Advocates:
['BHUWAN BHATT', 'C S C', 'NIRANJAN BHATT', 'VINAY KUMARRAJAT MITTALKAMLESH TIWARI']

IN HIGH COURT OF UTTARAKHAND

AT NAINITAL

Writ Petition No.2379 of 2021 (M/S)

Babita

..…Petitioner

Vs.

State of Uttarakhand and others

…Respondents

Advocate: Mr. Bhuwan Bhatt, Advocate for the petitioner.

Mr. T.S. Phartiyal, Addl. C.S.C. for the State of Uttarakhand.

Mr. Rajat Mittal, Advocate for respondent no.5.

Hon’ble Sharad Kumar Sharma, J.

The provisions as contained under Part 9 of the Constitution of

India, particularly in reference to Article 243 which had undergone a

Constitutional amendment made by the Constitution 73^rd Amendment Act 1992,

with effect from 24.04.1993. As a consequence thereto while dealing with the

electoral process relating to the Panchayats the Constitution has created a bar

from interference by the Court in electoral matters except for the exception

which has been carved out under Article 243 (O) of the Constitution, which is

extracted hereunder:-

“243-O. Bar to interference by courts in electoral matters-

Notwithstanding anything in this Constitution-

(a)

the validity of any law relating to the delimitation of

constituencies

or

the

allotment

of

seats

to

such

constituencies, made or purporting to be made

under

article 243K, shall not be called in question in any court;

(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.]”

2.

The Uttarakhand Panchyat Raj Act of 2016 by virtue of Act No.10

of 2019 made effective with effect from 25.07.2019 had inserted Section 138 (d)

which reads as under:-

“[(d) The Pradhan, Up-pradhan or member of a Gram Panchayat or

any members of Joint Committee or Land Management

Committee, or a Pramukh, Up-pramukh or any member of

Kshettra Panchayat or Chairman, Vice-Chairman or any member

of Zila Panchayat may also be removed from his office in the

following conditions-

2

(i) If he makes himself absent without sufficient cause for more

than three consecutive meetings or sittings or refuses to act;

or

(ii) If he has taken the benefit of reservation under sub-section

(1) of Section 10-A or sub-section (1) of Section 11, sub-

section (1) of Section 55-A or Section 56 or sub-section (1)

of Section 92-A or Section 93, as the case may be, on the

basis of a false declaration subscribed by him stating that he

is a member of the Scheduled Castes, the Scheduled Tribes

or the Backward Classes, as the case may be; or

(iii) If he suffers from any of the disqualifications mentioned in

clauses (a) to (u) of sub-section (1) of Section 8, clauses (a)

to (u) of sub-section (1) of Section 53 and in clauses (a) to

(u) of sub-section (1) of Section 90.

(iv) No order shall be passed adversely affecting a person to

remove under this section by State Government/prescribed

authority shall not be given till the concerned is given a

reasonable opportunity to present the reason for the thing.]”

3.

In fact, the exercise of powers for taking an action against the

elected representative of Panchayat by attracting the provisions contained under

Section 138(1) (d) in fact, if at all any action is required to be contemplated to

be taken against the elected representative i.e. Pradhan or Up Pradhan, as the

case may be. The said power could have been exercised only by the authority as

contained and included, under Section 138 that is the “State Government”. The

Panchayat Raj Act has independently defined the District Magistrate under Sub

Section (20) of Section 2 of the Act, which is altogether a distinct executive

authority, then to the State as defined under Sub Section (38) of Section 2 of the

Act. The reference of the aforesaid two definitions of the Collector or the

District Magistrate or the State has been referred to herein in order to appreciate