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Uttarakhand High Court
SPA/196/2025 on 18 July, 2025
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
SPA No.196 of 2025
Hon'ble G. Narendar, C.J.
Hon’ble Alok Mahra, J.
Ms. Mamta Bisht, learned counsel for the
appellant.
2. Ms. Rajni Supyal, learned Brief Holder for the
State.
3. Mr. Sanjay Bhatt, learned counsel for the
respondent/Election Commission.
4. We have heard the learned counsel for the
appellant, and the learned Standing Counsel for the
State Election Commission.
5. This special appeal has been filed challenging
the order dated 11.07.2025 passed by the learned
Single Judge in WPMS No.2093 of 2025, by which the
writ petition filed by the appellant was dismissed.
6. Petitioner/appellant filed the writ petition
challenging the order dated 09.07.2025, whereby the
nomination paper filed by the petitioner for contesting
election for the post of Zila Panchayat Member, 12-
Bhandar Bora, District Champawat has been rejected
on the ground that petitioner has not mentioned facts
related to criminal cases in his nomination papers.
The writ petition was dismissed by learned Single
Judge vide order dated 11.07.2025, which is
impugned in this appeal.
7. The calendar of events of the subject election is
as under:
Election Nomination Dates for Date for Date of Voting dates Counting of
Cycle Details scrutiny of withdrawal election votes and
nomination of symbol declaration
papers Nomination allotment of results1 2 3 4 5 6 7
First 02.07.2025 07.07.2025 10.07.2025 14.07.2025 24.07.2025 31.07.2025
to to and (from 08:00 (04:00 AM (from 08:00
Cycle 05.07.2025 09.07.2025 11.07.2025 AM till end to 5:00 PM) AM to end
(08:00 AM to (from 08:00 (08:00 AM of work) of work)
04:00 PM) AM till end to 03:00
of work) PM)Second -then- -then- -then- 18.07.2025 28.07.2025 -then-
Cycle (from 08:00 (08:00 AM
AM till end to 05:00
of work) PM)
8. As there is ample time, we have taken up the
special appeal.
9. A complaint came to be lodged, stating that the
petitioner has not disclosed his criminal history, while
submitting his nomination paper. On the basis of the
complaint, notice was issued to the petitioner; that,
petitioner submitted his reply, wherein he has stated
that he has been acquitted in the Criminal Case
No.319 of 2018 and Criminal Case No.321 of 2018 by
the Court of Chief Judicial Magistrate, Champawat
vide order dated 03.05.2019 and 24.07.2023
respectively. In respect of Criminal Case no.37 of
2024 under Section 66-C of I.T. Act, neither has he
received any charge sheet nor is any charge framed.
However, the Returning Officer, without verifying the
facts as alleged in the complaint, cancelled the
nomination of the petitioner without taking into
consideration the submissions made by the petitioner
in his reply.
10. The learned counsel for the appellant has drawn
attention of this Court to Section 90 of the
Uttarakhand Panchayati Raj Act, 2016, which deals
with disqualifications for membership of Zila
Panchayat, which reads as under:-
“90. Disqualifications for membership of Zila Panchayat- (1) A person shall be
disqualified for being chosen as and for being a Chairman, Vice-chairman or member of a
Zila Panchayat, if he-
(a) is so disqualified by or under any law for the time being in force for the purposes of
election of the State Legislature :
Provided that no person shall be disqualified on the ground that he is less than twenty-
five years of age, if he has attained the age of twenty-one years;
(b) hold salaried service of the Gram Panchayat/ Kshettra panchayat/ Zila Panchayat;
(c) holds any office of profit under a State Government or the Central Government or a
local authority, or controlled by any State Government or Central Government or any
Board, bodies or corporation owned or controlled by any State Government or Central
Government in which Aaganbadi Assistant, Attendance, Secretary of Cooperative
Committee and salary paid employees and working employees on honorarium under the
State and Central sponsored schemes shall be include;
(d) has been dismissed from the service of a State Government, the Central Government
or a local authority for misconduct;
(e) is in arrears of any tax, fee rate or any other dues payable by him to the Zila
Panchayat1 {Gram Panchayat or Kshettra Panchcayt} for such period as may be prescribed
or has inspire of being required to do so by Zila Panchayat 1 {Gram Panchayat or Kshettra
Panchcayt} failed to deliver to it any record or property belonging to it which had come
into his possession by virtue of his holding any office under it ;
{(f) he is Chairman, Vice chairman, councilor, ward member or member of any Municipal
body;}
(g) is an undischarged insolvent;
(h) has been convicted of an offence involving moral turpitude;
(i) has been sentenced to imprisonment for a term of three months for contravention of
any order made under the Essential Commodities Act, 1955;
(j) has been sentenced to imprisonment for a term exceeding six months or to
transportation for contravention of any order made under the Essential Supplies
(Temporary Powers) Act, 1946;
(k) has been sentenced to imprisonment for a term exceeding three months under the
U.P. Excise Act, 1910 (as applicable to the State of Uttarakhand);
(l) has been convicted of an offence under the Narcotic Drugs and Psychotropic
Substances Act, 1985;
(m) has been convicted of an election offence ;
(n) has been convicted of an offence under the U.P. Removal of Social Disabilities Act,
1947 or the Protection of Civil Rights Act, 1955 (as applicable to the State of
Uttarakhand);
(o) has been removed unless such period, as has been provided in that behalf in the said
section or such lesser period as the State Government may have ordered in a particular
case has elapsed;
Provided that the disqualification under clause (e) shall cease upon payment of arrears or
delivery of the record or property, as the case may be :
Provided further that a disqualification under any of the clauses referred to in the first
proviso may, in the manner prescribed, be removed by the State Government.
(p) If in place of woman Chairman/ Vice chairman/ Member if her husband or other family
members or relative preside the meetings and discharged the duties of Zila Panchayat
and he is convicted than said woman and concerning person who is presiding meetings
and discharged the duties, both shall be disqualified for forthcoming general election of
Zila Panchayat.
{(q) He has not passed High School or equivalent examination from any recognized
institution/ Board: 2 {Provided that in the matter of General Category women, Other
Backward Classes women and Scheduled Caste/Scheduled Tribes candidate has not
passed minimum Middle/Eight examination;}
(r) He has more than two living children.
{(s) If he or his family member or his legal heir is in unauthorized possession of
Government/ Panchayati raj land or get benefit from such unauthorized possession.}
(t) He has embezzled Government money or recovery of government money is against
him or is owed of government money.
(u) He comes under the provisions of Section 8, Section 8A, Section 9, Section 9A and
Section 10 of the Representation of the People Act, 1951.
(2) Disqualification due to corruption- An authority competent to decide election disputes
under this Act or the rules made thereunder may declare any candidate found to have
committed any corrupt practice to be incapable, for any period not exceeding five years
from the date of declaration, of being chosen as or of being appointed or retained in any
office or place in the gift or disposal of a Zila Panchayat.
(3) Disqualification of no toilets- (a) If any person is convicted by the appropriate court
under the provisions of the Prohibition of Employment as Manual Scavengers and their
Rehabilitation Act, 2013 than he shall be disqualified to fight Panchayat election.
(b) If there is no toilet established in the house of those persons, residing in the
jurisdiction of concerned Panchayat, they shall be disqualified for the candidature of the
Panchayat election.
4 Cessation of Membership- if the entry related to any member is removed from the
territorial electoral roll or its territorial constituency is partly /completely included in any
municipal body, the member/ office bearer of Zila Panchayat shall remain on his office/
post till the cessation of tenure of the concerned Panchayat.}
(5) Decision on question as to disqualification- If any question arises as to whether a
person has become subject to any disqualification mentioned in any section of this Act,
the question shall be referred to the prescribed authority for the decision and his decision
shall, subject to the result of any appeal as may be prescribed, be final;
Provided that if the name of any person struck off from the electoral roll of Zila Panchayat
by reason of any such disqualification shall forthwith be reinstated in that roll, if such
disqualification is, during the period such electorol roll is in force, removed under any law
authorizing such removal.
(6) Prohibition of holding more than one seat simultaneously- Any person shall not be
candidate in the election from one or more territorial constituencies election areas in the
Zila Panchayat and nor he may hold one or more post in a Zila Panchayat.
{(7) Further bar on holding two office simultaneously- (1) A person shall be disqualified for
holding the office of Chairman, Vice-Chairman or member of the Zila Panchayat, if he is-
(a) Member of the Parliament or State Legislature; or (b) Pradhan,Up-pradhan or Member
of Gram Panchayat, or (c) The Chairman, Vice-Chairman or Member of any Kshettra
Panchayat, or (d) The Chairman or Vice-chairman or member of committee of
Managment, of any co-operative society; or} (e) The Nagar Pramukh, Up-nagar Pramukh,
member, Chairman, Vice-Chairman or member of Urban Local Bodies, or (f) The
Chairman, Vice-Chairman or member of cantonment board.
(2) A person, if shall cease to hold the office of Chairman, Vice Chairman, or member of
the Zila Panchayat, as the case of may be if subsequently he is elected to any of the
offices mentioned in clauses (a) to (f) of sub-section (1) with effect from the date of such
subsequent election and thereafter, may be the post of such Chairman, Vice-Chairman or
member, as the case may be, shall be deemed casual vacancy.}”
11. On the basis of aforesaid clause, learned
counsel for the appellant argued that the non-
disclosure of the fact that the petitioner has been
acquitted in the criminal cases in the year 2019 and
2023, would not entail disqualification, as non-
disclosure of past criminal history is not enumerated
under Section 90 of the Act. She would further
submit that non-disclosure of past criminal history is
not a material irregularity, which would affect the
outcome of the election. She has further submitted
that no charge sheet has been received by the
petitioner in the criminal case relating to I.T. Act, as
noted supra, therefore, non-disclosure of this case in
the affidavit would not entail disqualification, which is
enumerated under Section 90 of the Act.
12. The learned Standing Counsel for the
Commission would place reliance on the provisions of
Clause (b) of Article 243-O of the Constitution of
India. Clause (b) reads as under :
“(b) no election to any Panchayat shall be called in
question except by an election petition presented to such
authority and in such manner as is provided for by or
under any law made by the Legislature of a State.”
13. What is questioned in the present Writ Petition
is not the election of any candidate, but the per se
illegal rejection of the nomination of the petitioner, for
which there is no efficacious remedy. The relief
claimed is in furtherance of the elections and not in
detriment of the election. That apart, the law as laid
down by the Hon’ble Apex Court in Election
Commission of India (through Secretary) v.
Ashok Kumar and others; (2000) 8 SCC 216,
which stipulates the “dual test” principle, stipulating
the extent of interference by the Constitutional Courts
(Para 34,32 & 29, 20), is a clear answer to the above
objection. A plain reading of Clause (b) of Article
243-O of the Constitution of India makes it apparent
that the same is related to the questioning of a
Panchayat Election, in other words, where the relief
prayed, if granted would result in postponement,
putting off the elections or would derail the election.
The challenge being to the rejection of the nomination
of the petitioner, we are of the, prima facie, view that
the said bar does not appear to operate in a case of
instant nature.
14. It is further submitted by the learned counsel
for the Commission that there is a bar under the
provisions of Section 131H(1)(b) of the Uttarakhand
Panchayati Raj Act, 2016, which reads as under :
“131H. Application regarding election and their
revision – (1) ….
(a) ….
(b) that the result of the election has been
materially affected-
(i) by the acceptance or rejection of any
nomination in improper manner; or
(ii) by gross failure to comply with the
provisions of this Act or the rules framed
there under.”
15. As noted supra, if it was a case of improper
rejection, this Court would have certainly applied the
above provision. Prima facie, the rejection appears to
be illegal. The Returning Officer has rejected the
nomination paper of the petitioner on the basis of non
disclosure of criminal history.
16. As stated above, Section 90 of the Act entails
disqualification for the post of Zila Panchayat
Member. Non-disclosure of acquittal in previous
criminal case is not a disqualification, which is
enumerated under Section 90 of the Act.
17. In this regard we also place reliance on the
ruling of a Division Bench of the Karnataka High
Court, reported in ILR 1991 KAR 4421, wherein the
Division Bench has appreciated the distinction
between maintainability & entertainability of writ
petition u/A 226. Proceeding the Division Bench has
held that the relief of Election Petition is not an
“Efficacious Relief” as the candidate would have lost
the statutorily vested right to participate in what is
popularly known as “the dance of democracy”, and at
most would only have the vicarious pleasure of
unseating the elected candidate. That apart, it would
also mean shear waste of public resources including
money, man-power, etc,. Reliance is placed on
paragraphs 11, 13, 14,16, 17 & 20.
18. Hence, there shall be a stay of the operation of
the order dated 11.07.2025 passed by the learned
Single Judge in WPMS No.2093 of 2025 and also the
order dated 09.07.2025, impugned in the Writ
Petition. The Returning Officer shall assign a symbol
to the petitioner, and print the name of the petitioner
in the ballot paper and permit the petitioner to
participate in the election process for electing the Zila
Panchayat Member, 12-Bhandar Bora, District
Champawat.
19. The State Election Commissioner shall conduct
an inquiry into this aspect of the matter, and submit a
report to this Court by the next date of hearing. A
copy of this order be forwarded to the Returning
Officer by e-mail.
20. List this case for final hearing on 11.08.2025.
21. Counter affidavit, if any, by then.
(Alok Mahra, J.) (G. Narendar, C.J.) 18.07.2025 18.07.2025 BS
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