1827-DB H ON ’ BLE TH E CH I EF JUSTI CE SRI G v. Abdul Haleem and ot hers

: Mr. Piyush Garg and Mr. Jai Krishna Pandey, learned counsels Counsel for t he respondent s : Mr. Mohd. Safdar, learned counsel for respondent No. 1 : Mr. B.S. Parihar, learned St anding Counsel for t he St at e / respondent No. 2 : Mr. Sanj ay Bhat t , learned counsel for respondent Nos. 3, 4 and 5 Th e Co u r t m a d e t h e f o l l o w i n g : JUD GM EN T: ( p e r H o n ’ b l e Th e Ch i e f Ju st i ce Sr i G. N a r e n d a r ) Heard t he learned counsel for t he appellant Mr. Piyush Garg; t he learned counsel for respondent No. 1 Mr. Mohd. Safdar; t he learned St anding Counsel for t he St at e 1 / respondent No. 1 Mr. B.S. Parihar; and t he learned counsel for respondent Nos. 3, 4 and 5 Mr. Sanj ay Bhat t . 2) The short point t hat is canvassed by t he learned counsel for t he appellant clearly est ablished t he fact t hat t he Presiding Officer of t he Elect ion Tribunal while dism issing t he elect ion pet it ion has been pleased t o issue a furt her direct ion direct ing t hat proceedings under Sub- Sect ion ( 5) of Sect ion 8 of t he Ut t arakhand Panchayat i Raj Act be init iat ed; t hat t he provisions of Sect ion 131H do not vest such power; t hat t he Presiding Officer of t he Elect ion Tribunal, who is t he Sub Divisional Magist rat e by nam e Ashish Kum ar Mishra, t hereaft er proceeded t o init iat e proceedings invoking t he provisions of Sub- Sect ion ( 5) of Sect ion 8 of t he Ut t arakhand Panchayat i Raj Act , and proceeded t o hold t hat t he pet it ioner was having m ore t han t wo living children on t he cut - off dat e, i.e.,

25.07.2019, and, hence, t he pet it ioner was ineligible t o hold office under Sub- Sect ion ( 1) Clause ( r) of Sect ion 8 of t he Ut t arakhand Panchayat i Raj Act . 3) Learned counsel for t he appellant w ould subm it t hat t here is absolut ely no m at erial t o dem onst rat e t hat t he pet it ioner was having m ore t han t wo living children aft er t he cut - off dat e, and all t he children were born prior t o 2 t he cut - off dat e. That apart , t he learned counsel would subm it t hat t he enquiry conduct ing aut horit y has assum ed t he role of t he “ j udge, j ury and execut ioner” . The second respondent having heard t he issues, and having dism issed t he elect ion pet it ion, issued a direct ion t hat proceedings can be init iat ed under Sect ion 8( 1) ( r) of t he Ut t arakhand Panchayat i Raj Act . He would subm it t hat t he Sub Divisional Magist rat e having assum ed t he role of a com plainant could not have t hereaft er t aken up t he issue and decided t he sam e by him self. That it is apparent t hat t he Sub Divisional Magist rat e, t he Com pet ent Aut horit y under Sect ion 8, was already biased and becam e t he j udge in his own cause. 4) I t is also point ed out by m y learned Brot her t hat t he Sub Divisional Magist rat e has gone t o t he ext ent of appoint ing an Enquiry Officer t o enquire int o t he num ber of children in t he fam ily, and having obt ained a report , has proceeded t o invoke t he powers conferred on an Addit ional Sub Divisional Magist rat e. 5) The fact s narrat ed above would clearly dem onst rat e t hat t he order is prem edit at ed and, prim a facie, as right ly cont ended by t he learned counsel for t he appellant , t he Addit ional Sub Divisional Magist rat e could not have been a j udge in his ow n cause. Having assum ed t he role of a 3 com plainant and direct ing act ion under Sect ion 8, in t he proceedings u/ s 131H of t he Act , t hereaft er, t he Addit ional Sub Divisional Magist rat e ought t o have recused him self, and ought not have act ed in hast e and t hrown caut ion t o t he winds. The m andat e of law is t o fairness in procedure and act in an unbiased m anner.

6. From t he above set of fact s, it is apparent t hat while hearing t he elect ion pet it ion, t he Addit ional Sub Divisional Magist rat e had already form ed an opinion t hat t he appellant / pet it ioner was liable t o be disqualified under Sect ion 8( 5) ( r) and in t hat direct ion having issued a direct ion t o init iat e proceedings under Sect ion 8 of t he Ut t arakhand Panchayat i Raj Act , t he Addit ional Sub Divisional Magist rat e seriously erred in t aking up t he enquiry under Sect ion 8 would, which renders him a j udge in his own cause. I t is he, w ho as Presiding Officer of t he Elect ion Tribunal, u/ s 131H of Act , has direct ed t hat proceedings be init iat ed under Sect ion 8 of t he Ut t arakhand Panchayat i Raj Act . Having rendered a finding t hat t he Appellant is liable t o proceeded u/ s 8 as an Elect ion Tribunal u/ s 131H, in all fairness he ought t o have abst ained from exercising his powers u/ s 8 ( 5) of t he Act . This by it self is dem onst rat ive of t he fact t hat t he im pugned order was prem edit at ed or in ot her words, t he 4 issue was already pre- j udged, in view of t he finding rendered while dism issing t he elect ion pet it ion. 6) I n t hat view of t he m at t er, t he proceedings being cont rary t o t he concept of fair play st ands vit iat ed, and we deem it appropriat e t o st ay t he order disqualifying t he pet it ioner dat ed 16.11.2024, and t he consequent ial order dat ed 17.01.2025, passed revision by t he revisional court . Mem bership of t he appellant / pet it ioner shall st and rest ored subj ect t o t he final orders in t he writ pet it ion. 7) Special appeal st ands ordered accordingly. ________________ G. N A REN D A R, C.J. _ _ _ _ _ _ _ _ _ _ _ A LOK M A H RA , J. Dt : 18 TH MARCH, 2025 Negi 5