The main legal point established in the judgment is the interpretation and application of Section 122(1)(c) of the Himachal Pradesh Panchayati Raj Act, 1994 in determining disqualification based on encroachment of government land by a family member.

JUDGMENT :

V. Ramasubramanian, J.

Aggrieved by the order of the Sub Divisional Officer (Civil) setting aside his election as member of the Block Development Committee and the order of the Deputy Commissioner confirming the same on appeal, the petitioner has come up with the above writ petition.

2. Heard Mr. Shrawan Dogra, learned Senior Counsel for the petitioner, Mr. Ashok Sharma, Advocate General, for the State, Mr. Surinder Prakash Sharm, learned counsel for respondent No.2, Mr. B.C. Negi, learned Senior Counsel for respondent No.3 and Sanket Sankhyan, learned counsel for respondent No.6.

3. In the elections held on 5.1.2016, the petitioner was elected as a member of the Block Development Committee, Ward Panvi, Tehsil Nichar, District Kinnaur. Challenging his election, the second respondent herein filed an Election Petition in Election Petition No. 4/2016 under Sections 122, 163 and 175 of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as the 1994 Act). The only ground on which the election of the petitioner was challenged by the second respondent herein was that the petitioner had suffered a disqualification in terms of Section 122 (1) (c) of the 1994 Act, inasmuch as his grandfather had encroached upon a land belonging to the State Government. The Sub Divisional Officer (Civil),who is the Authorised Officer under the 1994 Act, after an elaborate inquiry, allowed the Election Petition and set aside the election of the petitioner on the ground that the petitioner's grandfather had admittedly encroached into a Government land.

4. Challenging the order of the Sub Divisional Officer (Civil), the petitioner filed a statutory appeal under Section 181 of the 1994 Act before the Deputy Commissioner. The Deputy Commissioner, Kinnaur, by a decision rendered on 8.4.2019, dismissed the appeal thereby confirming the order of the Original Authority. It is against these concurrent orders that the petitioner has come up with the above writ petition.

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.

6. Section 175 (1) lists out four grounds on which an election may be declared to be void. Under Clause (a) of sub-Section (1) of Section 175 an election can be declared as void, if the Authorized Officer is of the opinion that on the date of his election, the elected person was not qualified or he was disqualified to be elected under the Act.

7. Section 122 (1) of the Act enlists several contingencies under which a person shall be disqualified for being chosen as an office bearer of a Panchayat. One of the contingencies stipulated in sub-Section (1) of Section 122 relates to encroachment upon any land belonging to the Government. This is traceable to Clause (c) of sub-Section (1) of Section 122. Section 122 (1)(c) together with the Explanation thereunder 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) & (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,