High Court of Punjab and Haryana, Chandigarh
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Mehanga Singh v. Election Tribunal-cum-Commissioner Munic - FAO-4563-2005  RD-P&H 760 (14 February 2006)
FAO No.4563 of 2005
Date of Decision: 15.02.2006
Election Tribunal-cum-Commissioner Municipal Corporation, Patiala and others
CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
Present: Ms.Jagdip Bains, Advocate for the petitioner Shri J.S.Bhandohal, Advocate for respondent No.4 JUDGMENT
This appeal has been filed against order dated 30.6.2005, vide which election of the appellant, to the post of Sarpanch, was set aside. It is apparent from the records that both the appellant and respondent No.4 were candidates in election to the post of Sarpanch and on 29.6.2003, appellant was declared elected by a margin of 123 votes. Respondent No.4 then filed election petition under Section 76 of the Punjab State Election Commission Act, 1994. After trial, election petition was allowed vide order, under challenge and election of the appellant was set aside on the ground that as F.A.O. No.4563 of 2005 2
per evidence on record, he was found in unauthorized possession of Gram Panchayat land. To say so, reliance was placed on a demarcation report conducted on 23.5.2003.
Before this Court, counsel for the appellant has stated that against the said demarcation report, application was moved before the Collector, Nabha, by stating that the demarcation made, was not correct as the same has been made ex-parte with mala fide intention. On that application, Collector, on 16.6.2003, directed the Tehsildar, Nabha to effect demarcation afresh, in presence of both the parties. Matter was then sent to the Kanungo of the area concerned. Copy of the application and order, referred to above, was placed on record as Ex.R2. On the basis of order passed by the Collector, referred to above, second demarcation report was prepared by the Kanungo on 17.6.2003, copy of which has been placed on record as Ex.R1. As per that report, the appellant was not found in possession of any land of the Gram Panchayat. By referring to above- mentioned facts, it has been prayed that order, under challenge, having been passed without application of mind and without looking into evidence on record, be set aside.
Prayer made has vehemently been opposed by counsel for the respondent. By referring to demarcation report dated 23.5.2003, he stated that the unauthorized occupation, by the appellant, over the Gram Panchayat land was proved on record, as such, order passed was perfectly justified.
After hearing counsel for the parties, this Court feels that the present appeal deserves to be allowed. It is not in dispute that the demarcation report dated 23.5.2003 was made without any notice to the appellant. By stating that fact, he moved an application to the Collector, who, vide order dated 16.6.2003, ordered fresh demarcation and as per F.A.O. No.4563 of 2005 3
report made by Kanungo after fresh demarcation Ex.R1, appellant was not found in possession of any portion of Gram Panchayat's land. Respondent has placed on record Jamabandi for the year 1999-2000 and khasra girdawaris for the years 1990-1993. In those documents, there is no mention of unauthorized occupation of Gram Panchayat's land by the appellant.
At the time of arguments, khasra girdawaris for the relevant years i.e. 2002-2004, were shown to this Court. In khasra No.644/1, Gram Panchayat is shown in possession and not the appellant. Under these circumstances, the Tribunal below was not justified to place reliance upon demarcation report dated 23.5.2003, which, virtually was negatived vide order dated 16.6.2003 of the Collector. Before this Court, counsel for the respondent has failed to show that the appellant was in unauthorized possession of any portion of Gram Panchayat's land.
In view of facts mentioned above, this appeal is allowed and the order, under challenge, is set aside and election petition filed by the respondent stands dismissed.
February 15, 2006 ( Jasbir Singh )
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