2025:HHC:14759 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPs No. 3039 and 3040 of 2025 Decided on: 20.05.2025 CWP No. 3039 of 2025 Gurdev … Petitioner Versus State of Himachal Pradesh and others … Respondents CWP No. 3040 of 2025 Gurdev … Petitioner Versus State of Himachal Pradesh and others … Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes _____________________________________________________ For the petitioner(s) : M/s Lovneesh Thakur and Yash Pal, Advocates. For the respondent(s) : Mr. Pushpender Jaswal, Addl. AG. for respondent-State in all the petitions. Ajay Mohan Goel, Judge (Oral) Learned Counsel for the petitioner submits that the petitioner be independently allowed to assail the vires of Section 122 (1) (c) of the H.P. Panchayati Raj Act. The petitioner is given liberty to assail the vires of Section 122 (1) (c) of the H.P. Panchayati Raj Act, if so advised. Accordingly this particular relief is struck off as far as these petitions are concerned. 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:14759 2. By way of these petitions, the petitioner has primarily prayed for the following reliefs:- CWP No. 3039 of 2025 “i) That, impugned orders dated 21.2.2024 passed by respondent No.4 in Election Petitions Nos. 1 and 2 of 2021 (Annexure P-1) and order dated 23.12.2024 passed by respondent No. 3 in Appeal Case No. 04/2024 (Annexure P-6) may kindly be quashed and set aside. ii) That, the respondents may kindly be directed to allow the petitioner to continue working as Up Pradhan, Gram Panchayat Bassi, Tehsil Chachyot, District Mandi, Himachal Pradesh.” CWP No. 3040 of 2025 “i) That, impugned orders dated 21.2.2024 passed by respondent No.4 in Election Petitions Nos. 1 and 2 of 2021 (Annexure P-1) and order dated 23.12.2024 passed by respondent No. 3 in Appeal Case No. 04/2024 (Annexure P-6) may kindly be quashed and set aside. ii) That, the respondents may kindly be directed to allow the petitioner to continue working as Up Pradhan, Gram Panchayat Bassi, Tehsil Chachyot, District Mandi, Himachal Pradesh.” 3. As common issues of law and fact are involved in these petitions, they are being disposed of by way of a common order. 3 2025:HHC:14759 4. Brief facts necessary for the adjudication of these petitions are that the petitioner contested the election for the post of Up-Pradhan in Gram Panchayat Bassi, Tehsil Chachiot, District Mandi. The elections were held in the month of January, 2021. The petitioner was successful in the same. The election of the petitioner was assailed by way of two elections petitions by Sh. Bhim Singh, son of Sh. Durga Dass and Sh. Yashwant Singh, son of Shri Devi Dass. The election of the petitioner was assailed primarily on the ground that the petitioner was disqualified from contesting the election as his father was encroacher upon the government land. The election petitions were allowed in terms of order dated 21.02.2024 passed by the Authorised Officer. Learned Authorised Officer held that in terms of the provisions of Section 122 (1)(c) of the H.P. Panchayati Raj Act (Explanation) family members included grand-father, grand mother, father, mother, spouse, sons and unmarried daughters. In terms of Section 122(1)(c) per se a person shall be disqualified from being chosen as, and for being an office bearer, of a Panchayat if he or any of his family members 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 4 2025:HHC:14759 family member, as the case may be, is ejected therefrom or ceases to be the encroacher. The Authorised officer went on hold that the record demonstrated that the father of the elected candidate, namely, Sh. Dole Ram, had encroached upon the government land and he had also applied for regularization of the land comprised in Mohal Tikker, which stood encroached by him and in fact, in the application for regularization, father of the present petitioner had accepted in column No. 2(ग) of application No. 0461049 that he indeed was an encroacher upon the government land since the year 1990. Authorised Officer declared the election of the petitioner to be bad in law on the ground that the petitioner was disqualified from contesting the election and for being an office bearer of the Panchayat. 5. In appeal, these findings have been affirmed by the Appellate Authority. 6. Feeling aggrieved, the petitioner has filed these two writ petitions. 7. Learned Counsel for the petitioner argued that the orders passed by the Authorities were bad in law for the reason that the Authorities erred in not appreciating that the Khata of the petitioner is different from that of his father and for the acts of omission of his father, the petitioner cannot be made to suffer. 5 2025:HHC:14759 Learned Counsel also argued that right to contest election is a legal right and the same cannot be infringed by condition(s) as are there in the Statute. No other argument was advanced. 8. On the other hand, learned Additional Advocate General has submitted that there is no infirmity in the impugned order for the reason that as it stood proved on record that father of the petitioner had encroached upon the government land, who himself had admitted this fact while applying for regularization thereof, both the Authorities rightly held that the petitioner was disqualified from contesting the election and from holding the office of Gram Panchayat. 9. I have heard learned Counsel for the parties and gone through the pleadings as well as documents appended therewith including the impugned orders passed by the Authorities below. 10. In terms of the statutory provisions contained in Section 122 of the H.P. Panchayati Raj Act, a person shall be disqualified from being chosen as, and for being an office bearer, of a Panchayat if he or any of his family members 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. The disqualification continues unless a period of six years has elapsed since the date on which he or any of his family 6 2025:HHC:14759 members, as the case may be, is ejected therefrom or ceases to be the encroacher. The definition of family members includes the father. There are concurrent findings returned by the Authorised Officer as well as the Appellate Authority that the father of the petitioner had indeed encroached upon the government land. These findings have been substantiated by the Authorities on the basis of record and during the hearing of these petitions, it could not be proved that the findings so returned were perverse or contrary to the record. In fact, learned Counsel for the petitioner argued that the factum of the father of the petitioner being an encroacher should not come in the way of the petitioner in contesting the election for the reason that as the petitioner was living separately from his father, therefore, even if his father was an encroacher, the petitioner was not disqualified. A perusal of the statutory scheme demonstrates, as has also been held by the Authorities also that in Section 122 of the Panchayati Raj Act, there is no distinction made by the Legislature that only those persons shall be disqualified from being chosen as and for being an office bearer of a Panchayat, whose family members who have encroached upon government land are staying alongwith the contesting candidate. In other words, the Act does not creates any classification between encroacher family members, who are staying alongwith the contesting candidate and who are not staying 7 2025:HHC:14759 with the contesting candidate. The rationale behind this obviously is that if this kind of leverage is provided in the Statute then every person will take a plea that he or she is living separately from the family member who has encroached upon the government land 11. The contention of learned Counsel for the petitioner that the factum of the father of the petitioner being an encroacher upon the government land should not otherwise come in the way of the petitioner in contesting the election because contesting the election is a legal right, is also not sustainable in law because right to contest election comes with certain duties and certain riders also. If the contention of the petitioner is accepted that as right to contest election is a legal right therefore, there cannot be any embargo created in the way of an interested person in contesting the election, then all the disqualifications which are envisaged in different Acts, vis-à-vis a person from being chosen and for being an office bearer of a Panchayat shall become otiose. A citizen has a legal right to contest election provided the citizen is eligible to contest the election in terms of the eligibility criteria laid down in the statute concerned and further provided the person does not suffers from any of the disqualifications which are envisaged in the Statute. Therefore, right to contest election is not absolute but is subject to the edibility conditions, including disqualifications. 8 2025:HHC:14759 Accordingly in light of above discussion, as this Court does not finds any perversity in the orders passed by the Authorities in terms whereof, the election of the petitioner has been held to be bad in law, these petitions are dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly. (Ajay Mohan Goel) Judge May 20, 2025 (narender)