Netar Singh v. State of H.P & Ors.

in the instant case came up for consideration in Smt. Suresh Kumari Versus State of H.P. and others2. Petitioner therein had filed a complaint under Section 131 of the Act alleging the respondent to be an encroacher and sought his removal from post of Pradhan. The Deputy Commissioner held the respondent disqualified from the 2 CWP No.810 of 2008, decided on 6.12.2010 8 post in view of Section 122. This order was set aside by the higher authority holding that election can be set aside only after following the procedure laid down for filing an election petition. Before this Court, petitioner’s contention was that in State of H.P. and others Versus Surinder Singh Banolta3, Apex Court held that election petition can be filed only where person had been declared to be an encroacher, where there is no such declaration, petition under Section 131 would be maintainable. This contention was not accepted. While dismissing the writ petition, the Court noticed the ratio of Surinder Singh Banolta V/S State of H.P. and Others4 as under:- “11. A Division Bench of this Court in Surinder Singh Banolta vs. State of H.P., Latest HLJ 2003 (HP) 782, has held as follows: “13. It, therefore, clearly emerges from a combined reading of sub section (2) of section 122 and sub- section (1) and (2) of Section 131 that if any person having been elected as a Member of Zila Parishad subsequently “becomes subject to a Including a disqualification disqualification.” mentioned in clause (c) of sub section (1) of Section 122 the Deputy Commissioner may decide the issue and also decide that a vacancy has occurred and that the person chosen shall cease to be a member or office bearer, as the case may be proviso to sub section (2) of Section 131 clearly lays down that no order shall be passed against such a person without giving him a reasonable opportunity of being heard. 3 (2006) 12 SCC 484 4 Latest HLJ 2003 (HP) (DB) 782 9

It would thus be clear that the scope of clause (ii) of sub section (2) of Section 122 is limited only to such fact situations where the allegation of encroachment upon the land of a municipality relates to a period of time after the election process was over, and not before the election process had started or during its pendency.”

Further it was held as follows: “17. It would thus be clear that the scope of clause (ii) of sub section (2) of Section 122 is limited only to such fact situations where the allegation of encroachment upon the land of a municipality relates to a period of time after the election process was over, and not before the election process had started or during its pendency.

Based on the aforesaid reasoning we have no hesitation in holding that the order dated June 27, 2002 as passed by respondent No.4 declaring the petitioner as disqualified and setting aside his election, was patently erroneous and invalid because this order was passed by him purported exercise of the power under clause (ii) of sub section (2) of Section 122 of the Act, but as noticed above, such a remedy was not available because the question of the petitioner being an encroacher upon the land of the municipality had not arisen after the election process was over because it was very much in existence, as per the allegation of respondent No.2 himself, much prior to the stage of the election process, and the only remedy respondent No.2, was by way of filing an election petition under Section 163 of 1994 Act.” therefore which was available The above decision was upheld in Surinder Singh Banolta3. Portion relevant to the context, is extracted hereinafter:- “15. It is no doubt true that Section 122 contemplates both the situations, viz., where a person shall be disqualified for being chosen as also for being an office bearer of panchayat inter alia if he has encroached upon any land belonging to any authority mentioned therein. In

10 view of the language of the said provision, we are of the view that whereas an issue falling under clause (1) of Sub-section (2) of Section 122 of the Act must be determined before the Authorised Officer, any order of encroachment passed after the election process is over would be determined by the Deputy Commissioner. The provisions of the Act, as noticed hereinbefore, have been enacted pursuant to or in furtherance of the constitutional mandate contained in Part IX of the Constitution of India. The provisions of the Act, therefore, are required to be construed strictly in terms thereof. Clause (b) of Article 243-O of the Constitution of India mandates that no election shall be set aside save and except by an order passed by the Authorised Officer. In our considered opinion, Section 122 of the Act must be read in the light thereof. Section 162 of the Act expressly provides for the exclusive jurisdiction of the Authorised Officer the existence or to determine otherwise of any ground enumerated in Section 175 of the Act.

Once, thus, a person is declared to be an encroacher prior to the date on which he has been declared as elector and if the said order has attained finality, the question as to whether he stood disqualified in terms of the provisions of Section 122 of the Act, in our opinion, must be raised by way of an election petition alone. If the submission of Mr. Attri is to be accepted, the same may result in an anomalous position.” Smt. Suresh Kumari2 held that observations of Apex Court in para 17 in Surinder Singh Banolta3 were in context where elected candidate had already been declared as encroacher under the H.P. Land Revenue Act; Reading of paras 15 and 16 makes it obvious that observations made in para 17 were restricted to facts of that case only. Smt. Suresh Kumari2 further took note of:- 11 “16. In Sarjivan Singh vs. Director Panchayati Raj and another, 2005 (3) Shim. L.C. 284, this Court held as follows: “5.

18. In the present case, there is no dispute that the allegation was that Sh.Onkar Nath had encroached upon some land much prior to the elections being held on 22.12.2005. The complaint was made on 31.12.2005. The petitioner could have filed an election 12 petition but decided not to file one. In view of the law referred to above the only remedy available to the petitioner was to file an election petition. As such the Director, Panchayati Raj was justified in allowing the appeal of the respondent Onkar Nath.” Significantly, Section 163 of the Act was amended by Act No.17 of 2008, wherein proviso (extracted earlier) was incorporated that specifically provides for filing of election petition when disqualification is earned prior to the election and continues beyond that. Holistic reading of Sections 122, 163 and 175(1)(a) of the Act leads to the conclusion that the petitioner as an elector of panchayat, can institute election petition against the election of respondent No.4 on the ground that the said respondent was disqualified to be elected under the Act on account of alleged encroachment made by her prior to her election, as is the projected case of the petitioner and such disqualification of respondent No.4 in terms of Section 122(1)(c) of the Act is continuing even after her election to the office. Such ground falls within the purview of Section 175(1) of the Act for an authorized officer to declare the election of respondent No.4 as void. In this situation, in view of proviso to Section 163, the prescribed limitation period of thirty days for filing the election petition does not even apply. 13