2025:UHC:1827-DB 1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL HON’BLE THE CHIEF JUSTICE SRI G. NARENDAR AND HON’BLE SRI JUSTICE ALOK MAHRA SPECIAL APPEAL NO. 21 OF 2025 18TH MARCH, 2025 Smt. Julfana …… Appellant Versus Abdul Haleem and others …… Respondents Counsel for the appellant : Mr. Piyush Garg and Mr. Jai Krishna Pandey, learned counsels Counsel for the respondents : Mr. Mohd. Safdar, learned counsel for respondent No. 1 : Mr. B.S. Parihar, learned Standing Counsel for the State / respondent No. 2 : Mr. Sanjay Bhatt, learned counsel for respondent Nos. 3, 4 and 5 The Court made the following: JUDGMENT: (per Hon’ble The Chief Justice Sri G. Narendar) Heard the learned counsel for the appellant Mr. Piyush Garg; the learned counsel for respondent No. 1 Mr. Mohd. Safdar; the learned Standing Counsel for the State 2025:UHC:1827-DB 2 / respondent No. 1 Mr. B.S. Parihar; and the learned counsel for respondent Nos. 3, 4 and 5 Mr. Sanjay Bhatt. 2) The short point that is canvassed by the learned counsel for the appellant clearly established the fact that the Presiding Officer of the Election Tribunal while dismissing the election petition has been pleased to issue a further direction directing that proceedings under Sub- Section (5) of Section 8 of the Uttarakhand Panchayati Raj Act be initiated; that the provisions of Section 131H do not vest such power; that the Presiding Officer of the Election Tribunal, who is the Sub Divisional Magistrate by name Ashish Kumar Mishra, thereafter proceeded to initiate proceedings invoking the provisions of Sub-Section (5) of Section 8 of the Uttarakhand Panchayati Raj Act, and proceeded to hold that the petitioner was having more than two living children on the cut-off date, i.e., 25.07.2019, and, hence, the petitioner was ineligible to hold office under Sub-Section (1) Clause (r) of Section 8 of the Uttarakhand Panchayati Raj Act. 3) Learned counsel for the appellant would submit that there is absolutely no material to demonstrate that the petitioner was having more than two living children after the cut-off date, and all the children were born prior to 2025:UHC:1827-DB 3 the cut-off date. That apart, the learned counsel would submit that the enquiry conducting authority has assumed the role of the “judge, jury and executioner”. The second respondent having heard the issues, and having dismissed the election petition, issued a direction that proceedings can be initiated under Section 8(1)(r) of the Uttarakhand Panchayati Raj Act. He would submit that the Sub Divisional Magistrate having assumed the role of a complainant could not have thereafter taken up the issue and decided the same by himself. That it is apparent that the Sub Divisional Magistrate, the Competent Authority under Section 8, was already biased and became the judge in his own cause. 4) It is also pointed out by my learned Brother that the Sub Divisional Magistrate has gone to the extent of appointing an Enquiry Officer to enquire into the number of children in the family, and having obtained a report, has proceeded to invoke the powers conferred on an Additional Sub Divisional Magistrate. 5) The facts narrated above would clearly demonstrate that the order is premeditated and, prima facie, as rightly contended by the learned counsel for the appellant, the Additional Sub Divisional Magistrate could not have been a judge in his own cause. Having assumed the role of a 2025:UHC:1827-DB 4 complainant and directing action under Section 8, in the proceedings u/s 131H of the Act, thereafter, the Additional Sub Divisional Magistrate ought to have recused himself, and ought not have acted in haste and thrown caution to the winds. The mandate of law is to fairness in procedure and act in an unbiased manner. 6. From the above set of facts, it is apparent that while hearing the election petition, the Additional Sub Divisional Magistrate had already formed an opinion that the appellant / petitioner was liable to be disqualified under Section 8(5)(r) and in that direction having issued a direction to initiate proceedings under Section 8 of the Uttarakhand Panchayati Raj Act, the Additional Sub Divisional Magistrate seriously erred in taking up the enquiry under Section 8 would, which renders him a judge in his own cause. It is he, who as Presiding Officer of the Election Tribunal, u/s 131H of Act, has directed that proceedings be initiated under Section 8 of the Uttarakhand Panchayati Raj Act. Having rendered a finding that the Appellant is liable to proceeded u/s 8 as an Election Tribunal u/s 131H, in all fairness he ought to have abstained from exercising his powers u/s 8 (5) of the Act. This by itself is demonstrative of the fact that the impugned order was premeditated or in other words, the 2025:UHC:1827-DB 5 issue was already pre-judged, in view of the finding rendered while dismissing the election petition. 6) In that view of the matter, the proceedings being contrary to the concept of fair play stands vitiated, and we deem it appropriate to stay the order disqualifying the petitioner dated 16.11.2024, and the consequential order dated 17.01.2025, passed in revision by the revisional court. Membership of the appellant / petitioner shall stand restored subject to the final orders in the writ petition. 7) Special appeal stands ordered accordingly. ________________ G. NARENDAR, C.J. ___________ ALOK MAHRA, J. Dt: 18TH MARCH, 2025 Negi