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2019 DIGILAW 1046 (HP)

Ram Lal v. State of HP

2019-07-25

ANOOP CHITKARA, V.RAMASUBRAMANIAN

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JUDGMENT : V. Ramasubramanian, J. Aggrieved by the order of the Sub Divisional Officer (Civil) setting aside his election as member of the Block Development Committee and the order of the Deputy Commissioner confirming the same on appeal, the petitioner has come up with the above writ petition. 2. Heard Mr. Shrawan Dogra, learned Senior Counsel for the petitioner, Mr. Ashok Sharma, Advocate General, for the State, Mr. Surinder Prakash Sharm, learned counsel for respondent No.2, Mr. B.C. Negi, learned Senior Counsel for respondent No.3 and Sanket Sankhyan, learned counsel for respondent No.6. 3. In the elections held on 5.1.2016, the petitioner was elected as a member of the Block Development Committee, Ward Panvi, Tehsil Nichar, District Kinnaur. Challenging his election, the second respondent herein filed an Election Petition in Election Petition No. 4/2016 under Sections 122, 163 and 175 of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as the 1994 Act). The only ground on which the election of the petitioner was challenged by the second respondent herein was that the petitioner had suffered a disqualification in terms of Section 122 (1) (c) of the 1994 Act, inasmuch as his grandfather had encroached upon a land belonging to the State Government. The Sub Divisional Officer (Civil),who is the Authorised Officer under the 1994 Act, after an elaborate inquiry, allowed the Election Petition and set aside the election of the petitioner on the ground that the petitioner's grandfather had admittedly encroached into a Government land. 4. Challenging the order of the Sub Divisional Officer (Civil), the petitioner filed a statutory appeal under Section 181 of the 1994 Act before the Deputy Commissioner. The Deputy Commissioner, Kinnaur, by a decision rendered on 8.4.2019, dismissed the appeal thereby confirming the order of the Original Authority. It is against these concurrent orders that the petitioner has come up with the above writ petition. 5. Before we record the grounds of challenge to the impugned orders, we are obliged to keep in mind the limited role that this Court has to play in a writ petition under Article 226 of the Constitution, especially when the challenge in the writ petition is to the orders of an Election Tribunal. 5. Before we record the grounds of challenge to the impugned orders, we are obliged to keep in mind the limited role that this Court has to play in a writ petition under Article 226 of the Constitution, especially when the challenge in the writ petition is to the orders of an Election Tribunal. Section 163 (1) of the 1994 Act enables any elector of a Panchayat to present an Election Petition challenging the election of any person, on one or more of the grounds specified in Section 175 (1). The Election Petition is to be presented to the ?Authorized Officer.? The contents of such petition are regulated by Section 164. The procedure to be followed by the Authorized Officer for inquiring into the election petition, is stipulated in Section 167. Sub-Section (2) of Section 167 makes the provisions of the Indian Evidence Act, 1872 applicable to the trial of an Election Petition subject to the provisions of the Act. 6. Section 175 (1) lists out four grounds on which an election may be declared to be void. Under Clause (a) of sub-Section (1) of Section 175 an election can be declared as void, if the Authorized Officer is of the opinion that on the date of his election, the elected person was not qualified or he was disqualified to be elected under the Act. 7. Section 122 (1) of the Act enlists several contingencies under which a person shall be disqualified for being chosen as an office bearer of a Panchayat. One of the contingencies stipulated in sub-Section (1) of Section 122 relates to encroachment upon any land belonging to the Government. This is traceable to Clause (c) of sub-Section (1) of Section 122. Section 122 (1)(c) together with the Explanation thereunder reads as follows: ?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 therefrom or ceases to be the encroacher. Explanation.- For the purpose of this clause the expression "family member" shall mean grandfather, grandmother, father, mother, spouse, son(s), unmarried daughter(s)? 8. In fact Clause (c) of sub-Section (1) of Section 122 was made more elaborate by way of an amendment under Act No. 17 of 2005. The Explanation under Clause (c) which was originally restrictive, was amplified by a further amendment under Act No. 15 of 2015. Persons such as grand father and grand mother were brought within the definition of the expression ?family member? under the Explanation to Clause (c), only by the Amendment Act No. 15 of 2015. 9. The cumulative effect of Section 122(1)(c), Section 175(1)(a) and Section 163(1) is that if a person was disqualified to be elected, his election is liable to be challenged by an elector on such a ground. The power to declare an election to be void is conferred upon the Authorized Officer. The expression ?Authorized officer? is defined in Section 159(b) to mean the Officer Authorized under Section 161 to hear Election Petitions. Section 161 empowers three different officers, namely, the Sub Divisional Officer, the Deputy Commissioner and the Commissioner to hear and decide Election Petitions, respectively in the case of (i) Gram Panchayats and Panchayat Samitis (ii) members of Zila Parishads; and (iii) Chairman and Vice-Chairman of Zila Parishads. Section 181 provides for an appeal against the orders of the Authorized Officer (i) to the Deputy Commissioner, in case the order impugned was passed by the Sub Divisional Officer (ii) to the Divisional Commissioner in case the order impugned was passed by the Deputy Commissioner; and (iii) to the Financial Commissioner (Appeals), in case the order impugned was passed by the Divisional Commissioner. 10. Keeping in mind the broad Scheme of the 1994 Act, let us now come back to the facts of the present case. The election of the petitioner was challenged by the second respondent primarily on the ground that the petitioner's grandfather had encroached upon a Government land and that therefore, the petitioner had suffered disqualification in terms of Clause (c) of sub-Section (1) of Section 122, read with the Explanation thereunder. The election of the petitioner was challenged by the second respondent primarily on the ground that the petitioner's grandfather had encroached upon a Government land and that therefore, the petitioner had suffered disqualification in terms of Clause (c) of sub-Section (1) of Section 122, read with the Explanation thereunder. The second respondent had pleaded in his Election Petition specifically that two persons by name Sang Dass and Mal Sukh, both of whom are the grand fathers of the petitioner had admittedly encroached into the Government land comprised in khewat/Khatoni No. 115 min/335 khasra Nos. 312, 445, 509, 510, 520, 521, 947, 958 and 1196 kita 9 total measuring 00-57-36 hect., situated in Up-Muhal Panvi, Tehsil Nichar, District Kinnaur, HP and khewat No. 45/137, khasra Nos. 162, 163 and 165 kita 3, total measuring 00-30-51 hect., situated in Up Muhal Faktowar Dhar, Tehsil Nichar, District Kinnaur. 11. It is seen from the order of the Authorized Officer that the petitioner herein did not file a reply in the first instance to the Election Petition but filed a petition under Section 164(1)(c) and 165 of the Act for the dismissal of the petition. After nearly two years, the petitioner filed a reply to the main Election Petition. Interestingly, the stand taken by the petitioner before the Authorized Officer was that he had been living separately since 1991 and that since no proceedings for removal of encroachment were initiated against his grand father under the Himachal Pradesh Land Revenue Act, 1954 (hereinafter referred to as ?the Revenue Act, 1954?), he cannot be said to have suffered a disqualification under Section 122(1)(c). In other words, the petitioner did not go before the Authorized Officer with a plea that his grand father never encroached upon any Government land. All that the petitioner stated was (i) that till his grand father is declared as an encroacher under Section 163 of the Revenue Act, 1954 and an order of eviction passed under the Act, he cannot be taken to be disqualified; and (ii) that in any case he has been living separately from 1991 and hence the allegations of encroachment cannot be put against him. 12. Before the Authorized Officer, the second respondent herein who was the Election Petitioner, produced certain documents. 12. Before the Authorized Officer, the second respondent herein who was the Election Petitioner, produced certain documents. They were, (i) the copy of application from Sang Dass and Mal Sukh for regularization of encroached land which was assigned an Unique No.T-480102 dated 10.8.2002 by the office of the Tehsildar Nichar (ii) the certificate issued by the Patwari Panvi indicating that there was an unauthorized occupation by Mal Sukh and Sang Dass, (iii) the Jamabandies indicating encroachment upon two Upmuhals, i.e. Panvi and Factowar Dhar; and (iv) the Pariwar Registers showing the relationship between Sang Dass and Mal Sukh on the one hand and the petitioner herein on the other hand (as common grand fathers under polyandry system) 13. The second respondent herein also examined five witnesses, two of whom were Patwaries and one Panchayat Secretary of Panvi. These witnesses spoke about the relationship between the petitioner and the encroachers. They also spoke about the land being Government land and the encroachment made by the two grand fathers of the petitioner. 14. Therefore, it was established before the Authorized Officer on evidence that the grand fathers of the petitioner had encroached upon the Government land. The initial onus of proving the disqualification suffered by the petitioner, was thus duly and properly discharged by the second respondent by adducing, both oral and documentary evidence. 15. Instead of demolishing or rebutting the evidence so produced by the Election Petitioner, the petitioner herein merely produced documents to show that he was living separately. This was despite the fact that the 1994 Act does not exempt those living separately, from the application of Section 122(1)(c). 16. Therefore, the Authorized Officer, on a due consideration of (i) the pleadings and; (ii) the oral and documentary evidence on record, came to the conclusion that the petitioner was disqualified. Accordingly, he set aside the election. 17. The Appellate Authority found that documents Ext. PW-2/A, Ext. PW-1/A and Ext. PW-1/B (Missal Kabza Najayaj) were duly brought on record as per procedure and that the very application of the grandfather of the petitioner for regularization made it an open and shut case. Therefore, he dismissed the appeal. 18. Keeping the above facts in mind, let us now come to the grounds of attack to the impugned orders. PW-1/A and Ext. PW-1/B (Missal Kabza Najayaj) were duly brought on record as per procedure and that the very application of the grandfather of the petitioner for regularization made it an open and shut case. Therefore, he dismissed the appeal. 18. Keeping the above facts in mind, let us now come to the grounds of attack to the impugned orders. The grounds of challenge to the impugned orders are, (i) that the Authorized Officer nominated under Section 161 of the 1994 Act is not competent and does not have the jurisdiction to decide whether someone is an encroacher or not, as the task of deciding the question of encroachment and ordering the eviction is conferred upon some other authority under Section 163 of the Revenue Act, 1954 (ii) that since no proceedings were initiated against the grand father of the petitioner and no order of eviction was ever passed against him, under Section 163 of the Revenue Act, 1954, the petitioner cannot be said to have suffered a disqualification under Section 122(1)(c) of the 1994 Act, (iii) that in view of the decision of the Supreme Court in Janabai vs. Additional Commissioner 2018 (9) JT 217 , the petitioner should have been found to have shared the land with the encroacher, so as to invoke Section 122(1)(c); and (iv) that when the petitioner had specifically pleaded that he had separated in the year 1991 and that he was no more part of the same family, the Authorized Officer could not have invoked Section 122(1)(c) especially in view of the judgment of this Court in Mehar Chand vs. Taro Devi and others 2014 CC OnLine HP 3422. 19. We have carefully considered the above submissions. 20. The first ground of attack to the impugned order is that the Authorized Officer nominated under Section 161 of the 1994 Act is not competent and does not have the jurisdiction to decide whether someone is an encroacher or not, as the task of deciding the question of encroachment and ordering the eviction is conferred upon some other authority under Section 163 of the Revenue Act, 1954. 21. But the above contention is completely misconceived. Section 122 (1) not only enlists the types of disqualifications that a person may suffer, but also provides a clue in sub-Section (2) of Section 122 as to who is competent to decide the question of disqualification. 21. But the above contention is completely misconceived. Section 122 (1) not only enlists the types of disqualifications that a person may suffer, but also provides a clue in sub-Section (2) of Section 122 as to who is competent to decide the question of disqualification. Section 122 (2) of the 1994 Act read as follows: “Section 122(2) The question whether a person is or has become subject to any of the disqualifications under sub-section (1), shall after giving an opportunity to the person concerned of being heard, be decided- (i) if such question arises during the process of an election, by an officer as may be authorized in this behalf by the State Government, in consultation with the State Election Commission; and (ii) if such question arises after the election process is over, by the Deputy Commissioner.? 22. In the case on hand, the second respondent who filed the Election Petition, made a specific averment in his petition that even at the time of scrutiny of nomination papers he raised the question of disqualification of the petitioner herein and that the Assistant Returning Officer (5th respondent to the Election Petition) did not hear the objections. Once the Assistant Returning Officer failed to consider the objections relating to the validity of a nomination filed by a candidate, the only remedy open to the objector is to file an Election Petition. What was omitted to be considered by a Returning Officer can certainly be considered by an Election Tribunal. 23. If the Authorities constituted under the Revenue Act 1954 alone are competent to decide the question of encroachment, Section 122 (2) of the 1994 Act could not have conferred powers upon an Officer authorized by the State Government to consider the question of disqualification. 24. Once it is found that Section 122 (2) of the 1994 Act confers power upon an Officer authorized by the State Government to decide the question of disqualification that arises during the process of an election, there is no use in the petitioner contending that the authorities constituted under the Revenue Act, 1954 alone could decide the question of encroachment. 25. Section 163 of the Revenue Act, 1954 speaks only about the removal of encroachment and prevention of encroachment. It has nothing to do with disqualification of a person to contest elections. 25. Section 163 of the Revenue Act, 1954 speaks only about the removal of encroachment and prevention of encroachment. It has nothing to do with disqualification of a person to contest elections. If and when a proceeding is initiated under the Revenue Act, 1954, then the Officer conferred with the power under Section 163 alone can order eviction. But when a question of disqualification in terms of Section 122(1)(c) arises, the Officer authorized by the Government under section 122(2) of the 1994 Act alone will be empowered to decide the question. Upon his failure to do so, the Election Tribunal will take care of the same. Therefore, the first ground of attack raised by the learned Senior Counsel for the petitioner to the impugned order is liable to be rejected outright. 26. The second ground of attack to the impugned orders is that since no proceedings were initiated against the grandfather of the petitioner and since no order of eviction was ever passed against him under Section 163 of the Revenue Act, 1954, the petitioner cannot be said to have suffered a disqualification under Section 122(1)(c) of the 1994 Act. 27. But the above contention over looks the nature of the language employed in Section 122(1)(c). Section 122 (1)(c) does not speak about a person declared as an encroacher under the relevant Statute. It merely speaks about a person who has encroached upon a Government land. 28. Interestingly, Section 122(1)(c) also carves out an exception to the Rule. If a person who was once upon a time an encroacher, had been ejected from the land or had ceased to be an encroacher and a period of six years had elapsed from the date of the happening of the said event, the disqualification under Clause (c) will not arise. Therefore, it is only in cases where a person claims to fall under the exception to the Rule that an order for the removal of encroachment under the Revenue Act, 1954 will be of relevance. We must remember that while talking about certain other types of disqualifications, Section 122(1) recognizes the role played by the other authorities. For instance while talking about certain offences, Section 122 (1) speaks only about the conviction by a Criminal Court. We must remember that while talking about certain other types of disqualifications, Section 122(1) recognizes the role played by the other authorities. For instance while talking about certain offences, Section 122 (1) speaks only about the conviction by a Criminal Court. Therefore, wherever the nature of the disqualification is such that the same cannot be decided by an Officer authorized under sub-section (2) of Section 122, sub-section (1) has inbuilt safe guards. 29. Hence the contention that until proceedings for eviction are initiated and declaration is made, against the grandfather of the petitioner, the petitioner cannot be said to be disqualified, is completely contrary to the Scheme of the Act. 30. The third ground of attack to the impugned orders is that in view of the decision of the Supreme Court in Janabai vs. Additional Commissioner 2018 (9) JT 217 , the petitioner should have been found to have shared the land with the encroacher, so as to invoke Section 122 (1) (c). 31. We do not know how the decision of the Supreme Court in Janabai would go to the rescue of the petitioner. In fact, Janabai is a case where the encroachment was by the father-in-law and the husband of the elected member of the Gram Panchayat. Section 14 of the Maharashtra Village Panchayat Act did not employ the same language as employed in Clause (c) of sub-Section (1) of Section 122 of the 1994 Act. A provision similar to the Explanation under Section 122(1)(c) was also not there in the Maharashtra Act. Despite this, the Supreme Court, by a purposive interpretation, made the elected member responsible for the encroachment made by a family member, on the ground that she shared the encroached property by residing there. 32. In other words even while interpreting a Statute which did not make the encroachment by family members as a disqualification, the Supreme Court read into the provisions of such statute, such a disqualification by invoking the theory of purposive interpretation. Therefore, more than supporting the case of the petitioner, the decision in Janabai supports the case of the respondent. Hence third ground of attack is also liable to be rejected. 33. The last ground of attack is on the basis of the decision of this Court in Mehar Chand vs. Taro Devi and others. The said decision was rendered before the amendment of the Explanation to Section 122 (1) (c). Hence third ground of attack is also liable to be rejected. 33. The last ground of attack is on the basis of the decision of this Court in Mehar Chand vs. Taro Devi and others. The said decision was rendered before the amendment of the Explanation to Section 122 (1) (c). Still this Court held that a widow was part of the family. This Court did not lay down any rule in Mehar Chand that unless the son or grand son who contested the election is found to be part of the family, the disqualification under Section 122(1)(c) will not apply. To hold that the contesting member should be part of the same joint family or co-parcenery, along with the encroacher, so as to attract the disqualification, would be to do violence to the plain language of Section 122(1)(c). This provision does not concern itself with a family feud or united or divided families. The provision under Section 122 (1) (c) is to prevent encroachers and their progenies from contesting an election, irrespective of whether the progenies are severed from the umbilical cord or not. Therefore, the last ground of attack should also fail. 34. Relying upon the decision of the Supreme court in State of H.P. and others vs. Surinder Singh Banolta (2006) 12 SCC 484 , it was contended by the learned Senior Counsel for the petitioner that a declaration that a person is an encroacher, is sine qua non for attributing the disqualification. But we do not think so. Section 122 (1) (c) merely speaks about encroachment and not about either the removal of encroachment or the declaration of encroachment. They are extraneous to Section 122 (1) (c). The language employed in clause (c) of sub-section (1) of section 122 is ?has encroached upon?. The section does not use the expression ?has been declared to be an encroacher?. 35. Therefore, in fine, we find that all the grounds of attack to the impugned orders are wholly unsustainable. Two authorities have reached concurrent findings on a question of fact. This question of fact has clearly led to the legal conclusion that the petitioner is disqualified. We find no scope for any interference with the orders of these quasi judicial authorities under Article 226 of the Constitution. Hence the writ petition is dismissed, along with pending applications, if any.