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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
S.K. MISHRA, J.
Hamid Ali – Petitioner
Versus
Akaram Khan and Others – Respondents
WPMS Nos. 1595, 2006 of 2021
Decided On : 25-03-2022
Election Disqualification - Uttar Pradesh Municipalities Act, 1916 - Section 19, Section 13D - The court declared the returned candidate as ineligible to contest the election under Section 19 of the Uttar Pradesh Municipalities Act, 1916, and thereby declared his election to be void, and a casual vacancy arising therefore.
Fact of the Case:
The election petitioner challenged the election of the returned candidate mainly on the ground that the returned candidate concealed the fact of his second marriage and the birth of a daughter after the cut-off date. The court found that the returned candidate was disqualified from contesting the election under Section 13D of the Uttarakhand Municipalities Act, 1916.
Finding of the Court:
The court found that the returned candidate deliberately concealed the fact of his second marriage and the birth of a daughter after the cut-off date, leading to his disqualification from contesting the election.
Issues: The issues included the concealment of marital status and birth of a child after the cut-off date, and the impleading of the District Election Officer/District Magistrate as a defendant in the election petition.
Ratio Decidendi: The court relied on Section 13D of the Uttarakhand Municipalities Act, 1916, which provides for disqualification for membership based on the number of living children born after a specified date. The court also applied Section 112 of the Evidence Act, 1872, which establishes a presumption of legitimacy for children born during a valid marriage.
Final Decision: The court dismissed the writ petition filed by the returned candidate and allowed the election petition, declaring the post of Chairman/President of the Nagar Panchayat as vacant and issuing a mandamus to initiate the process of filling the vacant post.
JUDGMENT :
S.K. MISHRA, J.
1. By filing Writ Petition (M/S) No. 1595 of 2021, invoking the jurisdiction of the High Court under Article 227 of the Constitution of India, the returned candidate Hamid Ali i.e. the Chairman, Nagar Panchayat Kelakhera, District Udham Singh Nagar has assailed the judgment and order dated 22.07.2021 passed by the learned Prescribed Authority-cum- First Additional District Judge, Udham Singh Nagar, allowing the petition filed by the election-petitioner, thereby declaring the returned candidate as ineligible to contest the election under Section 19 of the Uttar Pradesh Municipalities Act, 1916, as applicable in the State of Uttarakhand, and thereby declaring his election to be void, and a casual vacancy arising therefore.
2. In the connected Writ Petition (M/S) No. 2006 of 2021, the election-petitioner (Akram Khan) has prayed to issue a direction to the State Election Commission to hold election for the vacant seat of Chairman, Nagar Panchayat, Kelakhera for election of the year 2018. The election-petitioner (Akram Khan) challenged the election of the returned candidate (Hamid Ali) mainly on the ground, which was adjudicated by the Prescribed Authority in favour of the election petitioner, that the returned candidate i.e. respondent No. 3 in the Election Petition, while putting in his nomination for the municipal election of the year 2018, has concealed the fact that besides Gulnaaz, his wife, he was married to Smt. Babli Nehra, daughter of Raj Singh Nehra, resident of Mankapur House Compound, Tallital, Nainital also, and was blessed with a daughter, namely Aahna, who was born on 07.05.2013, i.e. after the cut-off date. The election petitioner further pleads that the returned candidate has deliberately concealed this fact in the nomination papers, and therefore, he is not eligible to contest election for the post of Chairman, Nagar Panchayat, Kelakhera, Tehsil Bazpur, District-Udham Singh Nagar for the year 2018. Therefore, he prayed for declaring the nomination of Hamid Ali as illegal and to set aside his election.
3. The returned candidate Hamid Ali i.e. the petitioner in WPMS No. 1595 of 2021, filed his written statement, and stated that Km. Aahna is not his daughter. Additionally, he also stated in his written statement that the election-petitioner has not revealed the names of his sons, and that his daughter Kumari Sumera was born on 2006, that is after the cut-off date. On such pleas being raised, the learned Prescribed Authority framed many issues, but the issue relating to the birth of Aahna after the cut-off date and the marriage of the returned candidate to Smt. Babli Nehra are the important issues. In this case, the learned Prescribed Authority relied upon the Transfer Certificate of Kumari Aahna appearing at Page 86, wherein the petitioner Hamid Ali is shown as the father of the girl, and the Certificate is signed by the Principal, the Registration form of admission of Km. Aahna, which is at Page 87 and containing the signature of Smt. Babli Nehra, the Birth Certificate of daughter Aahna, who was born on 07.05.2013, which is placed at Page 280 of the Paper-Book 66 GA/3, a copy of the Khatauni for the Fasli Year 1426-1431 for the Village Kelakhera, Tehsil Bazpur, District Udham Singh Nagar, which reveals the name of Smt. Babli Nehra and her husband Hamid Ali, which is placed on the record at Page 192, Paper No. 136Ga/11 and the Registered Gift-Deed executed, by the Returned Candidate, on 25.10.2016 in favour of Smt. Babli describing her to be his wife. The marriage between Hamid Ali and Smt. Babli Nehra was solemnized as per the Special Marriage Act on 29.08.2011 before the Special Marriage Officer, Nainital.
4. The aforesaid judgment and order dated 22.07.2021 of the Prescribed Authority-cum-First Additional District Judge, Udham Singh Nagar has been challenged by the petitioner, i.e. the returned candidate on several grounds. They are as follows:
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