IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 44 of 2007 Judgment reserved on :28.9.2010. Date of Decision: 28.10.2010 Pardeep Raik ..Petitioner. Versus. Pawan Kumar and another ..Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? . No For the Petitioner (s): Mr.Neeraj Gupta, Advocate. For the Respondent(s): Mr.Ajay Mohan Goel, counsel for Respondent No.1. Mr.Raman Sethi, counsel for R-2. Deepak Gupta, J. 1. This petition is directed against the order dated 22.1.2007 passed by the Deputy Commissioner, Shimla, in case No.24 of 2006 whereby he dismissed the appeal filed by the petitioner and upheld the order of the Authorized Officer-cum-Sub Divisional Officer (C), Theog dismissing the Election Petition filed by the petitioner. 2. Briefly stated, the facts of the case are that the petitioner and respondent No.1 herein both contested the election to the post of Pardhan, Gram Panchayat Pandli. Even when the respondent filed the nomination papers 2 the petitioner objected to the candidature of the respondent No.1 on the ground that the said respondent had encroached upon Government land and was therefore disqualified from contesting the election. 3. Section 122 of the H.P. Panchayati Raj Act, 1994 sets out various disqualifications for contesting elections to the Panchayati Raj Institutions. Section 122(1)( c) of the said Act reads as under:- “122. Disqualifications-(1) A person shall be disqualified for being chosen, as and for being, an office bearer, of a Panchayat- a) xxx xxx xxx xxx xxx xxx xxx xxx (b) xxx xxx xxx xxx xxx xxx xxx xxx (bb) xxx xxx xxx xxx xxx xxx xxx xxx (c ) if 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, a Municipality, a Panchayat or a Co-operative Society unless a period of six years has elapsed since the date on which he or any of his family member, as the case may be, is ejected there from or ceases to be the encroacher; or xxx xxx xxx xxx xxx” 4. The Returning Officer rejected the contention of the petitioner and finally elections were held and the respondent was elected. Thereafter, the petitioner filed an election petition in which the main ground of challenge was that the respondent No.1 had encroached 3 upon 4 bighas and 10 biswas of Government land comprised in khasra No.746/334/4, 746/334/4/1 situated in Chak Chaithla, Tehsil Kotkhai, District Shimla and was therefore disqualified from contesting the elections. Reliance on behalf of the petitioner has mainly been placed on the application filed by the respondent No.1 for regularization of the encroachment over the land in terms of Himachal Pradesh Regularization of Encroachments (in Certain Cases) on Government Land and Disposal of Government Land Rules, 2002 (hereinafter referred to as the Rules of 2002). 5. It would be pertinent to mention that after these Rules were notified a number of persons who had encroached upon Government land filed applications for regularization in terms of the aforesaid Rules. These Rules have however been stayed by this Court in CWP No.1028 of 2002. The State also amended the Panchayati Raj Act and the disqualification aforesaid was introduced with the intention of debarring the encroachers of Government land from contesting elections to the Panchayati Raj institutions. 6. From the facts which are proved on record it can not be disputed that the respondent No.1 did file an 4 application Ext.PW-1/A for regularization of the encroachment. In fact, respondent No.1 does not deny that he filed such an application. His submission however is that during the course of settlement proceedings he was informed by the revenue officials that some portion of government land had been found to be in his possession and therefore under this wrong impression he filed the said application. 7. It also stands proved on record that much before the elections were held in the month of November/December, 2005, an inquiry was conducted by the revenue officials of the Settlement Department and vide reports Exts.R-1, R-2 and R-3 it was found that it was not the respondent No.1 but his mother and brother who were actually in possession of the land in respect of which respondent No.1 had filed the application for regularization of encroachment. Both the authorities below have accepted the explanation of respondent No.1. 8. Sh.Neeraj Gupta, learned counsel appearing on behalf of the petitioner has relied upon various judgments. Specific reference has been made to the judgment of the Division Bench of this Court in Kartar Chand vs. State of 5 H.P. and others, Latest HLJ 2009 (HP) 1187 wherein this Court held as follows: “9……It is apparent that an application was filed on behalf of Kartar Chand son of Bishia Ram for regularization of the Government land. This form was submitted in August, 2002 much before the elections were held. There is no reason why a person other than Kartar Chand would have submitted such a form. No other person would gain by filing a form for regularization of encroachment. The courts below were absolutely justified in raising a presumption that the signatures on the application form were of Kartar Chand. 10. This Court must keep in mind the fact that the disqualification provided for in Section 122(1)(c ) is a salutary provision. By means of this provision, persons who have engaged in illegal activity of encroaching upon Government land are debarred from contesting the elections to Panchayati Raj Institutions.” 9. Reliance is also placed on two other unreported judgments of this Court in Shamsher Singh vs. Ram Dass and others, CWP No.334 of 2007 and Davinder Singh vs. State of H.P. and others, CWP No.895 of 2007. 10. It would be pertinent to mention that these decisions are not really applicable since all those cases were decided on their own facts and it was held that the findings of fact recorded by the authorities below could not be set-aside in proceedings under Article 227 of the Constitution of India. 6 11. Reliance has also been placed on a judgment of this Court in Swarna Devi vs. State of H.P. and others, 2009(3) S.L.J. (H.P.) 1443 in which a learned Single Judge has also taken a similar view. 12. The law is clear that an admission made by a party can be used against the said party and such admission is evidence which can be used against the party. The law is however equally well settled that the party can also explain the admission. A party either can deny that it ever made the admission but if it takes such a stand then if the admission is proved to have been made the party, it cannot be permitted to give an explanation with regard to the admission. However, if the party admits that admission was made by it under some mis-apprehension of fact or law then the party has a right to explain the admission. 13. In the present case, the respondent did not deny the fact that he had made the admission i.e. filed an application for regularization of encroachment of the land. However, his explanation is that this was made under mis-apprehension of fact since the revenue authorities informed him that the land had been found to be in his possession. The explanation of the respondent is 7 that it was not he but his mother and brother who are in possession of the land and that they are all living separately. 14. This is a matter where parties lead evidence and therefore in addition to the admission made by the respondent, the petitioner could have led other evidence to show that it was the respondent who was in possession of the encroached land. No such evidence was led and in fact the petitioner himself is not certain as to which land is in possession of the respondent and which land is in possession of his mother and brother. The petitioner solely relies upon the admission of the respondent. 15. Sh.Neeraj Gupta, has strenuously argued that in fact is the respondents who had encroached upon the Government land and had therefore filed an application for regularization of their encroachment. He also submits that it was only when the respondent decided to contest the election that a new case was set up that it was not he but his mother who had encroached upon Government land. 16. The record shows that much before the elections were held settlement proceedings were carried out and before the Revenue Authorities the mother of respondent 8 No.1 submitted that it was she who was in possession of the land. Even if it be presumed that respondent No.1 had taken a decision to fight the election and his mother stated these facts to help the respondent No.1 it was for the petitioner to prove such facts by leading evidence before the appropriate authority. No such evidence was led. 17. As pointed out above, in these proceedings the petitioner other than relying upon the admission of the respondent No.1 has not produced any evidence worth the name to show that the respondent No.1 has actually encroached upon the Government land. In these circumstances the finding of fact given by both the authorities below cannot be set-aside in proceedings under Section 227 of the Constitution of India. The petition is accordingly dismissed. No costs. October 28, 2010 ( Deepak Gupta ), J. PV