Himachal Pradesh High Court
Pawan Kumar vs State Of Himachal Pradesh And Others on 21 May, 2018
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No.1127 of 2018
Date of decision : 21.5 .2018
Pawan Kumar .... Petitioner.
Versus
State of Himachal Pradesh and others .... Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Sunil Awasthi, Advocate. For the Respondent : Mr. Ashok Sharma, Advocate General with Mr. Ajay Vaidya, Senior Additional Advocate General, Ms. Rita Goswami and Mr. Nand Lal Thakur, Addl. A.Gs. for the State . Sanjay Karol, Acting Chief Justice (Oral) The authorities below concurrently have found the petitioner to have been residing with his father, namely Jai Dev Sharma, who undisputedly is an encroacher on government land. Pawan Kumar was elected as Up-Pradhan of Gram Panchayat, Dhar, Tehsil Joginder Nagar, District Mandi. One Sohal Lal filed an election petition alleging the petitioner to Whether reporters of Local Papers may be allowed to see the judgment? ::: Downloaded on - 26/05/2018 23:00:12 :::HCHP
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have entailed disqualification by virtue of Section 122 (1) (C) of the Himachal Pradesh Panchayati Raj Act, .
1994 (hereinafter referred to as the "Act"). It is a matter of record that encroachment was carried out much prior to the conduct of the election. Such election came to be set aside vide order dated 26.9.2016, passed in File No.04/2016, titled as Sh.
Officer-cum-Sub
r to
Sohan Lal vs. Pawan Kumar and others, by Authorised Divisional Nagar, District Mandi, H.P. Officer (Civil), Joginder
2. The Appellate Authority, while fully appreciating the material on record, has concurred with the finding returned by the authority below.
3. We are of the considered view that impugned orders do not entail any perversity. They have been passed after hearing th e parties; affording opportunity of placing material on record and having fully appreciating the material in its entirety and in its correct perspective.
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4. Coming to the other issue; with regard to the amendment brought into the Act to be ultra vires .
to the Constitution, we are of the considered view that there is no foundation or the ground made out in the writ petition. Be that as it may, we have examined the issue.
5. Relevant Clauses of the provisions of the "122 Act, necessary for determination of the controversy, are reproduced as under:-
Disqualifications -(1) A person shall be disqualified for being chosen as, and for being an officer bearer, of a Panchayat-
(a) ... ... ...
(b) .... ... ...
(c) 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, a Municipality, a Panchayat or a Co-operative Society unless a period of six years has elapsed since the date on which he or any of his family member, as the case may be, is ejected therefrom or ceases to be the encroacher.::: Downloaded on - 26/05/2018 23:00:12 :::HCHP
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Explanation-For the purpose of this clause the expression "family member" shall .
mean the spouse, their sons(s), unmarried daughter(s) and adopted son and unmarried daughter ;or"
6. The word "Family" stands defined under the Act as under:-
"13-A "Family" means a joint family of all persons descending from common ancestor including adoption, who live, worship and mess together permanently as shown in the parivar r register of the Gram Panchayat."
7. Preamble of the Act throws light on the object and purpose which is sought to be achieved by virtue of the Act. It was to ensure effective involvement of the Panchayati Raj Institution in the local administrative and developmental activities. The Act itself prescribes that such of those persons who are involved/ engaged in any unlawful activities would not be entitled to represent Panchayati Raj Institution and the reason for this is to ensure that all public representatives elected under the Act are people of impeccable honesty and integrity. Son, if living jointly ::: Downloaded on - 26/05/2018 23:00:12 :::HCHP ...5...
with his father, as part of the family , would necessarily entail disqualification, for it cannot be said .
that he cannot be penalized for the acts of his father. In fact, while living with his father, he was duty bound, prior to the conduct of the election to ensure that all unauthorized occupation over government land are removed.
8. In fact, we are of the considered view that the issue raised is no longer res-integra, for this Court, in LPA No.13 of 2009, titled as Swarna Devi vs. State of Himachal Pradesh and others, has already held that only such of those persons who are above board must be allowed to represent the public , for there has to be probity and transparency of public officials in public life, which, in our considered view, is absolutely necessary for upholding the principle of democracy.
9. The Act itself does not confer any absolute right upon the writ petitioner for contesting the election. In fact, such right is coupled with a duty and that being to ensure that prior to the conduct of ::: Downloaded on - 26/05/2018 23:00:12 :::HCHP ...6...
election, disqualification, if any, is removed. Only people of impeccable integrity must hold significant .
and important public offices.
10. It could not be shown as to how and in what manner, the Act can be said to be arbitrary or violative of the Article 13 (2) of the Constitution of India. There is presumption of Constitutionality of any legislation. Every member of the family as a unit is responsible for the acts of each one of them, if the law prohibits performance of any act whic h is against public interest.
11. Under these circumstances, we see no reason to issue notice and as such the present petition is dismissed in limine.
Pending application(s), if any, also stand disposed of.
(Sanjay Karol),
Acting Chief Justice
(Ajay Mohan Goel),
May 21, 2018 (KS) Judge.
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