‘Case of Malfeasance’: Uttarakhand HC stays woman’s disqualification in panchayat polls
Lawyer Abhijay Negi, who appeared for the petitioner, also stressed that neither was a copy of the complaint shared with her nor was she given an opportunity to explain
DEHRADUN: The Uttarakhand high court on Wednesday stayed the disqualification of a woman contesting the gram pradhan election in Tehri Garhwal district’s Udvakhand under a 2016 law that requires candidates to have a toilet at home.
A bench of chief justice G Narendar and justice Alok Mahra noted that the candidate did have a toilet built about 150 metres from her house, and concluded that the returning officer’s decision was prima facie a “clear case of malfeasance” and an arbitrary exercise of authority.
Lawyer Abhijay Negi, who appeared for the petitioner, also stressed that neither was a copy of the complaint shared with her nor was she given an opportunity to explain before a local inquiry was ordered. Also, a local inspection by the Village Panchayat Development Officer confirmed that a toilet had been constructed, but it was at a distance from the dwelling.
The high court said the photographs clearly demonstrated the presence of the toilet.
“A perusal of the photographs also clearly demonstrates the presence of the toilet. In that view, the order impugned, prima facie, appears to be a clear case of malfeasance, where the authority has sought to exercise its authority in an arbitrary and mala fide manner, probably in order to enable the election of a favoured candidate. The election being to the post of Pradhan, the Returning Officer appears to have exceeded his power, in attempting to interpret clause (b) of sub-section (3) of Section 8 of the Uttarakhand Panchayati Raj Act, 2016,” the bench said.
The high court noted that it was a “known and prevalent practice” in villages to construct toilets at a distance from the dwelling house for obvious reasons, and also for reasons of hygiene. “There is no finding by the Returning Officer that the toilet does not belong to the petitioner, or that the toilet is not constructed by the petitioner,” the court said.
According to Section 8(3)(b) of the Uttarakhand Panchayati Raj Act, 2016, “If there is no toilets established in the house of those persons residing in the jurisdiction of concerned Panchayat, they shall be disqualified for the candidature of the Panchayat election”
Sanjay Bhatt, standing counsel for the State Election Commission, contended that the toilet should be within the dwelling house under the Act, and claimed that Article 243-O(b) of the Constitution barred any challenge to the Panchayat elections except through an election petition.
The bench rejected the argument, pointing out that the writ petition questioned the illegal rejection of a nomination, not the election itself, and that denying the right to contest in an arbitrary manner was illegal.
Negi said the high court stayed the operation of the impugned order, directing the returning officer to assign a symbol to the petitioner, print her name on the ballot paper, and permit her to participate in the election process for Gram Pradhan.
The high court also ordered the State Election Commissioner to conduct an inquiry into the matter and submit a report by August 11, the next date of hearing.
Voting for the first phase of the panchayat elections in 12 districts (excluding Haridwar) will be held on July 24, followed by the second phase on July 28. The counting of votes will take place on July 31.
According to SEC, the elections will take place across 89 development blocks in 12 districts to elect 55,587 village panchayat members, 7,499 village panchayat heads (pradhans), 2,974 block development council members, and 358 district (zila) panchayat members. Over 4.77 million voters will exercise their franchise in the panchayat elections – an increase of 10.57% from the 2019 panchayat elections.
