Ashok Kumar vs State of H.P. and Others

V.K. Ahuja, J.—The Petitioner has filed the present writ petition claiming the reliefs as follows:

(i) A writ in the nature of mandamus may very kindly be issued directing the Respondents to issue a certificate to the Petitioner stating therein that the Petitioner has not encroached any government land as is required for contesting the panchayat elections.

(ii That a writ in the nature of certiorari may very kindly be issued and Annexure P-6 may very kindly be quashed and set aside with further directions to the Respondents to issue certificate to the present Petitioner that he has not encroached any government land.

(iii) That a writ in the nature of mandamus may very kindly be issued and the Petitioner may very kindly be allowed to contest the coming panchayat elections as are to be held in December, 2010.

(iv) The Respondents may very kindly be ordered to be directed to produce the entire record pertaining to the present case before this Hon''ble Court for the kind perusal of this Hon''ble Court.

The Petitioner intends to file the nomination for the post of Vice President of the Gram Panchayat. The Petitioner has claimed the relief as above.

We have heard the learned Counsel for the parties. Reliance is placed on the decision of the Apex Court in State of Himachal Pradesh and Ors. v. Surinder Singh Banolta 2007 (1) S.L.J. (SC) 190. In that case, their Lordships has considered the question including the provisions of Himachal Pradesh Panchayati Raj Act. Section 122(1) including Section 122(1)(c) of the Act which is available for the discussion, reads as follows:

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 there from or ceases to be the encroacher.

It was finally observed by their Lordships in paragraph 13 of the judgment that it will be the Authorised Officer concerned who can determine the question of disqualification but in a case where the processes are initiated after the election, the Deputy Commissioner alone would be the prescribed authority. Section 122(1)(c), referred to above, only provides that if a person has encroached upon any land belonging to or taken on lease or requisitioned by or on behalf of, the State Government, he cannot contest the election and this question is only for the authorities authorized to consider as to whether the term indicated upon can be determined only when processes have been initiated by the revenue authorities for eviction or that if there are entries as against the Petitioner that he has encroached upon the Government land. No finding can be given by this Court whether the Petitioner has encroached upon any Government land. This Court also cannot look into the material relied upon by the Petitioner including the report of the Patwari and other documents and it is for the Authorised Officer before whom the nomination papers for the election have been filed to consider the documents as to whether the Petitioner''s nomination should be accepted or not. On the reliefs claimed by the Petitioner, this Court should not give a finding that he has not encroached upon the government land or that his nomination should be accepted. This question cannot be considered in the present writ petition and it is for the Authorized Officer before the election to consider and thereafter by the Deputy Commissioner when the Election Petition is filed. The Petitioner is only required to file a declaration at this stage before the Authorized Officer and all the objections based on the election can be considered by the Authorized Officer only and no direction in that regard can be given that no Government land has been encroached upon by the Petitioner. As the election process has already started, no direction can be issued to the Petitioner with regard to the nomination papers of the Petitioner at this stage or to consider whether he is eligible to contest the election. There is no merit in the writ petition and the reliefs prayed for by him in the writ petition cannot be granted. The writ petition is dismissed, so also the pending applications, if any.