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2015 DIGILAW 1002 (HP)

Sahani Devi v. State of H. P.

2015-08-03

SURESHWAR THAKUR

body2015
Judgment : Sureshwar Thakur, Judge (oral) The petitioner had contested elections to the office of Pradhan, Gram Panchayat, Gahaliana, Kangra, H.P. She was declared elected. Respondent No.5 had instituted an election petition before the Authorized Officer under the H.P. Panchayati Raj Act-cum-Sub Divisional Officer (Civil), Kangra, District Kangra, H.P., wherein, the eligibility of the petitioner herein to contest elections to the office of Pradhan, Gram Panchayat, Gahaliana, Kargra, H.P. was challenged. Under orders comprised in Annexure P-1, the election petition was dismissed by the Authorized Officer under the H.P. Panchayati Raj Act-cum-Sub Divisional Officer (Civil), Kangra, District Kangra, H.P. An appeal was preferred by the respondent No.5 before the respondent No.3. The respondent No.3 under orders comprised in Annexures P-2 and P-3, reversed and set aside the conclusions and findings recorded in Annexure P-1 and allowed the appeal. The petitioner herein had appealed against the orders rendered by the Deputy Commissioner wherein he upset the conclusions and findings arrived at by the Authorized Officer under the H.P. Panchayati Raj Act-cum-Sub Divisional Officer (Civil), Kangra, District Kangra, H.P. comprised in Annexure P-1, before the respondent No.2. The latter also under Annexure P-7 dismissed the appeal preferred by the petitioner herein before him. Consequently, the petitioner has instituted the instant petition before this Court. 2. The apposite provisions of the Himachal Pradesh Panchayati Raj Act, 1994 are contained in Section 122 of the Act, the relevant portion whereof is extracted hereinafter:- “122. Disqualifications.- (1) A person shall be disqualified for being chosen, as and for being, an office bearer, of a Panchayat- (a)............................. (b)............................ 2. The apposite provisions of the Himachal Pradesh Panchayati Raj Act, 1994 are contained in Section 122 of the Act, the relevant portion whereof is extracted hereinafter:- “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 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” The anvil, of the submission of the learned counsel appearing for the petitioner in seeking the benefit besides drawing leverage from the latter part of Clause (c) of sub section (1) to Section 122, contemplating that in case a period of six years elapses since the date when the petitioner is ejected from government land encroached upon by her or ceases to be an encroacher thereon till hers filing nomination papers for contesting elections to the post of Pradhan, Gram Panchayat, Gahalian, Kangra, would render her ineligible to contest elections, is that even if assuming the petitioner herein had applied for, as is evident from Ex.PW7/A as spelt out in Annexure P-1, regularization of encroachment upon government land comprised in khasra Nos. 1260/3, 1628/1, 1247/1, 1259, 1249, 314 situated in Mohal Pantehar, in the year 2002, yet, when the petitioner herein at the stage contemporaneous to hers filing nomination papers for contesting elections to the office of Pradhan, Gram Panchayat, Gahalian, Kangra, H.P., in 2010 having furnished a sworn affidavit portraying the fact of hers being no longer an encroacher of Government Land, as a corollary, he contends that hence when a period of six years stood elapsed since hers vacating government land purportedly encroached upon by her till hers taking to file nomination papers for contesting elections to the office of Pradhan, Gram Panchayat, Gahalian, Kangra, concomitantly the rigour of Clause (c) of sub section (1) to Section 122 of the H.P. Panchayati Raj Act stood, as mandated in the latter part thereof relaxed, rendering the petitioner herein to be eligible to contest elections to the office of Pradhan, Gram Panchayat, Gahalian, Kangra, H.P. The above argument, though, has been with much vigour and formidability canvassed before this Court, especially on the score of the petitioner having disclosed in her sworn affidavit filed at the time of hers filing nomination papers the fact of hers no longer holding government land as an encroacher which hence has been contended to entail upon rather make it incumbent upon respondent No.5 to adduce evidence in repudiation thereof, whereas such concerted efforts having been omitted to be made at the instance of respondent No.5 to disprove the contents of the affidavit sworn by the petitioner herein manifesting the fact of hers in the year 2010 not holding any government land as an encroacher, as such, renders her eligible to contest the apt elections. However, the contention as raised by the learned counsel for the petitioner to make it rather incumbent upon the respondent No.5 to dislodge the assertions and contentions in the affidavit filed by the petitioner herein is unacceptable. However, the contention as raised by the learned counsel for the petitioner to make it rather incumbent upon the respondent No.5 to dislodge the assertions and contentions in the affidavit filed by the petitioner herein is unacceptable. The reason for so holding is embedded in the fact that when the petitioner as manifested by Ex.PW7/A had applied on 2.8.2002 before the authority concerned for regularization of encroachment at her instance upon government land, as such, had projected her acquiescence to the factum of hers having encroached upon government land, now in case she six years prior to hers filing nomination papers for contesting elections to the office of Pradhan, Gram Panchayat, Gahalian had surrendered or had abandoned government land held by her as an encroacher, it was incumbent upon her to adduce cogent and worthy evidence manifesting the factum aforesaid, so as to foist in her a right to, at the stage contemporaneous to the holding of elections to the office of Pradhan, Gram Panchayat, Gahalian held in the year 2010 claim eligibility within the ambit of the latter part of Clause (c) of sub section (1) to Section 122 of the Himachal Pradesh Panchayati Raj Act, 1994 engrafted in relaxation of the rigour of the earlier part, to contest elections to the office of Pradhan, Gram Panchayat, Gahalian, Kangra. However, when no proof has been adduced by the petitioner herein that she had surrendered or abandoned government land held by her as an encroacher six years prior to hers filing nomination papers for contesting elections to the office of Pradhan, Gram Pancyhayat, Gahalian, Kangra, rather when the Court of the Assistant Collector 1st Grade, Kangra is seized of a lis against the petitioner herein for hers having encroached upon government land naturally when the lis stands not terminated, as a concomitant the conclusion which hence is to be drawn is that the petitioner herein is an encroacher upon government land. Besides, when she has omitted to move an appropriate application at the earliest inasmuch as six years prior to the filing of nomination papers by her for contesting elections to the office of Pradhan, Gram Panchyat, Gahalian before the Assistant Collector 1st Grade, Kangra for the carrying out of measurement/spot inspection/demarcation for unearthing besides proving the facts of hers within the ambit of the latter part of clause (c) of sub section (1) to Section 122 of the Himachal Pradesh Panchayati Raj Act, having six years prior to hers filing nomination papers for contesting elections to the office of Pradhan, Gram Panchayat, Gahalian, Kangra, surrendered government land held by her as an encroacher, renders such omissions or want of endeavours to fillip an inference that she is disabled to derive any succor from the latter part of clause (c) of sub section (1) to Section 122 of the Himachal Pradesh Panchayati Raj Act, 1994. As a corollary, it has to be held that the recitals in the affidavit furnished by her at the time of hers filing nomination papers for contesting elections to the office of Pradhan, Gram Panchayat, Gahalian, are ingrained with falsity, besides are wholly in gross detraction as also not meting out compliance with the latter part of clause (c) of sub section (1) to Section 122 of the Himachal Pradesh Panchayati Raj Act, 1994 so as to render the petitioner eligible to contest elections. Moreover, for reiteration, as a concomitant a further inference which is to be drawn by this Court is that hence she did not six years prior to her filing nomination papers for contesting elections to the office of Pradhan, Gram Panchyayat, Gahalian had either surrendered or abandoned government land held by her as an encroacher. Resultantly, no leverage or capital can be drawn by the petitioner on the anvill of the latter part of clause (c) of Section 122 of the H.P. Panchayati Raj Act, 1994, especially when there is abysmal want of evidence of hers six years prior to hers filing nomination papers for contesting elections to the office of Pradhan, Gram Panchayat, Gahalian, having abandoned or surrendered government land held by her as an encroacher, naturally then she is rendered ineligible to contest elections to the office of Pradhan, Gram Panchayat, Gahalian, Kangra. Formidable strength is marshalled by an inference that she at the earliest since hers applying for regularization of encroachment upon government land in the year 2002, had wilfully abandoned the above manner of concert at her instance, as the carrying out of spot inspection/measurement/demarcation of government land purportedly encroached upon by her would have unravelled the factum of hers as a matter of fact having encroached upon it. As a corollary then the ensuing deduction is that she did not either surrender or relinquish government land held by her as an encroacher six years prior to hers filing nomination papers for contesting elections to the office of Pradhan, Gram Panchayat, Gahalian,. In aftermath, she was forbidden while hence acquiring the vice of hers holding government land as an encroacher to contest elections to the office of Pradhan, Gram Panchayat, Gahalian, Kangra. Consequently, there is no merit in this petition which is accordingly dismissed and the impugned orders are maintained and affirmed. All pending applications also stand disposed of.