MADHUBALA Vs. STATE OF H.P. AND ORS.

JUDGEMENT

(1.) The petitioner aspired to contest elections to the office of Pradhan, Gram Panchayat Dadhamb, Tehsil Shahpur, District Kangra. However, her aspiration to contest elections to the coveted office of Pradhan of the aforesaid Panchayat stood frustrated by Annexure P -6 whereunder the Returning Officer concerned rejected her nomination papers on the score of objector/complainant one Pravesh Kumar also an aspirant for seeking election to the office of Pradhan of the Panchayat aforesaid purveying to the Returning Officer concerned an information elicited under the Right to Information Act with a vivid portrayal therein of the husband of the petitioner assaying for regularization of encroachment at his instance upon Government land comprised in Khasra No. 1/1 measuring 0 -01 -40 hectare situated at Mohal Dhanotu, Tehsil Shahpur, District Kangra, concert whereof of the husband of the petitioner bespeaking of his hence acquiescing to his holding Government land as an encroacher rendered amenable for invocation against the petitioner his wife the statutory inhibition cast in Clause (c) of the proviso to Sub -section (1) of Sec. 122 of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as 'the Act') for hence de -eligiblizing her to contest elections to the office of Pradhan of the Gram Panchayat concerned. The learned counsel for the petitioner does not contest the factum of the husband of the petitioner thereto concerting to regularize encroachment at his instance of Government land comprised in Khasra No. 1/1 measuring 0 -01 -40 hectare situated at Mohal Dhanotu, Tehsil Shahpur, District Kangra, which factum of the husband of the petitioner endeavouring to regularize from the authorities concerned his encroachment upon government land though bespeaks of his acquiescence to his unlawfully holding government land nonetheless the short submission addressed by the learned counsel for the petitioner to efface the effect of the grounds constituted in Annexure P -6 on succor whereof the Returning Officer concerned rejected the nomination papers of the petitioner stands grooved on reliance upon the provisions engrafted in Sec. 122(1)(c) of the Act, which stands extracted herein -after: -

(2.) The initial submission of the learned counsel for the petitioner anvilled upon Annexure P -3 with a manifestation therein of its preparation occurring in the year 2002 hence more than six years since then up to the stage of hers filing nomination papers for contesting elections to the office of Pradhan of the Gram Panchayat concerned standing elapsed, it hence rendering her husband to fall within the domain of the exception constituted to the statutory inhibition cast in Clause (c) of the proviso of sub -section (1) of Sec. 122 of the Act, fails to garner any strength as the mere factum of its preparation occurring in 2002 would ipso facto not enable her to place reliance thereupon to save the rigor of the statutory inhibition cast in the apposite provisions of the Act against hers contesting elections to the office of Pradhan of the Gram Panchayat concerned on the ground articulated in Annexure P -6 rather only on its keen, incisive and wholesome reading would it be discernable of any portrayal standing embodied therein of the husband of the petitioner six years prior to the stage of hers filing nomination papers for contesting elections to the office of Pradhan of the Gram Panchayat concerned having surrendered or abandoned possession of the land of the Government held by him as an encroacher for hence lending succor to the argument espoused before this Court by the learned counsel for the petitioner. While incisively reading the portrayals in Annexure P -3 the imminent effect which stands evinced there -from is of the authority concerned therein not bespeaking of possession of Govt. land held by the husband of the petitioner as an encroacher standing either surrendered or abandoned by him rather it is merely communicative of the relevant tract of land held by the husband of the petitioner as an encroacher standing selected for construction of a gymnasium thereon. Necessarily the mere display therein of the tract of land held by the husband of the petitioner as an encroacher standing selected as the site for raising thereon a playground and a gymnasium is the least connotative of the husband of the petitioner either having surrendered its possession to the Government or abandoned it hence his ceasing to be an encroacher thereupon. The aforesaid inference as stands drawn by this Court on an incisive perusal of Annexure P -3 wanes the effect of the contention of the learned counsel for the petitioner of her husband in the year 2002 having surrendered or abandoned possession of Government land hence with more than six years standing elapsed since the preparation of Annexure P -3 in the year 2002 up to the petitioner filing nominations for contesting elections to the office of Pradhan of the Panchayat concerned the saving provision or the exception to the statutory inhibition cast in Clause (c) of proviso to sub -section (1) of Sec. 122 of the Act against the petitioner contesting elections stands squarely attracted qua her.

(3.) Herein -after it is also imperative to pronounce upon the efficacy of the contention of the learned counsel for the petitioner of the column of possession comprised in Annexure P -2 displaying the factum of the Government of Himachal Pradesh holding possession as owner of the tract of land held by the husband of the petitioner as an encroacher rendering her hence amenable to seek reprieve from the saving provisions of clause (c) of proviso to sub -section (1) of Sec. 122 of the Act as stands engrafted therein in relaxation of the rigour of the statutory inhibition preceedingly cast thereunder against the petitioner on the aforestated grounds standing debarred to contest elections to the office of Pradhan of the Gram Panchayat concerned. The said contention loses its force given the factum of Annexure P -2 disclosing its preparation occurring in the year 2015 in sequel with its preparation occurring in the year 2015 the effect, if any, of the aforesaid display therein cannot empower the learned counsel for the petitioner to contend qua six years standing elapsed since the husband of the petitioner purportedly surrendering possession of the tract of land reflected therein hitherto held as an encroacher by him up to the stage of the petitioner filing nomination papers in the very same year for contesting elections to the office of Pradhan of the Gram Panchayat concerned nor can empower her to contend of hence hers standing entitled to seek reprieve from the saving provisions in dilution of the vigor of clause (c) of proviso to sub -section (1) of Sec. 122 of the Act. Apart there -from, the display in the column of possession in Annexure P -2 prepared in the year 2015 of the Government of Himachal Pradesh holding possession of the tract of land purportedly hitherto held as an encroacher by the husband of the petitioner carries only a presumption of truth yet the said presumption is rebutable, rebuttal whereto stands begotten by a display in Annexure P -3 of the tract of land reflected therein to stand merely chosen for construction of a playground and a gymnasium thereon which reflection repels both the factum of the husband of the petitioner having ever surrendered or abandoned its possession besides rebuts the reflection in Annexure P -2 of the Government of Himachal Pradesh holding possession as owner of the tract of land held as an encroacher by the husband of the petitioner. Even otherwise, the best evidence to discount the efficacy of the communications in Annexure P -6 of the husband of the petitioner holding as an encroacher the tract of land owned by the Government stood comprised (i) in an apposite certificate obtained from the authority concerned; (ii) adduction of material by the petitioner in portrayal of the tract of land reflected in Annexure P -6 to stand chosen by the Government as the site for construction thereon of a gymnasium and a playground standing subjected to use by the authority concerned for the purpose for which it was selected. However, no certificates/material aforesaid stand adduced on record at the instance of the petitioner in substantiation of the portrayal in Annexure P -2 of the Government of Himachal Pradesh extantly holding possession of the tract of land purportedly previously held as an encroacher by the husband of the petitioner, sequelly for non -substantiation of the apposite reflection therein, an inference stands garnered of reflections in Annexure P -2 marshalling no efficacy rather standing rebutted by portrayals in Annexure P -3, dehors the factum that even if assumingly the reflections therein are truthful its standing prepared in the year 2015 hence rendering the surrendering or abandoning of possession, if any, by the husband of the petitioner of Government land to not fall out side the period of six years on lapse whereof only the rigor of clause (c) of proviso to sub -section (1) of Sec. 122 of the Act would stand un -attracted. Rather, it appears that the entry in Annexure P -2 is a mere stray entry recorded therein without the Patwari concerned having ever visited the site concerned whereupon no reliance is imputable. Undisputedly, the encroacher upon Government land is the husband of the petitioner, obviously when he falls within the definition of her family as constituted in Clause (c) of proviso to sub -section (1) of Sec. 122 of the Act, the factum of his being an encroacher upon Government land rears the bar constituted in Clause (c) of proviso to sub -section (1) of Sec. 122 of the Act to stand attracted against the petitioner, his wife for hers hence concomitantly standing debarred to contest elections to the office of Pradhan, Gram Panchayat Dadhamb, Tehsil Shahpur, District Kangra.