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2018 DIGILAW 1714 (HP)

Sushila Sonkhla v. State Of Himachal Pradesh

2018-09-20

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - The petitioner is holding the post of Chairperson of Municipal Council, Mandi, and after issuance of show cause notice dated 17.06.2015, seeking explanation against her under Section 16 (1)(c) of the Himachal Pradesh Municipal Corporation Act, was ultimately disqualified from being an office bearer of the Municipal Council, vide order dated 12th October, 2015, passed to this effect by the Director Urban Development, respondent No.2. Aggrieved by the said order, the petitioner has filed the instant petition, questioning the same on various grounds. 2. The show cause notice dated 17.6.2015 was served upon the petitioner, the relevant portion of which reads as under:- 1Whether reports of Local Papers may be allowed to see the judgment? Yes. "Whereas, as per the orders dated 09.03.2015 of the Assistant Collector, 1st Grade-cum-Tehsildar, Balh, Nehar Chowk, District Mandi (HP), your son (Shri Nitin Kumar) has been found encroacher on Govt. land. Therefore, an action against you for above encroachment on Govt. land is required to be initiated under Section 16 (1) (c) of H.P. Municipal Act, 1994, being an office bearer of the Municipal Council, Mandi." 3. It is not in dispute that proceedings under Section 163 of the Himachal Pradesh Land Revenue Act, 1954, were initiated against the petitioner and 12her son Nitin Kumar, with the allegations that they have encroached upon the Government land, comprised in Khasra No.21/1, measuring 0-1-5 bighas, situated in Mohal Sambal/328, Tehsil Mandi Sadar, District Mandi, H.P. The Assistant Collector, First Grade, Balh, District Mandi, H.P., had decided the above said proceedings vide order dated 9.3.2015 and no encroachment was found by the petitioner on the Government land, however, her son Nitin Kumar was held to have been encroached upon the Government land measuring 0-1-5 bighas. This order was assailed by Nitin Kumar by filing an 8appeal under Section 14 of the H.P. Land Revenue Act, however, the same was dismissed on 3.9.2015 by the Collector Sub Division (Sadar), Mandi. The matter is now stated to be pending adjudication before the Divisional Commissioner, Mandi. 4. It is further not in dispute that the petitioner, being the mother of Nitin Kumar, has been held to be a beneficiary of the encroachment on the Government land in terms of explanation appended to Clause(c) of Section 16(1) supra. However, the only argument raised by Mr. Satyen Vaidya, learned Senior Counsel, assisted by Mr. 4. It is further not in dispute that the petitioner, being the mother of Nitin Kumar, has been held to be a beneficiary of the encroachment on the Government land in terms of explanation appended to Clause(c) of Section 16(1) supra. However, the only argument raised by Mr. Satyen Vaidya, learned Senior Counsel, assisted by Mr. Vivek Sharma, Advocate, is the issue of legal representative would only come in to play after the death of a person and not prior to that. During the life time, a person who was otherwise legal representative, at best, would only be as heir apparent and, therefore, by no stretch of imagination could the Director Urban Development, respondent No.2, have disqualified the petitioner from holding the post of President of Municipal Council, Mandi. 5. On the other hand, Mr. Ashok Sharma, learned Advocate General, has vehemently argued that once the son of the petitioner is found to have encroached upon the Government land, then obviously the petitioner had occurred disqualification under Section 16(1)(c) of the Act and, therefore, she has rightly been disqualified from holding the post in question. We have heard the learned counsel for the parties and gone through the material placed on record. 6. Section 16 (1) (c) of the H.P. Municipal Act 1994, as enacted, reads as under:- "16.(1) A person shall be disqualified for being chosen as and for being an office bearer of a municipality:- (c) if he has encroached upon, or is a beneficiary of the encroachment 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 Cooperative Society unless a period of six years has elapsed since the date on which he is ejected therefrom or he ceases to be the encroacher; Explanation:- For the purposes of this clause, the expression "beneficiary" shall include the spouse and legal heirs of the encroacher." 7. The explanation appended to the aforesaid Section, makes it evidently clear that the expression "beneficiary" includes the spouse and legal heirs of the encroacher, which means that in the given circumstances the beneficiaries could include even other persons but so far as spouse or legal heirs are concerned, they are deemed to be beneficiaries of the encroachment. 8. The explanation appended to the aforesaid Section, makes it evidently clear that the expression "beneficiary" includes the spouse and legal heirs of the encroacher, which means that in the given circumstances the beneficiaries could include even other persons but so far as spouse or legal heirs are concerned, they are deemed to be beneficiaries of the encroachment. 8. Undoubtedly, the terms legal heir as used in the said Section, may appear to be somewhat misplaced but then it is the intention of the statute that is required to be seen. There can be no doubt that the aforesaid provision was enacted to ensure that the encroachers of Government land and beneficiaries of such encroachment are not elected and are rather disqualified from being chosen as office bearers of Municipality and likewise not only the persons who have actually encroached upon the Government land, but even beneficiaries of such encroachment are also not chosen as office bearers of Municipality. 9. Similar provisions or rather more stringent provisions are found to be contained in The Himachal Pradesh Municipal Corporation Act,1994 and even in The Himachal Pradesh Panchayati Raj Act, 1994. 9. Similar provisions or rather more stringent provisions are found to be contained in The Himachal Pradesh Municipal Corporation Act,1994 and even in The Himachal Pradesh Panchayati Raj Act, 1994. Section 122(1)(c) of The Himachal Pradesh Panchayati Raj Act, 1994, as originally enacted, reads as under:- "122.(1) A person shall be disqualified for being chosen as, and for being, an office bearer, or a Panchayat- (c) if he 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 is ejected therefrom or ceases to be an encroacher" However, thereafter clause(c) of Section 122(1) of the Act was amended vide Act No. 17 of 2005 w.e.f. 30.5.2005, which now reads thus:- "122.Disqualifications.-(1) A person shall be disqualified for being chosen as,and for being, an office bearer, of a Panchayat- (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 Cooperative 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 therefrom or ceases to be the encroacher; or Explanation-For the purpose of this clause the expression"family member" shall mean the spouse, their son(s), unmarried daughter(s) and adopted son of unmarried daughter." 10. Likewise, Section 8 of The Himachal Pradesh Municipal Corporation Act, which relates to disqualification of Councillors, a specific provision pertaining to encroachment by the Councillor, which entails disqualification, has been incorporated in Section 8(1)(l) of the same, which reads as under:- "8. Disqualifications of Councillors. Likewise, Section 8 of The Himachal Pradesh Municipal Corporation Act, which relates to disqualification of Councillors, a specific provision pertaining to encroachment by the Councillor, which entails disqualification, has been incorporated in Section 8(1)(l) of the same, which reads as under:- "8. Disqualifications of Councillors. - (1) A person shall be disqualified for being chosen as, and for being, a Mayor, Deputy Mayor and Councillor of the Corporation- (l) if he has encroached upon or is a beneficiary of the encroachment upon any land belonging to, or taken on lease or requisitioned by or on behalf of, the State Government, a municipality, a panchayat, a cooperative society or any other local authority, unless a period of six years has elapsed since the date on which he is ejected therefrom or he ceases to be encroacher; Explanation:-For the purposes of this clause the expression "beneficiaries" shall include the spouse and legal heirs of the encroacher." 11. Thus, it would be evidently clear that for being an office bearer in any elected body, may it be Panchayat in the Rural Areas or a Municipal Councils or the Nagar Panchayat or Municipal Corporation in the Urban Areas in the State, it has to be ensured that no beneficiary of encroacher so appointed is allowed to continue in the said office rather such person has to be disqualified. It is well recognized principle of interpretation of statutes that the Court must give effect to the purport and object of the Act. 12. It is more than settled that a statue is best interpreted when we know why it is enacted. If a statue is looked at, in the context of its enactment, with the glasses of the statue-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statue is looked at without the glasses provided by the context.( RBI v. Peerless General Finance & Investment Co. Ltd. , (1987) 1 SCC 424 , Gaurav Aseem Avtej vs. Uttar pradesh State Sugar Corporation Limited and Others. The reasons for having the provisions in all statutes regarding disqualification of office bearer of Rural and Urban local bodies is that neither the encroacher nor the beneficiary of such encroachment should be entitled to hold office or rather should be disqualified for being an office bearer of such bodies. 13. The reasons for having the provisions in all statutes regarding disqualification of office bearer of Rural and Urban local bodies is that neither the encroacher nor the beneficiary of such encroachment should be entitled to hold office or rather should be disqualified for being an office bearer of such bodies. 13. Adverting to the plea of the petitioner that she is not the legal heir of her son till so long she is alive by virtue of there being beneficiaries of legal heirs of the encroachers, we need not to refer to the legal interpretation of legal heirs as the explanation makes it evidently clear that for the purpose of this Clause, Section 16 (1) (c) of the Act, the beneficiaries shall include spouse and legal heirs of the encroachers. 14. Even otherwise, it would be noticed that the term beneficiary, has been clarified in the explanation appended to the said Section and it is more than settled that normally an explanation is appended to a Section to explain meaning of words contained in the Section and therefore, becomes a part and parcel of the enactment and explanation may be added to include something within it or to exclude something from the ambit of enactment or a connotative of some words occurred in it. 15. In S. Sundaram Pillai and Others vs. V.R. Pattabiraman and Others , (1985) 1 SCC 591 , the Hon''ble Supreme Court, held from the earlier cases, the following object on an explanation to a statutory provisions:- "53. 15. In S. Sundaram Pillai and Others vs. V.R. Pattabiraman and Others , (1985) 1 SCC 591 , the Hon''ble Supreme Court, held from the earlier cases, the following object on an explanation to a statutory provisions:- "53. -Thus from a conspectus of the authorities, it is manifest that the object of an Explanation to a statutory provision is- (a) to explain the meaning and intendment of the Act itself; (b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve, (c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful; (d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the court in interpreting the true purport and intendment of the enactment; and (e) it cannot, however, take away a statutory right with which any person , under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same. 16. In addition to the aforesaid, it would be noticed that legislature in the aforesaid explanation has used word "shall" in contradiction to word "may" used in some other provisions of the Act. The distinction between mandatory and directory provisions is well accepted norm of interpretation. The general rule of interpretation would require the word to be given its own meaning and the word "shall" would be read as "must" unless it was essential to read it as "may" to achieve the ends of legislative intent and understand the language of the provisions. It is difficult to lay down any universal rule, but wherever the word "shall" is used in a substantives statute, it normally would indicate mandatory intent of the legislature. 17. Thus, the word "shall" would normally be mandatory while the word "may" would be directory. Consequences of non-compliance would also be a relevant consideration. It is difficult to lay down any universal rule, but wherever the word "shall" is used in a substantives statute, it normally would indicate mandatory intent of the legislature. 17. Thus, the word "shall" would normally be mandatory while the word "may" would be directory. Consequences of non-compliance would also be a relevant consideration. The word "shall" raises a presumption that the particular provision is imperative but this prima facie inference may be rebutted by other considerations such as object and scope of the enactment and the consequences flowing from such construction. Whereas, statute disqualifies a person from holding any office under the Municipal Council then it would be difficult to hold that the provision is merely directory or mandatory. The scheme of the Act, the language of the provisions, legislative intendment and the objects sought to be achieved clearly indicate that the word "shall" has been used to indicate the legislation intent that the provisions should be mandatory." 18. It is, thus, clear from the aforesaid discussion that the petitioner is mother of Nitin Kumar, who has encroached upon the Government land and being his legal heir has definitely incurred a disqualification under Section 16(2)(ii) of the Act, therefore, was rightly disqualified from continuing as an office bearer of a municipality. 19. Accordingly, we find no merit in this petition and consequently the same is dismissed. However, the parties are left to bear their own costs. Interim order dated 3.11.2015, stands vacated. The petition stands disposed of, so also the pending application (s), if any.