IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/ S) No. 2291 of 2024

Reshma … Petitioner

Versus

District Magistrate, Haridwar & Ors … Respondents

With

Writ Petition (M/ S) No. 2346 of 2024

Reshma … Petitioner

Versus

State of Uttarakhand & Others … Respondents

Mr. Vipul Sharma, Advocate, for the petitioner.

Mr. Ganesh Datt Kandpal, Deputy AG, with Mr. Rajeev Singh Bisht,

Additional CSC, for the State.

Mr. Arvind Vashistha, Senior Advocate, for the complainant-

respondent.

J U D G M E N T

Hon’ble Manoj Kumar Tiwari, J.

In the last election to the O/o Pradhan,

Nagala Khurd, Block Bahadarabad in District Haridwar, petitioner was declared elected. A complaint was made against her that she is disqualified for being elected as Pradhan in view of provision contained in Section 8(1)(r) of Uttarakhand Panchayati Raj Act, 2016. Section 8(1)(r) of Uttarakhand Panchayati Raj Act, 2016

reads as under:

“8. Disqualification for membership

of Gram Panchayat.—(1) A person shall be disqualified for being appointed, a Pradhan, Up-

Pradhan and member of a Gram Panchayat, if he –

(r) He has more than two living children.”

2. A Division Bench of this Court, in the case of Pinki Devi v. State (WPMS No. 2302 of 2019), has held that disqualification from contesting elections to Panchayati Raj Institutions, in terms of Section 8(1)(r) of Uttarakhand Panchayati Raj Act, 2016, would apply only to cases where persons having two children or more have a third child or more after 25.7.2019. Relevant extract of the said judgment is reproduced below:

“92. In order to sustain Section

8(1)(r), an appropriate reading down of the said provision to save it from the vice of unreasonableness and arbitrariness should be resorted to. If it is not so read down, then Section 8(1)(r) would obviously fail on the touchstone of reasonableness, and would become void and inoperative. (Hyderabad Karnataka Education Society v. Registrar of Societies and Others[74]). Section 8(1)(r) can be read down by giving it prospective application, meaning thereby that the disqualification under the said provision can be held to apply only to those who give birth to a third child or more after 25.07.2019 when Section 8(1)(r), inserted by the 2019 Amendment to the 2016 Act, came into force. The said provision can, thereby, be saved from being declared unconstitutional. It is only by so reading down Section 8(1)(r), and applying it prospectively from the date the 2019 amendment Act came into force on 25.07.2015, can the said provision be saved from unconstitutionality.

93. We, therefore, read down Section 8(1)(r) and declare that the disqualification from contesting elections to Panchayati Raj Institution, in terms of the said provision, would apply only to cases where persons, having two children or more, have a third child or more after 25.07.2019. The said provision shall not be understood as disqualifying those who already have three or more children before 25.07.2019.”

3. Based on the complaint made against the petitioner, separate enquiries were ordered, one held by Tehsildar and another by Block Development Officer, Bahadrabad. In both enquiries, the finding returned was that the third child of the petitioner, namely, Ms. Mahira was born after the cut-off date i.e. 25.7.2019. There was also a finding that third child of the petitioner was born on 11.9.2019. Based on the finding returned in those enquiries, Prescribed Authority/SDM passed an order on 11.7.2024, declaring the petitioner as disqualified for holding the O/o Pradhan. Petitioner challenged the order passed by Prescribed Authority in an appeal, which was dismissed by Chief Development Officer, Haridwar, vide order dated 13.8.2024. After dismissal of petitioner’s appeal, a show cause notice was issued to her by District Magistrate, Haridwar on 16.8.2024 and after hearing her version, an order was passed under Section 138(1)(d)(iii) of Uttarakhand Panchayati Raj Act, 2016 on 27.8.2024, whereby she was removed from the O/o Pradhan. Thus feelin