IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 800 of 2007 Date of Decision: 25.03.2010 __________________________________________________________ Sh. Jai Ram. ….Petitioner. Versus State of H.P. & Others. ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. The Hon’ble Mr. Justice Kuldip Singh, J. Whether approved for reporting?1 __________________________________________________________ For the Petitioner: Mr. G.R. Palsra, Advocate. For the Respondent No. 1: Mr. P.K. Sharma, Additional Advocate General alongwith Mrs. Shubh Mahajan, Deputy Advocate General. __________________________________________________________ Per Dev Darshan Sud, J. (Oral) The petitioner is aggrieved by the election of respondent No. 2, who has been elected as Councilor of Municipal Council Sundernagar. Two objections were taken by the petitioner in his petition challenging the election of the respondent No. 2. First was that there had been wrong reception of votes which have a material bearing on the result of the election, that is to say in case votes had been excluded the petitioner would have been declared as a successful candidate. It was pleaded that some voters had cast their votes in the panchyat elections and again in the Municipal elections. The second objection is that the respondent No. 2 is an encroacher of the Municipal/State land and therefore, he 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. 2 was disqualified from contesting elections or holding an elected office under the provisions of Section 16 (1) (c) of the H.P. Municipal Act, 1994, which provides:- “16 (1)……. (a) …… (b) …… (c) If he has encroached upon, or is a beneficiary of the encroachment upon, any land belonging to, or taken on lease or requisitioned by or on behalf of the State Government, a Municipality, a Panchyat or a Co-operative Society unless a period of six years has elapsed since the date on which he is ejected therefrom or he ceases to be the encroacher;” On the second aspect, the learned counsel lays stress on the report of the Patwari dated 11.3.2004 stating that the respondent No. 2 has been found to be an encroacher of Government land bearing Khasra No. 1295/1 measuring 32 square meter, on which construction has been made by him without any sanction of the Government. This aspect of the case is contested by the respondent. When the case was taken up by the Sub Divisional Officer as also the Director Urban Development, Himachal Pradesh, it was noticed that proceedings under Section 163 of the H.P. Land Revenue Act were pending against respondent No. 2 and that his election would be subject to the outcome of that case. We can not find any fault with these findings. If it is found during the course of these proceedings or as a sequel to that, that respondent No. 2 is an encroacher, his elections would naturally be declared void. On the other aspect of cross-voting, we find that both the Sub Divisional Officer and also the Director Urban Development, Himachal Pradesh have dealt with the matter in detail and there is no need to interfere with this findings of fact. A submission has been made by the learned counsel appearing on behalf of the petitioner that vide annexure P-G, the respondent No. 2 admits himself to be an encroacher. We do not find that this is a part of election 3 petition. In any event, reading of this document as a whole would show that the stand of the respondent No. 2 is that he is not an encroacher and he and his predecessor in interest are in possession of the land for more then 100 years with the permission of Raja of Suket. These were facts which require to be adjudicated under Section 163 of the H.P. Land Revenue Act where the statute requires adjudication of the status of the petitioner with respect to his possession of the land. We cannot go into that aspect of the case in writ proceedings. These proceedings under the Land Revenue Act have been initiated against the respondent before the revenue authorities. This Writ Petition is disposed of accordingly. No order as to costs. We make it clear that in case respondent No. 2 is found to be an encroacher, his election shall be set aside in accordance with law and he shall suffer all consequences ensuing there from. (Dev Darshan Sud), Judge March 25, 2010 (Kuldip Singh), (KRS) Judge