IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 577 of 2008. Decided on: 15.7.2010 Bias Baghti …. Petitioner Versus State of H.P. and others ...Respondents Coram: The Hon’ble Mr.Justice V.K.Ahuja, Judge For the petitioner: Mr.Ramakant Sharma, Advocate. For respondents No.1 to 3: Mr.J.S. Guleria, Assistant Advocate General. For respondent No.4: Mr.Anil God, Advocate. V.K. Ahuja, J.(Oral) The present writ petition has been filed by the petitioner under Articles 226/227 of the Constitution of India against the order, dated 10.3.2008, passed by the Deputy Commissioner, Kinnaur at Reckong Peo. 2. Briefly stated the facts of the case are that the elections for various posts of Gram Panchayat, Kamru, were held in the month of December, 2005. Respondent No.4 was one of the candidates for the post of Ward Member from Ward No.5 and was declared elected. The petitioner challenged his election on the ground that respondent No.4 alongwtih his brothers has encroached upon the government land comprised in Khasra No.834, measuring 0-2-85 hectares, situated in Up-mohal Kupa, Tehsil Sangla, District Kinnaur, H.P. ______________________________ Whether reporters of local papers may be allowed to see the judgment? Yes. 2 Thus, it was pleaded that he has earned disqualification under Section 122(1)(c) of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as the Act). The petition was contested by respondent No.4 on various grounds. 3. The authorized officer i.e. SDO(C), vide order dated 11.7.2007, came to the conclusion that respondent No.4 has encroached upon the government land and as such was disqualified and his election as a Ward Member from Kupa Ward of the Kamru Gram Panchayat was declared void. An appeal was filed by respondent No.4 before the Deputy Commissioner-cum- Appellate Authority/respondent No.2, who allowed the appeal. In setting aside the findings of the SDO(C), it was observed by the Deputy Commissioner that respondent No.1 had failed to prove on record that the appellant is the encroacher of the alleged government land on the spot. He also made a reference to the term encroacher as per the clarification given by the Secretary, State Election Commission to the State Government, wherein it has been clarified that a person against whom missal regarding encroachment has been prepared by the Patwari concerned and submitted to the higher authority, but no action has been taken by the higher authority, he shall not be deemed as an encroacher and shall not be disqualified under Section 122(1) of the Act. 3 4. Against the said order passed by the Deputy Commissioner, the petitioner has filed the present writ petition. 5. I have heard the learned counsel for the parties and have gone through the record of the case. 6. According to Section 122(c) of the Act, the only requirement is that if he 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. 7. During the course of arguments, the learned counsel for the petitioner has relied upon the decision of a Division Bench of this Court in Kartar Chand versus State of H.P. and others, Latest HLJ 2009(HP) 1187, wherein it was held that the fact that the petitioner is an encroacher on government land is a pure finding of fact, which cannot be interfered in writ proceedings. In that case also, the election for the post of Pradhan was challenged and the Pradhan was disqualified under Section 122 of the Act. The said decision applies to the present facts on all fours. There is no provision that the mere submission of a report or the fact that no action has been taken does not lead to the inference that respondent No.4 has not encroached upon the government land. 8. The SDO(C) has given a finding of fact based on the material before him that respondent No.4 4 has encroached upon the government land. These are findings of fact recorded by the learned SDO(C), which cannot be interfered with. There is nothing on the record to show that those findings of fact were incorrect or are not binding upon respondent No.4. Reliance was placed by the Deputy Commissioner on the notification issued by the Election Commissioner, which does not apply since there is no provision in the Act that the copy of affidavit has to be placed on record by the party. The findings of fact have been recorded by the SDO(C) that respondent No.4 had encroached upon the government land and on the basis of those findings of fact, he had come to a right conclusion that the election of respondent No.4 to the post of Ward Member from Kupa Ward of the Kamru Gram Panchayat was bad in the eye of law. The findings recorded by the Deputy Commissioner to the contrary cannot be said to be correct and as such are liable to be set aside. 9. In view of the above discussion, the writ petition is allowed, the findings recorded by the learned Deputy Commissioner are set aside and the findings of the learned SDO(C) are restored, whereby it was held that the election of respondent No.4 to the post of Ward Member from Kupa Ward of the Kamru Gram Panchayat was violative of the provisions of the Act. 5 10. The writ petition stands disposed of accordingly, so also the pending applications, if any. July 15, 2010 (V.K.Ahuja), (TILAK) Judge