Himachal Pradesh High Court
_______________________________________________ vs State Of H.P. And Ors on 8 January, 2016
Bench: Mansoor Ahmad Mir, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No.14 of 2016.
.
Decided on: January 8, 2016.
_______________________________________________
Madhubala ...Petitioner.
Versus
State of H.P. and Ors. ...Respondents.
of
Coram:
The Hon'ble Mr.Justice Mansoor Ahmad Mir, Chief Justice.
rt
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
_______________________________________________________
For the petitioner: Mr.Archna Dutt, Advocate.
For the respondents: Mr.Shrawan Dogra, Advocate General,
with Mr.V.S.Chauhan and Mr.Romesh
Verma, Addl.Advocates General and
Mr.J.K.Verma, Deputy Advocate General,
for respondents No.1 to 3 and 5.
Ms.Nishi Goel, Advocate for respondent
No.4.
Mr.Sanjay Jaswal, Advocate for
respondent No.6.
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Sureshwar Thakur, Judge (Oral)
The petitioner aspired to contest elections to the office of Pradhan, Gram Panchayat Dadhamb, Tehsil Shahpur, District Kangra. However, her aspiration to 1 Whether the reporters of the local papers may be allowed to see the judgment?
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-2-contest elections to the coveted office of Pradhan of the aforesaid Panchayat stood frustrated by Annexure P-6 .
whereunder the Returning Officer concerned rejected her nomination papers on the score of objector/complainant one Pravesh Kumar also an aspirant for seeking election to the office of Pradhan of the Panchayat aforesaid purveying of to the Returning Officer concerned an information elicited under the Right to Information Act with a vivid portrayal rt therein of the husband of the petitioner assaying for regularization of encroachment at his instance upon Government land comprised in Khasra No.1/1 measuring 0-01-40 hectare situated at Mohal Dhanotu, Tehsil Shahpur, District Kangra, concert whereof of the husband of the petitioner bespeaking of his hence acquiescing to his holding Government land as an encroacher rendered amenable for invocation against the petitioner his wife the statutory inhibition cast in Clause (c) of the proviso to Sub-section (1) of Section 122 of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as 'the ::: Downloaded on - 15/04/2017 19:42:14 :::HCHP CWP No.14 of 2016.
-3-Act') for hence de-eligiblizing her to contest elections to the office of Pradhan of the Gram Panchayat concerned.
.
The learned counsel for the petitioner does not contest the factum of the husband of the petitioner thereto concerting to regularize encroachment at his instance of Government land comprised in Khasra No.1/1 measuring 0-01-40 of hectare situated at Mohal Dhanotu, Tehsil Shahpur, District Kangra, which factum of the husband of the rt petitioner endeavouring to regularize from the authorities concerned his encroachment upon government land though bespeaks of his acquiescence to his unlawfully holding government land nonetheless the short submission addressed by the learned counsel for the petitioner to efface the effect of the grounds constituted in Annexure P-
6 on succor whereof the Returning Officer concerned rejected the nomination papers of the petitioner stands grooved on reliance upon the provisions engrafted in Section 122 (1) (c) of the Act, which stands extracted herein-after:-
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"122. Disqualifications.- (1) xxx xxx .
(a) xxx xxx
(b) xxx xxx
(c) if he or any of his family member(s) has encroached upon any land belonging to, or taken of on lease or requisitioned by or on behalf of, the State Government, a Municipality, a Panchayat rtor a Co-operative Society unless a period of six years has elapsed since the date on which he or any of his family members, as the case may be, is ejected therefrom or ceases to be the encroacher.
Explanation.- For the purpose of this clause the expression "family member" shall mean the spouse, their son(s), unmarried daughter(s) and adopted son and unmarried daughter; or}
(d) xxx xxx ...."
Pre-eminently her emphatic centralized focus is upon Clause (c) of its proviso also embedding a prescription ::: Downloaded on - 15/04/2017 19:42:14 :::HCHP CWP No.14 of 2016.
-5-therein of cessor of encroachment upon Government land by an aspirant or his family member either of whom .
evidently hold Government land as encroachers cessor whereof stands constituted by theirs abandoning or surrendering possession of Government land besides significantly when such cessor of encroachment of of Government land by an aspirant or his family member provenly occurs six years previous to an aspirant staking a rt claim for seeking elections to the coveted office of Pradhan of the Panchayat concerned, would beget relaxation of/or the whittling down of the rigor of the statutory inhibition cast against an encroacher of Government land inasmuch as his/her or his/her family member standing barred to contest election to any office of the Panchayat concerned. The relaxation or denudation of the rigor of the aforesaid statutory inhibition embedded in the apposite statutory provisions is canvassed to stand bespoken by Annexure P-3 besides by Annexure P-2.
Reliance, if any, by the learned counsel for the petitioner ::: Downloaded on - 15/04/2017 19:42:14 :::HCHP CWP No.14 of 2016.
-6-upon Annexure P-3 besides upon Annexure P-2 for sustaining her contention before this Court of theirs .
embodying communications of the husband of the petitioner surrendering besides abandoning Government land held by him as an encroacher especially when as manifested by Annexure P-3 of its preparation occurring in of the year 2002 hence more than six years since thereat standing elapsed till the stage of the petitioner filing rt nomination papers for contesting elections to the office of Pradhan of the Gram Panchayat concerned rendered the husband of the petitioner to stand encompassed within the domain of the exception to the apposite statutory inhibition cast against an aspirant to any office of the Panchayat concerned by contesting elections thereto with a concomitant effect of hers being eligible in the year 2016 to contest elections to the office of Pradhan of the Panchayat concerned with a sequelling effacement of Annexure P-6 whereunder her nomination papers stood rejected by the Returning Officer concerned. Moreover, ::: Downloaded on - 15/04/2017 19:42:14 :::HCHP CWP No.14 of 2016.
-7-the learned counsel for the petitioner has also relied upon a display in the column of cultivation of Annexure P-2 .
inasmuch as of the Government of Himachal Pradesh standing therein reflected to be holding possession as owner of land purportedly encroached upon by her husband, for dislodging the tenacity of the reason of purveyed in Annexure P-6 of the husband of the petitioner by his applying in the year 2002 for regularization of land rt comprised in Khasra No.1/1 measuring 0-01-40 hectare situated at Mohal Dhanotu, Tehsil Shahpur, District Kangra, his hence acquiescing to his holding the aforesaid tract of land as an encroacher. In other words, the learned counsel for the petitioner contends of the aforesaid display in the column of possession of Annexure P-2 of the State of Himachal Pradesh holding possession as owner of land comprised in Khasra No.1, measuring 0- 15-12 Hectares silences the efficacy of the reasoning expounded in Annexure P-6 of her husband extantly holding possession thereof as an encroacher.
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-8-2. The initial submission of the learned counsel for the petitioner anvilled upon Annexure P-3 with a .
manifestation therein of its preparation occurring in the year 2002 hence more than six years since then up to the stage of hers filing nomination papers for contesting elections to the office of Pradhan of the Gram Panchayat of concerned standing elapsed, it hence rendering her husband to fall within the domain of the exception rt constituted to the statutory inhibition cast in Clause (c) of the proviso of sub-section (1) of Section 122 of the Act, fails to garner any strength as the mere factum of its preparation occurring in 2002 would ipso facto not enable her to place reliance thereupon to save the rigor of the statutory inhibition cast in the apposite provisions of the Act against hers contesting elections to the office of Pradhan of the Gram Panchayat concerned on the ground articulated in Annexure P-6 rather only on its keen, incisive and wholesome reading would it be discernable of any portrayal standing embodied therein of the husband of the ::: Downloaded on - 15/04/2017 19:42:14 :::HCHP CWP No.14 of 2016.
-9-petitioner six years prior to the stage of hers filing nomination papers for contesting elections to the office of .
Pradhan of the Gram Panchayat concerned having surrendered or abandoned possession of the land of the Government held by him as an encroacher for hence lending succor to the argument espoused before this Court of by the learned counsel for the petitioner. While incisively reading the portrayals in Annexure P-3 the imminent effect rt which stands evinced there-from is of the authority concerned therein not bespeaking of possession of Govt.
land held by the husband of the petitioner as an encroacher standing either surrendered or abandoned by him rather it is merely communicative of the relevant tract of land held by the husband of the petitioner as an encroacher standing selected for construction of a gymnasium thereon. Necessarily the mere display therein of the tract of land held by the husband of the petitioner as an encroacher standing selected as the site for raising thereon a playground and a gymnasium is the least ::: Downloaded on - 15/04/2017 19:42:14 :::HCHP CWP No.14 of 2016.
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connotative of the husband of the petitioner either having surrendered its possession to the Government or .
abandoned it hence his ceasing to be an encroacher thereupon. The aforesaid inference as stands drawn by this Court on an incisive perusal of Annexure P-3 wanes the effect of the contention of the learned counsel for the of petitioner of her husband in the year 2002 having surrendered or abandoned possession of Government land rt hence with more than six years standing elapsed since the preparation of Annexure P-3 in the year 2002 up to the petitioner filing nominations for contesting elections to the office of Pradhan of the Panchayat concerned the saving provision or the exception to the statutory inhibition cast in Clause (c) of proviso to sub-section (1) of Section 122 of the Act against the petitioner contesting elections stands squarely attracted qua her.
3. Herein-after it is also imperative to pronounce upon the efficacy of the contention of the learned counsel for the petitioner of the column of possession comprised in ::: Downloaded on - 15/04/2017 19:42:14 :::HCHP CWP No.14 of 2016.
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Annexure P-2 displaying the factum of the Government of Himachal Pradesh holding possession as owner of the tract .
of land held by the husband of the petitioner as an encroacher rendering her hence amenable to seek reprieve from the saving provisions of clause (c) of proviso to sub-section (1) of Section 122 of the Act as stands of engrafted therein in relaxation of the rigour of the statutory inhibition preceedingly cast thereunder against rt the petitioner on the aforestated grounds standing debarred to contest elections to the office of Pradhan of the Gram Panchayat concerned. The said contention loses its force given the factum of Annexure P-2 disclosing its preparation occurring in the year 2015 in sequel with its preparation occurring in the year 2015 the effect, if any, of the aforesaid display therein cannot empower the learned counsel for the petitioner to contend qua six years standing elapsed since the husband of the petitioner purportedly surrendering possession of the tract of land reflected therein hitherto held as an encroacher by him up to the stage of ::: Downloaded on - 15/04/2017 19:42:14 :::HCHP CWP No.14 of 2016.
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the petitioner filing nomination papers in the very same year for contesting elections to the office of Pradhan of .
the Gram Panchayat concerned nor can empower her to contend of hence hers standing entitled to seek reprieve from the saving provisions in dilution of the vigor of clause
(c) of proviso to sub-section (1) of Section 122 of the Act.
of Apart there-from, the display in the column of possession in Annexure P-2 prepared in the year 2015 of the Government rt of Himachal Pradesh holding possession of the tract of land purportedly hitherto held as an encroacher by the husband of the petitioner carries only a presumption of truth yet the said presumption is rebutable, rebuttal whereto stands begotten by a display in Annexure P-3 of the tract of land reflected therein to stand merely chosen for construction of a playground and a gymnasium thereon which reflection repels both the factum of the husband of the petitioner having ever surrendered or abandoned its possession besides rebuts the reflection in Annexure P-2 of the Government of Himachal Pradesh holding possession as owner of the tract of land held as an encroacher ::: Downloaded on - 15/04/2017 19:42:14 :::HCHP CWP No.14 of 2016.
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by the husband of the petitioner. Even otherwise, the best evidence to discount the efficacy of the communications in .
Annexure P-6 of the husband of the petitioner holding as an encroacher the tract of land owned by the Government stood comprised (i) in an apposite certificate obtained from the authority concerned; (ii) adduction of material by the petitioner of in portrayal of the tract of land reflected in Annexure P-6 to stand chosen by the Government as the site for construction rt thereon of a gymnasium and a playground standing subjected to use by the authority concerned for the purpose for which it was selected. However, no certificates/material aforesaid stand adduced on record at the instance of the petitioner in substantiation of the portrayal in Annexure P-2 of the Government of Himachal Pradesh extantly holding possession of the tract of land purportedly previously held as an encroacher by the husband of the petitioner, sequelly for non-
substantiation of the apposite reflection therein, an inference stands garnered of reflections in Annexure P-2 marshalling no efficacy rather standing rebutted by portrayals in Annexure P-3, dehors the factum that even if assumingly the reflections ::: Downloaded on - 15/04/2017 19:42:14 :::HCHP CWP No.14 of 2016.
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therein are truthful its standing prepared in the year 2015 hence rendering the surrendering or abandoning of possession, .
if any, by the husband of the petitioner of Government land to not fall out side the period of six years on lapse whereof only the rigor of clause (c) of proviso to sub-section (1) of Section 122 of the Act would stand un-attracted. Rather, it appears of that the entry in Annexure P-2 is a mere stray entry recorded therein without the Patwari concerned having ever visited the site rt concerned whereupon no reliance is imputable.
Undisputedly, the encroacher upon Government land is the husband of the petitioner, obviously when he falls within the definition of her family as constituted in Clause (c) of proviso to sub-section (1) of Section 122 of the Act, the factum of his being an encroacher upon Government land rears the bar constituted in Clause (c) of proviso to sub-section (1) of Section 122 of the Act to stand attracted against the petitioner, his wife for hers hence concomitantly standing debarred to contest elections to the office of Pradhan, Gram Panchayat Dadhamb, Tehsil Shahpur, District Kangra.
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4. In view of the aforesaid discussion and observations, the writ petition is dismissed. Pending .
application(s), if any, shall also stand disposed of. No costs.
(Mansoor Ahmad Mir) Chief Justice of January 8, 2016. (Sureshwar Thakur), (soni) Judge.
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