IN THE HIGH COURT OF PUNJAB AND HARYANA

NISVA @ NISHA KHATOON

STATE OF HARYANA AND OTHERS

CORAM:

Present :

HARSH BUNGER, J.

order dated 05.04.2024 passed by the learned Single Judge in

CWP-25976

has been dismissed.

2.

Panchayat

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

NISVA @ NISHA KHATOON

Versus

STATE OF HARYANA AND OTHERS

CORAM: HON’BLE MR. JUSTICE SUDHIR SINGH

HON’BLE MR. JUSTICE HARSH BUNGER

Mr. Vijay Kumar Jindal, Sr. Advocate

with Mr. Akshay Jindal, Advocate

Mr. Mazlish Khan, Advocate

Mr. Abhishek Shukla, Advocate

and Mr. Surya Pratap Singh, Advocate

for the appellant.

Mr. Vikram Singh, Advocate

Ms. Ramandeep Kaur, Advocate

Mr. Ishnoor Singh, Advocate

and Mr. Vikrant Singh, Advocate

for respondent No.8.

Mr. Samrath Sagar, Addl. A.G., Haryana.

HARSH BUNGER, J.

The present Letters Patent Appeal has been filed against an

order dated 05.04.2024 passed by the learned Single Judge in

25976-2023, whereby the writ petition filed by the appellant herein,

has been dismissed.

Briefly, the appellant was elected as the

Panchayat Chila, Block Tauru, District Nuh, Haryana, in the Panchayat

Page 1 of

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

LPA-1057-2024 (O&M)

Date of Decision: 03.05.2025

…Appellant

Versus

…Respondents

MR. JUSTICE SUDHIR SINGH

HON’BLE MR. JUSTICE HARSH BUNGER

Mr. Vijay Kumar Jindal, Sr. Advocate

with Mr. Akshay Jindal, Advocate

Mr. Mazlish Khan, Advocate

Mr. Abhishek Shukla, Advocate

and Mr. Surya Pratap Singh, Advocate

Mr. Vikram Singh, Advocate

Ms. Ramandeep Kaur, Advocate

Mr. Ishnoor Singh, Advocate

and Mr. Vikrant Singh, Advocate

Sagar, Addl. A.G., Haryana.

nt Appeal has been filed against an

order dated 05.04.2024 passed by the learned Single Judge in

, whereby the writ petition filed by the appellant herein,

Briefly, the appellant was elected as the Sarpanch of Gram

ru, District Nuh, Haryana, in the Panchayat

of 28

2024 (O&M)

.2025

nt Appeal has been filed against an

order dated 05.04.2024 passed by the learned Single Judge in

, whereby the writ petition filed by the appellant herein,

of Gram

ru, District Nuh, Haryana, in the Panchayat

Page 2 of 28

Elections, held in the year, 2022. In the said elections, one Mumtaj daughter

of Sh. Khalid, had also contested; however, she remained un-successful.

2.1 Subsequently, Ms. Mumtaj filed a complaint aga inst the

appellant herein, primarily on three allegations namely :-

(i) that the appellant had not completed the minimum age of

21 years as on the date of nomination and thus, she had filed

the nomination papers on the basis of fake certificates to

manipulate her age;

(ii) that the appellant herein had submitted a fake educational

certificate in support of her minimum qualification of 8th class,

as required for contesting elections;

(iii) that the appellant herein had more than five votes in the

village.

2.2 On the basis of the afore-said allegations, it was claimed that

the appellant is disqualified, in terms of the provisions contained in the

Haryana Panchayati Raj Act, 1994 (for short `the 1994 Act’) and she

deserves to be removed from the post of Sarpanch.

2.3 It transpires that an enquiry into the complaint, submitted

against the appellant, was entrusted to the Sub Divisional Officer (Civil),

Tauru, who submitted his enquiry report dated 20.02.2023 to the Deputy

Commissioner, Nuh; whereupon, a Show Cause Notice dated 09.03.2023

was issued to the appellant.

2.4 The Deputy Commissioner, Nuh, upon consideration of the

matter and finding the allegations made against the appellant being

substantiated during the enquiry, removed her from the post of Sarpanch

vide order dated 03.07.2023 passed under Section 51(3)(b) of the 1994 Act.

2.5 Being aggrieved against the order dated 03.07.2023, the

appellant herein preferred an appeal before the learned Commissioner,

Page 3 of 28

Faridabad Division, Faridabad (in short `the Divisional Commissioner’)

under Section 51(5) of the 1994 Act.

2.6 The learned Divisional Commissioner, vide order dated

08.11.2023 dismissed the appeal preferred by the appellant. Thereafter, the

appellant preferred a writ petition (CWP-25976-2023) before this Court,

which has also been dismissed by the learned Single Judge, vide impugned

order dated 05.04.2024.

2.7 In the afore-mentioned circumstances, the present intra-court

appeal (LPA) has been filed before this Court.

3. Learned senior counsel appearing for the appellant would

submit that the learned Single Judge, has erred in law and fact in passing the

impugned order, without considering that the appellant had placed on record

her birth certificate (Annexure P-21), which reflected her date of birth as

04.12.1998. It is submitted that in order to substantiate the afore-said birth

certificate, a report from the Office of Sub-Divisional Officer, Tauru dated

14.02.2023 (Annexure P-22) was also placed on record, reflecting that a girl

child namely, Nisha Khatoon was born to Issar and Ruksana on 04.12.1998.

3.1 It is contended that the afore-said documents clearly proves the

date of birth of the appellant as 04.12.1998, however, the same has been

ignored by the learned Single Judge.

3.2 It is next submitted by learned senior counsel for the appellant

that respondent No.8-Mumtaj had also instituted an election petition against

the appellant and therefore, once an election petition regarding the same

issue was pending adjudication, the administrative authorities should have

stayed their hands from going into the allegations made in the complaint

submitted by respondent No.8-Mumtaj; therefore, the action taken against

Page 4 of 28

the appellant under Section 51 of the 1994 Act, is bad in law and is liable to

be set aside. In this regard, learned senior counsel for the appellant places

reliance upon the judgment rendered by Hon’ble the Supreme Court in the

case titled as State of Himachal Pradesh vs Surinder Singh Banolta,

2007(1) RCR (Civil) 254.

3.3 Learned senior counsel for the appellant would further contend

that as regards the minimum educational qualification of the appellant is

concerned, the appellant had submitted a certificate from Saraswati Vandana

High School, certifying that the appellant was studying in 8

th

class in the

year 2012-13 and the School Leaving Certificate of the appellant was duly

counter-signed by the Block Education Officer. It is, therefore, submitted

that there is no disqualification attached as regards the appellant is

concerned and the appellant has been wrongly removed from the post of

Sarpanch under Section 51 of the 1994 Act, which is un-sustainable in the

eyes of law.

3.4 Learned senior counsel for the appellant has also submitted that

even the enquiry conducted against the appellant is bad in law as no fair and

proper opportunity was afforded to the appellant to cross-examine the

witnesses and the documents produced during the course of the enquiry.

Learned senior counsel, while placing reliance upon the judgment rendered

by Division Bench of this Court in case Suman vs State of Haryana,

2024(3) RCR(Civil) 287, contends that the enquiry envisaged under Section

51(3) of the 1994 Act, is required to be in the nature of a regular enquiry

and not merely an in-house enquiry. Accordingly, prayer has been made that

the appeal may be allowed by setting aside the impugned order.

4. Per contra, learned State counsel as well as learned counsel

Page 5 of 28

appearing for respondent No.8 have opposed the submissions made by

learned senior counsel for the appellant. While referring to the enquiry

report, it is submitted that due opportunity of hearing was afforded to the

appellant during the course of the enquiry and even the procedure adopted

during the enquiry, clearly fulfills the requirement of an enquiry envisaged

under Section 51(3) of the 1994 Act and the same cannot be said to be an

in-house enquiry. It is further submitted that the appellant herein had failed

to substantiate her claim as regards her date of birth and educational

qualification; therefore, the appellant was rightly ordered to be removed

from the post of Sarpanch. It is further submitted that there is no illegality or

perversity in the impugned order, accordingly, prayer has been made for

dismissal of the present appeal.

5. Heard.

6. From the submissions raised on behalf of the respective parties,

the following issues would arise for consideration before this Court:-

(i) Whether the appellant has been able to prove her date of

birth as 01.01.1998 as filled in the nomination form?

(ii) Whether the appellant has not been afforded fair and

proper opportunity to cross examine the witnesses?

(iii) Whether the election of the appellant could have been

questioned only by way of filing an election petition and not

under Section 51 of the 1994 Act?

7. Before dealing with the afore-said issues, it would be apposite

to refer to Sections 51, 173, 175(v) and 176 of the 1994 Act, which would be

germane for the decision of the aforesaid issues as well as the appeal, which

read as under :-

“51. Suspension and removal of a Sarpanch,

(1) The Director or the Deputy Commissioner concerned may,

suspend any Sarpanch, or Panch, as the case may be,-

Page 6 of 28

(a)where a case against him in respect of any criminal offence

is under investigation, enquiry or trial, if in the opinion of the

Director, or Deputy Commissioners concerned the charge made

or proceeding taken against him, is likely to embarrass him in

the discharge of his duties or involves moral turpitude or defect

of character;

(b)during the course of an enquiry for any of the reasons for

which he can be removed, after giving him adequate

opportunity to explain.

(2) Any Sarpanch or Panch, as the case may be, suspended

under sub-section (1), shall not take part in any act or

proceeding of the Gram Panchayat during the period of his

suspension and shall hand over the records, money or any other

property of the Gram Panchayat in his possession or under his

control –

(i) if he is a Sarpanch to a Panch commanding majority

in the Gram Panchayat;

(ii) if he is Panch to Sarpanch;

Provided that the suspension period of a Panch, or a Sarpanch,

as the case may be, shall not exceed one year from the date of

handing over the charge in pursuance of the suspension order

except in criminal cases involving moral turpitude.

(3)The Director or the Deputy Commissioner concerned may,

after such enquiry as he may deem fit and after giving an

opportunity of being heard to a Sarpanch or a Panch, as the

case may be, ask him to show cause against the action proposed

to be taken against him, and by order remove him from his

office –

(a) if after his election he is convicted by a criminal court

for an offence involving moral turpitude and punishable

with imprisonment for a period exceeding six months;

(b) if he was disqualified to be a member of the Gram

Panchayat at the time of his election;

Page 7 of 28

(c) if he incurs any of the disqualifications mentioned in

Section 175 after his election as member of the Gram

Panchayat;

(d) if he is absent from five consecutive meetings of the

Gram Panchayat without prior permission or leave of

Gram Panchayat; and

(e) if he has been guilty of misconduct in the discharge of

his duties and his continuance in the office is undesirable

in the public interest.

(3A) The Director or the Deputy Commissioner, as the case

may be, shall assess the amount due, if any, from the person

removed under sub-section (3) on account of any loss, waste or

mis-application of Gram Fund or property as consequence of

his negligence or misconduct and the Deputy Commissioner

shall recover the amount of loss within a period of three months

from the date of order and if the amount is not recovered within

the said period, the same shall be recovered as arrears of land

revenue.

(4) A person who has been removed under sub-section (3) may

be disqualified for re-election for such period as may be

mentioned in the order but not exceeding the period of six

years.

(5) Any person who aggrieved by an order passed under

sub-sections (1), (3) and (4), may within a period of thirty days

from the communication of the order, prefer an appeal to the

Divisional Commissioner.

(6) Any Sarpanch or Panch, as the case may be, removed under

sub-section (3), shall hand over the records, money or any

other property of the Gram Panchayat in his possession or

under his control-

(i) if he is Sarpanch to a Panch commanding majority in

the Gram Panchayat;

(i-a) if he is Sarpanch belonging to reserve category, to a

Panch of that reserve category commanding majority,

and if no Panch in that category is available, to a Panch

Page 8 of 28

of general category commanding majority in the Gram

Panchayat; and

(ii) if he is a Panch to Sarpanch”

“Section 173 (Persons qualified to vote and be elected).--

(1) Every person whose name is in the list of voters shall, unless

disqualified under this Act or any other law for the time being

inforce, be qualified to vote at the election of a Member for the

electoral division to which such list pertains.

(2) Every person who has attained the age of twenty-one years

and whose name is in the list of voters shall, unless disqualified

under this Act or under any other law for the time being

inforce, be qualified to be elected from any electoral division.

(3) No person whose name is not entered in the list of voters for

the villages, shall be qualified to be elected from any electoral

division thereof.

(4) Subject to any disqualification of a person the list of voters

shall be conclusive proof for the purpose of determining under

this section whether any person is or is not qualified to vote, or

to be elected at any election, as the case may be.

“Section 175 (Disqualifications):-

No person shall be a Sarpanch or a Panch of a Gram

Panchayat or a member of a Panchayat Samiti or Zila Parishad

or continue as such who-

(a) to (u) xxx xxx xxx

(v) has not passed matriculation examination or its equivalent

examination from any recognized institution/board:

Provided that in case of a woman candidate or a

candidate belonging to Scheduled Caste, the minimum

qualification shall be middle pass:

Provided further that in case of a woman candidate

belonging to Scheduled Caste contesting election for the post of

Panch, the minimum qualification shall be 5th pass; or

(w) xxx xxx xxx”

Page 9 of 28

“Section 176 (Determination of validity of election enquiry by

Judge and procedure. –

If the validity of any election of a member of a Gram

Panchayat, Panchayat Samiti or Zila Parishad or

3

[---] Sarpanch of Gram Panchayat, Chairman or Vice-

Chairman, President or Vice-President of Panchayat Samiti or

Zila Parishad respectively is brought in question by any person

contesting the election or by any person qualified to vote at the

election to which such question relates, such person may at any

time within thirty days after the date of the declaration of

results of the election, present an election petition to the civil

court having ordinary jurisdiction in the area within which the

election has been or should have been held, for the

determination of such question.

(2) A petitioner shall not join as respondent to his election

petition except the following persons :—

(a) where the petitioner in addition to challenging the

validity of the election of all or any of the returned

candidates claims a further relief he himself or any other

candidate has been duly elected, all the contesting

candidates other than the petitioner and where no such

further relief is claimed, all the returned candidates;

(b) any other candidate against whom allegations of any

corrupt practices are made in the election petition.

3) All election petitions received under sub-section (1) in which

the validity of the election of members to represent the same

electoral division is in question, shall be heard by the same civil

court.

(4) (a) If on the holding such inquiry the civil court finds that a

candidate has, for the purpose of election committed a corrupt

practice within the meaning of sub-section (5), he shall set

aside the election and declare the candidate disqualified for the

purpose of election and fresh election may be held.

1

[(aa) If on holding such enquiry the Civil Court finds that-

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(i) on the date of his election a returned candidate was not

qualified to be elected;

(ii) any nomination has been improperly rejected; or

(iii) the result of the election, in so far it concerns a returned

candidate, has been materially affected by improper

acceptance of any nomination or by any corrupt practice

committed in the interest of the returned candidate by an

agent other than his election agent or by the improper

reception, refusal or rejection of any vote or the

reception of any vote which is void or by any non-

compliance with or violation of the provisions of the

Constitution of India or of this Act, or any rules or

orders made under this Act, election of such returned

candidate shall be set aside and fresh election may be

held.]

(b) If, in any case to which

2

[clause (a) or clause (aa)] does not

apply, the validity of an election is in dispute between two or

more candidates, the court shall after a scrutiny and

computation of the votes recorded in favour of each candidate,

declare the candidate who is found to have the largest number

of valid votes in his favour, to have been duty elected: Provided

that after such computation, if any, equality of votes is found to

exist between any candidate and the addition of one vote will

entitle any of the candidate to be declared elected, one

additional vote shall be added to the total number of valid

votes found to have been received in the favour of such

candidate or candidates, as the case may be, elected by lot

drawn in the presence of the judge in such manner as he may

determine.

(5) A person shall be deemed to have committed a corrupt

practice-

(a) who with a view to induce a voter to give or to refrain

from giving a vote in favour of any candidate, offers or

gives any money or valuable consideration, or holds out

Page 11 of 28

any promise of individual profit, or holds out any threat

of injury to any person; or

(b) who, with a view to induce any person to stand or not

to stand or to withdraw or not to withdraw from being a

candidate at an election, offers or gives any money or

valuable consideration or holds out any promise or

individual profit or holds out any threat of injury to any

person; or

(c) who hires or procures whether on payment or

otherwise, any vehicle or vessel for the conveyance of

any voter (other than the person himself, the members of

his family or his agent) to and from any polling station.”

8. In terms of Section 51(3)(b) of the 1994 Act, a Sarpanch or a

Panch can be removed from his office, if he was disqualified to be a

Member of the Gram Panchayat at the time of his election.

8.1 As per sub-section 2 of Section 173 of the 1994 Act, every

person, who has attained the age of 21 years and whose name is in the list of

voters, shall unless disqualified under the 1994 Act or under any other law

for the time being in force, be qualified to be elected from any Electoral

Division.

9. Further, in terms of Section 51(3)(c) of the 1994 Act, a

Sarpanch or a Panch can also be removed from his office, if he incurs any of

the disqualifications mentioned in Section 175 after his election as member

of the Gram Panchayat.

9.1 Section 175 of the 1994 Act, provides for disqualifications for a

Sarpanch or a Member Panchayat and Clause (v) of Section 175 of the 1994

Act, provides that no person shall be a Sarpanch or a Panch of a Gram

Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue

as such, who has not passed matriculation examination or its equivalent

Page 12 of 28

examination from any recognized institution/Board. In terms of first proviso

to Sub-Section (v) of Section 175 of the 1994 Act, it is provided that in case

of a woman candidate or a candidate belonging to Scheduled Caste, the

minimum qualification shall be middle pass.

10. Sub-section 3 of Section 51 of the 1994 Act, provides that

before ordering removal of any Sarpanch or a Panch, the Director or the

Deputy Commissioner concerned may, after such enquiry as he may deem

fit and after giving an opportunity of being heard to the Sarpanch or a Panch

(as the case may be), ask him to show cause against the action proposed to

be taken against him. In other words, sub-section 3 of Section 51 of the 1994

Act, envisages the following actions before the Sarpanch or the Panch is

removed from his office namely,

(i) an enquiry as may be deemed fit by the Director or the

Deputy Commissioner concerned;

(ii) an opportunity of hearing to the Sarpanch or the Panch, as

the case may be;

(iii) an opportunity to the said Sarpanch or Panch to show

cause against the action proposed to be taken against him.

11. At the outset, we deem it appropriate to deal with the plea of

the appellant that the enquiry envisaged under Section 51(3) of the 1994 Act,

is required to be in the nature of a regular enquiry regarding which, he has

placed reliance upon the judgment of Division Bench of this Court in

Suman vs State of Haryana, 2024(3) RCR(Civil) 287.

11.1 We have gone through the above-referred judgment in the case

of Suman (supra); however, we do not agree with the contention so raised

on behalf of the appellant. A careful perusal of the above-referred judgment

in Suman’s case (supra), would show that the Division Bench of this Court

held that the word “enquiry” as mentioned in Section 51(3) of the 1994 Act,

Page 13 of 28

requires to be an enquiry of quasi judicial in nature inasmuch as that the

candidate, who has already been elected, must be given a fair and proper

opportunity to cross-examine the witnesses and the documents produced.

Therefore, a regular enquiry as may be envisaged under the Service Rules, is

not contemplated under Section 51(3) of the 1994 Act. In our considered

view, the enquiry in the nature of quasi-judicial would require association of

the Sarpanch or the Panch (as the case may be) with the enquiry so as to

enable such Sarpanch or the Panch, to put forth his claim and also afford

him an opportunity to ask for cross-examination of witnesses or documents.

In case, the Sarpanch or the Panch has been associated with the enquiry and

sufficient opportunity was afforded to him to put forth his claim and/or to

ask for cross-examination of witnesses or documents; in our considered

view, that would suffice the requirements of a quasi judicial enquiry as

envisaged under Section 51(3) of the 1994 Act.

12. In the backdrop of the afore-said legal position, the stage is set

to deal with the above-referred issues.

13. As regards Issue no.(i), it is observed that the appellant herein

submitted her nomination form dated 19.10.2022 for election to the post of

Sarpanch of Gram Panchayat Chila; wherein, her name is mentioned as

Nisva wife of Altmas and she stated her education as 8

th

class pass from

Sarasvati Vandana High School, Rupnagar, Rohtak, in the year 2013 and in

Annexure `A’, she mentioned her age as 24 years (DOB 01.01.1998).

13.1 After the appellant was elected as the Sarpanch in the year

2022, a complaint was submitted by respondent No.8 as noticed

here-in-above, wherein, an enquiry was marked to the Sub-Divisional

Officer (Civil), Tauru. The said enquiry officer summoned the appellant;

Page 14 of 28

however, the appellant herself stayed away from the proceedings and it was

the husband of the appellant namely, Altmas and his brother, who

represented the appellant in these proceedings.

13.2 During the course of the enquiry, various reports/information

were sought from different quarters/offices so as to verify the age and

educational qualification of the appellant and to further examine the

allegation of multiple votes in the name of the appellant. Evidently, in the

enquiry proceedings, husband of the appellant namely, Altmas presented

various documents in the shape of voters’ list, application submitted to the

BLO etc. and also presented a copy of the statement of the appellant before

the Enquiry Officer.

13.3 The Enquiry Officer conducted a detailed enqu iry and

submitted his enquiry report dated 20.02.2023 (Annexure P-4), the relevant

extract of which reads as under :-

“

During enquiry it was found that in this matter, from the

beginning, two different identities are continued in parallel

namely Nisva and Nisha Khatoon respectively. Keeping in view

this fact, for ensuring clarity during enquiry, the basis for name

and other particulars were considered as Nisva wife of Md.

Altmash Date of Birth 01.01.1998 which were mentioned in the

application form during the nomination of elections for

Sarpanch and during enquiry it was found that:-

1. In SLC of Govt. Girls School Patuka which was issued

few years ago, the date of admission is mentioned as

24.07.2010 at S.No. 863 and name of student is mentioned as

Nisva daughter of Issar, Mother Rukseena, and date of birth is

mentioned as 07.04.2002. The SLC for this was issued on

08.07.2011 and was again issued on 07.04.2002. That this is a

Government Institution which cannot be ignored / overlooked.

Page 15 of 28

2. Saraswati Vandana High School Rohtak has not

provided some important record of student Nisva such as

examination test results, attendance Register and SLC issued by

office and the record pertaining to fee submitted by the parent

from time to time has also not been provided which seems

suspicious.

3.

Principal of Saraswati Vandana High School Rohtak

has issued letter dated 08.02.2022 which was written by him to

Block Education officer Rohtak and the same was received in

this office wherein it has been clearly mentioned by the

Principal that regarding date of birth for Nisva daughter of

Issar, her father Issar has submitted affidavit before School

wherein hehas mentioned date of birth of his daughter as

01.01.1998. From this statement, it is clear that School has

considered the said affidavit as basis and mentioned the date of

birth. The School has not obtained date of birth certificate or

any other strong documentary evidence regarding date of birth.

Therefore, this date of birth cannot be considered as authentic.

Student's father has provided affidavit which was examined and

at Point No. 5 he has mentioned that Student Nisva has not

been student of any recognized Institution prior to this and at

Point No. 06 she has mentioned that has no birth related record

anywhere. The above said affidavit in itself being proved as

false because the birth record of the student was present in

School of Village Patuka.

4. In the School record of Saraswati Vandana High

school Rohtak, the record has overwriting at the place of Sex

and Religion which raises suspicion.

5. No record of the student has been presented from

class 5

th

to 7

th

by Sarpanch. From this fact, it is relevant to

mention that she has obtained primary education in Village

Patuka from Govt. School and thereafter, obtained admission in

Saraswati Vandana High School Rohtak by mentioning wrong

date of birth and by submitting false affidavit (by mentioned

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that she has not obtained education anywhere and date of birth

record is not present).

6. Sarpanch Nisva's old ration card which are in name of

father Issar son of Surajmal bearing Ration Card No. 811357

wherein in the details of family members, Nisva's name is

mentioned at S.No. 5 which has overwriting.

7. From dual identity Nisva and Nisha Khatoon, it

appears that one person has two different identities which are

being continued

8. In the nomination of Sarpanch Nisva, for Ward No. 3

S.N. 1 has voter card ID no. 1QF1604925 and age is 19 years

and as per statement of applicant, the same has been got

prepared by her on the basis of educational certificate of

National Open School Enrolment No. MO5300172539, Course

Secondary, Candidate Name Nishva DOB 07-04-2002, Mother

Name-Ruksina, Father Name-Issar and on the basis of aadhaar

card wherein her date of birth is mentioned as 07.04.2002 and

on the basis of these documents, the said voter card has been

issued. Signatures of present Sarpanch Nisva are matching with

the signatures present on the copy of above certificate and the

photograph is also matching with her photograph and

signatures available on nomination form. From this it appears

that Sarpanch Nisva has obtained certificate of Open School

education as per date of birth 07.04.2002 in accordance with

the education record mentioned in Village Patuka at S.No.863.

The same is evidence in itself. The same cannot be ignored."

xxx xxx xxx

“If as per nomination, the name of Nisva is considered

correct then her date of birth is mentioned as 07.04.2002 in GC

Model High School Tauru and Govt. Girls High School Patuka.

As per record of GC Model High School Tauru she studied

from Class 1 to Class 3 and thereafter, she studied in Govt.

Girls High School Patuka in Class 5 and her name was struck

off while studying there. This record is of Government School

which cannot be ignored.”

Page 17 of 28

xxx xxx xxx

“Upon examining all proofs / documentary evidences available

on case file, I have arrived at the conclusion that newly elected

Sarpanch during her nomination application has mentioned her

particulars as Nisva wife of Md. Altmas, Age 24 years,

Education Class 8th, Saraswati Vandana High School, Roop

Nagar, Rohtak in year 2013 and she has mentioned her date of

birth as 01.01.1998 which has been found incorrect during

enquiry. Therefore, it shall be appropriate to take action

against newly elected Sarpanch Nisva Gram Panchayat Cheela

under Haryana Panchayati Raj Act,1994 and in accordance

with the latest guidelines / directions receivedfrom State

Election Commission. Report is submitted for your kind perusal

and further necessary action.”

13.4 After the afore-said enquiry, a Show Cause Notice dated

09.03.2023 (Annexure P-5) under Section 51(3)(b) of the 1994 Act, was

served upon the appellant to which she submitted her detailed reply dated

22.03.2023 (Annexure P-6).

13.5 Thereafter, the Deputy Commissioner, Nuh, upon consideration

of the matter, vide its order dated 03.07.2023 (Annexure P-7) came to the

conclusion that as per the voters’ list, the age of the appellant was 19 years;

accordingly, the appellant was held to be ineligible for contesting elections

of Sarpanch and hence, removed from the post of Sarpanch under Section

51(3)(b) of the 1994 Act.

14. Being dissatisfied, the appellant preferred an appeal before

the learned Commissioner, Faridabad, who vide its order dated 08.11.2023

(Annexure P-10), dismissed the appeal by observing as under :-

“After hearing the arguments of the advocates of both the

parties and perusing the records of the following

court/authority, it was found that as per the records of the first

class Government Primary School, Patuka School, the date of

Page 18 of 28

birth of the applicant is 31.01.1997 and the fourth class passed

from G.C. Modern High School, the date of birth is mentioned

as 07.04.2002 and again in Government Primary School,

Patuka the applicant has registered the date of birth as

07.04.2022 in Class V. The appellant have passed class 10

th

from National Open School in the year 2019. In which also the

date of birth is mentioned as 07.04.2002.

Apart from this, the appellant has stated that she has passed 8

th

class from Vandana High School, Roop Nagar District, Rohtak

in the year 2013 and she has attached the certificate with the

nomination form, in which the date of birth is mentioned as

01.01.1998. On the other hand, she has regularly studied her

Alima studies from Jamia Noorul Islamia Niswan Jamiya

Nagar Mahapat Mau Lucknow (Uttar Pradesh) from 2011 to

2015, which has been confirmed by Noorul Islam Madrasa

during investigation.

As far as the five votes of the appellant are concerned, the

description of her five votes is in the order under appeal, out of

five votes, four votes have been deleted from the voter list,

which were deleted after the election for the post of Sarpanch.

With the above five votes, the appellant has cast the vote of

Ward No.3 in the nomination form, the serial number is marked

one and the said vote has been made on the basis of 10

th

class

pass certificate in which his date of birth is 07.04.2002.

After the above discussion, the date of birth of the applicant as

per the 10

th

pass certificate is 07.04.2002, which is an

important document regarding age determination. According to

which, her age at the time of election is 20 years, which is not

as per the age fixed by the government for contesting elections

for the post of Sarpanch. As far as the appellant is concerned,

she passed her 8

th

class from Saraswati Vandana High School,

Roopnagar Rohtak in the year 2013, while on the other hand,

she has done regular studies of Alima from the above

mentioned Jamia Noorul Islamia Madrasa from the year 2011

to 2015. It is not possible for a person to pursue regular

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education in two different schools/madarsas at the same time.

In such a situation, it would be justified to consider her Class

VIII pass certificate as fake and it appears that this has been

done only to mention the age of the appellant as 01.01.1998.

The allegation of making five votes against the appellant is also

confirmed. During the hearing, the advocate for the appellant

did not present any such fact/evidence which would show that

the order under appeal has been passed arbitrarily without

facts. Therefore, action has been taken against the appellants

as per rules under 51(3)(b) Panchayati Raj Act 1994 on the

basis of evidence. Therefore, the appeal of the applicant is

dismissed while upholding the order under appeal. A copy of

this order should be sent to the Deputy Commissioner,

Nuh/lower authority.”

15. Thereafter, the appellant preferred a writ petition bearing

CWP No.25976-2023, which was also dismissed by the learned Single

Judge, vide impugned order dated 05.04.2024 by holding that the appellant

failed to prove her age and qualification as mentioned in the nomination

papers and even the multiple votes were found to have been made by the

appellant, which were subsequently deleted after filing of the nomination

papers.

16. Before this Court, the appellant has claimed two different dates

of birth. In this regard, reference can be made to para Nos.4 and 5 of the

instant appeal (LPA), which reads as under :-

“4. That as regards the date of birth of the appellant, it

is humbly submitted that Ld. Single Judge has returned the

finding on the basis of conjectures and surmises and the official

record from the office of Registrar Death and Birth-cum-

Deputy Civil Surgeon, Nuh, has been completely ignored. The

appellant has placed on record her birth certificate dated

10.03.2023 (Annexure P-21), reflecting her date of birth as

04.12.1998. She had also placed on record a report from the

Page 20 of 28

office of Sub Divisional Officer, Tauru, dated 14.02.2023

(Annexure P-22), reflecting that a girl child namely Nisha

Khatoon was born to Issar and Ruksana on 04.12.1998. It was

also proved on by way of Report (Annexure P-22) that from

02.12.2002 till 07.12.2022 no child was born to Issar and

Ruksana. This unimpeachable record has been given a

complete goby and minor discrepancies has been given undue

weightage by the Ld. Single Judge.

5. That in the reply to the show cause notice, the

appellant categorically submitted that the date of birth of the

appellant is also mentioned as 01.01.1998 in the copy of the

Register of the Chowkidar. Pariwaar Pehchaan Patra, also

reflects the date of birth of the appellant as 01.01.1998. Record

of all the children, fathered by father of the appellant Issar

Khan was also brought to the notice of the Enquiry Officer and

also this Hon’ble Court. Still this Hon’ble Court has not lead

much credence to the evidence available on record and the

finding regarding the date of birth has been recorded on the

basis of conjectures and surmises.”

17. A perusal of the paper-book would leave no manner of doubt

that there is sufficient evidence available on record in the shape of `School

Leaving Certificate’ (SLC) of Government Girls School, Patuka; voter ID

Card No.IQF1604925, which has been prepared on the basis of educational

certificate of National Open School in the name of appellant with enrollment

No.MO5300172539 and also the Aadhar Card of the appellant wherein her

date of birth is mentioned as 07.04.2002. The Enquiry Officer as well as the

Deputy Commissioner and also the learned Commissioner, have considered

the above-referred documents as conclusive as regards the age of the

appellant is concerned. It is, therefore, apparent that at the time of submitting

nomination papers on 19.10.2022, the age of the appellant was 20 years and

in terms of Section 173 of the 1994 Act, the appellant being below 21 years,

Page 21 of 28

was clearly ineligible to contest the elections. Accordingly, Issue no.(i) is

decided against the appellant.

18. Now, coming to Issue no.(ii), it is observed from the enquiry

report that the appellant was duly summoned by the Enquiry Officer;

however, she did not appear in the proceedings rather she was represented

through her husband-Altmas and also through the brother of her husband;

who participated in the enquiry proceedings and also submitted documents

in support of their claim along with a copy of the statement of the appellant.

During enquiry, various persons were summoned/examined and sufficient

opportunities were available to the appellant and/or her representative

Sh. Altmas, to have asked for cross-examining the complainant or any other

witness; however, at no point, any such request for cross-examination was

made on behalf of the appellant. Therefore, once the appellant herself failed

to avail the opportunities to ask for cross-examination of the complainant or

other witnesses, then after the conclusion of the proceedings, she cannot turn

around and say that no fair and proper opportunity was afforded to her.

Accordingly, Issue no.(ii) is decided against the appellant.

19. Now coming to Issue no.(iii) as to whether the election of the

appellant could have been questioned only by way of filing an election

petition under Section 176 and not under Section 51 of the 1994 Act; suffice

it to say that a careful perusal of the provisions contained in Sections 51 and

176 of the 1994 Act, would indicate that both the said provisions operate in

different fields and there is nothing contained therein to indicate that the said

provisions exclude each other. Section 176 of the 1994 Act, operates when

an election petition is brought before the Court of Competent Jurisdiction

whereas, Section 51 of the 1994 Act, enables the Director or the Deputy

Page 22 of 28

Commissioner concerned, to pass an order of removal on the basis of the

grounds specified in sub-section (3) of Section 51 of the 1994 Act.

19.1 In the judgment rendered by the Hon’ble Supreme Court of

India in the case of State of Himachal Pradesh vs Surinder Singh Banolta,

2007(1) RCR(Civil) 254, which has been relied upon by the appellant; it has

been clearly delineated that the provisions of Sections 122 and 163 read with

Sections 174 and 175 of the Himachal Pradesh Panchayati Raj Act, 1994;

operate in different situations. Here, it would be apposite to refer to Section

122 and Section 163 of the Himachal Pradesh Panchayati Raj Act, 1994,

which reads as under :-

"122(1) : A person shall be disqualified for being chosen as,

and for being, an office bearer, of a Panchayat -

(a) if he is so disqualified by or under any law for the time

being in force for the purposes of the election to the State

Legislature :

Provided that no person shall be disqualified on the ground that

he is less than 25 years, if he has attained the age of 21 years;

(b) * * *

(c) if he has encroached upon any land belonging to, or taken

on lease or requisitioned by or on behalf of, the State

Government, a Municipality, a Panchayat or a Co-operative

Society unless a period of six years has elapsed since the date

on which he is ejected therefrom or he ceases to be the

encroacher; or

***

(2) The question whether a person is or has become subject to

any of the disqualifications under sub-section (1), shall after

giving an opportunity to the person concerned of being heard,

be decided -

(i) if such question arises during the process of an election, by

an officer as may be authorised in this behalf by the State

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Government, in consultation with the State Election

Commission; and

(ii) if such question arises after the election process is over, by

the Deputy Commissioner."

Sections 163 of the Act reads as under :

"163(1) Any elector of a Panchayat may, on furnishing, the

prescribed security in the prescribed manner, present within

thirty days of the publication of the result, on one or more of the

grounds specified in sub-Section (1) of Section 175, to the

authorised officer an election petition in writing against the

election of any person under this Act.

(2) The election petition shall be deemed to have been

presented to the authorised officer - (a) when it is delivered to

him -

(i) by the person making the petition; or

(ii) by a person authorised in writing in this behalf by the

person making petition; or

(b) when it is sent by registered post and is delivered to the

authorised officer or any other person empowered to receive

it."

19.2 The above referred provisions contained in Sections 122 and

163 of the Himachal Pradesh Panchayati Raj Act, 1994, are somewhat

similar to the provisions of Sections 51 and 176 of the 1994 Act.

19.3 Considering the afore-said provisions contained in Sections 122

and 163 of the Himachal Pradesh Panchayati Raj Act, 1994; the Hon’ble

Supreme Court in Surinder Singh Banolta’s case (supra), has observed as

under :-

“5. Chapter IX deals with the officers and staff of panchayats.

Clause (f) of Section 159 defines "election" to mean an election

to fill an office under the provisions of the Act. Section 162 of

the Act, in tune with the provisions of Article 243O of the

Constitution of India provides that no election under the Act

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will be called in question except by an election petition

presented in accordance with the provisions of Chapter XI.

6. Sections 163 of the Act reads as under :

"163(1) Any elector of a Panchayat may, on furnishing, the

prescribed security in the prescribed manner, present within

thirty days of the publication of the result, on one or more of the

grounds specified in sub-Section (1) of Section 175, to the

authorised officer an election petition in writing against the

election of any person under this Act.

(2) The election petition shall be deemed to have been

presented to the authorised officer -

(a) when it is delivered to him –

(i) by the person making the petition; or

(ii) by a person authorised in writing in this behalf by the

person making petition; or

(b) when it is sent by registered post and is delivered to the

authorised officer or any other person empowered to receive

it."

7. Section 174 of the Act provides for jurisdiction of the court to

pass order in the manner laid down therein after inquiring into

the election petition by the authorised officer.

8. Section 175 of the Act provides for the grounds upon which

an election petition can be dismissed or an election can be set

aside.

9. Respondent herein was elected as a member of Zilla

Parishad. The result of election was declared on 5.01.2001. An

application was filed by Respondent No. 2 Daulat Ram before

the Deputy Commissioner, Shimla District alleging that as he,

having been declared an encroacher within the meaning of the

provisions of Sections 4 and 7 of the Himachal Pradesh Public

Premises (Rent Recovery and Land Eviction) Act, 1971 was

disqualified to hold the elected post and, thus, should not be

allowed to continue therein. The Deputy Commissioner took

cognizance of the said complaint and by reason of an order

dated 4.06.2002 declared Respondent No. 1 as disqualified for

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being chosen as a member of the Zilla Parishad and

consequently his election was set aside.

10. It is not in dispute that a proceeding under the Himachal

Pradesh Land Revenue Act was initiated against Respondent

No. 1. He was held to be unauthorized occupant of a land

measuring 13 biswas in terms of the provisions of the Himachal

Pradesh Public Premises (Rent Recovery and Land Eviction)

Act by the Collector, Sub-Division, Theog. The said order was

confirmed by the Financial Commissioner of the Shimla

Division by an order dated 6.08.1998. We will proceed on the

basis that the said order has attained finality although there

appears to be some dispute in relation thereto.

11. Respondent No. 1 was declared to be an encroacher in the

year 1998. He was directed to be ejected from the land in

question. The notification for election of Zilla Parishad by the

State Election Commission under the Act was issued on

16.11.2000. As noticed hereinbefore, Respondent No. 1 was

declared elected on 5.01.2001. In terms of the provisions of

Article 243O read with Section 163 of the Act, an election

petition, therefore, was maintainable for setting aside his

election.

12. Disqualification as provided for under Article 243F has

been laid down in Section 122 of the Act. Section 175 of the Act

provides for disqualification as one of the grounds upon which

an election petition could be filed. Interpreting the

aforementioned provisions, a Division Bench of the Himachal

Pradesh High Court opined that the order dated 27.06.2002

passed by the Deputy Commissioner is not sustainable in law.

13. Mr. J.S. Attri, learned AAG appearing on behalf of the

appellants would submit that although the provisions of Section

163 are ordinarily required to be taken recourse to but having

regard to the fact that in terms of Sub-section (2) of Section 122

of the Act, the question as regards declaring a candidate as

disqualified may arise not only before an election is held but

also after the election process is over; and thus, whereas in the

Page 26 of 28

former case, it will be the Authorised Officer concerned who

can determine the question of disqualification but in a case

where processes are initiated after the election, the Deputy

Commissioner alone would be the prescribed authority.

14. Section 163 of the Act provides for filing of an election

petition on one or more grounds specified in sub-section (1) of

Section 175 thereof. Clause (a) of sub-section (1) of Section 175

of the Act inter alia lays down a ground for setting aside of an

election if on the date of the election the elected person was not

qualified or disqualified to be elected under the Act.

15. It is no doubt true that Section 122 contemplates both the

situations, viz., where a person shall be disqualified for being

chosen as also for being an office bearer of panchayat inter

alia if he has encroached upon any land belonging to any

authority mentioned therein. In view of the language of the said

provision, we are of the view that whereas an issue falling

under clause (1) of sub-section (2) of Section 122 of the Act

must be determined before the Authorised Officer, any order of

encroachment passed after the election process is over would

be determined by the Deputy Commissioner.

16. The provisions of the Act, as noticed hereinbefore, have

been enacted pursuant to or in furtherance of the constitutional

mandate contained in Part IX of the Constitution of India. The

provisions of the Act, therefore, are required to be construed

strictly in terms thereof. Clause (b) of Article 243O of the

Constitution of India mandates that no election shall be set

aside save and except by an order passed by the Authorised

Officer. In our considered opinion, Section 122 of the Act must

be read in the light thereof. Section 162 of the Act expressly

provides for the exclusive jurisdiction of the Authorised Officer

to determine the existence or otherwise of any ground

enumerated in Section 175 of the Act.

17. Once, thus, a person is declared to be an encroacher prior

to the date on which he has been declared as elector and if the

said order has attained finality, the question as to whether he

Page 27 of 28

stood disqualified in terms of the provisions of Section 122 of

the Act, in our opinion, must be raised by way of an election

petition alone. If the submission of Mr. Attri is to be accepted,

the same may result in an anomalous position.

18. If a candidate or a voter had the knowledge that the elected

candidate was disqualified in terms of Section 122 of the Act, he

may file an application. The order of eviction may come to the

notice of some other person after the election process is over. A

situation, thus, may arise where two different proceedings may

lie before two different authorities at the instance of two

different persons. Two parallel proceedings, it is well settled,

cannot be allowed to continue at the same time. A construction

of a statute which may lead to such a situation, therefore, must

be avoided. It will also lead to an absurdity if two different

Tribunals are allowed to come to contradictory decisions.

19. Furthermore, it is a well-known principle of law that where

literal interpretation shall give rise to an anomaly or absurdity,

the same should be avoided. [See Ashok Lanka v. Rishi Dixit,

(2005)5 SCC 598 and M.P. Gopalakrishnan Nair v. State of

Kerala,(2005)11 SCC 45]

20. It is also a well-settled principle of law that in a case where

a statute is found to be obscure the same must be interpreted

having regard to the constitutional scheme. In a case of this

nature, the doctrine of purposive construction should be

applied. [See Bombay Dyeing & Mfg. Co. Ltd.(3) v. Bombay

Environmental Action Group & Ors., (2006)3 SCC 434, Nathi

Devi v. Radha Devi Gupta, 2005(1) RCR (Civil) 631 (SC) :

2005(1) RCR (Rent) 218 (SC) : (2005)2 SCC 271, Lalit Mohan

Pandey v. Pooran Singh & Ors., (2004)6 SCC 626, Indian

Handicrafts Emporium & Ors. v. Union of India & Ors.,

(2003)7 SCC 589 and Balram Kumawat v. Union of India &

Ors., (2003)7 SCC 628]

21. It is also well-settled that the entire statute must be read as

a whole. The relevant provisions of the Constitution as also

those in the statute must, thus, be read harmoniously. [See

Page 28 of 28

Bombay Dyeing (supra) and Secretary, Department of Excise &

Commercial Taxes and Others v. Sun Bright Marketing (P)

Ltd., Chhattisgarh and Another, [(2004)3 SCC 185]. So read,

we are of the opinion that the Division Bench of the High Court

was correct in its view. The matter might have been different if

Respondent No. 1 was declared to be an encroacher after the

election process was over and, thus, becoming disqualified to

continue to be an office bearer of Panchayat or Zilla Parishad.

22. For the reasons aforementioned, no fault can be found in

the impugned judgment. It is, therefore, affirmed. The appeals

are dismissed with costs. Counsel’s fee assessed at Rs.10,000/-.

Appeal dismissed.”

20. Keeping in view the above discussion, it can safely be held that

the election of the appellant could have been questioned either by filing an

election petition under Section 176 of the 1994 Act or by submitting a

complaint to the concerned authority under Section 51 of the 1994 Act;

therefore, Issue no.(iii) is decided accordingly.

21. Considering the totality of circumstances, we find no reason to

interfere in the order passed by the learned Single Judge and the same is,

accordingly, affirmed. Resultantly, the instant appeal fails and the same is,

hereby, dismissed.

(SUDHIR SINGH) (HARSH BUNGER)

JUDGE JUDGE

May 03, 2025

gurpreet

Whether speaking/reasoned: Yes/No

Whether reportable: Yes/No