Radha Devi vs State Of H.P. & Others

Anoop Chitkara, J

An elected Pradhan of Gram Panchayat, Kandha, Tehsil Karsog, District Mandi, H.P., who is aggrieved by the declaration of her election held on Jan 3, 2016, as void by Sub-Divisional Officer (Civil), Karsog, and dismissal of her appeal by Deputy Commissioner, Mandi, and also the dismissal of her second appeal by Divisional Commissioner, Mandi, eventually leading to her suspension, has come up before this Court by way of this writ petition.

Heard Mr. Ramesh Sharma, Advocate for the petitioner, Mr. Ashok Sharma, learned Advocate General assisted by Ms. Rita Goswami, learned Additional Advocate General for the respondents-State, and Mr. Bimal Gupta, Senior Advocate, assisted by Ms. Kusum Chaudhary, Advocate for the 6th respondent.

In December 2015, the Government of Himachal Pradesh announced the election of Gram Panchayats. The election for the post of Pradhan, Gram Panchayat Kandha development Block Karsog was held on 3.1.2016. The petitioner Radha Devi secured 557 votes, whereas respondent Giani Devi secured 247 votes, leading to the petitioner having elected to the post of Pradhan.

Feeling aggrieved, the Giani Devi, the 6th respondent, who had lost the election, filed an election petition under Section 163 of Himachal Pradesh Panchayati Raj Act 1994, (after now called as 'Panchayati Raj Act') read with Rule 94 of the Himachal Pradesh Panchayati Raj (Election) Rules, 1994, (after now named as 'Panchayati Raj Rules'), before learned Sub Divisional Officer (Civil), Karsog, District Mandi, H.P.

Giani Devi filed the election petition primarily because Maan Singh, the husband of the petitioner, elected Pradhan Radha Devi, was an encroacher upon the Government land. In paragraph 2 of the election petition, she categorically mentioned that her husband had encroached upon the PWD land comprised in Khasra No,174/1, measuring 0-01-12 bigha, situated in Mohal Tatapani, Tehsil Karsog, District Mandi, H.P. She further pleaded that Sub-Divisional Collector Karsog had passed eviction order against Maan Singh on 29.1.2007, who had challenged the same by filing a writ petition in the High Court of Himachal Pradesh, which was decided on 3.1.2012. Based on the above facts, Giani Devi contended that the elected Pradhan was not eligible to contest Pradhan's election because her husband had encroached upon the Government land.

In reply to the election petition, the elected Pradhan Radha Devi submitted that she had strained relations with her husband. Moreover, her husband did not encroach upon the Government land as alleged.

Surprisingly, in her reply, Radha Devi did not refute the allegations made in para 2 of the election petition, which contained the details of the land encroached by her husband, and he was declared as an encroacher of Government's property, and dismissal of his writ petition by this Court.

Vide order dated 28.2.2017, (Annexure P-3), the authorized officer-cum-Sub Divisional Officer (Civil), Karsog declared the election of the elected Pradhan as void on the ground that her husband was encroacher of the Government land.

Feeling aggrieved Radha Devi, the petitioner filed an appeal under Section 181 of the Panchayati Raj Act 1984, before learned Deputy Commissioner, Mandi, District Mandi. In the grounds taken in appeal, the petitioner again did not explicitly deny the allegations of encroachment by any of her family members, especially her husband, on specific khasra numbers alleged in the election petition.

Vide order dated 2.11.2018, (Annexure P-5), the learned Deputy Commissioner, Mandi, dismissed the appeal because her husband was encroacher of the PWD land, and thus did not find any grounds to interfere with the impugned order passed by Sub-Divisional Officer (Civil), Karsog.

Surprisingly, instead of choosing the appropriate legal remedy, the petitioner filed another appeal before learned Divisional Commissioner, Mandi, challenging the orders passed by Sub-Divisional Officer (Civil), Karsog, and Deputy Commissioner, Mandi. Vide order dated 21.5.2019, (Annexure P- 7), learned Divisional Commissioner. Mandi dismissed the appeal because there was no provision for a second appeal in the Panchayati Raj Act 1994 or the Rules framed thereunder.

Challenging the aforesaid order of declaring her election as void, the petitioner has come up before this Court by filing the present writ petition seeking quashing of the same.

During the pendency of this writ petition, learned Deputy Commissioner, Mandi, vide order dated 3.1.2020, (Annexure P-11), ordered the suspension of the petitioner from the post of Pradhan, as mentioned earlier, with immediate effect and directed her to hand over all documents, movable and immovable property of the Gram Panchayat immediately to the Panchayat Secretary. Consequently, the petitioner applied under Order 6 Rule 17 CPC for amendment of the writ petition. Vide order dated 26.6.2020, this Court allowed the application by observing that the amended writ petition was already on record.

A Principal Division Bench of this Court in Ram Lal v. the State of H.P., 2019 SCC Online HP 1061, defined the scope and powers of this Court relating to the interference in the election matters about the encroachment, which is extracted as follows:

"5. Before we record the grounds of challenge to the impugned orders, we are obliged to keep in mind the limited role that this Court has to play in a writ petition under Article 226 of the Constitution, especially when the challenge in the writ petition is to the orders of an Election Tribunal. Section 163(1) of the 1994 Act enables any elector of a Panchayat to present an Election Petition challenging the election of any person, on one or more of the grounds specified in Section 175(1). The Election Petition is to be presented to the "Authorized Officer." The contents of such petition are regulated by Section 164. The procedure to be followed by the Authorized Officer for inquiring into the election petition, is stipulated in Section 167. Sub-Section (2) of Section 167 makes the provisions of the Indian Evidence Act, 1872 applicable to the trial of an Election Petition subject to the provisions of the Act."

In Janabai v. Additional Commissioner, 2018 (9) JT 217, a three-member Bench of Supreme Court, while dealing with Maharashtra Village Panchayat Act, 1958, holds,

"(29). We may note here with profit that the word 'person' as used in Section 14 (1) (j-3) is not to be so narrowly construed as a consequence of which the basic issue of "encroachment" in the context of disqualification becomes absolutely redundant. The legislative intendment, as we perceive, is that encroachment or unauthorized occupation has to viewed very strictly and Section 53, therefore, provides for imposition of daily fine. It is also to be borne in mind that it is the Panchayat that has been conferred with the power to remove the encroachment. It is the statutory obligation on the part of the Panchayat to protect the interest of the properties belonging to it. If a member remains in occupation of an encroached property, he/she has a conflict of interest. If an interpretation is placed that it is the first encroacher or the encroachment made by the person alone who would suffer a disqualification, it would lead to an absurdity. The concept of purposive interpretation would impel us to hold that when a person shares an encroached property by residing there and there is continuance, he/she has to be treated as disqualified. Such an interpretation subserves the real warrant of the provision."

In Rita Badal v. State of Himachal Pradesh, 2019 SCC OnLine HP 1275 , while dealing a similar issue under Himachal Pradesh Municipal Act, 1994, Principal Division Bench of this Court, held,

"14. It may be true that the proceedings impugned in this writ petition are initiated at the behest of a person inimically opposed to the petitioner. But persons holding public offices, if they are pitted against each other, even out of animosity and such fight brings out true facts for the benefit of the public, the Court cannot ignore the benefits that will ensure to the public out of such animosity."

The election for the Panchayats is covered under the Himachal Pradesh Panchayati Raj (Election) Rules, 1994, as amended. Chapter-V of such Rules deals with the conduct of such election. Rule 39 of the Himachal Pradesh Panchayati Raj (Election) Rules, 1994, refers to the scrutiny of nomination papers. Rule 39(2) further provides that the Returning Officer, while examining the nomination papers, shall also decide all objections, which may be made to any nomination. Rule 39 (2) reads as under:

"39. Scrutiny of nomination papers. - (1) xxxx xxxx xxxx

(2) The Returning Officer shall examine the nomination papers, and decide all objections, which may be made to any nomination, and may, either on such objection or on his own motion after such summary inquiry if any, as he thinks necessary reject any nomination on any of the following grounds, namely:

(a) that on the date fixed for the scrutiny of nomination the candidate either is not qualified or is disqualified for being chosen to fill in the seat under the provisions of these rules or the Act or any other law for the time being in force; or

(b) that there has been any failure to comply with any of the provisions of rule 35 or rule 36; or

(c) that the signature of the candidate or the proposer on the nomination paper is not genuine."

Learned counsel for the petitioner submits that the 6th respondent Giani Devi did not file any objections qua encroachment by her husband, and resultantly the stage of challenging her candidature was over and could not be tested at a later stage.

The answer to these contentions lies in Section 122(3) the Panchayati Raj Act, which reads as follows:

"122. Disqualifications. - (1) A person shall be disqualified for being chosen as, and for being, an office bearer, of a Panchayat-

(a) xxxx xxxx xxxx

(b) xxxx xxxx xxxx

(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.

[Explanation.- For the purpose of this clause the expression "family member" shall mean grand-father, grand-mother, father, mother, spouse, son(s), unmarried daughter (s); or]"

Thus, the non-filing of objections would not override the statutory mandate of Section 122, which deals with the disqualification of Panchayat's office-bearers.

Section 145 of the Panchayati Raj Act deals with the suspension of Panchayat's office bearers, and Section 146 deals with the removal of office bearers of Panchayats.

Learned counsel for the petitioner further submits that the impugned order Annexure P-3 dated 28.2.2017 was passed by Sub Divisional Officer (Civil) while exercising powers under Section 145 of the Panchayati Raj Act.

Section 162 of the Panchayati Raj Act provides that no election under this Act shall be recalled except by an election petition presented following the provisions of this chapter. Section 163 of the Panchayati Raj Act prescribes a petition, and Section 164 deals with the contents of the petition. It provides that it may contain a concise statement of material facts on which the petitioner relies, etc.

Section 169 of the Panchayati Raj Act provides that the authorized officer shall have the powers vested in a Court under the Code of Civil Procedure 1908.

Section 174 of the Panchayati Raj Act deals with the election petition's decision by the authorized Officer, which reads as follows:

"174. Decision of the authorised officer.- (1) Where an election petition has not been dismissed under section 165, the authorized officer shall inquire into the election petition and at the conclusion of the inquiry shall make an order-

(a) dismissing the election petition; or

[(b) declaring the election of all or any of the elected persons to be void; or]

[(c) declaring the election of all or any of the elected persons to be void and the petitioner or any other candidate to have been duly elected.]

(2) At the time of making an order under sub-section (1) the authorized officer shall also make an order-

(a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording-

(i) a finding whether any corrupt practice has or has not been proved to have been committed at the election and the nature of that corrupt practice; and

(ii) the name of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice; and

(b) fixing the total amount of costs payable, and specifying the persons by and to whom costs shall be paid:

Provided that a person who is not a party to the petition shall not be named in the order under sub-clause (ii) of clause (a) unless-

(i) he has been given notice to appear before the authorised officer and to show cause why he should not be so named; and

(ii) if he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness, who has already been examined by the authorised officer and has given evidence against him, of calling evidence in his defence and of being heard."

A perusal of the impugned order dated 28.2.2017, Annexure P-3, reveals that the authorized officer, based his order on Section 122(1)(c) of the Panchayati Raj Act, and acted under Section 174(1)(b) declaring the election as void.

The impugned order is based upon the findings that the husband of the elected Pradhan had encroached upon the Government land, within six years from the date of the election, notified in December 2015. Thus, the burden was on the candidate to establish that her husband was not an encroacher as of December 2009 onwards.

On the contrary, Mr. Maan Singh, the husband of Radha Devi, the petitioner herein, was encroacher and proceeded under law. The 6th respondent has placed on record the copy of judgment dated 3.1.2012, passed by learned Single Judge of this Court in CWP No. 5252 of 2011. A perusal of the said judgment reveals that Shri Maan Singh, the husband of elected Pradhan Radha Devi, petitioner herein, had contested the application filed by Assistant Engineer, HPPWD, Churag under H.P. Public Premises and Land (Eviction & Rent Recovery) Act, 1971. The Assistant Engineer has alleged in his complaint that Shri Maan Singh has encroached upon the PWD land comprised in Khasra No.174/1 measuring 0-01-12 bigha situated in Mohal Tatapani, Tehsil Karsog and has also raised a retaining wall on the said land. This encroached land situated on State Highway No.13 on Shimla-Mandi Road. On 29.1.2007, learned Sub Divisional Collector, Karsog, District Mandi, had passed an eviction order against Maan Singh and he had preferred an appeal against such order before learned Divisional Commissioner, Mandi. Learned Divisional Commissioner Mandi allowed the said appeal and remanded the matter to the collector ordering that the demarcation is carried out through competent authority. After that, Naib Tehsildar visited the spot and conducted the demarcation and submitted the report dated 31.12.2010.

Consequently, the Collector Sub-Divisional Collector, Karsog, District Mandi, H.P., has passed an order of eviction against the husband of the petitioner on 28.2.2011. Against this order, the husband of the petitioner preferred an appeal before learned Divisional Commissioner, Mandi, which was dismissed vide order dated 19.5.2011.

On its face, the husband of the petitioner, Radha Devi, was encroacher until 19.5.2011. A bare perusal of Section 122(1)(c) shows that the candidate or any of his family members should not be the encroacher on any land before six years of the election. It is not the case where the encroachment would be disputed because of a gap of a day or two. The election process commenced in December 2015, and consequently, the candidate or any of his family members should not be the encroacher as of December 2009. As is clear from the judgment rendered by a coordinate Bench of this Court, the husband of the petitioner was in possession of the government land as on 28.2.2011 as well as 19.5.2011, the day when the appeal was dismissed. After 19th May 2011, there is nothing to infer that when did he actually clear the encroachment.

The judgment passed in CWP No.5252 of 2011, further reveals as follows:

"8. I have gone through the report submitted by the Civil Judge (Junior Division), Karsog. A bare perusal of the same makes it abundantly clear that the petitioner has encroached upon 0-1-12 bighas of land comprised in Khasra No.174 belonging to the State of Himachal Pradesh possessed by HP PWD. As per this report, the petitioner has constructed a temporary shed on the same. The demarcation has been carried out by the Assistant Collector, 1st Grade, Karsog strictly as per the instructions issued by the Financial Commissioner and by this Court. The pucca points were identified to the parties and they have agreed that the pucca points have been rightly fixed. The parties have accepted the demarcation report dated 12.08.2011 and no objections have been raised to the same. The Assistant Collector 1st Grade has also taken into account the Aks Musabi and prepared the Nakal Aks. He has also recorded the statement of Shri Devender Kapur, Assistant Engineer with regard to fixing of pucca points. He has also recorded the statement of petitioner Man Singh that he has not raised any objection and has accepted the report

It is conclusively proved from the report furnished by the Field Kanungo dated 25.01.2005, Naib Tehsildar dated 25.09.2006 and the latest report of the Assistant Collector dated 12.08.2011 that the petitioner has encroached upon the Government land. There is no infirmity and illegality in the orders passed by both the competent authorities below. The orders passed by both the authorities below are speaking and they have also taken into consideration all the relevant material while passing the orders."

A bare perusal of these findings recorded by the Coordinate Bench of this Court reveals that the report dated 12.8.2011 of learned Assistant Collector has also noticed that the petitioner in the said case (Maan Singh), had encroached upon the Government Land.

Given above, the impugned order does not suffer from any infirmity or illegality either on facts or law, hence calls for no interference.

Mr. Bimal Gupta, learned Senior Advocate appearing for the 6th respondent Giani Devi, submits that once the Authorized Officer-cum-Sub-Divisional Officer (Civil), Karsog, had declared the election as void vide order dated 28.02.2017, which was affirmed by learned Deputy Commissioner Mandi, vide his order dated 2.11.2018, the day when the appellate authority dismissed her appeal, Radha Devi could not have continued to discharge duties as Pradhan, and could not have held the office of Pradhan. He further contends that this Court did not grant any stay while issuing notices in the present writ petition. We find force in the submissions so made by Mr. Bimal Gupta, learned Senior Advocate. It is also a matter of record that this Court never stayed the operation of impugned orders.

Given above, there is no merit in the writ petition. The same is dismissed by holding that the office of Pradhan of Gram Panchayat, Kandha, development block, Karsog, shall be deemed to have been vacated as on 2 nd Nov 2018. The petitioner, Radha Devi, shall be deemed to have been removed as Pradhan, Gram Panchayat, Kandha, Tehsil Karsog, District Mandi, H.P., w.e.f. 02.11.2018, i.e., from the date of order passed by Deputy Commissioner vide Annexure P-5.

Pending application(s), if any, are closed.