Ashok Kumar v. State of H.P & Ors.

Advocate General. Mr.Lalit K.Sharma, Advocate. V.K. Ahuja, J.(Oral) The present writ petition has been filed by the petitioner under Articles 226/227 of the Constitution of India against the order, dated

10.3.2008, passed by the Deputy Commissioner, Kinnaur at Reckong Peo.

Briefly stated the facts of the case are that the election for the post of Pradhan, Gram Panchayat, Powari was held in the month of December,

2005. Respondent No.4 was one of the candidates for the said post and was declared elected unopposed. The petitioner challenged his election on two grounds. Firstly that respondent No.4 belongs to Scheduled Caste Community and the post of the Pradhan was reserved for Scheduled Tribe category candidates. Second challenge was that respondent No.4 is in ______________________________ Whether reporters of local papers may be allowed to see the judgment? Yes. 2 illegal possession of government land comprised in Khasra No.690/1 and 691/1, measuring 0-21-31 hectares, situated in Up-mohal Talangi (Powari) Tehsil Kalpa, District Kinnaur. Thus, it was pleaded that he has earned disqualification under Section 122(1)(c) of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as the Act). The petition was contested by respondent No.4 on various grounds.

The authorized officer i.e. SDO(C), vide order dated 11.7.2007, came to the conclusion that respondent No.4 has encroached upon the government land and as such was disqualified and his election as a Pradhan of the Panchayat was declared void. An appeal was filed by respondent No.4 before Deputy Commissioner-cum-Appellate Authority/ respondent No.2, who allowed the appeal. In setting aside the findings of the SDO(C), the Deputy Commissioner relied upon a notification issued by the Election Commissioner, copy of which is at page 71 Annexure P-8. The said notification was relied upon by the Deputy Commissioner in reversing the findings of the SDO(C). The relevant portion of the said notification of the Election Commissioner reads as under: (cid:147)Sl. No. 1. Point Clarification Where a person has applied for regularization of encroachment and submitted an affidavit to this effect a person Such disqualified. But the objector has to prove his point by producing certified copy of the affidavit submitted by 3

2. If encroacher is ready to vacate the encroached getting demarcation the encroacher. He remain disqualified for six years from the date on which he vacated the encroached land. (cid:148)

Against the said order passed by the Deputy Commissioner, the petitioner has filed the present writ petition.

I have heard the learned counsel for the parties and have gone through the record of the case.

It is clear from a perusal of the order passed by the learned Deputy Commissioner that he has observed that the certified copy of the affidavit was not placed on record as is required as per the instructions issued by the Election Commissioner. There is no provision in the Act for placing on record the certified copy of the affidavit of the encroacher, as has been observed by the Deputy Commissioner. The instructions issued by the Election Commissioner shall not apply to the provisions for disqualification under Section 122 of the Act. There is no provision for filing of such an affidavit.

According to Section 122(c) of the Act, the only requirement is that 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. 4

During the course of arguments, the learned counsel for the petitioner has relied upon the decision of a Division Bench of this Court in Kartar Chand versus State of H.P. and others, Latest HLJ 2009(HP) 1187, wherein it was held that the fact that the petitioner is an encroacher on government land is a pure finding of fact, which cannot be interfered in writ proceedings. In that case also, the election for the post of Pradhan was challenged and the Pradhan was disqualified under Section 122 of the Act. The said decision applies to the present facts on all fours.

The SDO(C) has given a finding of fact based on the admission made by respondent No.4 in his statement in Court wherein he has admitted that he has encroached upon the government land. These are findings of fact recorded by the learned SDO(C), which cannot be interfered with. There is nothing on the record to show that those findings of fact were incorrect or are not binding upon respondent No.4. Reliance was placed by the Deputy Commissioner on the notification issued by the Election Commissioner, which does not apply since there is no provision in the Act that the copy of affidavit has to be placed on record by the party. The findings of fact have been recorded by the SDO(C) that respondent No.4 had encroached upon the government land and on the basis of those findings of fact, he had come to a right conclusion that the election of respondent No.4 to the 5 post of Pradhan of Gram Panchayat Powari was bad in the eye of law. The findings recorded by the Deputy Commissioner to the contrary cannot be said to be correct and as such are liable to be set aside.

The writ petition stands disposed of accordingly, so also the pending applications, if any. July 15, 2010 (TILAK) (V.K.Ahuja), Judge