IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1888 of 2007. Date of decision: 09.12.2010. Gauran Devi … Petitioner. Versus State of H.P & others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1. Yes. _______________________________________________________________ For the petitioner: Mr. Arun Kumar, Advocate. For the respondents No. 1 & 2: Mr. Vivek Singh Thakur, Addl. AG. For the respondent No.3: Mr. Vikrant Chandel, Advocate. Deepak Gupta, J. (oral) 1. By means of this writ petition, the petitioner has laid challenge to the orders Annexures P-3, P-4 and P-5 passed by the Sub Divisional Officer, Ghumarwin on 29.9.2006, and by the Deputy Commissioner, Bilaspur on 17.8.2007 and 16.10.2007 whereby the petitioner was held to be disqualified from holding the post of Pradhan Gram Panchayat, Behna Jattan. 2. The undisputed facts are that elections to the Panchayati Raj Institutions were held in December, 2004. The petitioner successfully contested the elections to the post of Pradhan, Gram Panchayat, Behna Jattan. An 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. ....2.... Election Petition was filed by respondent No.3 challenging the election of the petitioner on the ground that the petitioner was disqualified under Section 122 (1) (c) of the HP Panchayati Raj Act (hereinafter to referred as the Act) from contesting the said elections since her husband was an encroacher on Government land. The authorised officer that is the Sub Divisional Officer (Civil) decided the election petition in favour of the respondent. He came to the conclusion that the husband of the petitioner had encroached upon Government land and in fact an order of eviction had been passed against the husband of the petitioner under Section 163 of the Land Revenue Act directing that he be evicted from 0-2 biswas of Government land comprised in Khasra No.1084/1017/1 by the Assistant Collector 1st Grade on 2.12.1997. It was also found that there is no material on record to show that after this eviction order was passed, the husband of the petitioner had vacated the said land. In fact, it was held that there is material on record to show that the husband of the petitioner filed an application seeking regularization of the encroachment. 3. An appeal was filed by the present petitioner in which the main ground taken was that she had not been given proper opportunity to lead evidence and that her ....3.... husband was not an encroacher. This appeal was rejected and consequently order Annexure P-5 was passed whereby she was directed by the Deputy Commissioner to hand over the charge of Pradhan to the Up-Pradhan. 4. As far as the finding whether the husband of the petitioner was encroacher is concerned, this finding is a finding of fact. In fact there are two material documents to support this finding. The first is the eviction order passed against the husband of the petitioner; and second is the application filed by the husband of the petitioner for regularization of the encroachment. No document has been placed on record to show that this land was vacated by the husband and handed over to the Government. Therefore, it is obvious that the husband of the petitioner is an encroacher. 5. In the present petition another ground has been raised that Section 122 (1) (c) of the Panchayati Raj Act should be quashed being wrong and against the principles of natural justice and a result of feudalistic approach. The relief prayed for in the writ petition is as under:- i) To quash section 122 (c) of the H.P. Panchayati Raj Act being wrong, and against the principle of natural justice and result of feudalistic approach.” ....4.... 6. At the very outset, I may state that the petitioner contested the election knowing fully well that this provision existed. This issue was not raised by her in the election petition or in the appeal and in my opinion she cannot be permitted to raise this question at this stage. 7. However, since this question has been raised and argued before me, I propose to answer the same. The main contention of Mr. Arun Kumar, learned counsel for the petitioner is that no person can be disqualified for the fault of another person and if one person of a family has encroached upon Government land, then other members cannot be disqualified. He further submits that such a disqualification has not been provided in any other law and a person debarred under this provision to fight an election to a Panchayati Raj Institution is still eligible to fight an election to the Legislative Assembly. His next contention is that the provisions of Section 122 (1) (c) show a feudalistic approach whereby a family member is made to suffer for the wrongs of another. 8. It would be apposite to make reference to the relevant provisions of the H.P. Panchayati Raj Act, 1994. Section 122 of the Act sets out various disqualifications for contesting elections to the Panchayati Raj Institutions. Section 122(1)( c) of the said Act reads as under:- ....5... “122. Disqualifications-(1) A person shall be disqualified for being chosen, as and for being, an office bearer, of a Panchayat- a)xxx xxx xxx xxx xxx xxx xxx xxx (b) xxx xxx xxx xxx xxx xxx xxx xxx (bb) xxx xxx xxx xxx xxx xxx xxx xxx (c ) if or any of his family member(s) has encroached upon any land belonging to or taken on lease or requisitioned by or on behalf of, the State Government, a Municipality, a Panchayat or a Co-operative Society unless a period of six years has elapsed since the date on which he or any of his family member, as the case may be, is ejected there from or ceases to be the encroacher; or xxx xxx xxx xxx xxx” 9. The State of Himachal Pradesh also framed Rules for regularization of encroachments which were known as the Himachal Pradesh Regularization of Encroachments (in Certain Cases) on Government Land and Disposal of Government Land Rules, 2002 (hereinafter referred to as the Rules of 2002). 10. It would be pertinent to mention that after these Rules were notified a number of persons who had encroached upon Government land filed applications for regularization in terms of the aforesaid Rules. These Rules have however been stayed by this Court in CWP No.1028 of 2002. The State amended the Panchayati Raj Act and the disqualification aforesaid was introduced with the intention of debarring the encroachers of Government land from contesting elections to the Panchayati Raj institutions. ....6.... 11. What was the legislative intention behind making this amendment. It had come to the notice of the legislature and public notice can be taken of the fact that in the State of Himachal Pradesh there is rampant encroachment on Government land and even on forest land. Therefore, the persons who had encroached upon Government land were disqualified from contesting the elections. 12. Section 122 (1) (c) is a salutary provision. It provides that no person who has encroached upon Government land should be permitted to contest an election to the Panchayat. There can be no dispute with the proposition that persons who hold public or elected offices should be above board. Probity and transparency of public officials is necessary to maintain the purity of our democracy. Any effort by the State to ensure that persons who have grabbed public property or persons with criminal background are rendered ineligible to fight elections should be lauded and in such cases a more purposive interpretation should be given so that the purpose behind the amendment is achieved. 13. A Division Bench of this Court in Kartar Chand vs. State of H.P. and others, Latest HLJ 2009 (HP) 1187 held as follows:- ....7.... “10. This Court must keep in mind the fact that the disqualification provided for in Section 122(1)(c) is a salutary provision. By means of this provision, persons who have engaged in illegal activity of encroaching upon Government land are debarred from contesting the elections to Panchayati Raj Institutions.” 14. A Single Judge of this Court in Swarna Devi vs. State of H.P. and others, 2009(3) SLJ (HP) 1443 has dealt with the matter in detail and held as follows:- “13. The intention of sub section (c) of Section 122 of the Himachal Pradesh Panchayati Raj Act, 1994 is to deter the persons from encroaching upon the Government land. The same has to be construed strictly to safeguard the property of the State from unscrupulous persons. The provisions like sub section (c) of Section 122 of the Himachal Pradesh Panchayati Raj Act, 1994 will definitely deter the person from encroaching upon the Government land fully realizing that they will not be eligible to be elected in any of the Himachal Pradesh Panchayati Raj bodies if they or their relations encroach upon the Government land. The rigours of section 122(c) of the Act cannot be diluted or supplemented by subsequent notification like dated 4.12.2005.” 15. I am in total agreement with what has been stated by the learned Single Judge. Section 122 of the Act lays down various disqualifications and encroachment is one of such disqualifications. A person who has been convicted of any offence involving moral turpitude cannot contest elections for a period of six years from the date of his conviction. A person who has been ordered to give security for good behaviour has been debarred from contesting the elections. A person who grabs public property which does not belong to him is an encroacher upon such land. ....8.... 16. There can be no dispute with regard to the contention that a person who has encroached upon Government land must be disqualified from holding public office. The question which is raised is whether a family member can be visited with such a qualification. There is nothing wrong in providing such a disqualification because the family member also derives benefit of the encroachment made by another member of their family. If they want to keep deriving such benefit then they are liable to be debarred otherwise they can compel their family member(s) to return the Government land which is public property to the Government and then they are free to contest the elections. A law of this nature must be interpreted in such a manner that the intention of the legislature is complied with in letter and spirit. The purpose behind this amendment is to ensure that people who have encroached upon Government land and their immediate family members who also derive the benefit of the encroached property are debarred from fighting elections. It would be pertinent to mention that if an encroacher hands over the possession of the encroached land to the Government, then after six years the encroacher as well as his family members can contest the election. This is not a case where the encroacher and his family members are totally debarred ....9.... from fighting the election. They are debarred so long as they possess the property encroached upon and six years thereafter. There is nothing which prevents the family members who are living with the encroacher and deriving benefit of the encroached land to compel the encroacher to hand over the possession of the land to the Government. 17. Mr. Arun Kumar learned counsel for the petitioner placed reliance on two judgments of the Apex Court. The first is the case of Patangrao Kadam Vs. Prithviraj Sayajirao Yadav Deshmukh and others, (2001) 3 Supreme Court Cases 594. Reference has been made to the observations in para 15 which read as follows:- “It is the general rule that the act of an agent does not bind his principal unless it is within the authority given to him. An agent is having an authority to do every lawful thing which is necessary to do an act authorised, but in law an agent can neither be authorised to do an unlawful thing/act nor an agent can be permitted to do so. This apart, under Section 40 a candidate at an election may appoint one person other than himself to be his election agent. As per Section 45 an election agent is to perform only such functions as are authroised by or under the RPA in connection with the election.” 18. There can be no dispute with the proposition of law that a principal cannot be held liable for the illegal acts of the agent, but the case of the petitioner is totally different. A spouse and a child stand on a totally different footing and if the spouse or the child are deriving the benefit of encroachment made by a spouse or a parent then they, in my opinion, can be debarred from contesting the election. .....10.... 19. The other judgment relied upon by Mr. Arun Kumar learned counsel for the petitioner in case Dhirendra Pandua Vs. State of Orissa and others, (2008) 17 Supreme Court Cases 311. In my view this judgment is not at all applicable because the question before the Apex Court was whether a person suffering from leprosy could be debarred from contesting an election. The Apex Court held that such a person is the victim of a disease and cannot be debarred from contesting the election. 20. In the present case I am not dealing with the victim, but with a person who has grabbed public property. Therefore when the members of his family are enjoying the benefit of the public property illegally grabbed by one of their family member(s), the legislature was right in laying down that such family members would also be debarred from contesting the elections to the Panchayati Raj Institution. In view of the above discussion, I find no merit in this writ petition which is accordingly dismissed. No costs. ( Deepak Gupta ) Judge. 9th December, 2010 (guleria)