Himachal Pradesh High Court
Mr. J.L. Bhardwaj vs Charanjit Singh And Others on 14 January, 2021
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
CWP No. 400 of 2021 14.01.2021 Present: Mr. Sudhir Thakur, Sr. Advocate with Mr. Karun Negi, Advocate, for the petitioners.
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Mr. Ashok Sharma, Advocate General with M/s Ranjan Sharma, Adarsh Sharma and Sanjeev Sood, Additional Advocates Generals with Mr. Kunal Thakur, Deputy Advocate General for respondents No. 1 and 2.
No notice has been issued to respondent No. 3.
Mr. J.L. Bhardwaj, Advocate for respondent No. 4.
Mr. Ajit Singh Saklani, Advocate for respondent No. 5. CWP No. 400 of 2021 & CMP No. 591 of 2021 Mr. J.L. Bhardwaj, learned Counsel has put in appearance on behalf of respondent No. 4.
The allegation of the petitioners is that the nomination of respondent No. 4 has been wrongly accepted to contest the elections for the office of Pradhan of Gram Panchayat Mann, Sub Tehsil Kunihar, Tehsil Arki, District Solan, H.P., by ignoring the statutory provisions of Section 122(1)(c) of the Panchayati Raj Act, 1994, as per which, a person, who has encroached upon the government land, is barred from contesting the elections for a period of six years, as from the date of removal of encroachment.
Learned Senior Counsel appearing for the petitioners has pointed out, on the basis of documents placed on record alongwith the petition, that respondent No. 4 has been ::: Downloaded on - 14/01/2021 20:16:19 :::HCHP adjudged to have had encroached upon the government land by the competent Court of the land and it is only in the month of .
October, 2020, that respondent No. 4 has removed the encroachment. By referring to the provisions of Section 122(1)(c) of the Himachal Pradesh Panchayati Raj Act, 1994, learned Senior Counsel has argued that as the encroachment was removed only in the month of October, 2020, by respondent No. 4, therefore, he is barred from contesting the elections for a period of six years and these facts were concealed by respondent No. 4 when he submitted his nomination form. The petitioner has appended with the petition as Annexure P-5 the zimni orders passed by the Court of Assistant Collector, 2nd Grade, Kunihar, Tehsil Arki, District Solan, H.P., perusal of which demonstrates that respondent No. 4 was found to have had encroached upon the government land. The order passed by the said quasi-judicial authority on 29.10.2020 demonstrates that it stood recorded in the said order that a report was received from Patwari to the effect that respondent No. 4 had now removed his encroachment from the government land.
Learned Advocate General, on instructions so imparted to him by the competent officer, informs the Court that though objections were received against the nomination of respondent No. 4 to the effect that he had encroached upon the government land, but the nomination of the said respondent was ::: Downloaded on - 14/01/2021 20:16:19 :::HCHP accepted in view of "no encroachment affidavit" filed by respondent No. 4.
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On a pointed query put to Mr. Jiya Lal Bhardwaj, learned Counsel for respondent No. 4 as to whether respondent No. 4 indeed has been held to have had encroached upon the government land, Mr. Bhardwaj submits that he cannot argue against the record, as per which respondent No. 4 was held to have had encroached upon the government land, but according to him, this petition is not maintainable in view of the law laid down by Hon'ble Supreme Court of India in the judgments detailed herein below:-
(i) N.P. Ponnuswami v. The Returning Officer, Namakkal, AIR (39) 1952 Supreme Court, 64;
(ii) Harnek Singh Versus Charanjit Singh and Others, (2005) 8 Supreme Court Cases 383;
(iii) West Bengal State Election Commission and others vs. Communist Party of India (Marxist) and others; (2018) 18 Supreme Court Cases, 141;
(iv) Ministry of Ayush vs. Vanitha R. and another (2019) 11 Supreme Court Cases, 402; and
(v) Sivadasan Versus The State of Kerala and others, Special Leave to Appeal ( C) No(s). 15998-15999/ 2020.
Having heard learned Counsel for the parties, this Court is of the view that in the peculiar facts of this case, the Court cannot shut its eyes in exercise of its jurisdiction under Article 226 of the Constitution of India and allow an ex-facie ::: Downloaded on - 14/01/2021 20:16:19 :::HCHP ineligible candidate to contest the elections in the teeth of the facts that admittedly respondent No. 4 had encroached upon the .
government land, which encroachment was removed by him only in the month of October, 2020, rendering him ineligible to contest elections in issue for a period of six years, in view of the statutory provisions of Section 122(1)(c) of the Himachal Pradesh Panchayati Raj Act, 1994.
Section
r 122(1)(c) of the Himachal Pradesh
Panchayati Raj Act, 1994 provides as under:-
122. Disqualifications.-(1) A person shall be disqualified for being chosen as, and for being, an office bearer, of a Panchayat-
(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."
As already mentioned hereinabove, respondent No. 4 has been held to be an encroacher upon the government land in the proceedings, which stood initiated against him in the Court of Assistant Collector, 2nd Grade, Kunihar, Tehsil Arki, District Solan, under the provisions of the Himachal Pradesh Land Revenue Act, 1954. Zimni orders of the said proceedings demonstrate that when the matter was listed before the Assistant Collector, 2nd Grade, on 30.09.2020, respondent No. 4 sought an ::: Downloaded on - 14/01/2021 20:16:19 :::HCHP opportunity to remove the encroachment upon the government land. Thereafter, when the case was listed on 09.10.2020 before .
the said authority, it stands recorded in the order passed on the said date that respondent No. 4 had made a statement that he had removed the encroachment upon the government land and report of the Patwari to this effect was convened. Thereafter, order dated 20.10.2020 passed by the said Court demonstrates that report of the Patwari was to the effect that encroachment stood removed by respondent No. 4.
All the above facts ex-facie demonstrate that respondent No. 4 having been held to have had encroached upon the government land, which encroachment stood removed by him in the month of October, 2020, was ineligible to contest the elections, process for which was initiated in the month of December, 2020, in view of the provisions of Section 122(1)(c) of the Himachal Pradesh Panchayati Raj Act, 1994.
In Election Commission of India through Secretary Versus Ashok Kumar and others, (2000) 8 Supreme Court Cases 216, Hon'ble Supreme Court of India has been pleased to hold as under:-
"32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:-::: Downloaded on - 14/01/2021 20:16:19 :::HCHP
1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of .
election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
2) Any decision sought and rendered will not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.
5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court ::: Downloaded on - 14/01/2021 20:16:19 :::HCHP must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no .
attempt to utilise the courts indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end.
Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."
Relying upon the said judgment, Hon'ble Supreme Court of India recently in Dravida Munnetra Kazhagam (DMK) versus Secretary, Governor's Secretariat and Others (2020) 6 Supreme Court Cases 548 has been pleased to hold as under:-
"14. The contention of the respondents that the present proceedings amount to "calling in question an election"
and hence not being maintainable in view of the express constitutional embargos of Articles 243-O and 243-ZG does not impress us for the present proceedings are only to further the expeditious completion of prerequisites of a fair election. Hence, the following ratio of a coordinate Bench in Election Commission of India v. Ashok Kumar squarely applies to the present case: (SCC p. 232, para
32) "32.....(2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
::: Downloaded on - 14/01/2021 20:16:19 :::HCHP(3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well settled parameters which enable .
judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body been shown to have acted in breach of law.
(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court."
By way of the order which is being passed by the Court today, the intent is not to interrupt, obstruct or delay the proceedings of the elections, but to assist by correction, smoothening the process of election proceedings so that fair and transparent elections are held in the spirit of the Constitution of India and the Himachal Pradesh Panchayati Raj Act, 1994 In this view of the matter, as the Elections have yet not been held and are scheduled to be held on 17.01.2021, therefore, this Court in the interregnum orders that respondent No. 4 is restrained from contesting the election for the office of Pradhan of Gram Panchayat Mann, Sub Tehsil Kunihar, Tehsil Arki, District Solan, H.P. as he is not eligible to contest the elections in issue and hold the office in issue. The election process otherwise is not being stayed and the same may go on.
::: Downloaded on - 14/01/2021 20:16:19 :::HCHPThe petition along with application(s) is ordered to be listed on 22.03.2021 before the appropriate Bench. In the meanwhile, as .
prayed for, reply to the main petition as well as to the pending application(s) be filed within a period of four weeks. Rejoinder thereto, if any, be filed within two weeks thereafter.
Copy dasti.
(Ajay Mohan Goel) Vacation Judge January 14, 2021 (narender) ::: Downloaded on - 14/01/2021 20:16:19 :::HCHP