Krishna Kumari vs State Of H. P. & Ors
2021 Latest Caselaw 471 HP

           IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

                                              CWP No. 223 of 2021




                                                                               .

                                              Decided on: 08.01.2021.


    Krishna Kumari                                                      ...Petitioner





                                     Versus
    State of H. P. & Ors.                     ...Respondents
    _____________________________________________________________
    Coram:





    Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
    Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
    Whether approved for reporting? 1 No.


    For the Petitioner :
                        r            Ms. Shalini Thakur, Advocate.

    For the Respondents :            Mr. Ashok Sharma, A.G. with Mr.
                                     Vinod Thakur, Mr. Shiv Pal Manhans,
                                     Addl. A.Gs., Mr. Bhupinder Thakur, Ms.
                                     Seema Sharma and Mr. Yudhvir Singh


                                     Thakur, Dy. A.Gs., for respondents-State.

                                     Mr. Ajit Saklani, Advocate, for State
                                     Election Commission.




                                     (Through video conferencing)





    Tarlok Singh Chauhan, Judge (Oral)

The instant petition has been filed for the grant of

following substantive reliefs:-

(i) That the candidature of respondent No. 4 may kindly be rejected being disqualified.

1 Whether reporters of the local papers may be allowed to see the judgment? yes

(ii) That direction be issued to respondent No. 3 to consider objection of the petitioner as per law.

(iii) That direction be issued to respondent No. 3 to conduct

.

election in fair and transparent manner.

2. It appears that the petitioner had filed objections

against the nomination filed by the 4th respondent for the post

of Pradhan, however, the same was not decided.

3. The learned Advocate General has placed on

record the consideration order, which reads as under:-

"In compliance to the order of the Hon'ble High Court

following explanation is extended to your office.

That Deepan Devi d/o Sh. Narain Singh, who is also a candidate to Pradhan, Gram Panchayat, Jhakari, registered her objection with documents on 04.01.2021 in written against Smt. Bishna Bhandari w/o Sh. A. C. Bries, who is also

Pradhan contestant from H.P. Jhakri, which I duly received. The complaint included documents, subjected as below:-

1. Complaint regarding encroachment of Govt. Land by Smt. Bishna Bhandari and further pass the order to remove

her from the post of BDC member Gram Panchayat Jhakri, Distt. Shimla, dated Jan. 2020.

,sls O;fDr dh enn djus okys vf/kdkfj;ksa ds f[kykQ dk;ZokghA fnukad vDrwcj 2019 3- lryqt ty fo|qr fuxe fyfeVsM >kdM+h dh Hkwfe ij dkfct o ,sls O;fDr dh enn djus okys vf/kdkfj;ksa ds f[kykQ dk;ZokghA fnukad vDrwcj 2019

4. Statement by Sh. Vipin Kumar Deputy Manager Human Resource SJVN, Jhakri.

Dated 03-10-2019 It is submitted that there was nothing such in the documents that could prove Smt. Bishna Bhandari as an encroacher of

the land. The allegations were merely based on complaints and statements and no evidence of her conviction. There was no conclusive evidence against her that could debar

.

her to contest election. While be need conclusive evidence

by competent authority that could prove her conviction. There was no proof of her conviction by competent

authority like Sub-Divisional Magistrate, District Magistrate or Court.

On the basis of this conclusion the nomination of Smt. Bishan Bhandari was accepted.

Yours faithfully (sd/-

                    r                                               (Amar Singh)
                                                                     ARO, Jhakri"

4. It needs to be noticed that one Narain Dass has

filed a writ petition before this Court, wherein amongst others,

the respondent Bishna Bhandari is also a party and has been

arrayed as respondent No. 9. The petition has been filed for

the grant of following reliefs:-

A. That the respondents may kindly be directed to take concrete and final action on the report submitted by the Tehsildar Rampur Bushehar dated 10.10.2019 vide Annexure

P-6 and further on report submitted by respondent No. 7 to respondent No. 5 dated 31.10.2019 vide Annexure P-7 within a time bound manner.

B. That the respondents may kindly be directed to remove respondent No. 9 from the post of BDC Member forthwith as per the mandate of Section 122 of the Himachal Pradesh Panchayati Raj Act in pursuant to the enquiry report

submitted by the Tehsildar Rampur Bushehar, Himachal Pradesh.

C. That the respondents may kindly be directed to evict

.

respondent No. 9 from the government land by demolishing

unauthorized structure on the Government Land.

5. The specific allegations against respondent No. 9

in that petition are that she is encroacher, therefore, could not

have elected as BDC Member.

6. The allegations made regarding the

encroachment have been duly supported on affidavit by the

Superintendent of Police, SV&ACB, S.R. Shimla, as is evident

from para-2 of the reply, which reads as under:-

"2.That the brief facts of the matter are that a complaint

made by Shri Narain Dass s/o Sh. Shawnu Ram, r/o village Jhakri, Tehsil Rampur Bsr., District Shimla against Smt. Bishna Bhandari, d/o late Sh. Paras Ram Bhandari, r/o Tangdu has

been received in this office vide Superintendent of Police, SV & ACB, S/R letter No. SV & ACB (R-SR) Comp. (SML)

61/SR/19-4456 dated 19.08.2019. In said complaint, it has been alleged that one Smt. Bishna Bhandari is a Member of

BDC from Jhakri Ward and she has got married with Sh. Amir Chand Brice, a resident of District Kinnaur who has retired from the post of Chief Engineer, Himachal Pradesh State Electricity Board. Due to the influential post of her husband and political family back ground, Smt. Bishna Bhandari has made illegal encroachment on the land of Satluj Jal Vidyut Nigam Limited as well as National Highway. She has illegally encroached upon an area of land measuring 0-06-00 hect. Adjoining to Satluj Jal Vidyut Nigam Limited Project and has

constructed a building on the said land. Out of said land an area measuring 0-00-20 hect. Pertains to one Sh. Atar Singh s/o Sh. Mehar Singh, which was given to him by NJPC in lieu

.

of acquiring his shop. The said land cannot be transferred in

favour of Sh. Atar Singh as he was only a lease holder. With regard to said encroachment, the complainant has made a

complaint to Nathpa Jhakri Hydro Power Project authority (NJPHPS) but no action has been taken by them. Sh. K. K. Singhta the then Manager, NJPC has also helped said Smt. Bishna Bhandari in making the illegal encroachment. Smt.

Bishna Bhandari has also purchased a land from Sh. Daulat Ram s/o Sh. Longu Ram, village & Post Office Jhakri situated at Mohal Jhakri in Khasra Nos. 3644/1220, 3613/1222,

3615/1223 measuring an area of 0-02-04 hect., below the National Highway, but she is constructing a building on the

land measuring an area of 0-04-80 hectare by encroaching a portion of the land of National Highway and of S.J.V.N.L. Smt. Bishna Bhandari also made an illegal encroachment on

an area measuring of 0-05-00 hectare of land of Nathpa Jhakri Hydro Power Station (NJHPS) by raising a wall on said land and the management of NJHPS has also helped her in

making said encroachment by removing electricity

pole/line, which was earlier installed on the said land. It has also been alleged that Smt. Bishna Bhandari has made obstruction in the path of the complainant.

7. Not only this, a combined reply has been filed by

the Deputy Commissioner, Additional Deputy Commissioner,

Shimla alongwith the Sub Divisional Officer (Civil), Rampur

Bushehar, wherein it has been specifically admitted that the

Tehsildar Rampur who was directed to take further action has

reported that the land of the SJVNL has been encroached by

respondent No. 9 Bishna Bhandari, as is evident from para-6 of

.

the reply:-

"6. That the contents of this para are denied for want of knowledge. However, it is submitted that when the

petitioner submitted complaint qua the encroachment made by respondent No. 9 on the land belonging to respondent No. 8, the Tehsildar Rampur was immediately

directed to take further action against respondent No. 9. In compliance to the directions issued by the replying respondent, Tehsildar Rampur has reported that the encroached land belongs to the respondent No. 8. After

this, respondent No. 8 was directed time and again to take

action against respondent No. 9 qua the removal of the encroached land but till date no Action Taken Report has been received from respondent No. 8."

8. In such circumstances, we really fail to understand

as to how the objections raised by the petitioner could have

been rejected when the averments as narrated above have

been made on affidavit.

9. We are conscious of the fact that normally such

kind of petitions after the issuance of election process are not

entertained but this being an exceptional case where the

official-respondents even after acknowledging that

respondent No. 4 is an encroacher, yet has taken no steps to

decide the same on the basis of record.

.

10. Therefore, while allowing the petition, we direct

the Returning Officer to consider and decide the objections

filed by the petitioner against the 4th respondent latest by

13.01.2021.

11. The petition is disposed of in the aforesaid terms, so

own costs.

r to also pending application(s), if any. Parties are left to bear their

Copy dasti.

                                                      (Tarlok Singh Chauhan)
                                                              Judge



                                                          (Jyotsna Rewal Dua)
          8th January, 2021                                   Judge
           (sanjeev)