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2021 DIGILAW 55 (HP)

Krishna Kumari v. State of H. P.

2021-01-08

JYOTSNA REWAL DUA, TARLOK SINGH CHAUHAN

body2021
JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. The instant petition has been filed for the grant of following substantive reliefs: (i) That the candidature of respondent No. 4 may kindly be rejected being disqualified. (ii) That direction be issued to respondent No. 3 to consider objection of the petitioner as per law. (iii) That direction be issued to respondent No. 3 to conduct election in fair and transparent manner. 2. It appears that the petitioner had filed objections against the nomination filed by the 4th respondent for the post of Pradhan, however, the same was not decided. 3. The learned Advocate General has placed on record the consideration order, which reads as under: “In compliance to the order of the Hon’ble High Court following explanation is extended to your office. That Deepan Devi D/o Sh. Narain Singh, who is also a candidate to Pradhan, Gram Panchayat, Jhakari, registered her objection with documents on 04.01.2021 in written against Smt. Bishna Bhandari W/o Sh. A.C. Bries, who is also Pradhan contestant from H.P. Jhakri, which I duly received. The complaint included documents, subjected as below: 1. Complaint regarding encroachment of Govt. Land by Smt. Bishna Bhandari and further pass the order to remove her from the post of BDC member Gram Panchayat Jhakri, District Shimla, dated January 2020 2- ,sls O;fDr dh enn djus okys vf/kdkfj;ksa ds f[kykQ dk;ZokghA fnukad vDrwcj 2019 3- lryqt ty fo|qr fuxe fyfeVsM >kdM+h dh Hkwfe ij dkfct o ,sls O;fDr dh enn djus okys vf/kdkfj;ksa ds f[kykQ dk;ZokghA fnukad vDrwcj 2019 4. Statement by Sh. Vipin Kumar Deputy Manager Human Resource SJVN, Jhakri, dated 03.10.2019 It is submitted that there was nothing such in the documents that could prove Smt. Bishna Bhandari as an encroacher of the land. The allegations were merely based on complaints and statements and no evidence of her conviction. There was no conclusive evidence against her that could debar her to contest election. While be need conclusive evidence by competent authority that could prove her conviction. There was no proof of her conviction by competent authority like Sub-Divisional Magistrate, District Magistrate or Court. On the basis of this conclusion the nomination of Smt. Bishan Bhandari was accepted. Yours faithfully Sd/- (Amar Singh) ARO, Jhakri 4. While be need conclusive evidence by competent authority that could prove her conviction. There was no proof of her conviction by competent authority like Sub-Divisional Magistrate, District Magistrate or Court. On the basis of this conclusion the nomination of Smt. Bishan Bhandari was accepted. Yours faithfully Sd/- (Amar Singh) ARO, Jhakri 4. It needs to be noticed that one Narain Dass has filed a writ petition before this Court, wherein amongst others, the respondent Bishna Bhandari is also a party and has been arrayed as respondent No. 9. The petition has been filed for the grant of following reliefs: (A) That the respondents may kindly be directed to take concrete and final action on the report submitted by the Tehsildar Rampur Bushehar dated 10.10.2019 vide Annexure P-6 and further on report submitted by respondent No. 7 to respondent No. 5 dated 31.10.2019 vide Annexure P-7 within a time bound manner. (B) That the respondents may kindly be directed to remove respondent No. 9 from the post of BDC Member forthwith as per the mandate of Section 122 of the Himachal Pradesh Panchayati Raj Act in pursuant to the enquiry report submitted by the Tehsildar Rampur Bushehar, Himachal Pradesh. (C) That the respondents may kindly be directed to evict respondent No. 9 from the government land by demolishing unauthorized structure on the Government Land. 5. The specific allegations against respondent No. 9 in that petition are that she is encroacher, therefore, could not have elected as BDC Member. 6. The allegations made regarding the encroachment have been duly supported on affidavit by the Superintendent of Police, SV & ACB, S.R. Shimla, as is evident from para-2 of the reply, which reads as under: “2. That the brief facts of the matter are that a complaint made by Shri Narain Dass S/o Sh. Shawnu Ram R/o village Jhakri, Tehsil Rampur Bsr., District Shimla against Smt. Bishna Bhandari D/o Late Sh. Paras Ram Bhandari R/o Tangdu has been received in this office vide Superintendent of Police, SV & ACB, S/R letter No. SV & ACB (R-SR) Comp. (SML) 61/SR/19-4456 dated 19.08.2019. In said complaint, it has been alleged that one Smt. Bishna Bhandari is a Member of BDC from Jhakri Ward and she has got married with Sh. Amir Chand Brice, a resident of District Kinnaur who has retired from the post of Chief Engineer, Himachal Pradesh State Electricity Board. (SML) 61/SR/19-4456 dated 19.08.2019. In said complaint, it has been alleged that one Smt. Bishna Bhandari is a Member of BDC from Jhakri Ward and she has got married with Sh. Amir Chand Brice, a resident of District Kinnaur who has retired from the post of Chief Engineer, Himachal Pradesh State Electricity Board. Due to the influential post of her husband and political family back ground, Smt. Bishna Bhandari has made illegal encroachment on the land of Satluj Jal Vidyut Nigam Limited as well as National Highway. She has illegally encroached upon an area of land measuring 0-06-00 hect. Adjoining to Satluj Jal Vidyut Nigam Limited Project and has constructed a building on the said land. Out of said land an area measuring 0-00-20 hect. Pertains to one Sh. Atar Singh S/o Sh. Mehar Singh, which was given to him by NJPC in lieu of acquiring his shop. The said land cannot be transferred in favour of Sh. Atar Singh as he was only a lease holder. With regard to said encroachment, the complainant has made a complaint to Nathpa Jhakri Hydro Power Project authority (NJPHPS) but no action has been taken by them. Sh. K.K. Singhta the then Manager, NJPC has also helped said Smt. Bishna Bhandari in making the illegal encroachment. Smt. Bishna Bhandari has also purchased a land from Sh. Daulat Ram s/o Sh. Longu Ram, village and Post Office Jhakri situated at Mohal Jhakri in Khasra Nos. 3644/1220, 3613/1222, 3615/1223 measuring an area of 0-02-04 hect. below the National Highway, but she is constructing a building on the land measuring an area of 0-04-80 hectare by encroaching a portion of the land of National Highway and of S.J.V.N.L. Smt. Bishna Bhandari also made an illegal encroachment on an area measuring of 0-05-00 hectare of land of Nathpa Jhakri Hydro Power Station (NJHPS) by raising a wall on said land and the management of NJHPS has also helped her in making said encroachment by removing electricity pole/line, which was earlier installed on the said land. It has also been alleged that Smt. Bishna Bhandari has made obstruction in the path of the complainant.” 7. It has also been alleged that Smt. Bishna Bhandari has made obstruction in the path of the complainant.” 7. Not only this, a combined reply has been filed by the Deputy Commissioner, Additional Deputy Commissioner, Shimla alongwith the Sub Divisional Officer (Civil), Rampur Bushehar, wherein it has been specifically admitted that the Tehsildar Rampur who was directed to take further action has reported that the land of the SJVNL has been encroached by respondent No. 9 Bishna Bhandari, as is evident from Para-6 of the reply: “6. That the contents of this Para are denied for want of knowledge. However, it is submitted that when the petitioner submitted complaint qua the encroachment made by respondent No. 9 on the land belonging to respondent No. 8, the Tehsildar Rampur was immediately directed to take further action against respondent No. 9. In compliance to the directions issued by the replying respondent, Tehsildar Rampur has reported that the encroached land belongs to the respondent No. 8. After this, respondent No. 8 was directed time and again to take action against respondent No. 9 qua the removal of the encroached land but till date no Action Taken Report has been received from respondent No. 8.” 8. In such circumstances, we really fail to understand as to how the objections raised by the petitioner could have been rejected when the averments as narrated above have been made on affidavit. 9. We are conscious of the fact that normally such kind of petitions after the issuance of election process are not entertained but this being an exceptional case where the official-respondents even after acknowledging that respondent No. 4 is an encroacher, yet has taken no steps to decide the same on the basis of record. 10. Therefore, while allowing the petition, we direct the Returning Officer to consider and decide the objections filed by the petitioner against the 4th respondent latest by 13.01.2021. 11. The petition is disposed of in the aforesaid terms, so also pending applications, if any. Parties are left to bear their own costs.