SURINDER SINGH BANOLTA Vs. STATE OF H.P.

JUDGEMENT

(1.) In this petition filed under Article 226 of the Constitution, the petitioner has challenged the order dated June 27, 2002 passed by the Deputy Commissioner, Shimla (respondent No. 4 in this petition) whereby in exercise of its power under Section 122(2)(ii) of the Himachal Pradesh Panchayati Raj Act, 1994 ("1994 Act" for short) the Deputy Commissioner (respondent No. 4) by declaring the petitioner disqualified for being chosen as a Member of the Zila parishad from Ghoond Ward No. 15 set aside his election as such a Member to the said Zila Parshad. The facts revolve around a chequered history of this case, which may be briefly stated as under: - The petitioner was elected as a Member of Zila Parishad from Ward No. 15 -Ghoond Tehsil Theog District Shimla. The result of this election was declared on January 5, 2001. The petitioner belongs to Harijan community. Respondent No. 2 Daulat Ram filed an application before respondent No. 4 under the provisions of Section 122(2)(ii) of the 1994 Act on the allegation that the petitioner was an encroacher of land belonging to the Municipal Council Theog in so far as it related to khasra No. 461/463, 465/32/3/2 measuring 0 -13 biswas in Chak Janog, Tehsil Theog District Shimla and that Municipal Council filed a case under Sections 4 and 7 of H.P. Public Premises Act, 1971 before Collector, Theog, which was registered as case No. 34/Misc./95 dated October 28, 1995 and the same was also allowed by him by an order passed on June 25, 1997. Appeal filed by the petitioner against the aforesaid order was dismissed by the Deputy Commissioner, Shimla on August, 6, 1998. The aforesaid application filed by respondent No. 2 in terms of Section 122(2) (ii) (supra) was to the effect that the petitioner was disqualified for being elected as an office bearer of a Panchayat or a Zila Parishad in terms of the provision contained in 1994 Act and, therefore, his election deserved to be quashed. The petitioner submitted his reply to the said application of respondent No. 2 and on consideration, respondent No. 4 vide an order dated June 25, 2001, dismissed the aforesaid application of respondent No. 2, inter alia, holding that the respondent No. 2s application was not maintainable and that his remedy lay in filing an Election Petition. Against the aforesaid order respondent No. 2 filed Writ Petition, being CWP No. 967 of 2001 in this Court. A learned Division Bench of this Court vide judgment dated June 4, 2002 set aside the aforesaid order of respondent No. 4 passed on June 25, 2001 directing him to readmit case No. 1 of 2001 (which was filed by respondent No. 2 before him (respondent No. 4) in terms of Section 122(2) (ii) supra) to its original position and thereafter to dispose it of on or before June 29, 2002. In the course of the aforesaid judgment dated June 4, 2002 the Division Bench came to make some observations to the effect that respondent No. 4 - Deputy Commissioner did not properly appreciate the provisions of Section 122(2)(ii) (supra) which, in other words, meant that perhaps respondent No. 2s application filed under this provision of law (Section 122(2)(ii) was maintainable before respondent No. 4 and, therefore, respondent No. 4 was in error in dismissing this application vide order dated June 25, 2001 by holding that the proper remedy lay in filing the Election Petition against the petitioner.

(2.) In compliance with the aforesaid Division Bench order dated June 4, 2002, as noticed at the outset and, as observed earlier, respondent No. 4 declared the petitioner having been disqualified for being chosen as a Member of Zila Parishad and also consequently his election as such a Member was set aside. It is this order dated June 27, 2002, which is under challenge in this petition filed by the petitioner.

(3.) Section 122 of 1994 Act in so far as it is relevant and material for our purposes is reproduced hereunder : - "Section 122(1): A person shall be disqualified for being chosen as, and for being, an office bearer, of a Panchayat (a) if he is so disqualified by or under any law for the time being in force for the purposes of the election to the State Legislature Provided that no person shall be disqualified on the ground that he is less than 25 years, if he has attained the age of 21 years; (b) xx xx xx (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 elected therefrom or he ceases to be the encroacher; (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."