Holding

An election cannot be set aside except by an order of the Authorized Officer; the Deputy Commissioner’s order is invalid.

Summary

Surinder Singh Banolta was elected to the Zilla Parishad on 5 January 2001. Earlier, in 1998, he had been declared an encroacher under the Himachal Pradesh Public Premises (Rent Recovery and Land Eviction) Act, a disqualification ground under Section 122(c) of the Himachal Pradesh Panchayati Raj Act, 1994. A complaint was filed before the Deputy Commissioner, who on 4 June 2002 declared Banolta disqualified and set aside his election. The High Court held that only an "Authorized Officer" could set aside an election under Article 2430 of the Constitution and Section 162 of the Act, and that the proper remedy was an election petition under Section 163. The Supreme Court affirmed this view, ruling that the Deputy Commissioner’s order was ultra vires and that the election could not be set aside except by an Authorized Officer. Consequently, the appeal was dismissed and Banolta’s election stood.

Issues considered

Whether a Deputy Commissioner can set aside an election on the ground of disqualification under Section 122(c) of the Himachal Pradesh Panchayati Raj Act.
Whether the exclusive jurisdiction to determine disqualification and set aside an election lies with the Authorized Officer as mandated by Article 2430 and Section 162 of the Act.
Whether an election petition under Section 163 is the only appropriate remedy when a candidate is already disqualified before the election.

Legislation cited

Constitution of Indias. Article 2430, s. Article 243C, s. Article 243D, s. Article 243E, s. Article 243F

Subjects

Election lawDisqualificationPanchayati Raj ActAuthorized OfficerElection petitionStatutory interpretationArticle 2430Encroachment

Judgment

A STATE OF HIMACHAL PRADESH AND ORS.
v.
SURINDER SINGH BANOLTA

NOVEMBER 24, 2006

B [S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Election laws:

Himachal Pradesh Panchayati Raj Act, 1994-ss. 122, 163, 175-
C Disqualification of elected candidate on the ground that he was declared
encroacher-Election set aside by Deputy Commissioner-Held, election
cannot be set aside except by an order of Authorized officer-Constitution
of India. 1950-Article 2430.

Interpretation of statutes:
D
Literal interpretation giving rise to an anomaly or absurdity-Held,
Same be avoided.

Statute found to be obscure-Same be interpreted having regard to the
E constitutional scheme-In such situation, doctrine of purposive construction
be applied.

Statute to be read as a whole-Relevant provisions of the Constitution
as also those in the statute, thus, be read harmoniously.

On 5.01.2001, Respondent No. 1 was elected as a member of Zilla
F Parishad. An application was filed by Respondent No. 2 before the Deputy
Commissioner, alleging that as Respondent No. I was declared an encroacher,
hence was disqualified to hold the elected post. The Deputy Commissioner
took cognizance of the said complaint and by reason of an order dated
4.06.2002 declared Respondent No. 1 as disqualified and consequently his
G election was set aside. Respondent No. 1 successfully filed writ petition before
the High Court. Hence the present appeal.

Dismissing the appeal, the Court

H 574
STATEOFHIMACHALPRADESHv. SURINDERSINGHBANOLTA 575

HEi,D 1. Respondent No. 1 was declared to be an encroacher in the year A
1998. He was directed to be ejected from the land in question. The notification
for election of Zilla Parishad by the State Election Commission under the
Act was issued on 16.11.2000 Respondent No. 1 was declared elected on
5.01.2001. In terms of the provisions of Article 243 0 of Constitution oflndia
read with Section 163 of the Himachal Pradesh Panchayati Raj Act, 1994, an
election petition, therefore, was maintainable for setting aside his election. B
(580-CI
2. It is no doubt true that Section 122 contemplates both the situations,
viz., where a person shall be disqualified for being chosen, as also for being
an office bearer of Panchayat inter alia if he has encroached upon any land
belonging to any authority mentioned therein. In view of the language of the C
said provision, whereas an issue falling under clause (1) of Sub-section (2) of
Section 122 of the Act must be determined before the Authorized Officer,
any order of encroachment passed after the election process is over would be
determined by the Deputy Commissioner. (580-H; 581-A-B)

3. The provisions of the Act, have been enacted pursuant to or in D
furtherance of the constitutional mandate contained in part IX of the
Constitution of India. The provisions of the Act, therefore, are required to be
construed strictly in terms thereof. Clause (b) of Article 2430 of the
Constitution of India mandates that no election shall be set aside save and
except by an order passed by the Authorised Officer. Section 122 of the Act
must be read in the light thereof. Section 162 of the Act expressly provides E
for the exclusive jurisdiction of the Authorised Officer to determine the
existence or otherwise of any ground enumerated in Section 175 of the Act.
(581-C-D]
4. Once a person is declared to be an encroacher prior to the date on
which he has been declared as elector and ifthe said order has attained finality, F
the question as to whether he stood disqualified in terms of the provisions of
Section 122 of the Act, must be raised by way of an election petition alone.
(581-El
5. Ifa candidate or a voter had the knowledge that the elected candidate
was disqualified in terms of Section 122 of the Act, he may file an application. G
The order of eviction may come to the notice of some other person after the
election process is over. A situation, thus, may arise where two different
proceedings may lie before two different authorities at the instance of two
different persons. Two parallel proceedings, cannot be allowed to continue at
the same time. A construction of a statute which may lead to such a situation, H
576 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A therefore, must be avoided. It will also _lead to an abst!nlity if two different
Tribunals are allowed to come to contradictory decisions. (581-F-G]

6. It is a well-known principle of law that where literal interpretation
shall give rise to an anomaly or absurdity, the same should be avoided.
[581-H)
B
Ashok Lanka v. Rishi Dixit, (2005) 5 SCC 598 and MP. Gopalakrishnan
Nair v. State of Kera/a, (2005) l 1 SCC 45, relied on.

7. It is also a well-settled principle of law that in a case where a statute
is found to be obscure the same must be interpreted having regard to the
C constitutional scheme. In a case of this nature, the doctrine of purposive
construction should be applied. [582-A-B)

Bombay Dyeing~ Mfg. Co. Ltd. (3) v. Bombay Environmental Action
Group & Ors., (2006) 3 SCC 434; Nathi Devi v. Radha Devi Gupta, (2005) 2
SCC 271; La/it Mohan Pandey v. Pooran Singh & Ors., [2004) 6 SCC 626;
D Indian Handicrafts Emporium & Ors. v. Union of India & Ors., (2003) 7 SCC
589; Bairam Kumawat v. Union of India & Ors., [2003[ 7 SCC 628 and
Secretary, Department, of Excise & Commercial Taxes and Ors. v. Sun Bright
Marketing (P) Ltd., Chhattisgarh and Anr., (2004) 3 SCC 185, relied on.

8. It is well-settled that the entire statute must be read as a whole. The
E relevant provisions of the Constitution as also those in the statute must, thus,
be read harmoniously. [582-C]

9. The High Court was correct in its view. The matter might have been
different if Res.pondent No. I was declared to be an encroacher after the
F election process was over and, thus, becoming disqualified to continue to be
an office bearer of Panchayat or Zilla Parishad. [582-D)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5186 of2006.

From the Judgment and Order dated 10-6-2003 of the High Court of
G Hirnachal Pradesh at Shirnla in C.W.P. No.1010/2002.
WITH
Civil Appeal No. 5187 of2006.

J.S. Attri, A.AG. for the Appellants.

H Rajesh Srivastava for the Respondent.
STATE OF HIMACHAL PRADESH''· SURINDER SINGH BANOLTA [S.B. SINHA. J.] 577

The Judgment of the Court was delivered by A
S.B. SINHA, J. Leave granted.

Constitution oflndia is suprema lex. Part IX of the Constitution of India
was inserted by Constitution (Seventy-third Amendment) Act, 1992. Article
2438 mandates that there shall be constituted in every State, Panchayats at B
the village, intermediate and district levels in accordance with the provisions
of the said Part. Part IX speaks of composition of panchayats (Article 243C),
reservation of seats (Article 243D), and duration of panchayats (Article 243E).
It also provides for disqualifications for membership in terms of Article 243F
stating:
c
"243F. Disqualifications for membership.-{l) A person shall be
disqualified for being chosen as, and for being, a member of a
Panchayat-

(a) if he is so disqualified by or under any law for the time being in D
force for the purposes of elections to the Legislature of the State
concerned: Provided that no person shall be disqualified on the ground
that be is less than twenty-five years of age, if he has attained the
age of twenty-one years;

(b) if he is so disqualified by or under any law made by the Legislature E
of the State.

(2) If any question arises as to whether a member of a Panchayat has
become subject to any of the disqualifications mentioned in clause
( 1), the question shall be referred for the decision of such authority
and in such manner as the Legislature ofa State may, by law, provide." p
Article 2430 of the Constitution of India imposes a bar to interference
by courts in electoral matters stating:

"2430. Bar to interference by courts in electoral matters.-
Notwithstanding anything in this Constitution- G
(a) the vali~ity of any law relating to the delimitation of constituencies
or the allotment of seals to such constituencies made or purporting
to be made under article 243K, shall not be called in question in any
court;

(b) no election to any Panchayat shall be called in question except H
578 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A by an election petition presented to such authority and in such
manner as is provided for by or under any Law made by the legislature
of a State."

The State of Haryana pursuant to the constitutional mandate as noticed
hereinbefore enacted the Himachal Pradesh Panchayati Raj Act, 1994 (for
B short "the Act"). Chapter IX of the Act lays down general provisions relating
to incorporation, duration, territorial constituencies of panchayat and
qualifications, etc. of office-bearers. Section 122 of the Act provides for
disqualifications, the relevant provisions whereof read as under:

"122(1) : A person shall be disqualified for being chosen as, and for
c being, an office bearer, of a Panchayat -

(a) if he is so disqualified by or under any law for the time being in
force for the purposes of the election to the State Legislature:

Provided that no person shall be disqualified on the ground that he
D is less than 25 years, if he has attained the age of 21 years;

(b) * * *
( c) if he has encroached upon any land belonging to, or taken on lease ·
or requisitioned by or on behalf of, the State Government, a
E Municipality, a Panchayat or a Co-operative Society unless a period
of six years has elapsed since the date on which he is ejected therefrom
or he ceases to be the encroacher; or

* * *
F (2) The question whether a person is or has become subject to any_
of the disqualifications under sub-section {I), 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,
.G in consultation with the State Election Commission; and

(ii) if such question arises after the election process is over, by the
Deputy Commissioner."

Chapter IX deals with the officers and staff of panchayats. Clause (f)
H of Section 159 defines "election" to mean an election to fill an office under
STATE OF HIMACHAL PRADESH v. SURINDER SINGH BANOLTA [S.B. SINHA,J.] 579

the provisions of the Act. Section 162 of the Act, in tune with the provisions A
of Article 2430 of the Constitution of India provides that no election under
the Act will be called in question except by an election petition presented in
accordance with the provisions of Chapter XI.

Sections 163 of the Act reads as under:
B
"163(1) Any elector ofa Panchayat may, on furnishing, the prescribed
security in the prescribed manner, present within thirty days of the
publication of the result, on one or more of the grounds specified in
sub-section (l) of section 175, to the authorized officer an election
petition in writing against the election of any person under this Act.
c
(2) The election petition shall be deemed to have been presented to
the authorized officer -

(a) when it is delivered to him -

(i) by the person making the petition; or
D
(ii) by a person authorized in writing in this behalf by the person
making petition; or

(b) when it is sent by registered post and is delivered to the authorized"
officer or any other person empowered to receive it."
E
Section 174 of the Act provides for jurisdiction of the court to pass
order in the manner laid down therein after inquiring into the election petition
by the authorized officer.

Section 175 of the Act provides for the grounds upon which an election
petition can be dismissed or an election can be set aside. F
Respondent herein was elected as a member of Zilla Parishad. The result
of election was declared on 5.0l.2001. An application was filed by Respondent
No. 2 Dau lat Ram before the Deputy Commissioner, Shimla District alleging
that as he, having been declared an encroacher within the meaning of the
provisions of Sections 4 and 7 of the Himachal Pradesh Public Premises (Rent G
Recovery and Land Eviction) Act, 197 l was disqualified to hold the elected
post and, thus, should not be allowed to continue therein. The Deputy
Commissioner took cognizance of the said complaint and by reason of an
order dated 4.06.2002 declared Respondent No. l as disqualified for being
chosen as a member of the Zilla Parishad and consequently his election was H
580 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A set aside.
It is not in dispute that a proceeding under the Himachal Pradesh Land
Revenue Act was initiated against Respondent No. 1. He was held to be
unauthorized occupant of a land measuring 13 biswas in terms of the provisions
of the Himachal Pradesh Public Premises (Rent Recovery and Land Eviction)
B Act by the Collector, Sub-Division, Theog. The said order was confirmed by
the Financial Commissioner of the Shim la Division by an order dated 6.08.1998.
We will proceed on the basis that the said order has attained finality although
there appears to be some dispute in relation thereto.

C Respondent No. I was declared to be an encroacher in the year 1998.
He was directed to be ejected from the land in questiOf!_,_Jhe notification for
election of Zilla Parishad by the State Election Commission under the Act was
issued on 16.11.2000. As noticed hereinbefore, Respondent No. 1 was declared
elected on 5.01.200 I. In terms of the provisions of Article 2430 read with
Section 163 of the Act, an election petition, therefore, was maintainable for
D setting aside his election.

Disqualification as provided for under Article 243F has been laid down
in Section 122 of the Act. Section 175 of the Act provides for disqualification
as one of the grounds upon which an election petition could be filed.
Interpreting the aforementioned provisions, a Division Bench of the Himachal
E Pradesh High Court opined that the order dated 27.06.2002 passed by the
Deputy Commissioner is not sustainable in law.

Mr. J.S. Attri, learned AAG appearing on behalf of the appellants would
submit that although the provisions of Section Section 163 are ordinarily
required to be taken recourse to bu! having regard to the fact that in terms
F of Sub-section (2) of Section 122 of the Act, the question as regards declaring
a candidate as disqualified may arise not only before an election is held but
also after the election process is over; and thus, whereas in the former case,
it will be the Authorised Officer concerned who can determine the question
of disqualification but in a case where processes are initiated after the election,
G the Deputy Commissioner alone would be the prescribed authority.

Section 163 of the Act provides for filing of an election petition on one
or more grounds specified in Sub-section (I) of Section 175 thereof. Clause
(a) of Sub-section (I) of Section 175 of the Act inter alia lays down a ground
for setting aside of an election if on the date of the election the elected person
H was not qualified or disqualified to be elected under the Act.
. ..,..
ST ATE OF l-llMACHAL PRADESH 1·. SUR!NDER SINGH BANOLTA [S.B. SINHA, J ) 58 l

It is no doubt true that Section 122 contemplates both the situations, A
viz., where a person shall be disqualified for being chosen as also for being
an office bearer of panchayat inter alia if he has encroached upon any land
belonging to any authority mentioned therein. Jn view of the language of the
said provision. we are of the view that whereas an issue falling under clause
(I) of Sub-section (2) of Section 122 of the Act must be determined before
the Authorised Officer, any order of encroachment passed after the election B
process is over would be determined by the Deputy Commissioner.

The provisions of the Act, as noticed hereinbefore, have been enacted
pursuant to or in furtherance of the constitutional mandate contained in Part
IX of the Constitution of India. The provisions of the Act, therefore, are C
required to be construed strictly in terms thereof. Clause (b) of Article 2430
of the Constitution of India mandates that nc election shall be set aside save
and except by an order passed by the Authorised Officer. In our considered
opinion, Section 122 of the Act must be read in the light thereof. Section 162
of the Act expressly provides for the exclusive jurisdiction of the Authorised
Officer to determine the existence or otherwise of any ground enumerated in D
Section 175 of the Act.

Once, thus, a person is declared to be an encroacher prior to the date
on which he has been declared as elector and if the said order has attained.
finality, the question as to whether he stood disqualified in terms of the
provisions of Section 122 of the Act, in our opinion, must be raised by way E
of an election petition alone. If the submission of Mr. Attri is to be accepted,
the same may result in an anomalous position.

If a candidate or a voter had the knowledge that the elected candidate
was disqualified in terms of Section 122 of the Act, he may file an application. F
The order of eviction may come to the notice ofsome other person after the
election process is over. A situation, thus, may arise where two different
proceedings may lie before two different authorities at the instance of two
different persons. Two parallel proceedings, it is well settled, cannot be
allowed to continue at the same time. A construction of a statute which may
lead to such a situation, therefore, must be avoided. It will also lead to an G
absurdity if two different Tribunals are allowed to come to contradictory
decisions.

Furthermore, it is a well-known principle of law that where literal
interpretation shall give rise to an anomaly or absurdity, the same should be
H
582 SUPREME COURT REPORTS (2006] SUPP. 9 S.C.R.

A avoided. [See Ashok Lanka v. Rishi Dixit, [2005] 5 SCC 598 and MP.
Gopa/akrishnan Nair v. State of Kera/a, [2005] 11 SCC 45]

It is also a well-settled principle of law that in a case where a statute
is found to be obscure the same must be interpreted having regard to the
constitutional scheme. In a case of this nature, the doctrin.e of purposive r
B construction should be applied. [See Bombay Dyeing & Mfg. Co. Ltd.(3) v. ~
Bombay Environmental Action Group & Ors. [2006] 3 SCC 434, NathiDevi I
v. Radha Devi Gupta [2005] 2 SCC 271, La/it Mohan Pandey v. Pooran Singh
& Ors. [2004] 6 SCC 626, Indian Handicrafts Emporium & Ors. v. Union of
India & Ors. [2003] 7 SCC 589 and Bairam Kumawat v. Union ofIndia & Ors.
c r2003J 1 sec 6281

It is also well-settled that the entire statute must be read as a whole.
The relevant provisions of the Constitution as also those in the statute must,
thus, be read harmoniously. [See Bombay Dyeing (supra) and Secretary,
Department of Excise & Commercial Taxes and Ors. v. Sun Bright Marketing
D (P) Ltd., Chhatjisgarh and Anr., [2004] 3 SCC 185]. So read, we are of the
opinion that the Division Bench of the High Court was correct in its view. The
matter might haye been different if Respondent No. l was declared to be an
encroacher after the election process was over and, thus, becoming disqualified
to continue to be an office bearer ·of Panchayat or Zilla Parishad.

E For the, reasons aforementioned, no fault can be found in the impugned
judgment. It is, therefore, affirmed. The appeals are dismissed with costs.
Counsel's fee assessed at Rs. 10,000/-

D.G. Appeal dismissed.