[Cites 4, Cited by 0]
Gauhati High Court
WA/413/2025 on 9 March, 2026
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GAHC010284972025
2026:GAU-AS:3446-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Writ Appeal No.413 of 2025
Monowara Khatun,
A.P. Member, Mayarchar G.P.,
Wife of Rofiqul Islam Akond, Resident of Village:
Mayarchar, PO: Nayeralga, PS: Bilasipara, District: Dhubri,
Assam, PIN - 783348.
......Appellant
-Versus-
1. Rifa Zulka,
Wife of Sofiqul Islam,
Resident of Village: Nayeralga Pt. IV,
PO: Nayeralga, District: Dhubri, Assam, PIN - 783348.
2. Robiul Islam,
Son of Sheikh Abdullah,
Resident of Village: Nayeralga Pt. III,
PO: Nayeralga, District: Dhubri, Assam, PIN - 783348.
3. Nuruddin Ahmed,
Son of Nowshad Ali Sk,
Resident of Village: Dudhnath Hill,
PO: Tilapara, District: Dhubri, Assam, PIN - 783348.
4. Sobura Khatun,
Wife of Sukur Ali,
Resident of Village: Kajaikata Pt. I,
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PO: Bilasipara, District: Dhubri, Assam, PIN - 783348.
......Opposite Parties/
Writ Petitioners
5. The State of Assam, represented by the Additional Chief
Secretary to the Government of Assam, Panchayat & Rural
Development Department, Dispur, Guwahati - 781006.
6. The Assam State Election Commission, represented by the
Secretary, Panjabari, Guwahati - 781037.
7. The District Commissioner, Dhubri,
PO & District: Dhubri, Assam, PIN - 783301.
8. The Circle Officer, Dhubri Revenue Circle,
PO & District: Dhubri, Assam, PIN - 783301.
9. The Executive Officer, Nayeralga Anchalik Panchayat, PO:
Nayeralga, District: Dhubri, Assam, PIN - 783348.
......Respondents/
Opposite Parties
- BEFORE -
HON'BLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR
HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
For the Appellant(s) : Mr. M.K. Choudhury, Sr. Advocate, assisted by Mr. H.R.
Ahmed, Advocate.
For the Respondent(s) : Mr. T.J. Mahanta, Sr. Advocate, assisted by Mr. D.A. Kaiyum,
Advocate for respondent Nos.1 to 4.
: Mr. S. Dutta, Standing Counsel, Panchayat & Rural
Development Department for respondent Nos.5 and 9.
: Mr. R. Dubey, Advocate for respondent No.6.
: Mrs. S. Sarma, Junior Government Advocate, Assam for
respondent Nos.7 and 8.
Date of hearing : 09.03.2026.
Date of Judgment : 09.03.2026.
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JUDGMENT & ORDER (ORAL)
(Ashutosh Kumar, CJ)
We have heard Mr. M.K. Choudhury, learned Senior Advocate,
assisted by Mr. H.R. Ahmed, learned Advocate for the appellant; Mr. T.J.
Mahanta, learned Senior Advocate, assisted by Mr. D.A. Kaiyum, learned
Advocate for respondent Nos.1 to 4; Mr. S. Dutta, learned Standing
Counsel, Panchayat & Rural Development Department for the
respondent Nos.5 and 9; Mr. R. Dubey, learned Advocate for respondent
No.6 and Mrs. S. Sarma, learned Junior Government Advocate, Assam for
respondent Nos.7 and 8.
2. The judgment impugned in the present appeal is dated
15.12.2025, passed by a learned Single Judge of this Court in WP(C)
No.4272/2025.
3. Nayeralga Anchalik Panchayat, Dhubri (No.5) was constituted
on 07.05.2025 and for the first time, a meeting was held on 11.07.2025,
meant for electing the President and the Vice-President of the said
Anchalik Panchayat. On that day, there was no quorum available and,
therefore, the meeting was adjourned to 15.07.2025.
On this adjourned date, i.e. 15.07.2025, six persons were
present, who voted for two of the members as President and Vice-
President of the said Anchalik Panchayat. The person, who was elected
as President, is the appellant before this Court.
The private respondents questioned it on the ground that there
was still lack of quorum on 15.07.2025 and that they did not have the
notice of the adjourned date of meeting.
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4. The learned Single Judge, on the aforenoted grounds, namely,
the meeting being non-quorate and no effective notice to the writ
petitioners/ respondents, set aside the election and directed for a fresh
election on 29.12.2025, which date was fixed suo motu by the Court.
5. While evaluating the aforenoted judgment, this Court was of
the view that the date for next election ought not to have been fixed by
the learned Single Judge but should have been left to the authorities,
with effective notice to all the members for attending such meeting.
6. Be that as it may, the order passed by the learned Single
Judge was never interfered with and the elections were, though, held on
12.01.2026 in which respondent No.1 and another were elected as
President and Vice-President of the Anchalik Panchayat. Needless to
state that the appellant had contested the said election.
7. This closes the issue for the present but on the insistence of Mr.
M.K. Choudhury, learned Senior Advocate for the appellant, further
discussion is being made so as to clear the doubts whether for the
purposes of election of the President and Vice-President of the Anchalik
Panchayat, Section 46 of the Assam Panchayat Act, 1994 (hereinafter to
be referred as the "Act of 1994"), which deals with quorum, would be
applicable or would it be governed by Section 37 of the Act of 1994 read
with Rule 48 of the Assam Panchayaat (Constitution) Rules, 1995
(hereinafter to be referred as the "Rules of 1995").
8. Section 37 of the Act of 1994 clearly provides that only the
directly elected members of the Anchalik Panchayat shall elect, from
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amongst the directly elected members, two members as President and
Vice-President, respectively, of the Panchayat in a meeting which shall
be called the first meeting of the Anchalik Panchayat, to be convened
by and presided over by the Deputy Commissioner of the District in the
manner prescribed.
[Emphasis supplied]
9. The manner has been prescribed in Rule 48 of the Rules of 1995,
which are being extracted herein for the sake of clarity:-
"48. Election of President and Vice-President of Anchalik Panchayats:-
(1) The Deputy Commissioner or the Officer authorised by him in this behalf as
under, sub-section (1) of Section 37 of the Act, shall as soon as possible after
the completion of election as under Section 32 of the Act, convene the first
meeting of the Anchalik Panchayat comprising the members as under sub-
section (1) of Section 32 of the Act, by fixing a date, time and place and
specifying the purpose and by causing a written notice to be served on each of
the said members of the Anchalik Panchayat at least seven days before the
date so fixed. Such meeting shall be presided over as under sub-section (1) of
Section 37 of the Act, and such Officer shall not be entitled to vote.
(2) The Officer as under sub-rule (1), shall administer an oath of affirmation as
under Section 134 of the Act, to the members present before commencement of
the meeting.
(3) If one-third of the total number of members as under sub-section (1) of
Section 32 of the Act, called to the meeting under sub-rule (1) are not present
within an hour of the time fixed for the meeting, the Officer as under sub-rule
(1) shall adjourn the meeting pending fixation of another date by the Deputy
Commissioner not later than fifteen days from the date of such meeting.
(4) The Officer as under sub-rule (1) shall, immediately after oath taking as
under sub-rule (2) of sub-section (1) of Section 32 of the Act, to propose and
second names of persons from amongst themselves for election of a President
and a Vice-President of the Anchalik Panchayat. The said Officer shall record
the name of each candidate proposed for different offices and shall reject any
proposal if the candidate refuses to stand for election.
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(5) If, only one candidate is proposed and seconded against either of the
offices, the officer as under sub rule (1), shall thereupon declare him to be duly
elected as the President or the Vice-President as the case may be, of the
Anchalik Parnchayat.
(6) If, more than one candidate are proposed and seconded against either of
the offices, the Officer as under sub-rule (1), shall conduct the election in the
following manner-
(i) the Officer as under sub-rule (1), shall cause to prepare as many
ballot papers separately for each of the offices as there are members
present as under clause (a) of sub-section (1) of Section 32 of the Act, in
FORM-IV appended herewith in the language of the region and
whereupon the names of the candidates shall be written line-wise in
the order in which the proposals were made;
(ii) the Officer as under sub-rule (1), shall allow the members present as
under clause (i) of sub- rule (6) to inspect the two separate ballot boxes
to be used for the purpose and thereafter secure and seal such ballot
boxes and place them before him. The Officer shall provide a
compartment screened from observation by other persons in which the
members can mark the ballot paper;
(iii) the Officer as under sub-rule (1), shall thereafter handover one such
ballot paper as prepared under clause (i) of sub-rule (6) to each of the
members present after putting his signature on the back of each ballot
paper. He shall then instruct the members to enter the compartment
one by one and put a cross mark against the name of the candidate of
his choice in the ballot paper supplied, fold it and then insert it into the
respective ballot box kept in front of the Officer; and
(iv) if, a member is unable to write or physically incapacitated from
voting, the Officer under sub-rule (1) shall, at the request of the
member, take him to the screened compartment, ascertain his choice
and accordingly mark the ballot paper, fold it and then insert it into the
concerned ballot box. The said Officer shall cause such arrangement to
be made as will ensure secrecy of the ballot paper.
(7) Immediately after the voting is over, the Officer as under sub-rule (1), shall
open the ballot boxes one by one, take out the ballot papers therefrom, count
them and record the number thereof in a statement. A ballot paper shall be
invalid on the grounds as under clauses (a), (b), (c), (d) and le) of sub-rule (7) of
the Rule 46 of these rules.
(8) The Officer as under sub-rule (1) shall, after completion of counting and
recording of votes received by each candidate for either of the Officer, declare
the candidate who has secured highest number of votes against respective
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offices, to be duly elected as the President and the Vice-President of the
Anchalik Panchayat concerned.
(9) In case of equality of votes in either of the said election, declaration of
election shall be given by the Officer as under sub-rule (1), in the manner
prescribed
under Rule 45.
(10) Declaration as to the election to the Offices of the President and Vice-
President of the Anchalik Panchayat by the Officer as under sub-rule (1) shall
be final."
10. Mr. Choudhury, learned Senior Advocate has argued that a
composite reading of Rule 48, referred to above, would definitely give an
impression that the electoral college would consists of a minimum of one
third of the total number of members under sub-section (1) of Section 32
of the Act of 1994 and, therefore, there remains an inconsistency
requiring reconciling the different provisions of the Act and the Rules so
far as the election of the President or Vice-President or the first meeting of
the Panchayat is concerned.
11. We, in this context, also deem it necessary to reproduce
Section 46 of the Act of 1994 for clarity:-
"46. Quorum of the Anchalik Panchayat meeting: (1) One third of the total
numbers of members of the Anchalik Panchayat shall form a Quorum of
transacting business at a meeting of the Anchalik Panchayat. If at the time
appointed for a meeting a quorum is not present, the person presiding shall
wait for thirty minutes, and if within such period, there is a quorum, proceed
with the meeting, but if within such period, there is no quorum, the person
presiding shall adjourn the meeting to such hour or some future date as he
may fix. He shall similarly adjourn the meeting at any time after it has begun,
if his attention is drawn to the want of quorum. At such Adjourned
meetings/no quorum shall be necessary and the business which would have
been brought before the original meeting, shall be transacted.
(2) Every meeting shall be presided over by the President or if he is absent, by
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the Vice-President and if both are absent or if the President is absent and there
is no Vice-President, the members present shall elect one from among
themselves to preside.
(3) All questions shall unless otherwise specifically provided, be decided by a
majority of votes of the members present and voting shall be by raising of
hands. The Presiding Member, unless he refrains from voting, shall give vote
before declaring the number of votes for and against a question and in case of
equality of votes, he may give his casting vote.
(4) No member of an Anchalik Panchayat shall vote on, or take part in the
discussion of, any question coming up for consideration at the meeting of the
Anchalik Panchayat or any committee, if the question is one in which apart
from its original application to the public he has any direct pecuniary interest.
(5) If the person presiding is believed by any member present at the meeting to
have any such pecuniary interest in any matter under discussion, and if a
motion to that effect is carried, he shall not preside at the meeting during such
discussion, or vote on, or take part in it. Any member of the Anchalik
Panchayat may be chosen to preside over the meeting during the continuance
of such discussion.
(6) No proposition shall be discussed at any ordinary meeting unless it has
been entered in the notice convening such meeting or in the case of a special
meeting, in the written request for such meeting. A member may propose any
resolution connected with or incidental to the subjects included in the list of
business. The President may propose any urgent subject of a routine nature
not included in the list of business if no member objects to it. No permission
shall be given in the case of a motion or proposition to modify or cancel any
resolution within three months after the passing thereof except in accordance
with sub-section (8). The order in which any business or proposition shall be
brought forward at such meeting shall be determined by presiding authority
who, in case it is proposed by any member to give particular proposition, shall
put the proposal to the meeting and be guided by the majority of votes given for
or against the proposal.
(7) Any ordinary meeting may, with the consent of a majority of the member
present, be adjourned from time to time, but no business shall be transacted at
any adjourned meeting other than left undisposed at the meeting for which the
adjournment took place.
(8) No resolution of Anchalik Panchayat shall be modified or cancelled within
six months after the passing thereof except by a resolution passed by not less
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than one half of the total number of members at an ordinary or special
meeting, and notice thereof shall have given fulfilling the requirements of sub-
section (4) and setting forth fully the resolution which it is proposed to modify
fully or cancel at such meeting and motion or proposition for the modification or
cancellation of such resolution."
[Emphasis supplied]
12. This quorum of one third of total number of members of
Anchalik Panchayat is specifically for the purposes of transacting business
at a meeting of Anchalik Panchayat. The election of the President and
Vice-President would not come in the category of "transacting business"
for which separate Rule (Rule 48 read with Section 37 of the Act) is
applicable.
13. With the specific provision contained in Section 37 of the Act of
1994 regarding election of the President and the Vice-President of the
Anchalik Panchayt, there can be no manner of doubt that such election
has to be held in the first meeting or in a meeting which is held for the first
time after constitution of the Panchayat for the purposes of electing the
President and the Vice-President, which would be deemed as first
meeting and that the electoral college would be of the directly elected
members and the candidates would be also the directly elected
members for such posts.
14. The provisions contained in Section 32 of the Act of 1994 and
sub-rules (2) and (3) of Rule 48 of the Rules of 1995 have to be read,
perforce, ejusdem generis, i.e. such stipulation regarding one third of the
total number of members is mandated for the purposes of administering
oath to the newly elected members and not for constituting the electoral
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college or the qualification of any member to contest for election, which
according to Section 37 of the Act of 1994, would be available only to
directly elected members and not all the members.
15. Seen in this background, it appears that fresh elections were
held, the date in the first instance having been decided by the Court but
later changed to another date, in which the appellant and the private
respondent and another had contested.
16. In view of this situation, appellant having garnered lesser
number of votes (four votes) than the respondent No.1, who could obtain
seven votes out of eleven polled votes of elected members, nothing
remains to be decided in the present appeal.
17. For the aforenoted reason, we close this appeal with the
observation that it would be open for the appellant to question the
election, if so deemed necessary, of the respondent No.1 and another
before an appropriate forum.
18. The appeal stands disposed off.
JUDGE CHIEF JUSTICE
Mukut bySharma
Sharma Date: 2026.03.10
18:15:44 +05'30'
Comparing Assistant
