Smt. Gunja Rani vs State Of Uttarakhand & Others
2021 Latest Caselaw 1781 UK

           IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
                   Writ Petition (M/S) No. 1038 of 2021

Smt. Gunja Rani                                                       .......Petitioner

                                            Vs.

State of Uttarakhand & others                                        .....Respondents

Mr. Jitendra Chaudhary, Advocate, for the petitioner. Mr. T.S. Fartiyal, Standing Counsel, for the State of Uttarakhand.

Hon'ble Sharad Kumar Sharma, J (Oral)

(Via video conferencing)

2. A very precarious situation has been emerged in the present writ petition, wherein, the petitioner in this 3rd phase of litigation had filed this writ petition praying for a writ of mandamus to consider the non statutory representation of the petitioner, as against the ex-parte inquiry report dated 24.01.2020, as was held and submitted by the respondent no.6 i.e. Tehsildar, Kichha, District Udham Singh Nagar, holding the petitioner to be in an unauthorized possession over the Plot No.289 of the Forest Department, situated within the territory of Gaon Sabha Nazibabad, Post Office Suryanagar, Tehsil Kichha, District Udham Singh Nagar.

3. The relief as modulated in the present writ petition by the petitioner is quoted hereunder:-

"(i) To issue a writ, order or direction in the nature of certiorari, calling for the record and pleased to quash the ex-parte enquiry report dated 24.01.2020 (Annexure No.2) prepared and issued by the respondent no.6 i.e. Tehsildar Kichha Tehsil Kichha, District Udham Singh Nagar.

(ii) To issue a writ, order or direction in the nature of mandamus, directing and commanding the respondents to consider the representations moved by the petitioner and conduct a fresh enquiry by constituting an enquiry committee to ascertain unauthorized possession over the plot no.289 of forest

Department situated within the territory of Gram Sabha Nazimabad P.O. Suryanagar, Tehsil Kichha District Udham Singh Nagar within a stipulated period of one month.

(iii) Or to issue a writ, order or direction in the nature of mandamus, directing and commanding the respondent Secretary Panchayatiraj Department Uttarakhand to the extent that he shall decide the representation of the petitioner (Annexure -7) by a speaking order and further be pleased to constitute a fresh enquiry committee in the controversy in issue."

4. The facts, which were agitated by the petitioner in the earlier set of litigation, was as against the order of 01.12.2020, which has been passed by the District Magistrate, Udham Singh Nagar, whereby, the petitioner's election as "Pradhan" of the Village was set aside, in view of her candidature being in violation of Section 8 sub- section (1) sub-clause (gha) of the Uttarakhand Panchayat Raj Act, 2016 (from hereinafter referred to as the "Act"), in view of the fact that the candidature of the petitioner itself was bad as the petitioner was found to be an unauthorized occupant of State land, hence the District Magistrate, Udham Singh Nagar, has exercised its power under Section 138 of the Act, and discontinued the petitioner from the office of "Gram Pradhan".

5. The said order of the District Magistrate, Udham Singh Nagar, was put to challenge by the petitioner in a writ petition before this Court, being Writ Petition No.2307 of 2020, "Gunja Rani Vs. State of Uttarakhand", and while considering the impact of clause of disqualification provided under Section 8 of the Act (as referred to above), and the Court after observing that there was a prior show- cause notice issued to the petitioner on 03.10.2018, which was based on the report of the Tehsildar, Kichha, District Udham Singh Nagar, and that the District Magistrate, Udham Singh Nagar, after considering the reply which was submitted by the petitioner to the notices issued on 03.10.2020, had passed an order on 01.12.2020, whereby the petitioner was removed from the office of the "Gram

Pradhan", and the candidature of the petitioner was held to be bad, in contravention of the Act of 2016.

6. The Coordinate Bench of this Court by the judgment dated 08.12.2020, had dismissed the aforesaid writ petition and as a consequence thereby had affirmed the order of the removal of the petitioner from the office of "Gram Pradhan", holding her election to be illegal.

7. Being aggrieved against the said order, the petitioner had preferred a Special Appeal No.20 of 2021, "Gunja Rani Vs. State of Uttarakhand and another", the said special appeal came up for consideration before the Division Bench, and the petitioner as per the opinion of this Court and the findings recorded therein by the Division Bench, had withdrawn the special appeal and sought a liberty to pursue his representation, which is quoted hereunder:-

"Mr. Jitendra Chaudhary, the learned counsel for the appellant, seeks the liberty to withdraw the present special appeal and, equally, seeks the liberty to pursue his representations.

2. Therefore, the special appeal is dismissed as withdrawn and the liberty to pursue his representations is, hereby, granted.

3. No order as to costs."

8. Accordingly, the special appeal of the petitioner was dismissed, subject to the liberty left open to the petitioner of pursuing the representations vide order dated 11.05.2021.

9. As far as the pursuance of the representation and the liberty granted therein is concerned, it was sought for by the petitioner and was not granted by the Division Bench and that is why the special appeal was withdrawn with the liberty taken by the petitioner, which result to affirming the judgment of the learned Single Judge dated 08.12.2020 and consequently also the order of District Magistrate dated 01.12.2020.

10. During the pendency of the special appeal, the petitioner had yet again approached this Court by way of filing yet an another writ petition being Writ Petition No.858 of 2021 "Gunja Rani Vs. State of Uttarakhand", which was yet again got dismissed as withdrawn with the liberty to file a fresh, after the decision of the special appeal. Consequently, the present writ petition has been filed before this Court, for a direction to decide the representation of the petitioner, and for the relief referred in para 3 of this judgment.

11. There are two distinct aspects involved consideration in the present writ petition. When the petitioner first approached the writ court, there the challenge was given to an exercise of powers and the order passed by the District Magistrate, under Section 138 of the Act, nullifying the candidature of the petitioner to contest the election of the "Gram Pradhan", on account of the fact that on the basis of the report of the Tehsildar dated 24.01.2020, she was held to be an encroacher on the forest land, which was otherwise under the Act was a legal embargo against her candidature.

12. The issue when it travelled to the Division Bench, it would be treated to be an issued confined to Section 138 of the Act only, and after the withdrawal of the special appeal with the liberty to file a representation, I am of the view that once the proceedings are by invocation of the provisions contained under Section 138 of the Act is concerned, there could not be a redressal of the grievances by the petitioner by filing of the non statutory representation, to override the effect of judgment dated 08.12.2020, passed by the learned Single Judge of this Court.

13. At this stage, the learned Counsel for the petitioner submits that the Division Bench has rather permitted the petitioner to file the representation, and it was rather not a liberty, which was solicited by him before the Division Bench for filing the representation. As per the view of this Court, the judgment reads

otherwise and my considered view is that the representation governing the elections laws and that too in the light of the provisions contained under Section 138 of the Act, which was an issue raised in the writ petition, which travelled upto the stage of the Special Appellate Court, was entirely a distinct issue to the issue of her encroachment on the forest land. Hence, at this stage, the learned counsel for the petitioner seeks liberty to file a review application in Special Appeal No.20 of 2021, for seeking a review of the judgment dated 11.05.2021 of the Division Bench.

14. Subject to the aforesaid liberty of filing of a review application as per law applicable, this Court is not inclined to interfere in the writ petition at this stage looking to the nature of the relief sought for. Consequently, subject to the aforesaid liberty, the writ petition stands dismissed.

(Sharad Kumar Sharma, J.) 07.06.2021 NR/