Gauhati High Court
Motiur Rahman vs The State Of Assam And 6 Ors on 24 February, 2022
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GAHC010010212022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/45/2022
MOTIUR RAHMAN
S/O LATE ABDUL HAQUE
VILLAGE ZAKIALA PO ERALIGOOL, DIST KAMRIMGANJ, ASSAM, 788723
VERSUS
THE STATE OF ASSAM AND 6 ORS.
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF
ASSAM,PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT, DISPUR,
GUWAHATI 06
2:THE COMMISSIONER
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT
JURIPAR
GUWAHATI 781022
3:THE DEPUTY COMMISSIONER
KARIMGANJ
ASSAM
788710
4:THE BLOCK DEVELOPMENT OFFICER
PATHERKANDI DEVELOPMENT
PO PATHERKANDI
DIST KARIMGANJ
ASSAM
788723
5:MUHIBUR RAHMAN
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S/O RAFIQUE UDDIN
RESIDENT OF WARD NO. 7
VILLAGE ISLAMBASTI
PO ERALIGOOL DIST KARIMGANJ
ASSAM
788723
6:ABDUS SALAM
S/O LATE ABUL HUSSAIN.
RESIDENT OF WARD NO. 4
VILLAGE SUNAPUR
PO ERALIGOOL
DIST KARIMGANJ ASSAM 788723
7:ABDUL RAJJAK
S/O LATE RAHMAT ALI
WARD NO. 7
VILLAGE ISLAMBASTI
PO ERALIGOOL
DIST KARIMGANJ
ASSAM 78872
Advocate for the Petitioner : DR. B AHMED
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
Date : 24.02.2022
Heard Dr. B. Ahmed, learned counsel for the appellant. Also heard Mr. M.
Nath, learned Standing Counsel, P & RD Department for the respondent Nos. 1,2
and 4 as well as Mr. H.R.A. Choudhury, learned senior counsel for the respondent
Nos. 5,6 and 7.
This writ appeal has been filed by the appellant/writ petitioner challenging
the judgment and order dated 07.12.2021 passed by the learned Single Judge in
WP(C) No. 7705/2019 and other connected writ petitions, by which the writ
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petitions were dismissed.
The appellant/writ petitioner was the President of No. 72 Bandarkona Gaon
Pancayat, who was elected on 15.12.2018. At the time of filing his nomination, the
appellant/writ petitioner was having two children. However, after assuming the
charge of President, another child was born to the appellant/writ petitioner.
Consequently, a complaint was filed before the concerned authority and the matter
reached the Deputy Commissioner of the concerned district. The Deputy
Commissioner, after giving show cause notice to the appellant/ writ petitioner,
removed him from the post of President by exercising powers given under Section
111(2)(a) of the Assam Panchayat Act, 1994 read with Rule 62 of the Assam
Panchayat (Constitution) Rules, 1965.
At this stage, it must be stated that the Assam Panchayat Act, 1994 was
amended in the year 2018 and the limit of two children was imposed by the
amending Section 111 of the said Act. The vires of the Assam Panchayat
(Constitution) (Amendment) Rules, 2018 was put to challenge before this Court in
WP(C) No. 510/2020 (Ayesha Beghm -vs- State of Assam & Ors.). The writ petition
was dismissed by order dated 12.11.2021 and the amendment incorporated was
upheld. This Court has also been informed that the matter ultimately reached the
Apex Court where the SLP was dismissed in limine. The judgment of this Court
upholding the vires of the amendment was based on the decision of the Apex
Court in the case of Javed & Ors. -vs- State of Haryana & Ors., reported in AIR
2003 SC 3057, where a similar provision in the Harayana Panchayati Raj Act was
put to challenge. It was held by the Apex Court in Para 60, 61, 62, 63, 64 and 65
of the judgment as under:
"60. Looked at from any angle, the challenge to the constitutional validity
of Section 175(1)(q) and Section 177(1) must fail. The right to contest an
election for any office in Panchayat is neither fundamental nor a common law
right. It is the creature of a statute and is obviously subject to qualifications
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and disqualifications enacted by legislation. It may be permissible for Muslims
to enter into four marriages with four women and for anyone whether a
Muslim or belonging to any other community or religion to procreate as many
children as he likes but no religion in India dictates or mandates as an
obligation to enter into bigamy or polygamy or to have children more than one.
What is permitted or not prohibited by a religion does not become a religious
practice or a positive tenet of a religion. A practice does not acquire the
sanction of religion simply because it is permitted. Assuming the practice of
having more wives than one or procreating more children than one is a
practice followed by any community or group of people, the same can be
regulated or prohibited by legislation in the interest of public order, morality
and health or by any law providing for social welfare and reform which the
impugned legislation clearly does.
61. If anyone chooses to have more living children that two, he is free to
do so under the law as it stands now but then he should pay a little price and
that is of depriving himself from holding an office in Panchayat in the State of
Haryana. There is nothing illegal about it and certainly no unconstitutionality
attaches to it.
62. It was submitted that the enactment has created serious problems in
the rural population as couples desirous of contesting an election but having
living children more than two, are feeling compelled to give them in adoption.
Subject to what has already been stated hereinabove, we may add that
disqualification is attracted no sooner a third child is born and is living after
two living children. Merely because the couple has parted with one child by
giving the child away in adoption, the disqualification does not come to an
end. While interpreting the scope of disqualification we shall have to keep in
view the evil sought to be cured and purpose sought to be achieved by the
enactment. If the person sought to be disqualified is responsible for or has
given birth to children more than two who are living then merely because one
or more of them are given in adoption the disqualification is not wiped out.
63. It was also submitted that the impugned disqualification would hit
the women worst, inasmuch as in the Indian society they have no
independence and they almost helplessly bear a third child if their husbands
want them to do so. This contention need not detain us any longer. A male
who compels his wife to bear a third child would disqualify not only his wife
but himself as well. We do not think that with the awareness which is arising
in Indian womenfolk, they are so helpless as to be compelled to bear a third
child even though they do not wish to do so. At the end, suffice it to say that if
the legislature chooses to carve out an exception in favour of females it is free
to do so but merely because women are not excepted from the operation of the
disqualification it does not render it unconstitutional.
64. Hypothetical examples were tried to be floated across the Bar by
submitting that there may be cases where triplets are born or twins are born
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on the second pregnancy and consequently both of the parents would incur
disqualification for reasons beyond their control or just by freak of divinity.
Such are not normal cases and the validity of the law cannot be tested by
applying it to abnormal situations. Exceptions do not make the rule nor render
the rule irrelevant. One swallow does not make a summer; a single instance or
indicator of something is not necessarily significant.
Conclusion
65. The challenge to the constitutional validity of Sections 175(1)(q) and
177(1) fails on all the counts. Both the provisions are held intra vires the
Constitution. The provisions are salutary and in public interest. All the
petitions which challenge the constitutional validity of the abovesaid
provisions are held liable to be dismissed."
The case of the appellant/writ petitioner is that in terms of Article 243F(1)(b)
of the Constitution of India, a person who has been elected by a democratic
process can only be disqualified by or under any law framed by the legislature of
the State, i.e. by way of an election petition by an Election Tribunal or Court.
Learned counsel for the appellant/writ petitioner would then argue that one
can only be removed from the post of President of a Gaon Panchayat by way of an
election petition filed before the Election Tribunal constituted under Section 127 of
the Assam Panchayat Act and in case of a disqualification, it can be challenged
before the Election Tribunal by a candidate and it cannot he done by a bureaucrat.
This submission of the learned counsel for the appellant/writ petitioner is entirely
misconceived and, as such, did not find favour with the learned Single Judge.
Under the Assam Panchayat Act, an election petition can be filed before the
Election Tribunal constituted under Section 127, wherein a challenge to an election
can be made on grounds which have been given under Section 127A to 127R.
This is an entirely different matter. This relates to the disqualification attached
to the office of the President, Vice President or the Member, as the case might be
and in the event of their disqualification have to be removed. The provision of such
disqualification and removal, as already stated, has been put to challenge and the
vires has been upheld. The appellant has not shown before this Court any
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procedural violation of Section 111(2)(a) of the Assam Panchayat Act, 1994. We
are therefore, totally in agreement with the learned Single Judge.
The writ appeal has no merit and is hereby dismissed.
JUDGE CHIEF JUSTICE
Comparing Assistant
