IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.1186/2007 Reserved on:26.11.2008 Decided on:11.12. 2008 Swarna Devi. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. B.C. Negi, Advocate. For the Respondents : Mr. Rajinder Dogra, Additional Advocae General for respondents 1, 3 to 5. Mr. Kartik Kumar, Advocate vice Mr. B.N. Misra, Advocate for respondents No.2. Mr. Ajay Sharma, Advocate for respondents No.6 & 7. Rajiv Sharma, J. Brief facts necessary for the adjudication of this petition are that the elections for Panchayati Raj Institutions, Zila Parishad, Block Development Committee and Gram Panchayats in the State of Himachal Pradesh were held in the month of December, 2005. The date of filing the nomination papers was 1st, 2nd and 3rd December, 2005. The polling took 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 place between 18th to 22nd December, 2005. The nomination paper of the petitioner was rejected by the Returning Officer on the basis of the objection raised by the parties. Respondent No.6 was declared elected by the Returning Officer on 6.12.2005. The petitioner filed an election petition before the prescribed authority. The election petition was dismissed by the Deputy Commissioner on 29.1.2007. The petitioner filed an appeal before the Financial Commissioner (Revenue) to the Government of Himachal Pradesh. The appeal was dismissed by the Financial Commissioner (Revenue) to the Government of Himachal Pradesh on 2.7.2007. Mr. B.C. Negi, Advocate appearing on behalf of the petitioner has strenuously argued that the nomination paper of the petitioner has been wrongly rejected by the Returning Officer. He also contended that the husband of his client has never encroached upon the Government land and both the authorities below i.e. Deputy Commissioner and Financial Commissioner (Revenue) have not taken into consideration the instructions/clarifications issued by the Election Commission from time to time with regard to encroachment on Government land. He has primarily relied upon notification dated 4.12.2005 (Annexure P-5). According to him, the objector had not produced the certified copy of affidavit at the time of raising objections against the nomination paper of the petitioner. He lastly contended that the petitioner’s husband in his statement recorded before the Deputy Commissioner as PW-2 has categorically deposed that he has not moved any application for regularization and the nomination paper of his wife was wrongly rejected. Mr. Rajinder Dogra, Additional Advocate General, Mr. Kartik Kumar, Advocate vice Mr. B.N. Misra, Advocate and Mr. Ajay Sharma, Advocate have supported the orders dated 29.1.2007 and 2.7.2007 3 passed by the Deputy Commissioner Financial Commissioner (Revenue), respectively. I have heard the learned counsel for the parties and perused the record carefully. It will be apt at this stage to take note of section 122 of the Himachal Pradesh Panchayati Raj Act, 1994. Section 122 reads thus: “122. Disqualifications.-(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 Enforce 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) if he has been convicted of any offence involving moral turpitude, unless a period of six years has elapsed since his conviction; or (bb) if he has been found to have been guilty of any corrupt practices under section 180 of this Act; or (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 Explanation. - For the purpose of this clause the expression “family member” shall mean the spouse, their son(s), unmarried daughter(s) and adopted son and unmarried daughter. (d) if he has been convicted of an electoral offence under Chapter-X-A of this act or under any law for the time being in force; or 4 (e) if he has been ordered to give security for good behaviour under section 110 of the Code of Criminal Procedure, 1973; or (f) if he has been removed from public service or disqualified in public service. (g) if he is in the employment or service under any Panchayat or of any other local authority or Co- operative Society or the State Government or Central Government or any Public Sector undertaking under the control of the Central or the State Government: Provided that an office bearer shall not be disqualified for being an office bearer of the Panchayat if he is directly or indirectly engaged in any work being executed by another Panchayat of which he is not the office bearer; Explanation.- For the purposes of this clause the expression “service” or “employment” shall include persons appointed, engaged or employed on whole time, part time, casual, daily or contract basis. (h) if he is registered as a habitual offender under the Himachal Pradesh Offenders Act, 1969; or (i) if, save as hereinafter provided, he has directly or indirectly and share or interest in any work done by a order of a Panchayat, or in any contract or employment with, or under, or by, or on behalf of, the Panchayat; or (j) if he has not paid the arrears of any tax imposed by a Panchayat or had not paid the arrears of any kind due from him to the Sabha, Samiti or Zila Parishad Fund; or has retained any amount which forms part of, the Sabha, Samiti or Zila Parishad Fund; (k) if, he is a tenant or lessee holding a tenancy or lease under a Panchayat, is in arrears of rent of lease or tenancy held under the Panchayat; (l) if he has been convicted of an offence punishable under the Protection of Civil Rights Act, 1955, unless a period of six years has elapsed since his conviction; 5 (m) if he is so disqualified by or under any other law made by the State Legislature; and (n) if he has made any false declaration as required under this Act or the rules made thereunder: (o) deleted. (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 (ii) if such question arises after the election process is over, by the Deputy Commissioner.” The State Government has framed the Rules called “The Himachal Pradesh Regularization of Encroachments (in Certain Cases) on Government Land and Disposal of Government Land Rules, 2002. These rules have been notified on 2.7.2002. Rule 7 provides for submission of application for regularization. The application is to be filled in form-A with court fee stamp of Rs. 10/- with five photographs and the same is to be made to the Tehsildar or Naib-Tehsildar in Sub-Tehsil or Tehsildar in the Settlement concerned. The application is supposed to be accompanied by tatima shazra prepared by the Patwari on the spot showing the area applied for and details of encroachers existing holding whether an owner or a tenant in the same revenue estate. The procedure for receipt of the application is prescribed under rule 8. Rules 7 and 8 read thus: “Rule-7. Application for regularization.- Application in form “A”, with Court Fees Stamp of Rs. 10/- affixed thereon with five photocopies, shall be made to the Tehsildar or Naib Tehsildar in Sub-Tehsil or Tehsildar in the Settlement concerned, as the case may be. The original application bearing Court Fee Stamp of Rs. 10/- 6 shall be accompanied by Tatima Shazara to be prepared by the Patwari on the spot, showing the area applied for and details of encroacher’s existing holding whether as an owner or a tenant in the same revenue estate. The Tatima Shazra shall indicate the area, field number and the boundaries of the land applied for on all the sides alongwith the details of the land owners/interested parties of adjoining lands, proposed classification of land, assessment of Land Revenue. The Tatima Shazra alongwith application so prepared shall be checked by the Kanungo and verified by the Revenue Officer. The form shall be sold by the Patwari for Rs. 50/-/-, who shall keep Rs. 40/- with him as Mehantana, out of which he shall keep Rs. 25/- for himself, Rs. 10/- for Kanungo and Rs. 5/- for Chowkidar. The remaining Rs. 10 shall be deposited in the Government treasury under the relevant head of account within a week. Rule-8. Procedure.- (1) On receipt of the application for regularization, the application shall be entered in a Register to be maintained in the office of the Tehsildar or Naib-Tehsildar of Sub-Tehsil or Tehsildr of Settlement, as the case may be. The serial number of register shall be recorded on the original as well as on the other photocopies of the application form. (2) The original application shall be retained in the office of the Tehsildar or Naib Tehsildar of Sub Tehsil or Tehsildar of Settlement, as the case may be, and the remaining copies shall be forwarded one each to the concerned Sub-Divisional Officer or Assistant Settlement Officer, Gram Panchayat of the area and the Range Forest Officer or any other concerned interested Department simultaneously, for inviting their comments on the application. (3) On receipt of the application, the concerned Tehsildar or Naib-Tehsildar shall hold open court in general public Panchayat-wise after wide publicity in which all the Departments shall associate. He shall also report the size of the existing holdings of the applicant 7 as well as note down the objections, if any, of the residents of the estates. Details of tree growth, if any, shall also be given and felling of trees if needed be given with the prior approval of the Forest Department. He shall submit a detailed report to the concerned Sub- Divisional (Civil) or Assistant Settlement Officer, as the case may be, who on receipt of the report, shall see the correctness of the report. (4) Range Forest Officer or other concerned officer of the concerned department who may have any interest and the Gram Panchayat concerned shall make their recommendations within 15 days from the date of receipt of the application. If recommendations are not received within the stipulated period it shall be deemed to have been recommended. (5) One of the Photostat copies shall be returned to the applicant for his record as receipt.” It will be apt to reproduce form-‘A’ prescribed under rule 7, which reads thus: “FORM-A (See rule 7) Price: Rs.50/- Application for regulation of land (To be submitted to the Tehsildar or Naib Tehsildar of Sub-Tehsil or Tehsildar Settlement) 1. Name of the application ……………………….s/o …………………….resident of village ……………Tehsil ……………… District…………… 2. Particulars of the land applied for regularization (attach Tatima):- a. Khasra No(s)………….. Total area ……………Revenue Estate ………Tehsil……District……… b. Details of structures, if any…………. c. Date of encroachment ……………… 8 d. Details of excess land to be surrendered to the Government:- Khasra No(s)………….. Total area ……………Revenue Estate ………Tehsil……District……… 3. Whether the applicant is SC/ST/OBC/IRDP/ Disabled/Widow/ Economically poor/ Freedom fighter/Dependent of freedom fighter/Member of armed forces or paramilitary forces who have rendered meritorious service/War Widow/Dependent of members of Armed forces and Para Military, if so furnish proof (attach certificate). 4. Details of property of the applicant alongwith locations:- a. Details of House/Buildings………….situated at……….Tehsil………. District……… b. Agricultural land (including orchards, Tea Gardens, other Plantation): Total Area …….. situated in………… Tehsil …….. District ………….. 5. Market price:- a. Offered by the applicant …………….. b. Determined by the Revenue Officer ………… 6. Whether the applicant is unable to pay market price, if so, give reasons:- 7. Mode of payment:- (Mark please) a. Lump sum b. In installments. i. 50% at the time of grant ii. Remaining in two half yearly installments. Date…. Signature of Applicant. Place…. Postal Address….. VERIFICATION I…..s/o…. Aged …….. years, resident of village ……….. P.O. …………. Tehsil ….. District …… hereby solemnly affirm and declare that whatever has been 9 stated above is true to the best of my personal knowledge and belief and that nothing has been concealed or suppressed therefrom. I further declare that this property shall not be transferred by me or any of my successors/heirs and that I will voluntarily surrender the excess land to the Government before regularization in my favour. Verified at…. On this….. day of 2002. Date…. Signature of Applicant. Place….” The State Government has issued a clarification regarding the encroachment on 4.12.2005. The text of clarification reads thus: “Where encroachment has been admitted vide an affidavit to the effect that, either the person has encroached upon Government Land and applied for regularization or has vacated/is ready to vacate any encroachment. In both these cases encroachment is proved by self admission. In these cases the following action is to be taken: Sr. No. Point Clarification i. If a person has applied for regularization of encroachment and submitted an affidavit to this effect.” She/she is disqualified. But the objector has to prove this point by producing a certified copy of affidavit. It is in the backdrop of these legal provisions that the present petition is required to be adjudicated upon. The petitioner submitted nomination paper for 34-Gummer constituency of Zila Parishad Kangra. Respondent No.7 (Smt. Sarla Devi) moved an application to reject the nomination paper of the petitioner. Respondent No.7 also presented a certified copy of the application 10 preferred by Sh. Baldev Raj, husband of respondent No.6 alongwith others before the Tehsildar, Khundian with the certified copies of revenue papers seeking regularization of the land. The Returning Officer passed order on 6.12.2005 whereby he came to a definite conclusion that the husband of the petitioner has encroached upon the Government land and he has moved for regularization of Government land vide Missal No. 883 of 2002 before the Tehsildar Khundian, District Kangra, H.P. Consequently, the nomination paper of the petitioner was rejected. Respondent No.6 was declared elected. The petitioner has filed an election petition before the Deputy Commissioner. She has appeared as PW-1. She has deposed that neither she nor her husband has encroached upon the Government land nor has her husband filed an application for regularization of the Government land. PW-2 Baldev Raj has also denied that he has encroached upon the Government land. He has denied the factum of submission of application before the Tehsildar. PW-3 Ram Gopal, Senior Assistant in the office of the Sub Divisional Officer (Civil), Dehra has produced copy of application filed for regularization of the Government land. The same was marked as PW-3/A. Statement of respondent No.6, Smt. Roma Kaundal was recorded as RW-1. Statement of Smt. Baljeet Kaur was also recorded as RW-2. She has deposed that she knew Baldev Raj. She has also deposed that when Baldev Raj applied for regularization of the Government land, she was also asked to put her signatures. She has also admitted that Missal No. 0059397 which was submitted for regularization was signed by her alongwith Madal Lal, Baldev Raj and Suresh Kumar. She has, however, shown her ignorance whether the land mentioned was encroached or not. The statement of Smt. Sarla Devi was also recorded as RW-3. She has deposed that she has withdrawn the nomination papers and the 11 nomination papers of the petitioner were rejected. RW-4 is Manohar Lal Sharma, Sub Divisional Officer (Civil), Dehra. He has admitted that translation of verification in Hindi is Satyapan and that of affidavit is Shapathpatra. RW-5 is Paramvir Singh, who was posted at Patwar Circle, Shalihar, Tehsil Khundian upto July, 2005. He has deposed that he was Incharge of Patwar Circle Habrol-II when application No. 0059397 for regularization of encroachment Ex.PW-3/A was submitted before him by Baldev Raj and the same was signed by the applicant before him. RW-6 Bishan Dass is Patwari of Patwar Circle Habrol-II. He has confirmed from the record of applications for regularization of Government land that the name of Baldev Singh was also entered in the register at serial No. 7. It is clear from the language employed in section 122 (c) that a person shall be disqualified for being chosen, if he or any of his family member 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. In the present case the husband of the petitioner had submitted application Annexure P-7 for regularization of land. The application was submitted on 12.8.2002. RW-5 Paramvir Singh, who was posted at Patwar Circle, Shalihar, Tehsil Khundian upto July, 2005 has admitted that Baldev Raj, husband of the petitioner, had signed the application before him. The entry to this extent was also made in register at serial No.7 as per the statement of RW-6 Bishan Dass. It is clear from Form-A prescribed under rule 7 of the Himachal Pradesh Regularization of Encroachments (in Certain Cases) on Government Land and Disposal of Government Land Rules, 2002 that no separate affidavit is required to be filed. What has 12 been prescribed therein is only verification in the prescribed manner. The word used is verification and not affidavit. The certified copy of this application submitted by the husband of the petitioner was produced before the Returning Officer. The expression ‘affidavit’ is not at all mentioned in Form-A. The submission made by Mr. Negi that the objector had not produced the certified copy of affidavit merits rejection. In fact, what has to be seen on the basis of the language employed in section 122 of the Himachal Pradesh Panchayati Raj Act, 1994 is whether the candidate or his relation, including spouse has encroached upon the Government land or not. In the present case once the application has been filed by the husband of the petitioner for regularization of the Government land, it was tangible evidence to show that he has encroached upon the Government land. The words used in the notification Annexure P-5 dated 4.12.2005 to the effect that the candidate is required to produce a certified copy of affidavit is not properly worded. What is meant by the certified copy of the affidavit, in fact, is that the application prescribed under rule 7 of the Himachal Pradesh Regularization of Encroachments (in Certain Cases) on Government Land and Disposal of Government Land Rules, 2002 has to be produced before the competent authority. It has already been noticed that there is no requirement of separate affidavit being filed with the application. What is provided in Form-A is verification. This application has been produced by the objector, respondent No.7, before the Returning Officer and on the basis of the same, the nomination of the petitioner has been rejected. The factum of the application tendered by the husband of the petitioner has also been admitted by RW-5 Paramvir Singh and PW-6 Bishan Dass in their statements made before the Deputy Commissioner. PW-5 Paramvir Singh has categorically stated, as noticed above, that the husband of the 13 petitioner has put his signatures on the application before him and as per the statement of PW-6 Bishan Dass, the application was registered at serial No.7. Since there was no affidavit required to be annexed at the time of filing of application for regularization, the same could not be insisted upon as per Annexure P-5. It is settled law that law does not enforces impossibilities. If there is no affidavit required under law to be annexed with the application, the same could not be insisted upon. It is a fit case where the maxim lex non cogit ad impossibilia will be applicable. The self serving statement of PW-1 and PW-2 that they have not encroached upon the Government land in teeth of the tangible documentary evidence to the contrary cannot be accepted. The intention of sub section (c) of section 122 of the Himachal Pradesh Panchyati Raj Act, 1994 is to deter the persons from encroaching upon the Government land. The same has to be construed strictly to safeguard the property of the State from unscrupulous persons. The provisions like sub section (c) of section 122 of the Himachal Pradesh Panchyati Raj Act, 1994 will definitely deter the person from encroaching upon the Government land fully realizing that they will not be eligible to be elected in any of the Himachal Pradesh Pacnahayti Raj bodies if they or their relations encroach upon the Government land. The rigours of section 122 (c) of the Act cannot be diluted or supplemented by subsequent notification like dated 4.12.2005. Mr. Negi has also vehemently argued that the nomination paper of the petitioner could not be lightly rejected. The Court is of the opinion that since the petitioner’s husband has encroached upon the Government land and has moved application for regularization, her nomination has rightly been rejected. The Government property is to be protected from being encroached by the unscrupulous persons. The persons, who encroach 14 upon the Government land, cannot be permitted to blow hot and cold to state that they have not encroached upon the Government land when they are confronted with the situation like this. Mr. Negi has lastly contended that it is always open to the persons to resile from the admission made before the competent authority or Court of law. His precise submission is that his client has not moved any application before the competent authority for the regularization of the land. This submission has already been dealt with on the basis of the evidence, as noticed above. In order to strengthen his submission that the admission made can be explained and retracted, Mr. Negi has relied upon Nagubai Ammal and others versus B. Shamma Rao and others, 1956 SC 593. He has relied upon para 18 of the judgment, which reads thus: “An admission is not conclusive as to the truth of the matter stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel. In the present case, there is no question of estoppel, as the title of Dr. Nanjunda Rao arose under a purchase which was long prior to the admissions made in 1932 and in the subsequent years. It is argued for the appellants that these admissions at the least shifted the burden on to the plaintiff of proving that the proceedings were not collusive, and that as he gave no evidence worth the name that these statements were made under a mistake or for a purpose and were, in fact, not true, full effect must be given to them. Reliance was placed on the well-known observations of Baron Parke in Slatterie v. Pooley, 15 (1840) 6 M & W 664 (669) (C) that "what a party himself admits to be true may reasonably be presumed to be so", and on the decision in 34 Ind App 27 (B), where this statement of the law was adopted. No exception can be taken to this proposition. But before it can be invoked,