Rashida v. Mr. Pramod Bailwal, Advocate, for the

and the order passed by Tehsildar, as affirmed by Sub Divisional Magistrate, is unsustainable. Learned Counsel for the petitioner further contends that the complaint made by Nadeem Ali against the petitioner was not supported by affidavit, which is mandatory under Rule 3(2) of UP Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997. He further submits that petitioner was not heard by Nayab Tehsildar while returning the finding that she is disqualified for holding the office as Member, Gram Panchayat. He further submits improper acceptance of nomination papers is a valid ground for filing election petition, therefore invocation of power 4 under Section 138(1)(d)(iii) of Uttarakahnd Panchayati Raj Act, 2016 against the petitioner is unjust and improper and the only remedy is to file election petition.

7. Per contra, learned State Counsel submits that petitioner herself admits that nomination paper filed by her was supported by fake Transfer Certificate, allegedly issued by SMA Junior High School, Saharanpur and in her affidavit also, she wrongly stated that she passed 8th Standard from SMA Junior High School, therefore the paper submitted by the petitioner for nomination was liable to be rejected, however it was not rejected as the Returning Officer believed the information submitted by the petitioner, on oath, to be correct. He further submits that petitioner does not disown her signature on the nomination paper or in the affidavit, therefore her contention that Nadeem Ali (complainant) was instrumental in furnishing wrong information in the nomination paper cannot be accepted. He further submits that even if the contention raised by learned Counsel for the petitioner is taken on its face value, then also Nadeem Ali, who filled the nomination paper under authorization by the petitioner, acted as her agent and every act of an agent is binding upon the principal, therefore petitioner cannot escape the consequences of the acts of omission or commission of her agent. Learned State Counsel further submits that petitioner was elected as Member, Gram Panchayat based on educational certificate, which she admits is fake, therefore she 5 cannot be permitted now to rely upon some other educational certificate for challenging the finding returned by the Tehsildar. He further submits that petitioner was given opportunity to put forth her version during the course of enquiry held by Nayab Tehsildar, however she choose not to participate in the fact finding enquiry and the stand, which petitioner is now taking, was not taken before the Nayab Tehsildar.

8. Regarding reliance placed by petitioner on Rule 3(2) of UP Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997, learned State Counsel submits that the said Rules do not have any application in the present case, as here Prescribed Authority has taken a decision on the question of disqualification of the petitioner as per Section 8(5) of the Act, and petitioner was suffering from that disqualification even at the time of submission of nomination paper, therefore the decision taken by Prescribed Authority/Tehsildar cannot questioned on the ground that the complaint was not supported by affidavit. He relies upon Article 243-F of the Constitution of India, where it is provided that whenever question disqualification of a Member of Panchayat arises, such question shall be referred for decision to such authority and in such manner as the Legislature of a State may, by law, provide. It is contended that Uttarakhand Panchayati Raj Act provides that question of disqualification of a Member has to be decided by the Prescribed Authority/Tehsildar and 6 Section 8(5) of the Act is silent about affidavit in support complaint, therefore additional requirement of affidavit cannot be imported with the help of UP Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997. He further submits that the said Rules were framed by State of U.P. to give effect to provision contained in Section 95(1)(g) of U.P. Panchayat Raj Act, 1947, which provided for removal of Pradhan, Up-Pradhan and Member of a Gram Panchayat. He refers to proviso to Rule 95(1)(g), which provides for an enquiry held by such person and in such manner as may be prescribed, against a Pradhan or Up-Pradhan, who is prima facie found to have committed financial or other irregularities. Thus he submits that in the present case, the allegation against the petitioner is that she committed financial or other irregularity as Member, Gram Panchayat or misused her position as Member, but the allegation is that she was not educationally qualified for appointment as Member at the time of filing nomination paper. He submits that it is pre-election disqualification suffered by petitioner. He further submits that Full Bench of Hon’ble Allahabad High Court Court in the case of Vivekanand Yadav v. State of U.P. & Another, reported as 2010 SCC OnLine All 2702, held that a Pradhan has no right to object that complaint is not in accordance with Rule 3 of the Enquiry Rules. Answer to the questions formulated by Full Bench are given in para 108 of the said judgment, which is extracted below: “108. Our conclusions are as follows: 7 (a) The DM may ask the preliminary enquiry to be conducted by any officer defined under rule 2(c) of the Enquiry Rules on a complaint or a report under rule 3 or any other material or information. He has suo motu powers as well to order a preliminary enquiry; (b) A pradhan has no right to object that complaint or report is not in accordance with rule 3 of Enquiry Rules; (c) A pradhan is neither entitled to be associated in the preliminary enquiry nor is entitled to the copy of the preliminary report. However, before an order ceasing the financial and administrative power is passed, his explanation or point of view or the version to the charges should be obtained and considered; (d) In the first and third WPs, the impugned orders have been passed on the basis of preliminary report after obtaining and considering the explanation of the pradhan. The impugned orders these WPs cannot be faulted on this ground; (e) In our opinion the word ‘otherwise’ in rule 5 includes and the DM can rely upon the following reports only to cease financial and administrative power and direct the final enquiry; 8 . A report of a person who is also defined as an enquiry officer under rule 2(c)) of the Enquiry Rules irrespective of whether he was directed by the DM to conduct the preliminary inquiry or not; . A preliminary enquiry report conducted by the DM himself. (f) In the third writ petition, the report was submitted by the DPRO, who is defined as an enquiry officer under rule 2(c) of the Enquiry Rules. The impugned order cannot be faulted on the ground that the DPRO was not asked by the DM to conduct the preliminary enquiry; However, is open petitioners in the first and third WPs to raise other points before the appropriate bench.”

9. Learned State Counsel further submits that neither in her appeal filed before the Sub Divisional Magistrate nor in her reply to the show cause notice submitted before Chief Development Officer, petitioner raised the plea that the complaint is not supported by affidavit. He submits that petitioner cannot be permitted to raise a new plea in writ proceedings, which was not taken by her before the adjudicating authority. Learned State Counsel further submits that filing of affidavit would be relevant when the allegation against Pradhan, Up-Pradhan or Member is that he/she misused 9 official position after being elected or committed financial or other irregularities while discharging duties as Pradhan, Up-Pradhan or Member, to ensure that frivolous or motivated complaints are not made against elected public representatives. He submits that here the allegation was that petitioner is not educationally qualified and the educational certificate, relied by her in support of her claim regarding educational qualification, was found to be forged. Thus he submits that allegation of such nature cannot be brushed aside merely because the complaint is not supported by an affidavit, especially when requirement of filing affidavit in support of complaint is not mentioned Uttarakhand Panchayati Raj Act, 2016.

10. Learned State Counsel points out that power available to the State Government under Section 138(1) of the Act is delegated to the Chief Development Officer, therefore Chief Development Officer was well within his right to remove the petitioner from the O/o Member. He further submits that Section 8 of Uttarakhand Panchayati Raj Act, 2016 exhaustively deals with disqualification for membership of Gram Panchayat and it nowhere provides that the question of disqualification of a Member can be raised only by a written complaint, duly supported by affidavit, and question of disqualification can be referred suo moto, as and when it crops up, in view of the language used in Section 8(1) read with Section 8(5) of Uttarakhand Panchayati Raj Act, 2016. 10

11. This Court do not find any reason to interfere with the orders impugned in this writ petition. Part IX of the Constitution, inserted by Constitution (Seventy-third Amendment) Act, 1992, while provides in Article 243-O(b) that no election to any Panchayat shall be called in question except election petition, however Article 243F provides that a person shall be disqualified for being chosen as, and for being, a member of a Panchayat, if he is so disqualified by or under any law made by the Legislature of the State. Article 243F(2) further provides that the question whether Member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1) shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide. The provision contained in Section 8 of Uttarakhand Panchayati Raj Act, 2016 is thus referable to Article 243F of the Constitution of India. Even though remedy of election petition is also provided in the said Act, however the question of disqualification of a Member can still be gone into by the Prescribed Authority under Section 8 of the State Act. Thus invocation of power under Section 138(1)(d)(iii) read with Section 8 of Uttarakhand Panchayati Raj Act against the petitioner cannot be faulted. This view is fortified by a judgment rendered by this Court in WPMS No. 2307 of 2020. Relevant extract of the said judgment is reproduced below: “Learned petitioner then submits that petitioner’s election has been challenged by two persons, namely, Mr. Surjeet Singh and counsel 11 Ms. Simarjeet Kaur by filing two election petitions and one of the ground taken in the election petition is that she suffers from the disqualification, mentioned in Section 8(1)(s) of the Act. He further submits that the proceedings, which culminated in passing of the impugned order, were initiated on a complaint filed by one Mr. Gurudev Singh, who is related to the persons, who have filed election petition. He, therefore, submits that since election petitions also raise similar issue, the power under Section therefore, 138(1)(d) (iii) of the Act is impliedly barred and District Magistrate was not justified in passing the impugned order. the Act This Court is not impressed by the submission made by learned counsel for the petitioner. The power under Section 138(1)(d)(iii) of independent of the provision contained in Section 131(H)(1) dealing with election petitions. Merely because election petition can also be filed on account of some disqualification, mentioned under Section 8(1) of the Act, will not preclude the from exercising Competent Authority power under Section 138(1)(d) of the Act in appropriate cases.”

12. Learned Counsel the petitioner concedes that the Transfer Certificate enclosed by the petitioner with her nomination paper, in support of her claim that she has passed 8th Standard, was not correct, as petitioner had passed 8th Standard from some other school. However, the fact remains that the petitioner in her affidavit filed along with her nomination paper had stated that she had passed 8th Standard from SMA Junior High School, while as per the statement of Principal of the said school, petitioner never studied in the said school. Thus it was a clear case of misrepresentation 12 before the Returning Officer. Although petitioner contends that she has passed 8th Standard from some other school, however she did not make such statement before the Nayab Tehsildar, who held enquiry in respect of the educational qualification of the petitioner. Petitioner’s contention that she was not given opportunity of hearing during enquiry is not correct, as Tehsildar in his order has referred to the notice dated 13.11.2024, issued to her by Nayab Tehsildar, Jwalapur.

13. Learned State Counsel submitting that if petitioner permitted Nadeem Ali to fill the nomination papers, then Nadeem Ali acted as agent of the petitioner and principal is bound by the act of his/her agent. Petitioner does not disown her signature on the nomination paper and also the affidavit, therefore the defence offered by her that Nadeem Ali supplied incorrect information in the nomination paper and the affidavit cannot be accepted.

14. Reliance upon UP Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 is also misplaced. The said Rules were framed by State of Uttar Pradesh to give effect to Section 95(1)(g) of U.P. Panchayat Raj Act, 1947, which provides that Pradhan, Up- Pradhan or Member of a Gram Panchayat can be removed after enquiry held by such person and in such manner as may be prescribed. Section 8(5) of Uttarakhand Panchayati Raj Act, however provides that whenever a question arises as to whether a 13 person has become subject to any disqualification mentioned in the Act, then such question may be referred to the Prescribed Authority for decision. Thus Uttarakhand Panchayati Raj Act does not provide for a detailed enquiry, as provided in Section 95(1)(g) of UP Panchayat Raj Act, 1947, therefore the Rules framed to give effect to the provision contained in UP Act cannot be ipso facto made applicable to proceedings under Uttarakhand Act, when the nature of proceedings is different. Since Uttarakhand Act is silent as regards affidavit, therefore, requirement of affidavit cannot be read into Uttarakhand Act by having recourse to 1997 Rules, relied by the petitioner.

15. Moreover, the plea that the complaint is not supported by affidavit was not taken in her appeal or in her reply to the show cause notice, submitted before Chief Development Officer, therefore petitioner cannot be permitted to raise this plea for the first time before this Court.

16. For the reasons aforesaid, writ petition fails and is dismissed. (Manoj Kumar Tiwari, J.)

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