IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO NO. : 9/2010 Reserved on :26.7.2010 Decided on: 3.9. 2010. Jaind Ram. ...Petitioner. Versus Lekh Ram and others. ... Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Bimal Gupta, Advocate. For the Respondents : Mr. Neel Kamal Sharma, Advocate for respondent No.1. Justice Rajiv Sharma, Judge The present petition under Article 227 of the Constitution of India has been preferred by the petitioner against the order dated 20.11.2009 of learned A.C.S.-cum-Financial Commissioner (Revenue) to the Government of Himachal Pradesh in Appeal No. 1 of 2009 (1 of 2008). Material facts necessary for the adjudication of this petition based on the pleadings of the parties, are that respondent No.1 Lekh Ram filed election petition under section 163 of the Himachal Pradesh Panchayati Raj Act, 1994 before the Deputy Commissioner, Mandi to set aside the election of petitioner to the office of Member of Zila Parishad from Bhambla Ward No.28 declared on 24.12.2005. Respondent No.1 submitted in his election petition that petitioner was Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 disqualified to be elected on the date of his election for the office of Member, Zila Parishad, as per section 122 (1) (c) of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as ‘the Act’ for brevity sake) and Amended Act No. 17 of 2005. According to respondent No.1, Smt. Brikami Devi, wife of the petitioner, had encroached upon the Government land bearing Khasra No. 1,2,3,5,35,818 and 857 kita 7 measuring 0-25-5 hectares situated in Mauja Dhatoli/489, Sub Tehsil Baldwara, District Mandi. She had applied for the regularization of the land to the concerned Revenue Authority on 13.8.2002. According to respondent No.1, petitioner was disqualified to be elected as Member of the office of Zila Parishad. Respondent No.1 had also filed the petition on the ground that counting of votes for Bhambla Ward No.28 of Zila Parishad has not been done as per provisions of the Act and Rules framed thereunder. Learned Deputy Commissioner framed the issues and returned findings that the wife of the petitioner had encroached upon the Government land and he had concealed this material information while filing nomination paper to the office of Zila Parishad from Ward No. 28. He declared the petitioner disqualified to contest the election of the Member of Zila Parishad under section 122 (1) (c) of the Act and hence in these circumstances, the election of petitioner was set aside. Learned Deputy Commissioner has decided the issue against respondent No.1 as far as counting of votes etc. was concerned. Petitioner preferred an appeal before the ACS-cum-Financial Commissioner (Revenue) by way of appeal No. 1 of 2009. The same was rejected by the Appellate Authority on 20.11.2009. Hence, this petition. Mr. Bimal Gupta has strenuously argued that the findings recorded by both the authorities below are contrary to the principles of 3 law and the evidence led by the parties have not been correctly appreciated. Mr. Neel Kamal Sharma appearing on behalf of respondent No.1 has supported the orders passed by both the authorities below. I have heard the learned counsel for the parties and have perused the pleadings carefully. Respondent No.1 had cited three witnesses including himself. Sher Singh, Junior Assistant, has appeared as PW-1. He was working as Junior Assistant in the office of Naib Tehsildar, Sub Tehsil, Baldawara. He had brought the original encroachment file. PW-2 Vinod Kumar, Patwari, Gadidhar has deposed that he was working as Patwari in Patwar Circle Khudla from 2001 to May, 2006. He had received application for regularization from the office of Naib Tehsildar, Sarkaghat and he alongwith Girdawar Halqua went on spot. Petitioner and his wife Smt. Brikami Devi were present on the spot. The land in question was identified by Smt. Brikami Devi. It was in her possession and accordingly spot map/Missal was prepared. He has proved Ex.PW-1/A, i.e. copy of application of Smt. Brikami Devi. He has also proved copy of jamabandi Ex.PW-1/B, Tatima Ex.PW-1/C, Ex.PW-1/D, Ex.PW-1/E, Ex.PW-1/F, Ex.PW-1/G and report of Kanungo Ex.PW-1/H. The file was prepared on the spot and thereafter the same was sent to Naib Tehsildar after field report. He has admitted in his cross- examination that he had prepared Ex.R/1. He has also deposed that on spot Smt. Brikami Devi had encroached upon the land in question. Respondent No.1 has appeared as PW-3. He has deposed that the petitioner has not disclosed the fact that his wife had applied for regularization of Government land at the time of filing of his nomination for the office of Member, Zila Parishad from 28-Bhambla Ward before the Assistant Returning Officer. 4 Petitioner has appeared as RW-1. He has admitted that his wife had preferred an application for regularization of encroached Government land. However, he added that Settlement Officer had granted grass cutting rights during the settlement operation on the suit land. Smt. Brikami Devi has appeared as RW-4. She has admitted that she has filed application for regularization on which the Settlement Officer has granted grass cutting rights to her father-in-law and after his death, she used to cut the grass. She further deposed that she has filed an affidavit to withdraw the application. However, in her cross- examination, she has deposed that she cannot tell when she has submitted the said affidavit for withdrawal of application for regularization of encroachment. What emerges from the ocular as well as documentary evidence brought on record by the parties is that wife of petitioner has encroached upon the Government land and has applied for regularization of the same, as per Ex.PW-1/A, comprising khasra Nos. 1,2,3,5,35,818 and 857 measuring 0-25-5 hectares. Smt. Brikami Devi while appearing as RW-4 has admitted that she had applied for the regularization of the encroached Government land and she was coming in possession of the same for the last 25 years. Her statement was attested by Halqua Kanungo whose signature has been acknowledged by PW-2. As per Ex.PW-1/H, Kanungo has reported that Smt. Brikami Devi has unauthorized possession over the Government land. Ex.PW- 1/B is the copy of jamabandi of Muhal Chanoli/489. The ownership of Khasra Nos. 1,2,3,5,35,818 and 857 is of the State of Himachal Pradesh and in possession of Estate right holders according to Naksha Bartan. Ex.PW-1/C, Ex.PW-1/D, Ex.PW-1/E and Ex.PW-1/F are the copies of tatima of Chanoli Muhal. Ex.PW-1/G is the statement of Smt. Brikami Devi, wife of petitioner. Ex.PW-3/D is the copy of Pariwar 5 register in which the petitioner is head of the family and Smt. Brikami Devi is shown as his wife. Mr. Bimal Gupta has strenuously argued that the petitioner’s wife has submitted an application to withdraw the case for regularization. However, he could not substantiate this plea. He has not led any tangible evidence on record to suggest even remotely that in fact application/affidavit was filed for withdrawal of the case. This bald assertion was also made by Smt. Brikami Devi while appearing as RW- 4. However, she could not explain when she has submitted the said withdrawal application for the regularization of encroachment. Smt. Brikami Devi, wife of the petitioner, falls in the expression of “family members”. She had submitted an application under the Himachal Pradesh Regularization of Encroachments (in Certain Cases) on Government Land and Disposal of Government Land Rules, 2002. The application was processed. PW-2 Sh. Vinod Kumar, Patwari had received the application for regularization from the office of Naib Tehsildar, Sarkaghat. He visited the spot with Girdawar Halqua. Smt. Brikami Devi and petitioner were present on the spot. The land in question was identified by Smt. Brikami Devi. He has prepared the file on the spot and the same was sent to the office of Naib Tehsildar after field report. The encroachment of Government land has become rampant in the State of Himachal Pradesh. It is in these circumstances, the provisions like section 122 (1) (c) in the Himachal Panchayati Raj Act, 1994 have been made to deter the persons from encroaching upon the Government land. Both the authorities below have correctly appreciated the evidence brought on record and the findings recorded by them are not required to be interfered with. Moreover, the orders of both the authorities below are speaking/reasoned and detailed one. 6 Consequently, there is no merit in the petition and the same is dismissed. The petitioner shall cease to be the Member of Zila Parishad from Ward No.28 Bhambla forthwith. There shall, however, be no order as to costs. (Rajiv Sharma), Judge. 3.9. 2010. *awasthi*