Pawan Kumar vs State Of H.P. And Others
2021 Latest Caselaw 376 HP

    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

Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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

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

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.

(krt)