IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1571 of 2009. Judgment reserved on 24.7.2009 Date of decision: 6.8.2009 Sh.Kartar Chand. …. Petitioner Versus State of H.P & Ors. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Surinder Singh, J. Whether approved for reporting ? Yes For the petitioner: Mr.Ashwani Sharma, Advocate. For the respondents: S/Shri R.M.Bisht and Mr.Vikas Rathore, Dy.Advocate Generals for respondents No.1 to 3. Mr.Adarsh Kumar Vashist, Advocate, for respondents No.4 and 6. _____________________________________________________ Deepak Gupta, J. This petition is directed against the order of the learned Deputy Commissioner, Kangra at Dharamshala dated 9.4.2007 whereby he has confirmed the order passed by the authorized officer, i.e., Sub Divisional Officer (Civil), Jaisinghpur setting aside the election of the petitioner for the post of Pradhan of Gram Panchayat, Ashapuri. 2 Briefly stated the facts of the case are that elections to the Panchayati Raj Institutions in Himachal Pradesh were held in the month of December, 2005. The petitioner was one of the candidates, contesting for the post of Pradhan, Gram Panchayat, Ashapuri. Respondents No.4 to 6 had also submitted their nomination forms for the said post. Respondent No.4 filed objections before the Assistant Registrar praying that the nomination form for the petitioner be rejected since he is disqualified to contest the elections as he has encroached upon Government land. These objections were rejected. Polling was conducted on 22.12.2005 and the petitioner was declared elected as Pradhan, Gram Panchayat, Ashapuri. Thereafter, respondents No.4 to 6 filed an election petition before the authorized officer under Section 175 of the H.P Panchayati Raj Act, 1994 (hereinafter referred to as the ‘Act’) challenging the election of the petitioner. The main ground of challenge was that the respondent has encroached upon the land belonged to the State Government bearing Khasra No.280 and 164/1 measuring 0-00-82 hectares located in Mahal Ropri, Tehsil Jaisinghpur, District Kangra. It was 3 further alleged that in the year 2002 the Government of Himachal Pradesh had framed a scheme for regularization of encroachments. The writ petitioner had applied for regularization of the encroachment by submitting a form duly signed by him. Alongwith this form, a declaration was duly filed by the petitioner that he has encroached upon Government land. In view of this application of the petitioner, it was submitted that he is an encroacher and was disqualified from contesting the election in view of the bar contained in Section 122(1)(c) of the Act which reads as follows:- “122. Disqualifications.-(1) A person shall be disqualified for being chosen, as and for being, an office bearer, of a Panchayat- (a) & (b) xxxxxx (c) 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, 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” 4 Reply was filed to the election petition and the writ petitioner denied that he had encroached upon Government land. He also denied that he had ever applied for regularization of the encroachment. According to him, he had not signed the form which has been alleged to have signed by him. After framing of issues, the main issue framed was whether the petitioner is an encroacher on Government land and thus qualified from being elected to the office of Pradhan of the Gram Panchayat. Evidence was led by the parties. In support of their case, respondents No.4 to 6 examined Om Parkash, Patwari as PW/1 who stated on oath that he had sold application form No.0104607 (Ext.P/3) to the petitioner for regularization. According to him, Khasra Nos.280 and 164/1 measuring 0-00-82 hectares are in possession of the present petitioner and he has constructed shops and cowsheds thereupon. He had also prepared the copies of the Jamabandi and Tatimas (Exts.P/5 to P/7) attached with the form. In the cross-examination Om Parkash admitted that the forms were not signed by the writ petitioner in his presence nor any case of encroachment was registered against the petitioner. 5 PW/2 Parkash Chand, Office Kanungo, Tehsil Jaisinghpur stated that the respondent had applied for regularization of encroachment of Government land and that this application was received by him from the writ petitioner. The respondent denied that he had encroached upon Government land and had purchased any form for regularization of encroachment. He also denied that he had signed or submitted any such form. The authorized officer on the basis of the evidence came to the conclusion that it is proved that the respondent has encroached upon Government land and, therefore, was disqualified from contesting the elections in view of the bar contained in Section 122 (1)(c) of the Act. The appeal filed by the petitioner before the Deputy Commissioner, Kangra has also been dismissed. Hence the present writ petition. The main ground raised by the learned counsel for the petitioner is that once the petitioner had denied his signatures on the application form, it was the duty of the respondents No.4 to 6 who were the election petitioners to have led evidence to prove that in fact the signatures were those of the petitioner. In the absence of such evidence, the learned Courts below have gravely erred in 6 coming to the conclusion that the form was signed by the petitioner himself. We have heard Sh.Ashwani Sharma, learned counsel for the petitioner and Sh.Adarsh Kumar Vashist, learned counsel for respondents No.4 and 6. We have also perused the entire record of the case. On perusal of the record, we find that an application bearing No.0104607, Ext.P/3 was filed for regularization of the land. This application is purported to be filed by one Sh.Kartar Chand, son of Bishia Ram, village Ropri, Tehsil Jaisinghpur, District Kangra. By means of this application, it has been prayed that the applicant is in illegal occupation of Khasra Nos.280 and 164/1 and has also prayed that the encroachment may be regularized in his favour. The moot question is whether this application was signed and submitted by Kartar Chand, the present petitioner. Sh.Ashwani Sharma strenuously contended that in view of the denial of the writ petitioner, the respondents No.4 to 6 should have got the signature on the said form compared with other signatures and led positive evidence to show that the signatures are of the petitioner. We are not impressed with this argument. At the outset we may state that the findings whether Kartar Chand is an encroacher 7 on the land is a pure finding of fact which cannot be interfered in writ proceedings. We have however gone through the evidence and find that PW/1 Om Parkash has clearly stated that it was Kartar Chand who submitted the form for regularization of the encroachment and pursuant to this application Om Parkash himself had, after going to the spot, prepared the Tatima of the encroached area. There is no reason why this person who is an official witness should make a false statement against the petitioner. He has admitted that Kartar Chand had not signed the application in his presence. He has however, clearly stated that the application form was supplied by him to the petitioner Kartar Chand. It is pertinent to mention that PW/1 has denied the suggestion put to him that the petitioner was not in possession of Government land and further stated that the writ petitioner had submitted the application form to him for regularization and, therefore, proceedings for eviction of the petitioner was not started. PW/2 had produced the original record of the application form and true copy of which is Ext.P/3. He in the reply has explained that since the regularization scheme was stayed by the High Court in a writ petition, no further 8 action was taken on the same. It is pertinent to mention that while cross-examining PW/1, no suggestion was put to him that Kartar Chand had not submitted the application form to him. The only suggestion put to him was that the application was not signed in his presence. 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. 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 In view of the above discussion, we find no merit in the petition which is accordingly rejected. Record of the State is returned. ( Deepak Gupta ) Judge August 6, 2009 (Surinder Singh) (m) Judge