sequeling the detection of encroachment by the petitioner upon government land having been carried out, by the Patwari. Even if, such acceptance of the report of the Patwari by the Naib Tehsildar, was not capable of giving legal colour to the purportedly unauthorized demarcation of the land in dispute with the purportedly adjoining and contiguous land of the petitioner, which, rather, necessitated its, being carried out by a Field Kanungo on the directions of the Assistant Collector of either grade, nonetheless, given the fact of the sons of the petitioners, namely, Rajender Singh and Keshav Ram, having applied for regularization of the encroachment by them of government land, comprised in Ex.PW2/A and Ex.PW2/D and having also submitted their affidavits, comprised in Ex.PW2/B and Ex.PW2/E, as, divulged from a reading of Page 4 of Annexure P-3, does portray acquiescence of encroachment upon government land, at the instance of the family members of the petitioner. Even if, assumingly, there was no encroachment on the government land, at the instance of petitioner, now given the fact that at the time of filing of the nomination papers by the petitioner, he, had incurred a vicarious disqualification prescribed under Section 122 of the Act, in as much, as, his sons, as conveyed by theirs acquiescence comprised in Ex.PW2/A and Ex.PW2./D, of theirs, hence, encroached upon government land, consequently, his nomination papers necessitated theirs being rejected, at, that very stage itself. Provisions of Section 122 of the Act hereinafter extracted for advertence and perusal:- 122. Disqualifications:- (1) A person shall be disqualified for being chosen, as and for being, an office 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;” Even though, the counsel for the petitioner contended that the fact of his sons acquiescing to theirs, hence, having encroached upon government land, would not stand as an embargo, hence, would not forbid him from contesting elections or from being chosen to any office of the Gram Panchayat concerned, in as much, as, with the absence of material on record conclusively displaying, his, having encroached upon government land comprised in the order of the competent authority, rather, with there being a stay of the eviction proceedings against him for encroaching upon government land, in compliance with the instructions of the Government conveyed through letter No.Rev.B.A (3)-12/2000 dated 27.7.2000, as, is evident from a reading of Page-5 of Annexure P-3, rendered him eligible for contesting elections, as, he did not fall within the prohibition/bar, as envisaged under Section 122 of the Act. Therefore, in the face thereof, he had not incurred any disqualification. 5. The above argument is highly fanciful and imaginative, and has no force in law. Besides the facts and material on record do not lend any succor to the said contention. Therefore, in the face thereof, he had not incurred any disqualification. 5. The above argument is highly fanciful and imaginative, and has no force in law. Besides the facts and material on record do not lend any succor to the said contention. Primarily, the disqualification, which was entailed upon him on the score of his or his family members, having encroached upon the government land, at the time of filing of his nomination papers, hence, was operable also qua him even in the event of his sons Rajinder Singh and Keshav Ram, living separately from him, given the definition of “family members” in the explanation to Section 122 of the Act and its encompassing within its ambit “sons” aforesaid. Obviously, the petitioner was divested, to contend that, even if, they were living separately, theirs having encroached upon the government land, would not stand an embargo for his being chosen to any office of the Gram Panchayat concerned. It is not separateness of residence, rather, with the sons, being part of the family of the petitioner, as the aforesaid were, that attracts and invites, the prohibition clause envisaged in Section 121(1)(c) of the Act. As a consequence, when Rajinder Singh and Keshav Ram, fall, within the ambit of the statutory definition of “family members” being the sons of the petitioner, therefore, when at the relevant time, they had encroached upon the government land, comprised in their admission, emanating from having submitted their applications, accompanied by affidavits, for regularization of their encroachment upon government land, even their separate act of encroachment, would, take in its foil even the electoral prospectus of the petitioner, in as much, as, he would then be forbidden to contest the elections or from being chosen to any office of the Gram Panchayat. As a sequel, even then assumingly, there was no order of the competent authority ordering the eviction of the petitioner from the land in dispute nor there was also any tenable demarcation worthy of probative credence, in as much, as, it has been carried out by an unauthorized officer nor also when there was a stay of the eviction proceedings on the ground hereinabove, it would not stall or overcome the sway of the prohibitive clause (c) of Section 122 of the Act invokable/attractable on the score of the sons of the petitioner, while comprising his family, having for reasons aforesaid encroached upon government land. 6. In view of the above, we do not find any merit in this petition which is accordingly dismissed. Pending application(s), if any, shall also stand dismissed. No costs.