Gauhati High Court
Page No.# 1/7 vs The State Of Assam And 4 Ors on 8 August, 2025
Page No.# 1/7
GAHC010176452025
2025:GAU-AS:10421
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4492/2025
FATEHA KHATUN
WIFE OF ABU TALEB , VILL.- CHOLAKURA PT III, P/O. AND P/S. CHUNARI,
DIST. GOALPARA, ASSAM-783129
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT, DISPUR,
GUWAHATI-06.
2:THE DISTRICT COMMISSIONER
GOALPARA
P.O.- BALADMARI
P.S.- GOALPARA (SADAR) ASSAM
PIN-783121.
3:THE ADDL. DISTRICT COMMISSIONER
MAGISTRACY BRANCH GOALPARA
ASSAM PIN-783121
4:THE CHIEF EXECUTIVE OFFICER
ZILLA PARISHAD GOALPARA
ASSAM PIN783121.
5:THE BLOCK DEVELOPMENT OFFICER
KAMAKHYABARI DEVELOPMENT BLOCK
KHARMUZA P.O. JOYBHUM P.S.- LAKHIPUR
DIST- GOALPARA (ASSAM
Advocate for the Petitioner : MR. M I HUSSAIN, MR. M I HUSSAIN,R KHA,N. UDDIN
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Advocate for the Respondent : GA, ASSAM, SC, P AND R.D.
BEFORE
THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY
For the Petitioner : Mr. MI Hussain, Advocate.
For the respondents : Mr. N Goswami, GA
Mr. K Konwar, Addl. AG.
Date of hearing : 08.08.2025
Date of Judgment : 08.08.2025
JUDGMENT &ORDER (ORAL)
1. Heard Mr. MI Hussain, learned counsel for the petitioner. Also heard
Mr. N Goswami, learned State counsel and Mr. K Konwar, learned
Additional Advocate General representing the P&RD Department.
2. As agreed to by the learned counsels for the parties and taking note of
the issues raised, the matter is taken up for final disposal at the motion
stage.
3. Issue notice, returnable forthwith.
4. By the present application, the petitioner has assailed annexure 6 and
order dated 19.07.2025, more particularly, order under
No.GDG.58/P.Election/2025/Pt/80 whereby the petitioner, an elected Gaon
Panchayat Member of 10 No. Chalakura Gaon Panchayat under 12 No.
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Kalshabhanga Rowkhowa Gaon Panchayat has been removed by the
Deputy Commissioner as Gaon Panchayat Member in exercise of power
under Section 111(2)(a) of the Assam Panchayat (Amendment) Act, 2018
read with Rule 62(1)(b) of the Assam Panchayat (Constitution) Rules,
1995.
5. It is the case of the petitioner that the petitioner was elected as
Member of the aforesaid Gaon Panchayat in the last Panchayat Election,
however, based on a complaint lodged by the defeated candidate alleging
that the petitioner was having four children on the date of filing
nomination, the Deputy Commissioner disqualified the petitioner without
adherence of procedure laid down under the Assam Panchayat (as
amended up to date) Act, 1994 (hereinafter referred to as Act, 1994) and
the Assam Panchayat (Constitution) Rules, 1995 (hereinafter referred to as
Rules, 1995) and without giving any opportunity of hearing to the
petitioner. While taking the decision, the petitioner was not even allowed
to place her case before the authorities inasmuch as it is the case of the
petitioner that the four children were born prior to the cut of date i.e.
19.03.2018. According to the petitioner, had an opportunity been granted
to the petitioner, she could have established that she cannot be
disqualified for the ground of having four children in term of the mandate
of the Act, 1994.
6. The learned State counsel representing the parties submits that the
impugned order was based on an enquiry conducted by the Deputy
Commissioner in term of the provision of the Act, 1994 and the Rules,
1995 and there is no prescription of giving any opportunity of hearing
under the Act, 1994 or the Rules, 1995. Therefore, it cannot be said that
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the Deputy Commissioner has committed error in deciding the matter
based on the enquiry report and by not hearing the petitioner.
7. I have given anxious consideration to the argument advanced by the
learned counsel for the parties.
8. Section 111(2) of the Act, 1994 outlines the conditions and procedure
for disqualification of Panchayat Members, primarily on the ground of
having more than two living children from a single or multiple parents,
subject to the condition that, such disqualification shall not be applicable
in respect those persons, who have more than two children prior to date
of commencement of this Act, 1994.
9. The condition and procedure of disqualification under Subsection 2 of
Section 111 of the Act, 1994 are enumerated under Rule 62 of the Rules,
1995. Rules 62 (1) (b) empowers the Government or the concerned
district authority to remove any President/ Vice-president or Member of
Zila Parishad, Anchalik Parishad and Gaon Panchayat, if he or she is
having more than two children from single and multiple parents prior to
19.03.2018 and give birth to an additional child. However, there is an
exception to such provision, when the second child birth are twins and
when the first child birth are triplets.
10. In terms of Rules 62(1)(f), the Gaon Panchayat Secretary on receipt of
information of such additional child birth, is mandated to inform it to the
concerned District Commissioner through the Chief Executive Officer, Zila
Parishad. Such provision further prescribes that, thereafter the concerned
District Commissioner is to examine the matter and on establishment of
fact, is empowered to remove such President, Vice-president, Member
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etc., under intimation to the State Government, as well as to the Assam
State Election Commission.
11. From the aforesaid mandate of law and the procedure prescribed, it is
very clear that certain procedure has been laid down under Rule 62 for the
removal of a Member of Gaon Panchayat, President, Vice-president etc.
and such procedure, when it relates to Gaon Panchayat, is to be initiated
at the end of the Gaon Panchayat Secretary, on receipt of information and
it is to be routed to the District Commissioner, through the office of the
Block Development Officer and the Chief Executive Officer of Zila Parishad.
12. In the case in hand, what is seen is that the information of additional
child birth was directly given before the District Commissioner, who in turn
conducted an enquiry through the Executive Magistrate. In the considered
opinion of this court, though such procedural lapse may not be fatal,
however, in the fitness of things such information ought to have been
given by the defeated candidate before the Secretary of the concerned
Gaon Panchayat.
13. Now from the Rule, 62(1)(f) what is seen is that the concerned District
Commissioner/ Deputy Commissioner is empowered to examine the
matter and such District Commissioner can remove a President, Vice-
President, Member of Goan Panchayat concerned, on establishment of
such fact. Therefore, to have a satisfaction that fact alleged is established,
it shall necessarily require an enquiry and adjudication, may be summary
in nature.
14. There is no doubt in the mind of the court that the District
Commissioner/ Deputy Commissioner is having jurisdiction to conduct an
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enquiry for proper adjudication/ to get the fact established, so as to come
into a just conclusion. However, at the same time as urged by the learned
counsel for the petitioner and as has been noticed by this court that
though an enquiry was conducted and though finding of such enquiry may
have a bearing on the final decision taken by the District Commissioner,
the petitioner is having a right to get such copy of the enquiry report and
she must be given a reasonable opportunity of hearing to defend her case.
Reasonable opportunity shall include furnishing of a copy of the allegation
as well as the enquiry report.
15. It is true that in the Act, 1994 and the Rules, 1995, no specific
procedure has been outlined / prescribed for such hearing however, in
absence of specific exclusion of right of hearing of the elected candidate
against whom disqualification is sought is required to be given a
reasonable opportunity of hearing.
16. The principle of natural justice mandates that a reasonable opportunity
must be given to a person before taking any action against him. The
adjudicating authority must disclose all the material placed before it and
must give reasonable opportunity to the affected to submit his/ their case.
A fair hearing means that a person against whom an adverse order is
passed should be informed of the charges against him giving him an
opportunity to submit his explanation to the charges and the person also
has a right to know the material on the basis of which the allegation is
proposed to be decided, which is totally absent in the present case.
17. In the given fact of the present case, what is required to be determined
is whether the petitioner was having four children as on 19.03.2018 in
term of Section 111 (2) of the Panchayat Act, 1994 and under Rule 62 (1)
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(f) inasmuch as it is the case of the petitioner that the all the children
were born prior to such date. Therefore, an opportunity to the petitioner
is required to be given in the given fact of the case. However, no such
opportunity was given to the petitioner, resulting her disqualification
inasmuch as an elected candidate cannot be lightly disqualified in the
manner it has been done.
18. Accordingly, the impugned order under No. GDG. 58 /P.Election/ 2025/
Pt/ 80 dated 19.07.2025 stands set aside with a liberty to the District
Commissioner to proceed afresh based on the complaint lodged by the
defeated candidate by providing a copy of the complaint lodged and
enquiry report if any to the petitioner and after giving a reasonable
opportunity of hearing to the petitioner. It is needless to say that the
defeated candidate, based on whose allegation, the proceeding was
initiated by the District Commissioner, shall also be given an opportunity of
hearing.
19. With the aforesaid determination and direction, the writ petition stands
disposed of.
JUDGE
Comparing Assistant
