V.K. Ahuja, J.

1. The present writ petition has been filed by the petitioner under Articles 226/227 of the Constitution of India against the order, dated 10.3.2008, passed by the Deputy Commissioner, Kinnaur at Reckong Peo.

2. Briefly stated the facts of the case are that the election for the post of Up-Pradhan, Gram Panchayat, Punag was held in the month of December, 2005. Respondent No. 4 was one of the candidates for the said post and was declared elected to the said post. The petitioner challenged the election of respondent No. 4 on the ground that the husband of respondent No. 4 has encroached upon the government land comprised in Khasra No. 906/877/843/1, measuring 0-16-96 hectares situated in Up Mohal, Poonag, Tehsil Nichar, District Kinnaur, H.P. Thus, it was pleaded that she has earned disqualification under Section 122(1)(c) of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as the Act). The petition was contested by respondent No. 4 on various grounds.

3. The authorized officer i.e. SDO(C), vide order dated 27.9.2007, came to the conclusion that the husband of respondent No. 4 has encroached upon the government land and as such was disqualified and her election as a Up Pradhan of the Panchayat was declared void. An appeal was filed by respondent No. 4 before the Deputy Commissioner-cum-Appellate Authority/respondent No. 2, who allowed the appeal. In setting aside the findings of the SDO(C), the Deputy Commissioner relied upon a notification issued by the Election Commissioner, copy of which is at page 51 Annexure P-5. The said notification was relied upon by the Deputy Commissioner in reversing the findings of the SDO(C). The relevant portion of the said notification of the Election Commissioner reads as under:

Sl. Point Clarification

No.

1. Where a person has Such a person is

applied for disqualified. But the

regularization of objector has to prove

encroachment and his point by producing

submitted an affidavit certified copy of the

to this effect affidavit submitted by

the encroacher.

2. If encroacher is ready He shall remain

to vacate the encroached disqualified for six

land after getting years from the date on

demarcation which he vacated the

encroached land.

4. Against the said order passed by the Deputy Commissioner, the petitioner has filed the present writ petition.

5. I have heard the learned Counsel for the parties and have gone through the record of the case.

6. It is clear from a perusal of the order passed by the learned Deputy Commissioner that he has observed that the certified copy of the affidavit was not placed on record as is required as per the instructions issued by the Election Commissioner. There is no provision in the Act for placing on record the certified copy of the affidavit of the encroacher, as has been observed by the Deputy Commissioner. The instructions issued by the Election Commissioner shall not apply to the provisions for disqualification under Section 122 of the Act. There is no provision for filing of such an affidavit.

7. According to Section 122(c) of the Act, the only requirement is that 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.

8. During the course of arguments, the learned Counsel for the petitioner has relied upon the decision of a Division Bench of this Court in Kartar Chand v. State of H.P. and Ors. Latest 2009 HLJ 1187 (HP), wherein it was held that the fact that the petitioner is an encroacher on government land is a pure finding of fact, which cannot be interfered in writ proceedings. In that case also, the election for the post of Pradhan was challenged and the Pradhan was disqualified under Section 122 of the Act. The said decision applies to the present facts on all fours.

9. The SDO(C) has given a finding of fact that the husband of respondent No. 4 had applied for regularization of the encroached government land on the prescribed application and the SDO(C) took such application by the husband of respondent No. 4 as a conclusive proof to hold that the husband of respondent No. 4 has encroached upon the government land. These are findings of fact recorded by the learned SDO(C), which cannot be interfered with. There is nothing on the record to show that those findings of fact were incorrect or are not binding upon respondent No. 4. Reliance was placed by the Deputy Commissioner on the notification issued by the Election Commissioner, which does not apply since there is no provision in the Act that the copy of affidavit has to be placed on record by the party. The findings of fact have been recorded by the SDO(C) that the husband of respondent No. 4 had encroached upon the government land and on the basis of those findings of fact, he had come to a right conclusion that the election of respondent No. 4 to the post of Up Pradhan of Gram Panchayat, Punag was bad in the eye of law. The findings recorded by the Deputy Commissioner to the contrary cannot be said to be correct and as such are liable to be set aside.

10. In view of the above discussion, the writ petition is allowed, the findings recorded by the Deputy Commissioner are set aside and the findings of the learned SDO(C) are restored, whereby it was held that the election of respondent No. 4 to the post of Up Pradhan, Gram Panchayat, Punag was violative of the provisions of the Act.

11. The writ petition stands disposed of accordingly, so also the pending applications, if any.