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2022 DIGILAW 60 (UTT)

Hamid Ali v. Akaram Khan

2022-03-25

S.K.MISHRA

body2022
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. 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: (I) The election-petitioner has impleaded the District Election Officer/District Magistrate, Udham Singh Nagar as a defendant in the election petition, therefore, as per the judgment of the Hon’ble Supreme Court in B. Sundra Rami Reddy vs. Election Commission of India, (1991) Supp. 2 SCC 624, the election petition is liable to be dismissed. (II) The election petition does not contain concise statement of material facts and the grounds for such a prayer. (III) The petitioner has further sworn an affidavit with a statement that all the facts stated in the election petition are based on personal knowledge. 5. 2 SCC 624, the election petition is liable to be dismissed. (II) The election petition does not contain concise statement of material facts and the grounds for such a prayer. (III) The petitioner has further sworn an affidavit with a statement that all the facts stated in the election petition are based on personal knowledge. 5. The learned counsel for the election petitioner submits that the objections taken by the returned candidate are all as regards the form of the plaint and not of substance. 6. Coming first to the contention raised by the learned counsel for the election-petitioner, and relying upon the judgment of B. Sundara Rami Reddy vs. Election Commission of India (supra), this Court is of the considered opinion that the facts of that case are quite distinguishable than the facts of this case. Firstly, in that case, the election-petitioner had impleaded Election Commission of India as a party respondent. The Election Commission of India filed an application before the High Court for deleting its name from the array of parties on the ground that it was not a necessary party. The Hon’ble High Court deleted the name of the Election Commission of India from the proceedings. That order was challenged before the Hon’ble Supreme Court by way of special leave petition. The Hon’ble Supreme Court of India held that in an election petition challenging the election of the returned candidate, the Election Commission of India is not a necessary party. In this case, neither the Election Commission of India, nor the State Election Commission has been impleaded as a party respondent. The District Election Officer has been impleaded as a party. Hence, the ratio of the aforesaid case is not applicable in this case. Moreover, an examination of the petition reveals that the District Magistrate-cum-District Election Officer has been made a performa respondent to the election petition. So, in our considered view, it is not fatal to the petition, and the petition cannot be said to be not maintainable in view of mis-joinder of unnecessary parties. Moreover, it is settled principle of law that whenever the defendant/respondent challenges the form of any plaint, on the ground of mis-joinder of necessary parties, then objection should be raised at the earliest. If such an objection is raised, the Court has to grant an appropriate opportunity to the petitioner to remove the defects. Moreover, it is settled principle of law that whenever the defendant/respondent challenges the form of any plaint, on the ground of mis-joinder of necessary parties, then objection should be raised at the earliest. If such an objection is raised, the Court has to grant an appropriate opportunity to the petitioner to remove the defects. Hence, the election petition cannot be dismissed on the sole question of mis-joinder of necessary parties. The said objection, though, has been taken in the written argument filed by the petitioner’s counsel regarding the form and contents of the election petition, the affidavit annexed to it and the verification made therein, in fact, these issues are not very much germane to these cases in view of the fact that these are questions relating to the form of the election petition, and not regarding the substance of the election petition. 7. We are also aware of the fact that in the written arguments filed by the returned candidate/petitioner, as well as the oral arguments not a very specific assailment has been made regarding the factual finding of the fact that Smt. Babli Nehra happens to be the second wife of the returned candidate and that the daughter Aahna, being the fourth child, was born to them on 07.05.2013, which is admittedly after the cutoff date. 8. In this case, we find that the learned Prescribed Authority has very carefully assessed the evidence available on record and also taken the view that Kumari Aahna was born to the petitioner Hamid Ali and his wife Smt. Babli on the date as stated above. 9. Section 13D of the Uttarakhand Municipalities Act, 1916 provides for disqualification for membership. The relevant portion is quoted below: “13D. Disqualification for membership - A person, notwithstanding that he is otherwise qualified shall be disqualified for being chosen as, and for being, a member of a [Municipality] if he: (a).............. (aa)............. (b).............. (c).............. (d) ............. (e) he has more than two living children of whom one is born after expiry of 300 days from the date of notification of this part.” 10. Clause 13D(e) was re-inserted by Uttarakhand Act No. 13 of 2002, w.e.f. 21.12.2002. (aa)............. (b).............. (c).............. (d) ............. (e) he has more than two living children of whom one is born after expiry of 300 days from the date of notification of this part.” 10. Clause 13D(e) was re-inserted by Uttarakhand Act No. 13 of 2002, w.e.f. 21.12.2002. Thus, any person who has more than two living children, of whom one is born after expiry of 300 days from 21.12.2002, shall be disqualified for contesting a municipal election as per the provisions of Section 13D(e) of the Uttarakhand Municipalities Act, 1916. Thus, it is clear that the petitioner (Akram Khan) in this case has proved it by preponderance of evidence and probabilities that Aahna was born to Hamid Ali and Smt. Babli on 07.05.2013 and, therefore, the returned candidate is disqualified from contesting the election. 11. In this case, we take into consideration at the threshold the fact that the petitioner Hamid Ali was married to Smt. Babli Nehra under the provisions of the Special Marriage Act. Hence, the provision of Section 112 of the Evidence Act, 1872 would come into play. It reads as under: “112. Birth during marriage, conclusive proof of legitimacy.—The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.” 12. In interpreting the said provision, the Hon’ble Supreme Court in the case of Kamti Devi vs. Poshi Ram, (2001) 5 SCC 311 and Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik and Another, (2014) 2 SCC 576 has come to the conclusion that the presumption held under Section 112 of the Indian Evidence Act is very strong, and it is for the party, who pleads that the child, born to the valid wedlock, is not his child, then he must prove the same by leading clear, cogent, and reliable evidence. In this case, the presumption has been rightly taken by the learned Prescribed Authority, and this Court finds no reasonable material on record to hold that the presumption has been rebutted. In this case, the presumption has been rightly taken by the learned Prescribed Authority, and this Court finds no reasonable material on record to hold that the presumption has been rebutted. Moreover, it is well settled principle of law and Courts that legitimacy and validity of marriage should be presumed. In this case also, we come to the conclusion that the petitioner did not dislodge the presumption available in favour of the validity of the marriage of himself with Smt. Babli and legitimacy of their daughter Km. Aahna. Moreover, this is a factual aspect of this case and a Court exercising certiorari jurisdiction under Article 226 or a supervisory jurisdiction under Article 227 of the Constitution of India should not re-assess the evidence. In other words, a writ Court is not an appellate Court to re-assess evidence. The learned Prescribed Authority has held that the election petitioner has proved it by preponderance of probabilities on evidence that Kumari Aahna was born to the petitioner being the fourth child after the cut-off date and, therefore, the petitioner, i.e. the returned candidate is not eligible to contest the election. Therefore, this Court is of the view that there is no reason to disturb the finding recorded by the learned Additional District Judge/Prescribed Authority. 13. In that view of the matter, the writ petition bearing No. 1595 of 2021 (M/S) is devoid of merit and is, hereby, dismissed. 14. In the connected writ petition, i.e. Writ Petition (M/S) No. 2006 of 2021, the election-petitioner has prayed for issuance of a writ of mandamus to the State of Uttarakhand as well as the State Election Commission to hold election for the post of President, Nagar Panchayat Kelakhera, Tehsil Bazpur, District Udham Singh Nagar. While allowing the election petition, the Prescribed Authority-cum-first Additional District Judge, Udham Singh Nagar has declared the post of Chairman/President of the Nagar Panchayat as vacant. In other words, a causal vacancy has been declared. However, there is no direction to any of the authorities to hold election for the said post. While allowing the election petition, the Prescribed Authority-cum-first Additional District Judge, Udham Singh Nagar has declared the post of Chairman/President of the Nagar Panchayat as vacant. In other words, a causal vacancy has been declared. However, there is no direction to any of the authorities to hold election for the said post. Hence, this Court is of the opinion that the writ petition filed by the election-petitioner with the prayer to direct the opposite parties to initiate process of election of the post of President, Nagar Panchayat Kelakhera, Tehsil Bazpur, District Udham Singh Nagar is a meritorious one and the same is in consonance with Section 44A of the Municipality Act, which provides that if a casual vacancy occurs in the office of the President, owing to death or any other such circumstances, the President shall be elected as soon as possible but after three months from the date of occurrence of such a vacancy. In that view of the matter, Writ Petition (M/S) No. 2006 of 2021 is allowed. A mandamus is issued to the State Election Commission, i.e. respondent No. 1 to initiate proceedings of filling up the vacant post of President of the aforesaid Nagar Panchayat as per the procedure prescribed under Section 43 of the Uttarakhand Municipalities Act, 1916. 15. In that view of the matter, both the writ petitions are disposed of. 16. Pending application, if any, also stands disposed of. 17. There shall be no order as to costs.