IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. No. 1410 of 2011. Reserved on: 23.09.2011. Decided on 29.09.2011. _____________________________________________________ Amrit Lal. …Petitioner. -Versus- State of H.P. and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioner. : Mr. G.R. Palsra, Advocate. For respondents No. 1 to 3. : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. For respondent No. 4. : Mr. S.C. Sharma, Advocate. For respondent No. 5. : Mr. Kamal Kumar, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Material facts necessary for the adjudication of this petition are that the petitioner was elected as Pradhan of the Gram Panchayat, Gohar on 20.12.2005. Respondent No. 4 has filed an Election Petition against the election of petitioner. The case was listed for recording the evidence of respondent No. 4 on 07.08.2010. Statement of PW-1 Shri Nain Singh, Patwari, Patwar Circle Gagal, Tehsil Sadar, Mandi, District Mandi was recorded. According to him, he was posted at Patwar Circle Gohar, Tehsil Chachiot at Gohar w.e.f. August 2000 to August 2002. In his cross-examination, he has deposed that the relevant record of regularization of encroachment file of the 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. - 2 - petitioner was not with him and that the same was with present incumbent, i.e., Patwari Halqua Gohar. In view of this, the Authorized Officer, S.D.O. (C ), Chachiot at Gohar directed the respondent No. 4 to file fresh list of PWs. and process fee to examine the present incumbent, who was holding the post of Patwari Halqua Gohar alongwith relevant record of regularization of encroachment case of the petitioner. It is evident from the reply filed on behalf of respondent No. 4 that the petitioner has encroached upon Government land, bearing Khasra No. 197/1, measuring 0-03-0 bighas out of Khasra No. 197, measuring 12-05-0 bighas, situated in Muhal Kandhi, Tehsil Chachyot, District Mandi, H.P.. Petitioner filed an appeal against the order dated 07.08.2010, whereby respondent No. 4 was directed to file the fresh list of witnesses alongwith process fee on or before 04.10.2010 before the learned Deputy Commissioner. Learned Deputy Commissioner dismissed the appeal on 23.02.2011. It is in these circumstances, the present petition has been filed. 2. Mr. G.R. Palsra, learned counsel for the petitioner has strenuously argued that the S.D.O. (C) has no jurisdiction to order respondent No. 4 to file the fresh list of witnesses alongwith process fee suo-motu. He then contended that the order passed by the appellate authority is also not in accordance with law. 3. Mr. Vikas Rathore, learned Deputy Advocate General and Mr. S.C. Sharma, learned counsel for respondent No. 4 have supported the orders dated 07.08.2010 and 23.02.2011. - 3 - 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner was elected as Pradhan of the Gram Panchayat, Gohar on 20.12.2005. The election of the petitioner was challenged by respondent No. 4, as provided under the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as “the Act” for brevity sake). According to Section 167 of the Act, the Authorized Officer has to decide the election petition as expeditiously as possible and ordinarily within a period of six months from the date of its presentation under Section 163 in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. 6. Section 169 deals with the powers of the authorized officer. It reads thus: “169. Power of the authorized officer:-The authorized officer shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters:- (a) discovery and inspections; (b) enforcing the attendance of witnesses and requiring the deposit of their expenses; (c) compelling the production of documents; (d) examining witnesses on oath; (e) granting adjournments; (f) reception of evidence taken on affidavit; and (g) issuing commissions for the examination of witnesses; and may summon and examine suo-motu any person whose evidence appears to him to be material - 4 - and shall be deemed to be a Court within the meaning of Section 345 and 346 of the Code of Criminal Procedure, 1973. Explanation:- For the purpose of enforcing the attendance of witnesses, the local limits of the jurisdiction of the authorized officer shall be the limits of the State of Himachal Pradesh. 7. It is evident from the plain language of Sections 167 and 169 of the Act that the authorized officer has to decide the election petition expeditiously and the procedure under the Code of Civil Procedure, 1908 is applicable. He can order discovery and inspections, enforce the attendance of witnesses and compel the production of documents, examine the witnesses on oath, grant adjournments, receipt evidence taken on affidavit. He can also issue commission for the examination of witnesses and may summon and examine suo-motu any person, whose evidence appears to him to be material. In the instant case, the evidence of the witnesses of respondent No. 4 was recorded on 07.08.2010. The statement of PW-1 Nain Singh was recorded, who was working as Patwari, Patwar Circle Gagal, Tehsil Sadar Mandi only w.e.f. August, 2000 to August, 2002. He is not the present incumbent. The relevant record of the regularization of encroachment case of the petitioner was with the present Patwari Halqua Gohar. It is in these circumstances that the authorized officer has ordered the respondent No. 4 to file the fresh list of witnesses alongwith P.F.. The endeavour of the authorized officer is to arrive at a just decision in accordance with law. Petitioner is in no manner prejudiced by the order - 5 - dated 07.08.2010. Respondent No. 4 has to examine the present incumbent as his witness and the liberty was always with the petitioner to cross-examine him. Petitioner has allegedly encroached upon the Government land comprised in Khasra No. 197/1, measuring 0-03-0 bighas out of Khasra No. 197, measuring 12-05-0 bighas, situated in Muhal Kandhi, Tehsil Chachyot, District Mandi, H.P.. The respondent No. 4 in order to prove that the petitioner has encroached upon the Government land and has also moved an application for regularization of the case, was required to prove the same by producing Patwari Halqua Gohar. In normal circumstances, the authorized officer has to decide the election petition within a period of six months. The Court is of the Considered view that authorized officer has exercised his jurisdiction in accordance with law by ordering the respondent No. 4 to file fresh list of witnesses alongwith process fee. There is neither any illegality nor perversity in the order passed by the authorized officer on 07.08.2010, which has been upheld by the appellate authority on 23.02.2011. 8. It is not a case of additional evidence. The authorized officer was within his powers to direct the respondent No. 4 to produce the list of witnesses alongwith process fee. It also appears from the record that this Court had directed the S.D.O.(C) to decide the petition within two months, as contained in order dated 23.02.2011. 9. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this petition and the same is dismissed with costs, quantified at `5,000/-. - 6 - The pending application(s), if any, also stands disposed of No costs. (Rajiv Sharma) Judge September 29, 2011. (bhupender) - 7 - `