A writ petition challenging the disqualification of the petitioner from the post of Gram Pradhan for encroachment on government land was dismissed. The Court held that Section 122(1)(c) of the HP Panchayati Raj Act bars such persons from contesting for six years after ceasing to be an encroacher.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.6301 of 2023
Date of Decision: 05.03.2024
____________ ___________________________________________ Ibrahim …….Petitioners Versus The State of H.P. and others … Respondents _______________________________________________________ Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?1
For the Petitioners: Mr. Javed Khan, Advocate. For the Respondents : Mr. Anup Rattan, Advocate General with Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals, for the respondents-State. Mr. Kush Sharma, Advocate, for respondent No.3. ____________________________________________________ Sandeep Sharma, Judge (oral):
Being aggrieved and dissatisfied with impugned order dated 17.10.2022(Annexure P-3) passed by respondent No.3, upholding the order dated 14.08.2023 (Annexure P-2),whereby election of the petitioner for the post of Pradhan, Gram Panchayat, Chambi, Tehsil Chamba, District Chamba, Himachal Pradesh, came to be set-aside, petitioner has approached this Court in the instant proceedings, praying therein for following reliefs:-
“(a) That a writ in the nature of certiorari may kindly be
issued quashing the impugned order
1 Whether the reporters of the local papers may be allowed to see the judgment?
2
17.10.2022(Annexure P-3) passed by respondent No.3 and order dated 14.08.2023 (Annexure P-2), passed by respondent No.2 may kindly be quashed and set-aside.
3
declared disqualified to hold the post of Pradhan of Gram Panchayat concerned.
4
representing the petitioner made a serious attempt to persuade this Court to agree with his contention that at no point of time cogent and convincing evidence ever came to be placed on record for disqualifying the petitioner from the post of Pradhan, qua which he was duly elected. Learned counsel representing the petitioner further submitted that at no point of time, order, if any, thereby declaring petitioner to be encroacher upon the government land was ever passed, especially before petitioner’s making an application to contest the election for the post in question. He submitted that since respondent No.4 himself had contested the election against the petitioner, but lost, he with a motive and view to harass the petitioner filed frivolous litigation.
5
committed by the authorities below while ordering disqualification of the petitioner on account of his having declared encroacher.
6
the orders impugned in the instant proceedings, there appears to be no illegality or infirmity in the impugned orders, rather same appear to be passed on the proper appreciation of facts as well as law and as such, no interference is called for.
7
concerned Kanungo, apprised the revenue authority that though at first instance petitioner had encroached upon the government land, but now he has vacated the same. At this stage, learned counsel for the petitioner argued that since alleged encroachment made upon the government land was vacated by the petitioner, he could not be disqualified in terms of the provisions contained under Section 122(1)(c) of the Panchayati Raj Act. However, having carefully perused the provisions of Section 122(1)(C) of the Panchayat Raj Act, this Court finds no force in the aforesaid submission of learned counsel for the petitioner and as such, same is rejected.
“ 122(1)(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, is ejected therefrom or ceases to be encroacher.”
Careful perusal of aforesaid provision clearly reveals that
any person, who was declared encroacher, cannot contest the election for a period of six years from the date he or any of his family members, as the case may be was ejected therefrom or ceases to be encroacher.
8
9
Kanungo to ascertain factum with regard to encroachment, if any, on the government land. No doubt, concerned Kanungo while submitting report pursuant to the direction issued by A.C.1st Grade, Chamba, apprised revenue authorities that encroachment stands removed, but that could not have automatically made petitioner eligible to contest the election to the post of Pradhan of Gram Panchayat concerned, especially on account of the bar provided under Section 122(1)(C) of the Act, as discussed hereinabove.
10
Revenue Act and thereafter he had vacated the encroached land, no illegality can be said to have been committed by the authorities while declaring the election of the petitioner to be null and void. Plea of delay sought to be raised on behalf of the petitioner is also not sustainable because immediately after election of the petitioner to the post in question, election petition was filed by the respondent.
(Sandeep Sharma), Judge
March 05, 2024 (shankar)
3 issues framed by the court
Whether the petitioner was disqualified from holding the post of Pradhan due to encroachment on government land under Section 122(1)(c) of the H.P. Panchayati Raj Act,1994.
Whether the six-year bar period for contesting election had expired when the petitioner filed nomination.
Whether the election petition filed by the defeated candidate was maintainable.
2 provisions across 2 enactments
Ibrahim
The State of H.P. and others
Sandeep Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
