DHANI RAM Vs. STATE OF H.P.

JUDGEMENT

(1.) THE petitioner contested elections to the office of Up -Pradhan, Gram Panchayat, Bagri. He was declared elected as Up -Pradhan on 10.01.2011. His, however, being an encroacher upon government land, provoked respondent No. 4, to file an election petition under Section 163 of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as 'the Act'), challenging his elections. Even at the time of the petitioner submitting his nomination papers, respondent No. 4 had raised objections, to the acceptance of the nomination papers, of the petitioner by the Returning Officer, to contest elections to the office of Up -Pradhan, as, then, he was an encroacher upon government land. The petitioner was detected to have encroached upon government land, when settlement operations were underway, in the village, of which the petitioner is a resident. The election petition, as instituted by respondent No. 4, is, comprised in Annexure P -1 and the reply to the petition comprised, in, Annexure P -2. The Sub Divisional Officer (Civil), Theog, who, was seized of the election petition, under orders, rendered/comprised in Annexure P -3, allowed the election petition and set aside the election of the petitioner to the office of Up -Pradhan, Gram Panchayat, Bagri. In an appeal, having been preferred by the petitioner, against the orders comprised in Annexure P -3, before the Deputy Commissioner, Shimla, resulted in the said preferred appeal, having come to be dismissed by the Appellate Authority.

(2.) THE petitioner has contended that even, before, any competent authority had conclusively detected the fact of his having encroached upon government land, it was legally improper, as also, legally in -sagacious, for the authorities to conclude qua the encroachment upon government land by him, besides, this he avers that his sons, namely, Rajinder and Keshav, alleged to have encroached upon government land, are residing separately from him, hence, they do not constitute a part of his family, therefore, theirs having allegedly encroached upon government land, ought not to have visited him with the consequence, of his election being set aside.

(3.) THE factum of the petitioner, having encroached upon government land, is evident from a perusal of orders, comprised in Annexure P -3, wherein, at paragraph No. 6 thereof, there is a narrative of the Patwari (Settlement) having submitted his report comprised in Ex. PW1/A against the petitioner and his report having sequelled, an order of the Naib Tehsildar, comprised in Ex. PW1/B. Even if, assumingly, detection of encroachment on government land by the petitioner, as noticed by the Patwari, on carrying out demarcation, may not acquire a hue of tenability, in as much, as it may have purportedly been carried out by an officer not competent to do so, in as much, as, given the petitioner purportedly owning land in contiguity to the State, necessitated its being carried out by the Assistant Collector, of either grade. Nonetheless, it having resulted, in the Naib Tehsildar, as palpable from a reading of paragraph No. 6 of Annexure P -3 rendering orders comprised in Ex. PW1/B, on, report of PW -1 Sant Ram, Patwari (Settlement) comprised in Ex. PW1/A, does lend legal strength to the fact, of, demarcation sequeling the detection of encroachment by the petitioner upon government land having been carried out, by the Patwari. Even if, such acceptance of the report of the Patwari by the Naib Tehsildar, was not capable of giving legal colour to the purportedly unauthorized demarcation of the land in dispute with the purportedly adjoining and contiguous land of the petitioner, which, rather, necessitated its, being carried out by a Field Kanungo on the directions of the Assistant Collector of either grade, nonetheless, given the fact of the sons of the petitioners, namely, Rajender Singh and Keshav Ram, having applied for regularization of the encroachment by them of government land, comprised in Ex. PW2/A and Ex. PW2/D and having also submitted their affidavits, comprised in Ex. PW2/B and Ex. PW2/E, as, divulged from a reading of Page 4 of Annexure P -3, does portray acquiescence of encroachment upon government land, at the instance of the family members of the petitioner. Even if, assumingly, there was no encroachment on the government land, at the instance of petitioner, now given the fact that at the time of filing of the nomination papers by the petitioner, he, had incurred a vicarious disqualification prescribed under Section 122 of the Act, in as much, as, his sons, as conveyed by theirs acquiescence comprised in Ex. PW2/A and Ex. PW2./D, of theirs, hence, encroached upon government land, consequently, his nomination papers necessitated theirs being rejected, at, that very stage itself. Provisions of Section 122 of the Act hereinafter extracted for advertence and perusal: -