MEHAR CHAND Vs. TARO DEVI

JUDGEMENT

(1.) THE petitioner had challenged the election of respondent No. 1, as Pradhan, Gram Panchayat, Kandrola Plasi, Tehsil Nadaun, District Hamirpur, H.P., before the Sub Divisional Officer, Nadaun, on the ground that respondent No. 1 is an encroacher upon the government land, inasmuch, as her husband had encroached upon government land comprised in khasra Nos. 390 and 392 an encroachment file whereof was prepared on 11.10.2001. However, the husband of respondent No. 1 expired in the year 2006. Nonetheless, in the face of the Sub Divisional Officer -cum -Authorized Officer under the provisions of Himachal Pradesh Panchayati Raj Act (hereinafter referred to as the Act), having not come across any order demonstrating the fact of the deceased husband of respondent No. 1 ever having been declared by the competent Court or Authority to be an encroacher upon government land, nor when it was demonstrated that he was evicted therefrom, as such, a conclusion was drawn by him that the election of respondent No. 1 Pradhan, Gram panchayat, Kandrola Plasi, Tehsil Nadaun, District Hamirpur, H.P., was unassailable on the score aforesaid.

(2.) THE petitioner assailed the order rendered by the Sub Divisional officer, Nadaun before the Deputy Commissioner, Hamirpur, who came to affirm the orders rendered by the Sub Divisional Officer, Nadaun.

(3.) IT is uncontroverted that respondent No. 1 is the widow of deceased Puran Chand. The acid contest inter se the parties at lis is whether the deceased husband of respondent No. 1 had encroached upon government land, if so, whether respondent No. 1 being widow of deceased Puran Chand, on his demise continued to retain its possession, hence, incurred the disqualification contemplated in Section 122(1)(c) of the Himachal Pradesh Panchayati Raj Act. Both, the Sub Divisional Officer, as well, as the Deputy Commissioner while interpreting the provisions of Section 122(1)(c) of the Himachal Pradesh Panchayati Raj Act, 1994 had concluded that since there was no conclusive order rendered by any competent Court or Authority declaring the deceased husband of respondent No. 3, to be an encroacher upon government land or his ever having been ejected therefrom, consequently, the bar or embargo as envisaged under the aforesaid provisions of law remained un -attracted, as well, as un -invokable. Even if, assuming that the reasons and findings recorded by the Sub Divisional officer and the Deputy Commissioner may be tenable, inasmuch, as, of the said bar being un -attractable, in the face of no conclusive findings having been recorded by any competent Court or Authority, declaring the deceased husband of respondent No. 1 to be an encroacher upon government land nor his ever having come to be evicted therefrom. Consequently, then the reasoning as afforded by the Sub Divisional Officer, as well as the Deputy Commissioner, of, hence, at the material date, the respondent No. 1, while being wife of the purported encroacher, having not invited the bar or attracted the embargo against hers, being chosen or aspiring to be elected, as, an office bearer of the Panchayat, may stand intact. Nonetheless, preponderantly the fact as divulged by a copy of plaint in a suit, instituted against the State of Himachal Pradesh amongst others by the husband of respondent No. 1 praying for a decree of declaration that qua khasra Nos. 390 and 392, qua which the State of Himachal Pradesh claims ownership rights or asserts that the deceased husband of respondent No. 1 had encroached on it, they had acquired rights, as, full owner by prescription arising from the efflux of time. The said fact as pronounced by the copy of the plaint in civil suit No. 93 of 2004 instituted amongst others by the deceased husband of respondent No. 1, amplifies or underscores the fact of, hence, his having acquiesced to the fact of his having encroached upon government land. In the face of acquiescence, portrayed by the aforesaid factum, there is, hence, no necessity for this Court to look for any conclusive order or findings recorded by any competent Court or Authority declaring the deceased husband of respondent No. 1 to be an encroacher. Besides, when apart from the aforesaid acquiescence of the deceased husband of respondent No. 1 of his having encroached upon government land, there exists on record Annexure P -6 which recites the fact of possession of khasra numbers aforesaid having not come to be delivered by either widow of deceased Puran Chand, respondent No. 1 in this petition or his family members, to the government. Hence, it has to be concluded that the possession of khasra numbers aforesaid is retained by both respondent No. 1, the widow of Puran Chand, as well, as, by his other family members. Consequently, when there is no material on record to demonstrate that respondent No. 1, the widow of the deceased Puran Chand, is, not a part of his family and when she for the reasons aforesaid omitted to part with possession of the disputed khasra numbers 390 and 392, in favour of the government, immediately on his demise. In sequel omission on her part to part with possession of the contentious khasra numbers in favour of the State, leads to the firm conclusion that the bar or embargo envisaged under the provisions of Section 122(1)(c) of the Act has not ceased rather is attractable. In aftermath, it is to be concluded that respondent No. 1 being the widow of deceased Puran Chand, hence, being a part of his family and as such, when she on score thereof is statutorily or vicariously made liable along with him of the latter being, as, portrayed by the aforesaid discussion, an encroacher upon the government land, hence, she, too, invited the bar or embargo against her being chosen or aspiring to be an office bearer of the Panchayat concerned.