JALFANA Vs. ABDUL HALEEM

JUDGEMENT

(1.) 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 / 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-Sec. (5) of Sec. 8 of the Uttarakhand Panchayati Raj Act be initiated; that the provisions of Sec. 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-Sec. (5) of Sec. 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., 25/7/2019, and, hence, the petitioner was ineligible to hold office under Sub-Sec. (1) Clause (r) of Sec. 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 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 Sec. 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 Sec. 8, was already biased and became the judge in his own cause.