IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.810 of 2008. Judgment reserved on: 2.12.2010. Date of Decision: 6.12.2010. Smt.Suresh Kumari …Petitioner Versus. State of H.P. and others …Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes For the Petitioner(s): Mr.Ajay Sharma, Advocate. For the Respondent(s): Mr.Vivek Thakur, Addl.A.G. for Respondents No.1, 2 and 4. Mr.R.K.Gautam, Sr.Advocate with Ms.Archana Dutt, counsel for R-3. Deepak Gupta, J.(oral) 1. The only question which arises in this petition is whether the learned authorities below were right in holding that in view of the law laid down by the Apex Court in State of H.P. and others vs. Surinder Singh Banolta, (2006) 12 SCC 484, the only remedy available to the petitioner was to file an election petition. 2. The facts which are not disputed are that Sh.Onkar Nath, respondent No.3, was elected as Pradhan of Gram Panchayat Thana Khas, Tehsil Baroh, District Kangra, H.P. The petitioner 2 herein filed a complaint against Sh.Onkar Nath alleging that he had encroached upon Government land bearing khasra No.133, khata No.73 min, khatauni No.148 measuring 0-04-34 hectares and therefore he be removed from the post of Pardhan. 3. On the complaint of the petitioner, the Deputy Commissioner, Kangra issued a show cause notice to the respondent on 18.5.2006 and also placed the petitioner under suspension. Thereafter, vide order dated 18.8.2006 the Deputy Commissioner held that the respondent was disqualified from holding the post of Pardhan in view of the provisions of Section 122 of the H.P. Panchayati Raj Act. 4. Aggrieved by the order passed by the Deputy Commissioner, respondent Onkar Nath filed an appeal. This appeal was allowed by the Director, Panchayati Raj solely on the ground that after a person has been elected his election can be set-aside only by following the procedure laid down for filing an election petition and when the disqualification relates to a period prior to the election the only recourse available to an aggrieved party is to file an election petition and the powers under Section 11 of the Act cannot be invoked to remove such an elected person. 5. Against this order, the petitioner filed a Revision Petition before the Secretary (Panchayati Raj), who dismissed the same 3 again relying upon the judgment of this Court in Banolta’s case. 6. Sh.Ajay Sharma, learned counsel for the petitioner submits that the Judgment in Banolta’s case is not applicable to the present case. According to him the Apex Court held that once a person has been declared to be an encroacher, only in those circumstances, election petition was to be filed but if a person is not declared to be an encroacher then a petition under Section 131 of the Act would be maintainable. 7. Section 122 of the Panchayati Raj Act in so far as it is relevant to this case reads as follows: "122(1) : A person shall be disqualified for being chosen as, and for being, an office bearer, of a Panchayat _ (a) if he is so disqualified by or under any law for the time being in force for the purposes of the election to the State Legislature: Provided that no person shall be disqualified on the ground that he is less than 25 years, if he has attained the age of 21 years; (b) * * * (c) if he 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 is ejected therefrom or he ceases to be the encroacher; or * * * (2) The question whether a person is or has become subject to any of the disqualifications under sub-section (1), shall after giving an opportunity to the person concerned of being heard, be decided _ (i) if such question arises during the process of an election, by an officer as may be authorized in this behalf by the State Government, in consultation with the State Election Commission; and 4 (ii) if such question arises after the election process is over, by the Deputy Commissioner." 8. Section 162 of the Act clearly lays down that no election under this Act can be challenged except by filing an election petition in accordance with the provisions of Chapter-11. Section 163 provides that any elector may file an election petition in the manner prescribed within 30 days of the publication of the result of the election. It would be pertinent to mention that Article 243-O of the Constitution of India clearly lays down that no election to any Panchayat shall be called in question except by means of an election petition to be filed in the manner prescribed by law. Article 243-O of the Constitution reads as follows: "243-O. Bar to interference by courts in electoral matters.-- Notwithstanding anything in this Constitution- (a) the validity of any law relating to the delimitation of constituencies or the allotment of seals to such constituencies made or purporting to be made under article 243K, shall not be called in question in any court; (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the legislature of a State." 9. The Constitution is the fountainhead of all laws and has to take precedence over other laws. The petitioner had filed the application for removal of Sh.Onkar Nath from the post of Pardhan under Section 131 of the Act which reads as follows: 131. Casual vacancies.- (1) If any person having been elected as an office bearer of a Panchayat- 5 (a) subsequently becomes subject to any of the disqualification mentioned in section 122 and such disqualifications is not removable or being removable is not removed; (b) absents himself from three consecutive meetings of the Panchayat or its Committee or does not attend half the number of meetings held during the period of six months without the leave of the Panchayat; he shall, subject to the provisions of sub-section (2), cease to be such office bearer and his office shall become vacant: Provided that where an application is made by an office bearer to the Panchayat for leave to absent himself under clause (b) and the Panchayat fails to inform the applicant of its decision on the application within a period of one month from the date of receipt of the application, the leave applied for, shall be deemed to have been granted by the Panchayat. (2) In every case the authority competent to decide whether a vacancy has occurred under sub-section (1) shall be the Deputy Commissioner in respect of Gram Panchayat and Panchayat Samiti and the Director in respect of Zila Parishad who may give his decision either on an application made to him by any person or on his own motion. Until the Deputy Commissioner or the Director, as the case may be, decides that the vacancy has occurred, the person shall not cease to be an office bearer: Provided that no order shall be passed under this sub-section against any office bearer without giving him a reasonable opportunity of being heard. (3) to (5) ……………………..” 10. A bare reading of Section 131 clearly shows that the same comes into operation only when the office bearer of a Panchayat, “subsequently becomes subject to any of the disqualifications mentioned in Section 122.” This clearly shows that this disqualification is attached to the office bearer after his election and not prior to the election. 6 11. A Division Bench of this Court in Surinder Singh Banolta vs. State of H.P., Latest HLJ 2003 (HP) 782, has held as follows: “13. It, therefore, clearly emerges from a combined reading of sub section (2) of section 122 and sub-section (1) and (2) of Section 131 that if any person having been elected as a Member of Zila Parishad subsequently “becomes subject to a disqualification.” Including a disqualification mentioned in clause (c) of sub section (1) of Section 122 the Deputy Commissioner may decide the issue and also decide that a vacancy has occurred and that the person chosen shall cease to be a member or office bearer, as the case may be proviso to sub section (2) of Section 131 clearly lays down that no order shall be passed against such a person without giving him a reasonable opportunity of being heard. 14.It would thus be clear that the scope of clause (ii) of sub section (2) of Section 122 is limited only to such fact situations where the allegation of encroachment upon the land of a municipality relates to a period of time after the election process was over, and not before the election process had started or during its pendency.” 12. Further it was held as follows: “17. It would thus be clear that the scope of clause (ii) of sub section (2) of Section 122 is limited only to such fact situations where the allegation of encroachment upon the land of a municipality relates to a period of time after the election process was over, and not before the election process had started or during its pendency. 18. Based on the aforesaid reasoning we have no hesitation in holding that the order dated June 27, 2002 as passed by respondent No.4 declaring the petitioner as disqualified and setting aside his election, was patently erroneous and invalid because this order was passed by him in purported exercise of the power under clause (ii) of sub section (2) of Section 122 of the Act, but as noticed above, such a remedy was not available because the question of the petitioner being an encroacher upon the land of the municipality had 7 not arisen after the election process was over because it was very much in existence, as per the allegation of respondent No.2 himself, much prior to the stage of the election process, and the only remedy therefore which was available to respondent No.2, was by way of filing an election petition under Section 163 of 1994 Act.” 13. It would be pertinent to mention that this Judgment of this Court has been upheld by the Apex Court in State of H.P. and others vs. Surinder Singh Banolta, (2006) 12 SCC 484. Reliance has been placed by Sh.Ajay Sharma on the language used by the Apex Court in para 17 of the judgment wherein the Apex Court held as follows: “17. Once, thus, a person is declared to be an encroacher prior to the date on which he has been declared as elector and if the said order has attained finality, the question as to whether he stood disqualified in terms of the provisions of Section 122 of the Act, in our opinion, must be raised by way of an election petition alone. If the submission of Mr. Attri is to be accepted, the same may result in an anomalous position.” 14. These observations of the Apex Court cannot be read out of the context. The Apex Court was dealing with a case wherein the elected candidate had already been declared to be an encroacher under the provisions of the H.P. Land Revenue Act. Section 122 which provides for the disqualification does not require that a person should have been declared to be an encroacher. All that is required to be established is that he has actually encroached upon Government land and therefore such 8 person is disqualified. The Apex Court dealing with Section 15 held as follows: “15. It is no doubt true that Section 122 contemplates both the situations, viz., where a person shall be disqualified for being chosen as also for being an office bearer of panchayat inter alia if he has encroached upon any land belonging to any authority mentioned therein. In view of the language of the said provision, we are of the view that whereas an issue falling under clause (1) of Sub-section (2) of Section 122 of the Act must be determined before the Authorised Officer, any order of encroachment passed after the election process is over would be determined by the Deputy Commissioner. 16. The provisions of the Act, as noticed hereinbefore, have been enacted pursuant to or in furtherance of the constitutional mandate contained in Part IX of the Constitution of India. The provisions of the Act, therefore, are required to be construed strictly in terms thereof. Clause (b) of Article 243O of the Constitution of India mandates that no election shall be set aside save and except by an order passed by the Authorised Officer. In our considered opinion, Section 122 of the Act must be read in the light thereof. Section 162 of the Act expressly provides for the exclusive jurisdiction of the Authorised Officer to determine the existence or otherwise of any ground enumerated in Section 175 of the Act.” 15. When we read what has been held in paras 15 and 16 by the Apex Court, it is obvious that the observations made in para 17 were restricted to the facts of that case only. It would also be pertinent to mention that after making observations in para 17 the Apex court in para 18 again held that any construction which would lead to a situation where two different proceedings may lie should be avoided. The Apex Court specifically upheld the judgment of this Court in which in no uncertain terms it had been held that the disqualification should have been earned after election. 9 16. In Sarjivan Singh vs. Director Panchayati Raj and another, 2005 (3) Shim. L.C. 284, this Court held as follows: “5. Sub-Section (1) of Section 131 clearly stipulates that a person “having been” elected as an office bearer of a Panchayat, if “subsequently” becomes subject to any of the disqualifications mentioned in Section 122, shall cease to be such an office bearer etc. etc. On the face of it, therefore, and without any doubt or ambiguity, sub-section (1) (a) of Section 131 clearly caters to a fact situation where the person after having been elected as an office bearer of a Panchayat becomes subject to any of the disqualifications mentioned in Section 122. The word “subsequently” used in clause (a) of sub- section (1) leaves no manner of any doubt in any one’s mind that a person who before or at the time of his election was subject to any disqualification is not covered by this provision because this provision applies to only such person who after his election as an office bearer becomes subject to any disqualification. The word “subsequently”, therefore, is very relevant to understand the true scope, ambit and applicability of Section 131 of the Act.” 17. I am in total agreement with the views expressed by the then Hon’ble the Chief Justice in Sarjivan Singh’s case. If the provisions of Sections 122, 131(1), 163 of the Act are read along with Article 243-O of the Constitution of India, the only logical conclusion is that Section 131 is attracted only if the disqualification is earned subsequent to the election as office bearer of the Panchayat. In all other cases election petition has to be filed and an election of an elected office bearer of a Panchayat cannot be set-aside by any other means except by filing an election petition. 10 18. In the present case, there is no dispute that the allegation was that Sh.Onkar Nath had encroached upon some land much prior to the elections being held on 22.12.2005. The complaint was made on 31.12.2005. The petitioner could have filed an election petition but decided not to file one. In view of the law referred to above the only remedy available to the petitioner was to file an election petition. As such the Director, Panchayati Raj was justified in allowing the appeal of the respondent Onkar Nath. In view of the above discussion, I find no merit in the petition which is accordingly rejected. No costs. December 6, 2010 ( Deepak Gupta ) PV Judge.