IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 222 of 2021.
.
Date of decision: 07.01.2021.
Pawan Kumar .....Petitioner.
Versus
State of H.P. and others .....Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 No
For the Petitioner : Dr. Lalit K. Sharma & Mr.
Abhishek Thakur, Advocates.
For the Respondents: Mr. Ashok Sharma, Advocate
General with Mr. Vinod
Thakur, Mr. Vikas Rathore &
Mr. Shiv Pal Manhans,
Additional Advocate Generals,
Ms. Seema Sharma, Mr.
Bhupinder Thakur and Mr.
Yudhbir Singh Thakur, Deputy
Advocate Generals, for
respondents No. 1 to 4-State.
Mr.Ajeet Singh Saklani,
Advocate, for respondent
No.5.
Through Video Conferencing.
Tarlok Singh Chauhan, Judge (Oral)
The nomination papers of the petitioner for contesting the election for the post of Pradhan, Gram 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 08/01/2021 20:16:10 :::HCHP 2 Panchayat, Dhar, Tehsil Jogindernagar, District Mandi, H.P.
have been rejected by the respondents, constraining him to .
file the instant petition for grant of the following relief:
"i. That by way of Writ of Certiorari the impugned action of the Respondent No.4 who on 4/1/2021 has rejected the nomination paper of the petitioner to contest the election of Pradhan, Gram Panchayat Dhar, Development Block Chauntara, Tehsil Jogindernagar, District Mandi may kindly be set aside and quashed and by way of Writ of Mandamus the respondents may be directed to permit the petitioner to contest such election as per election programme dated 22/12/2020 and he may be alloted the Symbol in this regard on stipulated date i.e. 6/1/2021."
2. The ground for rejection of the nomination papers, as is evident from the remarks given by the Assistant Returning Officer, is that he found that the District Election Officer (Respondent No.3) has stated that a complaint under Section 122(1)(c) of the H.P. Panchayati Raj Act, 1994, regarding encroachment had been filed against the petitioner. The petitioner would claim that his father had encroached upon the government land but he had been ejected therefrom pursuant to the orders passed by the Assistant Collector, 2nd Grade, Jogindernagar, on 28.02.2014 ::: Downloaded on - 08/01/2021 20:16:10 :::HCHP 3 and such ejectment orders got elapsed on 28.02.2020 and, therefore, could not create a hurdle much less a .
disqualification to contest the election.
3. It needs to be noticed that the instant petition was filed on 06.01.2021 which was last date of withdrawing the nominations and the petition was taken up on the same day and the following order was passed:
"CMP No. 370/2021 Allowed and disposed of.
CWP No.222/2021 & CMP No. 371 of 2021.
Notice. Mr. Vinod Thakur, learned Additional Advocate General and Mr. Ajeet Singh Saklani, Advocate, appear and waive service of notice on behalf of respondents No.1 to 4 and 5 respectively.
Reply on behalf of the appearing respondents be filed well before the next date of hearing.
List on 7th January, 2021.
CMP No. 372/2021.
The application is disposed of with a direction to the petitioner to file translated copies of documents in issue well before the next date of hearing."
4. Today, the learned Advocate General has placed on record certain documents which do indicate that the petitioner was factually evicted from the land in question on 18.02.2015 and, therefore, an embargo of six years as ::: Downloaded on - 08/01/2021 20:16:10 :::HCHP 4 placed by the Act for contesting the elections, prima facie, is not over.
.
5. However, we may hasten to add that the question whether the petitioner has been evicted or has voluntarily given up the encroachment, all such questions are obviously disputed questions of fact and cannot be adjudicated upon in a writ petition and the same would have to be determined on the basis of the evidence led by the parties.
6. Therefore, in the given circumstances, the writ petition is not maintainable and is accordingly dismissed, so also the pending application(s), if any. However, the dismissal of this petition would not come in the way of the petitioner in case he has any other remedy available to him under the law.
(Tarlok Singh Chauhan) Judge (Jyotsna Rewal Dua) Judge 7th January, 2021.
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