STATE OF HIMACHAL PRADESH AND ORS. versus SURINDER SINGH BANOLTA

Citation: [2006] SUPP. 9 S.C.R. 574 · Decided: 24-11-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

A 
ST A TE OF HIMACHAL PRADESH AND ORS. 
v. 
SURINDER SINGH BANOL TA 
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. 
D 
Interpretation of statutes: 
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. 
F 
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 
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] 
B 
6. It is a well-known principle of law that where lite

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