Failure to prove surrender or abandonment of encroached government land rendered the petitioner ineligible to contest elections under Section 122 of the Himachal Pradesh Panchayati Raj Act, 1994.

Sureshwar Thakur, Judge (oral)

The petitioner had contested elections to the office of Pradhan, Gram Panchayat, Gahaliana, Kangra, H.P. She was declared elected. Respondent No.5 had instituted an election petition before the Authorized Officer under the H.P. Panchayati Raj Act-cum-Sub Divisional Officer (Civil), Kangra, District Kangra, H.P., wherein, the eligibility of the petitioner herein to contest elections to the office of Pradhan, Gram Panchayat, Gahaliana, Kargra, H.P. was challenged. Under orders comprised in Annexure P-1, the election petition was dismissed by the Authorized Officer under the H.P. Panchayati Raj Act-cum-Sub Divisional Officer (Civil), Kangra, District Kangra, H.P. An appeal was preferred by the respondent No.5 before the respondent No.3. The respondent No.3 under orders comprised in Annexures P-2 and P-3, reversed and set aside the conclusions and findings recorded in Annexure P-1 and allowed the appeal. The petitioner herein had appealed against the orders rendered by the Deputy Commissioner wherein he upset the conclusions and findings arrived at by the Authorized Officer under the H.P. Panchayati Raj Act-cum-Sub Divisional Officer (Civil), Kangra, District Kangra, H.P. comprised in Annexure P-1, before the respondent No.2. The latter also under Annexure P-7 dismissed the appeal preferred by the petitioner herein before him. Consequently, the petitioner has instituted the instant petition before this Court.

2. The apposite provisions of the Himachal Pradesh Panchayati Raj Act, 1994 are contained in Section 122 of the Act, the relevant portion whereof is extracted hereinafter:-

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

(a).............................

(b)............................

(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”

The anvil, of the submission of the learned counsel appearing for the petitioner in seeking the benefit besides drawing leverage from the latter part of Clause (c) of sub section (1) to Section 122, contemplating that in case a period of six years elapses since the date when the petitioner is ejected from government land encroached upon by her or ceases to be an encroacher thereon till hers filing nomination papers for contesting elections to the post of Pradhan, Gram Panchayat, Gahalian, Kangra, would render her ineligible to contest elections, is that even if assuming the petitioner herein had applied for, as is evident from Ex.PW7/A as spelt out in Annexure P-1, regularization of encroachment upon government land comprised in khasra Nos. 1260/3, 1628/1, 1247/1, 1259, 1249, 314 situated in Mohal Pantehar, in the year 2002, yet, when the petitioner herein at the stage contemporaneous to hers filing nomination papers for contesting elections to the office of Pradhan, Gram Panchayat, Gahalian, Kangra, H.P., in 2010 having furnished a sworn affidavit portraying the fact of hers being no longer an encroacher of Government Land, as a corollary, he contends that hence when a period of six years stood elapsed since hers vacating government land purportedly encroached upon by her till hers taking to file nomination papers for contesting elections to the office of Pradhan, Gram Panchayat, Gahalian, Kangra, concomitantly the rigour of Clause (c) of sub section (1) to Section 122 of the H.P. Panchayati Raj Act stood, as mandated in the latter part thereof relaxed, rendering the petitioner herein to be eligible to contest elections to the office of Pradhan, Gram Panchayat, Gahalian, Kangra, H.P. The above argument, though, has been with much vigour and fo