The disqualification provision in Section 122(1)(c) of the H.P. Panchayati Raj Act serves the purpose of maintaining probity and transparency in public offices by debarring encroachers from contesting elections.

Deepak Gupta, J.

This letters patent appeal is directed against the judgment dated 11th December, 2008, whereby a learned Single Judge of this Court dismissed the writ petition filed by the present appellant (hereinafter referred to as the petitioner) and held that a person who has encroached upon Government land is not eligible to fight an election under the Himachal Pradesh Panchayati Raj Act.

2. The question raised in this appeal is whether a person, who has applied for regularization of encroachment of the land can be deprived of his right to fight an election under the provisions of the Himachal Pradesh Panchayati Raj Act, 1944?

3. At the very outset it would be apposite to make reference to the relevant provisions of the H.P. Panchayati Raj Act. Section 122 of the H.P. Panchayati Raj Act, 1994 sets out various disqualifications for contesting elections to the Panchayati Raj Institutions. Section 122(1)( c) of the said Act reads as under:-

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

(a) xxx xxx xxx xxx xxx xxx xxx xxx

(b) xxx xxx xxx xxx xxx xxx xxx xxx (bb) xxx xxx xxx xxx xxx xxx xxx xxx

(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; or

xxx xxx xxx xxx xxx”

4. The State of Himachal Pradesh also framed Rules for regularization of encroachments which were known as the Himachal Pradesh Regularization of Encroachments (in Certain Cases) on Government Land and Disposal of Government Land Rules, 2002 (hereinafter referred to as the Rules of 2002).

5. It would be pertinent to mention that after these Rules were notified, a number of persons, who had encroached upon Government land, filed applications for regularization in terms of the aforesaid Rules. These Rules have, however, been stayed by this Court in CWP No.1028 of 2002. The State also amended the Panchayati Raj Act and the disqualification aforesaid was introduced with the intention of debarring the encroachers of Government land from contesting elections to the Panchayati Raj institutions.

6. In the present case, the petitioner submitted the nomination paper for 34-Gummer Constituency of Zila Parishad Kangra. Respondent No. 7, Sarla Devi, filed an application praying that the nomination paper of the petitioner be rejected mainly on the ground that the petitioner had encroached upon the Government land. Sarla Devi alongwith her application filed a certified copy of the application preferred by Baldev Raj, husband of the petitioner, alongwith some other plea before the Tehsildar, Khundian with certified copy of the revenue papers seeking regularization of the land. The Returning Officer passed an order on 06.12.2005 holding that the husband of the petitioner had encroached upon Government land and, therefore, rejected the nomination paper of the petitioner. The petitioner filed an Election Petition before the Deputy Commissioner, Kangra, in which she claimed that neither she nor her husband had encroached upon Government land. It was also claimed that her husband had not filed any application for regularization. However, Smt. Roma Koundal, respondent No. 6, appeared as RW-1 and one Smt. Baljeet Kaur appeared as RW-2. Both of them have stated that Baldev Raj, husband of the petitioner, had applied for regularization of the Government land and they had also put their signatures on the said application.

7. All the authorities below including the learned Single Judge of this Court have come to the conclusion that Baldev Raj had applied for regularization of the encroachment and, therefore, a presumption arose that he was an encroacher upon the Governme