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2015 DIGILAW 209 (HP)

Santosh Kumar v. Jagdish Jaryal

2015-03-19

TARLOK SINGH CHAUHAN

body2015
JUDGMENT : Tarlok Singh Chauhan, J. The petitioner by medium of this petition has claimed the following reliefs: (i) That the impugned order dated 13.1.2015 (Annexure P-10), order dated 20.4.2013 (Annexure P-7) and orders dated 4.4.2013 (Annexure P-5) and 9.12.2012 (Annexure P-2) may kindly be quashed and set-aside. (ii) That the Election Petition No. 1/SDM/BHT/12 titled as Jagdish Jaryal v. Santosh Kumar filed in the year 2012 to set aside the election of 2010 before the learned Authorised Officer-cum-SDO (C), Bhattiyat, may kindly be dismissed, in view of the clear violation of provisions of Section 122 (2) (ii) and provisions of Section 163 i.e. 'presentation of petition' and Section 165 i.e. Procedure on receiving Election Petition. (iii) That the learned Authorised Officer-cum-SDO (C), may kindly be directed to act as a Judge to adjudicate upon the matter and follow the provisions of Order 14 CPC, when the allegation made are clearly controverted by the parties, even the delay of more than 10 year can't be condoned in Election Petition without summoning the effected parties, without filing an application for condonation of delay in Election Petition. (iv) The record of the case No. 1/SDM/BHT/12 titled as Jagdish Jaryal v. Santosh Kumar pending adjudication before the Ld. Authorised Officer-cum-SDO (C), Bhattiyat, Tehsil Bhattiyat, District Chamba (H.P.) may kindly be called for, for the kind perusal of this Hon'ble Court. 2. The election of the petitioner has been challenged by way of an election petition on various grounds and one of the grounds therein was that the petitioner was ineligible for being elected as a Vice President as he was an encroacher over the Government land which admittedly, if proved, debars the petitioner from holding the post under the provisions of the Himachal Pradesh Panchayati Raj Act, 1994 (for short 'Act') and the Rules framed thereunder. 3. The petitioner has consistently disputed this fact. However, when the application and affidavit allegedly filed by him through his wife before the competent authority was sought to be proved against him, he then filed an application under Section 45 of the Indian Evidence Act and claimed that the signatures appearing on the application and affidavit were not those of his wife, therefore, it was necessary to compare the disputed signatures with the original signatures. 4. 4. The Authorised Officer-cum-SDO (C), Bhattiyat vide his order dated 4.4.2013 dismissed this application, against which the petitioner preferred revision before the Deputy Commissioner. Vide order dated 20.4.2013, the Deputy Commissioner dismissed the revision by holding the same to be not maintainable, constraining the petitioner to approach the Divisional Commissioner under Section 148 of the Act. This revision came to be dismissed by the Divisional Commissioner vide his order dated 13.1.2015 which is the subject matter of challenge in this petition. 5. The petitioner has laid challenge to the said order on number of grounds which need not be referred to since the only question required to be determined in these proceedings is the correctness of the orders of the different authorities upon the application preferred by the petitioner under Section 45 of the Indian Evidence Act. 6. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 7. Section 45 of the Indian Evidence Act, 1872, reads thus: "45. Opinions of experts. - When the Court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions] are relevant facts. Such persons are called experts." I wonder how the provisions of the aforesaid Section are being pressed into service. However, nonetheless I would proceed to decide this application bearing in mind the provisions contained in Section 73 rather than Section 45 of the Act. Section 73 of the Act reads thus: "73. Comparison of signature, writing or seal with others admitted or proved. - In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. [This section applies also, with any necessary modifications, to finger-impressions.] " 8. Though the petitioner claims that the signatures on the application and affidavit as submitted to the authorised officer for regularisation of the encroachment are not those of his wife, but I am not impressed with this submission. This application and affidavit were submitted as far as in the year 2002, at that time it could not have been visualised by the petitioner or even anybody else that the petitioner would one day contest the election and would then be debarred from contesting the same solely on the basis of his having encroached upon the Government land. 9. It is discernible from the records that it is not only the petitioner, but his other family members, who too have encroached upon the Government land and had moved similar applications and affidavits for regularising their encroachment. These applications and affidavits were submitted because of the representation to this effect having been made by the then political Government. But unfortunately, this decision was rescinded and thereafter the affidavits furnished by the encroachers were then used against such encroachers not only for evicting them from the Government land, but also for debarring them from holding various offices including the elected offices under the Act. 10. To my mind, before an application can be sent for comparison, the petitioner is prima-facie required to convince the Court that there was no occasion for him to have moved such an application or submit any affidavit and therefore the signatures appearing on this application and affidavit are not his (his wife's). 11. As noticed above, it is not only the petitioner but even other family members including his wife, who have moved similar application and filed similar affidavit for the regularisation of their encroachment. 12. From the above discussion, it is apparent that the present petition has been filed only to delay the outcome of the petition. Timely decision on election petition is of vital importance and whereas the petitioner has been successful in delaying the matter and has virtually enjoyed the entire tenure of his office. 12. From the above discussion, it is apparent that the present petition has been filed only to delay the outcome of the petition. Timely decision on election petition is of vital importance and whereas the petitioner has been successful in delaying the matter and has virtually enjoyed the entire tenure of his office. But this cannot be permitted to go on. 13. Accordingly, not only the present petition is dismissed but the authorities constituted under the Act are directed to decide the petition as expeditiously as possible and in no event later than 15th May, 2015. The parties or their authorised representative are directed to cause appearance before the Authorised Officer-cum-Sub Divisional Officer, Bhattiyat, District Chamba on 30.3.2015 14. In view of the aforesaid discussion, the present petition is dismissed, so also the pending application. Interim order granted by this Court on 4.2.2015 is vacated. The parties are left to bear their own costs.