IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1044 of 2006 Date of decision: 22.12.2006. Baldev Singh ... Petitioner Versus State of H.P. & Ors. … Respondents Coram : The Hon’ble Mr. Justice V.K. Gupta, Chief Justice. The Hon’ble Mr. Justice V.K. Ahuja, Judge Whether approved for reporting?1 For the Petitioner: Mr. Ajay Sharma, Advocate. For the respondents: Mr. M.S. Chandel, Advocate General with Mr. J.K. Verma, Dy. Advocate General, for respondents No. 1 to 3 and 7. Mr. Naresh Kaul, Advocate, for respondent No. 4. V.K. Gupta, C.J. (Oral) It is a very unfortunate case where respondent No. 3 has misadventured into expressing almost a conclusive opinion about an allegation against the petitioner in the course of the proceedings of an election petition, even while admittedly the election petition is at a very initial stage and the petitioner herein has not so far been afforded the opportunity of contesting the allegations leveled against him by respondent No. 4 in the said election petition. Equally unfortunate is the conduct of respondent 1Whether reporters of Local Papers may be allowed to see the judgment? 2 No. 2 who without bothering to consider the well established requirements of fair play, equity and good conscience almost summarily dismissed the transfer application of the petitioner. Respondent No. 4 filed an election petition against the petitioner under Section 162 read with Section 163 of the Himachal Pradesh Panchayati Raj Act, 1994 on the sole ground of the petitioner being an alleged encroacher upon Government land. Section 167 of this Act clearly stipulates that, subject to the provision of the Act as well as the Rules made thereunder, every election petition shall be tried in accordance with the procedure applicable under the Code of Civil Procedure for the trial of the suits, even though it also clearly states and stipulates that every election petition has to be decided within a period of six months from the date of its presentation. Under the Code of Civil Procedure, there is a set procedure prescribed for trial of suits which includes the stage of completion of pleadings, framing of issues and the leading of evidence by the parties concerned. Whether the petitioner was an encroacher upon the Government land or not, was the sole issue for adjudication and determination in the election petition. On the determination of this sole issue depended the result as well as the fate of the election petition. This issue had to be decided by the authorized officer after having gone through all the relevant stages of the election petition in accordance with the procedure prescribed under the Code of Civil Procedure. Only thereafter, at the stage of the final result of the election petition could the authorized officer have expressed 3 an opinion by giving a finding whether the petitioner was an encroacher of the Government land or not. The authorized officer however in hot haste, without any regard to Section 167 of the Act and apparently without any application of mind passed an order on 13th September, 2006 wherein he clearly and categorically expressed an opinion and indicated his mind that from the perusal of the case file he found that the petitioner had encroached upon the Government land. This was wholly impermissible under law. It revealed a prejudging of the issue by respondent No. 3 even though he had not gone through the stages prescribed under the Code of Civil Procedure, as envisaged under Section 167 of the Act. This caused a grave prejudice to the petitioner because the petitioner can now be said to have a grave apprehension in his mind that because of the expression of the aforesaid view by respondent No. 3, the petitioner is not likely to get justice from this respondent in the ultimate analysis of the election petition. By over stepping the role assigned to him, respondent No.3 has disqualified himself to hear the election petition. When, the petitioner invoked Section 166 of the Act for seeking transfer of the election petition, the respondent No. 2 did not appreciate the aforesaid aspects and almost summarily rejected the application for transfer of the petitioner. We do not approve this conduct on the part of respondent No. 2 as well. For the following reasons this petition is allowed. The following order is passed:- 1. Statement/expression, “from the perusal of case file, it found (sic) that the respondent No.1 has encroached 4 the Government land. Hence, a report regarding encroachment be sent to the Deputy Commissioner, Kangra and copy of Tehsildar, Nurpur (sic)” is expunged and the same shall stand deleted from the order dated 13th September, 2006 passed by respondent No. 3. It is specifically ordered and directed that this expression/observation shall never be deemed to have been placed in the aforesaid order. 2. Election Petition, being case No. 14 of 2006 pending before respondent No.3 is hereby transferred for adjudication to Sub Divisional Officer (Civil), Jawali, District Kangra, who hereafter, shall be the authorized officer under the Himachal Pradesh Panchayati Raj Act, 1994 to hear and dispose of the aforesaid election petition. 3. The transferee authorized officer shall take over the election petition from the stage at which it was being dealt with by respondent No. 3 and ensure that in accordance with the provisions contained in Section 167 (supra), it is disposed of by him within a period of six months. For ensuring this objective, the transferee- authorized officer may hold and conduct the proceedings of the election petition on week to week basis, unless he finds that it is absolutely unavoidable. 4. Respondent No. 3 shall ensure that the record of the election petition is made over to the transferee- authorized officer within ten days from today. 5. The petitioner and respondent No. 4 are directed to appear before the transferee authorized officer on 3rd January, 2007. The transferee authorized officer shall ensure that he secures the presence of other 5 parties in the election petition before proceeding any further in the matter. Mr. J.K. Verma, learned Deputy Advocate General has taken down the gist of this order for its immediate communication to respondent No. 3 as well as the transferee authorized officer for implementation by them in letter and spirit. CMP No. 1641 of 2006: In view of the disposal of the main petition, the interim order dated 20th November, 2006 shall stand vacated and the application is accordingly disposed of. CMP No. 1642 of 2006: Infructuous. Copy dasti. ( V.K. Gupta ), C.J. December 22, 2006. ( V.K. Ahuja ),J. (BSS)