Rajender Kumar vs State Election Commission, Himachal Pradesh And Others

Tarlok Singh Chauhan, J

The case of the petitioner is that notification declaring election schedule was issued on 21.12.2020, pursuant to which, respondent No.5 filed his

nomination papers for the post of Pradhan, Gram Panchayat Saryanj. The petitioner on 04.01.2021 filed a representation against the nomination papers

with the Assistant Returning Officer, who, in turn, rejected the representation on the same day and accepted the nomination of respondent No.5. The

petitioner immediately thereafter applied for the eviction report from the revenue agency and obtained report from the Patwari on 04.01.2021 itself,

the translation (Annexure P-7) whereof reads as under:-

“ It is submitted that as per orders of office Naib Tehsildar, vide letter No. Esdess No. DrI/Reader/20-24 dated 4.1.2020, on the

complaint regarding non-eviction from Government land despite eviction order of Rajender Kumar son of Sant Ram, resident of Saryanj,

enquiry was conducted from papers as per which, Geeta Ram son of Saju resident of Saryanj he has encroached over Khasra No. 187

measuring 1 Biswa by raising cowshed with Pakka room one floor, on Khasra No. 185/1 measuring 0-4 Biswansi Gair Mumkin Gobar Gas

on Khasra No. 185/2 measuring 0-8 Biswa by making field and as per register of encroachment No. 9/2011 Rapat No. 531/28-06-2011 as

Saryanj has been entered from which till date there is no entry of eviction. Besides this, there is no case of encroachment against Ramesh

Chand son of Geeta Ram, resident of Saryanj. Report is submitted for favour of further needful.

Sd/-

Village Revenue Officer

Patwar Circle, Saryanj,

Tehsil Arki, District Solan,

1.2021. ´â€​

It is on these grounds the petitioner has now filed the instant petition for the grant of following substantive reliefs.:

1) “That the order dated 4.1.2021(Annexure P-4) passed by respondent No.4 accepting the nomination of respondent No.5, may kindly

be set aside and the nomination of respondent No.5 may kindly be rejectedâ€​

II) That the respondent No.6 be directed to complete the investigation in FIR No.2 dated 27.5.2017 under section 420,468,471,120B of the

Indian Penal Code and Section 13(2) of the Prevention of Corruption Act registered with SV&ACB Police Station, Solan.â€​

The instant petition was filed only on 06.01.2021, which was taken for consideration on the same day and the following order was passed:-

“CMP No. 377/2021

Allowed and disposed of.

CWP No. 224/2020 &CMP No/ 378/2021

Notice confined to respondents No. 1 to 4 and 6 except respondent No.5. Mr. Ajeet Singh Saklani, Advoate and Mr. Vinod Thakur, learned

Additional Advocate General, appear and waive service of notice on behalf of respective respondents.

List on 7th January, 2021.â€​

Today, learned Additional Advocate General has placed on record instructions dated 07th Janurary,2021, relevant portion whereof reads as under:-

“ In reference to the soft copy of a plaint received on my WhatsApp account and consequent telephonic discussion with your goodself regarding

subject-matter of the details and contentions raised vide aforesaid plaint, it is hereby submitted that after going through the relevant records with us,

the preliminary findings suggests that the Father of Respondent No.5 has encroached upon a piece of Govt. land during the year 2011, and proceeding

further, the then authorities evicted the father of Respondent No.5 from such illegal occupation on dated 02-01-2014 vide Rapat No. 198 incised on

encroachment register of Tehsil Arki and since statutory breather period of 06 years has already been elapsed as mandated vide s.122 of H.P

Panchayati Raj Act, 1994, the Astt. Returning Officer (ARO) concerned accepted the nomination of abovenamed Respondent No.5 on this ingrained

reasoning and also over considering the fact that no encroachment proceedings, misl or enquiry lying pending against the abovenamed Respondent on

any of the member of his family.â€​

It is not in dispute that the father of respondent No.5 was found to have encroached over the government land, but the moot question still looms at

large is whether he is still in illegal occupation of the encroached land or had been evicted therefrom. This is the disputed question of law and,

therefore, cannot be decided in a writ petition, more particularly, when not only the election process has commenced, but even the last date for

withdrawal of nominations is already over on 06.01.2021. It would be extremely unsafe to rely on affidavits and certain kinds of reports and will not be

prudent for this Court at this stage to further rely upon half baked material to come to the conclusion as to whether father of respondent No.5 is still in

possession of the encroached land or has been duly evicted in accordance with law. This is a question which can best be determined in an election

petition.

However, learned counsel for the petitioner would argue that it is well known fact that the election petitions proceed at a snail’s pace and, by

the time, they are right for hearing, the next election after five years is already due.

We appreciate the concern and anxiety of the petitioner, therefore, we make it absolute clear that in case respondent No.5 is elected and an

election petition is filed assailing his election, the same be decided in accordance with law within the stipulated period as envisaged under the H.P.

Panchayati Raj Act and Rules, i.e. within six months, failing which, it shall be open to the petitioner to approach this Court in this very petition, seeking

a time bound direction from this Court for the said purpose.

With these observations, the instant petition is disposed of, so also the pending miscellaneous application(s), if any, leaving the parties to bear their

own costs.