Decided On: 7Th January vs State Election Commission
2021 Latest Caselaw 364 HP

           IN THE HIGH COURT OF HIMACHAL PRADESH AT
                            SHIMLA




                                                                             .
                              CWP No. 224 of 2021.





                              Decided on: 7th January, 2021
    ________________________________________________________
    Rajender Kumar
                                                     ....Petitioner





                          Versus

    State Election Commission, Himachal Pradesh
    and others                                  ...Respondents





    ________________________________________________________
    Coram
    The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge
    The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge


    1   Whether approved for reporting?
    ________________________________________________________
    For the petitioner:    Mr. Vijay Chaudhary, Advocate.
    For the respondents:                   Mr. Ajit Singh Saklani, Advocate


                                           for respondent No.1.
                                           Mr.    Ashok    Sharma,    Advocate
                                           General, with    Mr. Vinod Thakur,




                                           Mr.    Vikas   Rathore,   Additional
                                           Advocates General,      Ms. Seema





                                           Sharma, Mr. Bhupinder Thakur and
                                           Mr. Yudhvir Singh Thakur, Deputy
                                           Advocates General, for respondents
                                           No.2 to 4 and 6-State.





                                           Through Video Conferencing

    Tarlok Singh Chauhan, Judge (Oral)

The case of the petitioner is that notification

declaring election schedule was issued on 21.12.2020,

1 Whether reporters of Local Papers may be allowed to see the judgment?

pursuant to which, respondent No.5 filed his nomination

papers for the post of Pradhan, Gram Panchayat Saryanj.

.

The petitioner on 04.01.2021 filed a representation

against the nomination papers with the Assistant

Returning Officer, who, in turn, rejected the

representation on the same day and accepted the

nomination of respondent No.5. The petitioner

immediately thereafter applied for the eviction report

from the revenue agency and obtained report from the

Patwari on 04.01.2021 itself, the translation

(Annexure P-7) whereof reads as under:-

" It is submitted that as per orders of office Naib Tehsildar, vide letter No. Esdess No. DrI/Reader/20-24 dated 4.1.2020,

on the complaint regarding non-eviction from Government land despite eviction order of Rajender Kumar son of Sant

Ram, resident of Saryanj, enquiry was conducted from papers as per which, Geeta Ram son of Saju resident of

Saryanj he has encroached over Khasra No. 187 measuring 1 Biswa by raising cowshed with Pakka room one floor, on Khasra No. 185/1 measuring 0-4 Biswansi Gair Mumkin Gobar Gas on Khasra No. 185/2 measuring 0-8 Biswa by making field and as per register of encroachment No. 9/2011 Rapat No. 531/28-06-2011 as Saryanj has been entered from which till date there is no entry of eviction. Besides this, there is no case of encroachment against Ramesh Chand son of Geeta Ram, resident of Saryanj. Report is submitted for

favour of further needful.

Sd/-

.

Village Revenue Officer

Patwar Circle, Saryanj, Tehsil Arki, District Solan,

4.1.2021. ´"

2. It is on these grounds the petitioner has now

filed the instant petition for the grant of following

substantive reliefs.:

1) "That the order dated 4.1.2021(Annexure P-4) passed by r respondent No.4 accepting the nomination of

respondent No.5, may kindly be set aside and the nomination of respondent No.5 may kindly be rejected" II) That the respondent No.6 be directed to complete the investigation in FIR No.2 dated 27.5.2017 under section

420,468,471,120B of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act registered with SV&ACB Police Station, Solan."

3. The instant petition was filed only on

06.01.2021, which was taken for consideration on the

same day and the following order was passed:-

"CMP No. 377/2021 Allowed and disposed of.

CWP No. 224/2020 &CMP No/ 378/2021 Notice confined to respondents No. 1 to 4 and 6 except respondent No.5. Mr. Ajeet Singh Saklani, Advoate and Mr. Vinod Thakur, learned Additional Advocate General, appear

and waive service of notice on behalf of respective respondents.

List on 7th January, 2021."

.

4. Today, learned Additional Advocate General has

placed on record instructions dated 07th Janurary,2021,

relevant portion whereof reads as under:-

" In reference to the soft copy of a plaint received on

my WhatsApp account and consequent telephonic discussion with your goodself regarding subject- matter of the details and contentions raised vide

aforesaid plaint, it is hereby submitted that after

going through the relevant records with us, the preliminary findings suggests that the Father of Respondent No.5 has encroached upon a piece of

Govt. land during the year 2011, and proceeding further, the then authorities evicted the father of Respondent No.5 from such illegal occupation on

dated 02-01-2014 vide Rapat No. 198 incised on

encroachment register of Tehsil Arki and since statutory breather period of 06 years has already

been elapsed as mandated vide s.122 of H.P Panchayati Raj Act, 1994, the Astt. Returning Officer (ARO) concerned accepted the nomination of abovenamed Respondent No.5 on this ingrained reasoning and also over considering the fact that no encroachment proceedings, misl or enquiry lying pending against the abovenamed Respondent on any of the member of his family."

5. It is not in dispute that the father of respondent

No.5 was found to have encroached over the government

.

land, but the moot question still looms at large is whether

he is still in illegal occupation of the encroached land or

had been evicted therefrom. This is the disputed question

of law and, therefore, cannot be decided in a writ petition,

more particularly, when not only the election process has

commenced, but even the last date for withdrawal of

nominations is already over on 06.01.2021. It would be

extremely unsafe to rely on affidavits and certain kinds of

reports and will not be prudent for this Court at this stage

to further rely upon half baked material to come to the

conclusion as to whether father of respondent No.5 is still

in possession of the encroached land or has been duly

evicted in accordance with law. This is a question which

can best be determined in an election petition.

6. However, learned counsel for the petitioner

would argue that it is well known fact that the election

petitions proceed at a snail's pace and, by the time, they

are right for hearing, the next election after five years is

already due.

7. We appreciate the concern and anxiety of the

.

petitioner, therefore, we make it absolute clear that in case

respondent No.5 is elected and an election petition is filed

assailing his election, the same be decided in accordance

with law within the stipulated period as envisaged under

the H.P. Panchayati Raj Act and Rules, i.e. within six

months, failing which, it shall be open to the petitioner to

approach this Court in this very petition, seeking a time

bound direction from this Court for the said purpose.

8. With these observations, the instant petition is

disposed of, so also the pending miscellaneous

application(s), if any, leaving the parties to bear their own

costs.

(Tarlok Singh Chauhan)

Judge

(Jyotsna Rewal Dua) Judge January 07, 2021 (Gaurav)