A past encroachment penalty removed prior to candidacy does not disqualify election eligibility under the Act.

on Board 08.04.2024 Per, Ravindra Kumar Agrawal, J

1. The present writ appeal has been filed by the petitioner/appellant against the order dated 22.03.2023 passed by the learned Single Judge in WPC No.1390 of 2023, whereby the writ petition filed by the petitioner has been dismissed.

2. Brief facts of the case, as pleaded by the petitioner in his writ petition, is that, the petitioner is an elected member of Janpad Panchayat, Kusmi, District Balrampur-Ramanujganj. His election was challenged by the respondent No.3, a rival candidate of the petitioner, by filing election petition under Section 122 of the Chhattisgarh Panchayat Raj Adhiniyam , 1993 (in short, the Act, 1993) before the Collector Balrampur-Ramanujganj. In the said election petition amongst other grounds he also raised the ground that the present petitioner have encroached upon the government land and thereby he was disqualified to contest the election. The said election petition filed before the Collector was dismissed vide order dated 19.01.2022. It is also the case of the petitioner that after dismissal of election petition on 19.01.2022, the respondent No.3 again moved an application before the Collector Balrampur under Section 36 (2) of the Act, 1993 for cancellation of election of the petitioner on the ground that in the year, 1999 the petitioner had encroached over the government land for which he was punished by imposing fine amount. Accepting his guilt, the petitioner deposited the fine amount, however, this fact was concealed at the time of submission of his nomination form in the election of member of Janpad Panchayat which required a detailed enquiry. On application being made by the respondent No.3, the Collector Balrampur has registered a case on 28.12.2022 and notice was issued to the present petitioner and therefore the petitioner filed the writ petition for quashing the proceedings drawn by the Collector.

3. The petitioner sought following relief in his writ petition:

• “10.1. That, this Hon’ble Court may kindly be pleased to issue appropriate writ for quashing the proceedings drawn by the Collector, District Balrampur-Ramanujganj, CG, in the Revenue Case No.B-121/2022-23 as being arbitrary and illegal, in the interest of justice.”

4. After hearing the parties, the learned Single Judge has dismissed the writ petition filed by the appellant herein holding that election petition filed by the respondent No.3 before the Collector was dismissed on the ground of limitation. The merits of election petition was not considered and therefore, the decision taken in the election petition cannot be taken as a shield for the petitioner from being prosecuted in respect of a disqualification which is otherwise envisaged under Sub-section (1) of Section 36 of the Act, 1993. Therefore, the instant writ appeal.

5. Learned counsel for the appellant would submit that in the year 1999 although fine was imposed upon the petitioner for encroachment of the government land, however he deposited the fine amount, removed his encroachment from the government land at that time only and now having no any encroachment over any part of the government land.

Even at the time of submission of nomination form for member of Janpad Panchayat, he was not having any encroachment or possession over the government land or any part thereof. No such proceedings were also pending against him. Although the issue of encroachment was raised in the election petition also filed by the respondent No.3 and when such election petition was dismissed on the ground of limitation, the ground of encroachment had also gone because the respondent No.3 have not challenged the order passed by the Collector in his election petition and t