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2016 DIGILAW 234 (PNJ)

Alka Devi v. State of Haryana

2016-01-19

P.B.BAJANTHRI, SURYA KANT

body2016
JUDGMENT Mr. Surya Kant, J.: (Oral) - This order shall dispose of RA-CW-9-2016 in CWP-181- 2016, CWP-837-2016 as well as CWP-882-2016. The issue which arises for consideration in these proceedings pertains to eligibility of respondent No.5 (Poonam w/o Kuldeep Kumar) for contesting the election of Sarpanch of Gram Panchayat Ramgarh Road, Block Pehowa, District Kurukshetra. The facts are being extracted from CWP No.837 of 2016. 2. It is not in dispute that the petitioner as well as respondents No.5&6 filed their nominations to contest the election of Sarpanch which was scheduled to be held on 10.01.2016. The Returning Officer rejected the nomination of respondent No.5 (Poonam) on the plea that as per the report submitted by the Revenue authorities, her father-in-law (Ranbir Singh s/o Mehan Singh) was in unauthorized possession of the Gram Panchayat land comprising Khasra No.58//17. A person in unauthorized possession of the Gram Panchayat land is disqualified to hold the office of Sarpanch/Panche etc. as defined under Section 175(1)(n) of the Haryana Panchayati Raj Act which reads as follows:- “175. Disqualifications. – (1) No person shall be a Sarpanch or a Panch or a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who – (a) xxxx xxxx (b) xxxx xxxx (c) xxxx xxxx (d) xxxx xxxx (n) is or has been during the period of one year proceeding the date of election, in unauthorised possession of land or other immovable property belong to the Gram Panchayat, Panchayat Samiti or Zila Parishad ; or…” 3. Aggrieved by rejection of her nomination, respondent No.5 approached this Court in CWP No.181 of 2016. The petitioner as well as respondent No.6 also joined these proceedings through their respective counsel. 4. Learned counsel for the parties were heard and having regard to the plea taken by writ-petitioner (Poonam) before this Court that her father-in-law was not in unauthorized possession of the Gram Panchayat land and the said land was occupied by the family of one late Deshi s/o Munshi, this Court directed the Deputy Commissioner-cum-District Election Officer, Kurukshetra to hold a fact-finding enquiry and then determine the eligibility of respondent No.5. 5. 5. Pursuant to those directions the District Election Officer has passed the impugned order dated 08.01.2016 holding that even if the father-in-law of respondent No.5 was in unauthorized possession yet she could not be rendered disqualified from contesting the election as the disability under Section 175(1)(n) was personal in nature and so long as respondent No.5 herself was not in unauthorized possession of the Gram Panchayat land, she could not be disqualified. Consequently, the District Election Officer reversed the earlier decision and has directed to accept the nomination of respondent No.5. On the request of District Election Officer, the State Election Commission, Haryana has also issued notification dated 09.01.2016 whereby the election of the above-stated Gram Panchayat has been postponed from 10.01.2016 to 24.01.2016. The above-stated orders are now being challenged in CWP No.837 of 2016. Simultaneously, the review application has also been filed in CWP No.181 of 2016 filed by respondent No.5 which was decided on 07.01.2016. 6. We have heard learned counsel for the petitioner(s) as well as the review-applicant. Their primary contention is that when nomination of respondent No.5 along with respondent No.6 was rejected on 30.12.2015, no other candidate other than the petitioner remained in fray. Consequently, the Returning Officer declared the petitioner to have been elected unopposed and issued a certificate to this effect. On this premise, it is contended that this fact was concealed by respondent No.5 in her writ petition and in any case, once the petitioner was declared unopposed, the writ petition filed by respondent No.5 became infructuous. 7. Having given our thoughtful consideration to the submissions, we are not impressed by the same. Respondent No.5 felt aggrieved against rejection of her nomination and without wastage of time approached this Court. She was not expected to know the fate of nomination of respondent No.6 or that any certificate of being elected unopposed was issued to the petitioner. No such plea was raised by counsel for the petitioner or counsel for respondent No.6 who were present at the time when order dated 07.01.2016 was passed. Be that as it may, respondent No.5 was being deprived to contest the election on the basis of an ex facie erroneous reason which the authorities have corrected before the date of election. No such plea was raised by counsel for the petitioner or counsel for respondent No.6 who were present at the time when order dated 07.01.2016 was passed. Be that as it may, respondent No.5 was being deprived to contest the election on the basis of an ex facie erroneous reason which the authorities have corrected before the date of election. Since the very basis to deny respondent No.5 to contest the election was contrary to the statutory provisions contained in Section 175(1)(n), the re-consideration of her eligibility by the District Election Officer especially in view of the directions issued by this Court was fully justified. 8. It was not a case where respondents No.5&6 voluntarily withdrew their nominations leaving no contest for the petitioner. If at all any certificate of being elected unopposed was issued, it was an election in default at a time when respondent No.5 was before this Court to establish her eligibility. Such a fortuitous circumstance would not clothe the petitioner with an indefeasible right to hold the office of Sarpanch, the real test lies in the will and wish of the voters. 9. With these observations, both the writ petitions as well as the review-application stands dismissed.