Gauhati High Court
Nazrul Islam Laskar vs The State Of Assam And 7 Ors on 26 June, 2020
Equivalent citations: AIRONLINE 2020 GAU 605
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/10
GAHC010090262020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 2720/2020
1:NAZRUL ISLAM LASKAR
S/O- YAFAR ALI LASKAR, R/O- VILL- CHANDPUR PART II, P.O- CHANDPUR,
DIST- CACHAR, PIN- 788110, ASSAM
VERSUS
1:THE STATE OF ASSAM AND 7 ORS
REP. BY THE PRINCIPAL SECRETARY TO THE GOVT OF ASSAM,
PANCHAYAT AND RURAL DEVELOPMENT DEPTT, DISPUR, GUWAHATI-
781006
2:THE COMMISSIONER
PNRD DEPTT
JURIPAR
GUWAHATI- 781022
3:THE DEPUTY COMMISSIONER
KARIMGANJ
ASSAM
PIN- 788710
4:THE CHIEF EXECUTIVE OFFICER
CACHAR ZILLA PARISHAD
DIST- CACHAR
P.O- SILCHAR
PIN- 788001
ASSAM
5:THE BLOCK DEVELOPMENT OFFICER
SALCHAPARA DEVELOPMENT BLOCK
DIST- CACHAR
Page No.# 2/10
PIN- 788025
ASSAM
6:KAMRUL ISLAM LASKAR
S/O- LATE ABDUL NOOR LASKAR
R/O- VILL- CHANDPUR PART II
P.O- CHANDPUR
DIST- CACHAR
PIN- 788110
ASSAM
7:ALTA HUSSAIN LASKAR
S/O- ABDUL JALIL LASKAR
R/O- VILL- CHANDPUR PART V
P.O- CHANDPUR
DIST- CACHAR
PIN- 788110
ASSAM
8:DILAWAR HUSSAIN LASKAR
S/O- ABDUL MANNAN LASKAR
R/O- VILL- CHANDPUR PART-V
P.O- CHANDPUR
DIST- CACHAR
PIN- 788110
ASSA
Advocate for the Petitioner : MR H I CHOUDHURY
Advocate for the Respondent : SC, PNRD
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
26-06-2020 Heard Mr. B. Kaushik, learned counsel for the petitioner and Mr. M. Nath, learned Standing counsel, Panchayat and Rural Development Department, Assam (P&RD Department, in short) for the respondent Nos. 1, 2, 4 and 5. Also heard Mr. S. S. Roy, learned Government Advocate, Assam for the respondent No. 3.
Page No.# 3/10
2) In the Gaon Panchayat Election held in December 2018, the petitioner contested for the post of Group Member of Group No. 10 of 128 No. Buribali Gaon Panchayat under Salchapara Development Block of Cachar District and in the same he returned as a successful candidate.
3) Petitioner stated that at the time of said election in December 2018, he had three living children and to that extent, he has annexed a copy of the affidavit that he had sworn and submitted before the concerned authority during submission of his nomination paper with regard to that election (Annexure-B to the writ petition). It is stated by the petitioner that on 28.05.2019, a baby girl was born to his wife and now he is the father of a fourth living child too.
4) Petitioner stated that the Assam Panchayat Act, 1994 was amended w.e.f. 19.03.2018 and Section 111(2) was inserted. Section 111(2)(a) of said 1994 Act as amended stipulate as follow:-
"(2) No person shall be elected or co-opted and remain as President, Vice President or Member of Zilla Parishad, Anchalik Panchayat and Gaon Panchayat, -
(a) who has more than two living children from a single or multiple partners:
Provided that this provision shall not be applicable in respect of those persons, who have more than two children prior to the date of commencement of this Act."
5) The petitioner also stated that the Assam Panchayat (Constitution) Rules 1995 was amended in October, 2018 and a new Rule 62 was inserted in the said 1995 Rule. Amongst others, Sub-Rules (1) (a) and (b) of Rule 62 of said 1995 Rules read as follows:
"62. Conditions and procedure of disqualification under: sub-section (2) of Section 111 of the Act:-
(1) (a) Subject to the provisions of the Act, at the time of filing of nominations, candidates shall furnish affidavit that he/she has not more than two living children from a single or multiple partners;
(b) The State Government or Concerned District Authority shall remove any President, Vice President or Member of Zilla Parishad, Anchalik Panchayat and Gaon Panchayat if he or she is having two or more than two children from single or multiple partners prior to the date of commencement of the Act, i.e. 19.03.2018 and gives birth to an additional child thereafter;
(c) If any Panchayati Raj Institution (PRI) member divorces his wife after assuming office and subsequently his separated wife gives birth to a third child without remarrying with another person within a period of nine months from the date of separation, he shall be removed from his office with due procedure;"
6) The petitioner submitted that the said 1994 Act, even after its amendment in the year 2018, did not contemplate a situation where a child is born to a President, Vice-President or Member of Zilla Parishad, Anchalik Panchayat and Gaon Panchayat, after the election.
7) As he is now father of four children, the petitioner stated that the respondents in the P&RD Page No.# 4/10 Department have taken steps to remove him from the post of Group Member of said Group No. 10 of 128 No. Buribali Gaon Panchayat and in that regard the Deputy Commissioner, Cachar, Silchar by Order No. CDT(t)156/56/2018/212 dated 29.02.2020 removed the petitioner, Group Member of Ward No. 10 of 128 No. Buribali Gaon Panchayat under Salchapara Development Block (Annexure-D to the writ petition). Resulting to that the Chief Executive Officer of Cachar Zilla Parishad by his communication No. CZP.529/Corresp. (All PRI's)/2019/30 dated 11.06.2020 had directed the Block Development Officer, Salchapara Development Block, District-Cachar to take necessary steps against the petitioner, under the provisions of Section 111(2) of the Assam Panchayat Act, 1994 and the provisions of the Rule 62(1)(g) of the Assam Panchayat (Constitution) Rules 1995 as amended, for his removal from the said post (Annexure-E to the writ petition).
8) The petitioner stated that "after assuming office" reflected in the Rule 62(1)(c) of said 1995 Rules, denotes that both pregnancy and giving birth have to be subsequent to election and of assuming office. But in his case, the pregnancy of his wife was prior to election and giving birth is subsequent to assuming office and such a situation has not been contemplated either under the 1994 Act or under the 1995 Rules as amended. According to the petitioner, in other words, giving birth of an additional child after election shall include pregnancy only after assuming office and not prior to election or not prior to assuming office. The petitioner also contended that he was elected to the post of Group Member in December 2018, whereas he became father of the 4 th child on 28.05.2019 only, which was prior to nine months of his assuming the office as Group Member of the concerned Gaon Panchayat. The petitioner further stated that since the pregnancy of his wife was prior to said election, therefore, he could not disclose of having the 3 rd child at the time of filing of his nomination in December 2018. According to the petitioner there is no provision in the 1994 Act as amended in 2018 for disqualification of a candidate from contesting an election on the basis of possibility of a future pregnancy. He also stated that it is a settled proposition of law that Rules cannot overreach the corresponding provisions of the Act.
9) Mr. Kaushik, learned counsel for the petitioner stated that amended provisions of said 1994 Act and 1995 Rules are under challenge in a writ petition being WP(C) No. 510/2020, wherein a Division Bench of this court on 28.01.2020 issued notice to the respondents therein and the matter is pending for disposal (Annexure-H to the writ petition). Mr. Kaushik further stated that the petitioner on 15.06.2020 submitted a representation before the Deputy Commissioner, Cachar, Silchar, with a copy to the Chief Executive Officer, Cachar, Silchar, praying to allow him to discharge the functions of Group Member of the said Gaon Panchayat and to suspend the impugned action against him, Page No.# 5/10 (Annexure-G to the writ petition) and that his said representation has not yet been disposed off.
10) Hence this writ petition by the petitioner praying, amongst others, to set aside and quash the impugned order of the Deputy Commissioner, Cachar, Silchar dated 29.02.2020 (Annexure-D) as well as the consequential communication of the Chief Executive Officer, Cachar Zilla Parishad dated 11.06.2020 (Annexure-E). He being an elected member, the petitioner has also prayed for necessary order to the respondents not to remove him from the post of Group Member of Ward No. 10 of 128 No. Buribali Gaon Panchayat.
11) Placing the provisions of the new Rule 62 of said 1995 Rules, Mr. Nath, learned Standing counsel for the respondents in the P&RD Department submitted that Rule 62(1)(a) of said 1995 Rules provides that subject to the provisions of said 1994 Act, at the time of filing of nominations, a candidate is required to furnish an affidavit that he or she has not more than two living children from a single or multiple partners; and that 62(1)(b) of said 1995 Rules provides that the State Government or the Concerned District Authority is empowered to remove any President, Vice-President or Member of Zilla Parishad, Anchalik Panchayat or Gaon Panchayat if he or she is having 2 (two) or more than two children from single or multiple partners prior to the date of commencement of said 1994 Act as amended and gave birth to an additional child thereafter. Mr. Nath placed that said 1994 Act was last amended w.e.f. 19.03.2018, whereas the petitioner became the father of his 4 th child on 28.05.2019.
12) Mr. Nath, learned Standing counsel P&RD Department also placed the provisions of sub-Rules (1) (f) and (g) of Rule 62 of said 1995 Rules, which read as follows:-
"62 (1)
(f) The Gaon Panchayat Secretary on receipt of information of such additional child birth in respect of President, Vice-President, Member of Gaon Panchayat shall inform the matter to the concerned Block Development Officer who in turn shall inform the concerned Deputy Commissioner through Chief Executive Officer, Zilla Parishad. The concerned Deputy Commissioner shall examine the matter and on establishment of fact, shall remove the President, Vice-President, Member of the Gaon Panchayat concerned accordingly under intimation to the State Government as well as Assam State Election Commission;
(g) The Executive Officer of Anchalik Panchayat on receipt of information of such additional child birth in respect of President, Vice-President, Member of Anchalik Panchayat shall inform the matter to the concerned Deputy Commissioner through the Chief Executive Officer, Zilla Parishad. The concerned Deputy Commissioner shall examine the matter and on establishment of fact, shall remove the President, Vice-President, Member concerned of Anchalik Panchayat accordingly inform the matter to the State Government in Panchayat and Rural Development Department as well as Assam State Election Commission;
13) Mr. Nath stated that the fact of having the 4 th child by the petitioner was brought to the Page No.# 6/10 notice of the Deputy Commissioner, Cachar, Silchar. Thereafter, pursuant to the letter of the Additional Deputy Commissioner, Cachar, Silchar dated 01.12.2019; the matter in that regard was enquired into by the concerned Election Officer cum Executive Magistrate, Cachar, Silchar and in his enquiry report the allegation of having the 4 th child by the petitioner found to be genuine. For that reason the Deputy Commissioner, Cachar, Silchar by Order No. CDT(t)156/ 56/2018/212 dated 29.02.2020 removed the petitioner as the Gram Panchayat Member of Ward No. 10 of 128 No. Buribali Gaon Panchayat under Salchapara Development Block (Annexure-D to the writ petition). Mr. Nath stated that referring the said order of the Deputy Commissioner, Cachar, Silchar dated 29.02.2015, the Chief Executive Officer of Cachar Zilla Parishad, Silchar by letter No. CZP.529/Corresp. (All PRI's)/2019/30 dated 11.06.2020 requested the Block Development Officer of Salchapara Development Block to take immediate necessary steps against the petitioner for his removal from the post of Group Member of Ward No. 10 of 128 No. Buribali Gaon Panchayat under the provisions of Rule 62 of said 1995 Rules and as required under the provisions of Section 111 (2) of said 1994 Act (Annexure-E).
14) From the affidavit of the petitioner (Annexure-B to the writ petition), which he filed before the Authorised Officer at the time of his election to the post of Group Member of 10 No. Group of 128 No. Buribali Gaon Panchayat, Mr. Nath learned Standing counsel for the respondent P&RD Department stated that the petitioner at Para 3(e) of the said affidavit declared that he did not have more than 2 (two) children from single/multiple partners as per the meaning of the provision under Section 111(2)
(a) of the Assam Panchayat Act, 1994 (as amended-up-to date) and Rules thereunder. Mr. Nath submitted that as per his own version made in this petition, the petitioner, on 28.05.2019 has become the father of his 4th child, after the said election that was held in December 2018.
15) Mr. Nath, on specific instruction, stated that the provisions of Section 111(2) of the Assam Panchayat Act, 1994 as well as the provisions of Rule 62 of the Assam Panchayat (Constitution) Rules 1995 have not been suspended by any Order of the Court nor those are stayed in any matter pending before the Court. Mr. Kaushik, learned counsel for the petitioner, on being enquired, also admitted the fact that those provisions of the 1994 Act and the 1995 Rules have not been stayed by any order of the Court till date and only stated about the order dated 28.01.2020 passed in WP(C) No. 510/2020 (Annexure-H).
16) From the Annexure-B to this writ petition, copy of the affidavit of the petitioner, which he had sworn on 16.11.2018 before the Notary Public at Silchar and submitted it before the Authorised Officer for his Election to the Post of Group Member of 10 No. Group of 128 No. Buribali Gaon Page No.# 7/10 Panchayat, it can be seen that the petitioner at Para 3(e) of the said affidavit explicitly stated that he did not have more than 2 (two) children from single/multiple partners as per the meaning of the provision under Section 111(2)(a) of the Assam Panchayat Act, 1994 (as amended-up-to date) and Rules thereunder.
17) It is already observed that the Assam Panchayat Act, 1994 was amended w.e.f. 19.03.2018 and the Assam Panchayat (Constitution) Rules 1995 was amended w.e.f. 01.11.2018. Both the 1994 Act and the 1995 Rules were amended prior to said Panchayat Election of December 2018 and before swearing the said affidavit (Annexure-B) by the petitioner. From the reading of the Rule 62(1)(a) of said 1995 Rules it can be seen that a candidate at the time of filing his/her nomination to the post in the Zilla Parishad, Anchalik Panchayat and Gaon panchayat under the Panchayati Raj Institution is required to furnish an affidavit that he/she does not have more than two living children from a single or multiple partners. The petitioner in terms of the amended provisions of said 1994 Act and the 1995 Rules contested the Panchayat Election held in December, 2018 and on enquiry, pertaining to the allegation of his becoming the father of his fourth child, being found to be genuine, the Deputy Commissioner, Cachar, Silchar passed the impugned order dated 29.02.2020 removing the petitioner from the post of Group Member of 10 No. Group of 128 No. Buribali Gaon Panchayat under the amended provisions of said 1994 Act and the 1995 Rules. Petitioner has challenged his said removal order stating that those amended provisions of 1994 Act and 1995 Rules, amended in the year 2018 are under challenge. It is apparent that the petitioner was fully aware of the amended provisions of the 1994 Act and the 1995 Rules that were amended prior to December 2018 Panchayat Election in the State and only for that purpose he had sworn the said Affidavit (Annexure-B) on 16.11.2018 and submitted the same along with his nomination papers before the Authorised Officer for election to the post of Group Member of 10 No. Group of 128 No. Burbali Gram Panchayat, as noted above. At the time of participating in said 2018 December Panchayat Election, the petitioner did not have any objection with regard to the amended provisions of said 1994 Act and 1995 Rules.
18) At Paragraph No.4 in this petition as well as at Para-4 of his representation dated 15.06.2020 submitted before the Deputy Commissioner, Cachar, Silchar (Annexure-G to the writ petition) the petitioner stated that he is the father of four living children and that the last one, a girl child, was born to him on 28.05.2019.
19) Similarly, at Paragraph No.3 in this petition as well as at Para-3 of his said representation dated 15.06.2020 (Annexure-G), the petitioner stated that at the time of filing of his nomination in December 2018 Panchayat Election, he had three living children, which he had declared by swearing Page No.# 8/10 an affidavit in his nomination, which was accepted and copy of the said affidavit has been annexed to this petition as Annexure-B.
20) From his said affidavit (Annexure-B to this writ petition) it is seen that the petitioner had sworn the same on 16.11.2018 before the Notary Public at Silchar and submitted it before the Authorised Officer at the time of filing of his nomination for his election to the Post of Group Member of 10 No. Group of 128 No. Buribali Gaon Panchayat. At Para 3(e) of the said affidavit dated 16.11.2018 (Annexure-B) the petitioner had clearly stated that he did not have more than 2 (two) living children from single/multiple partners as per the meaning of the provision under Section 111(2)
(a) of the Assam Panchayat Act, 1994 (as amended-up-to date) and Rules thereunder.
21) Section 111(2) of the Assam Panchayat Act, 1994 as amended, stipulates that - No person shall be elected or co-opted and remain as President, Vice-President or Member of Zilla Parishad, Anchalik Panchayat and Gaon Panchayat, - (a) who has more than two living children from a single or multiple partners. However, it is provided therein that the said provision shall not be applicable in respect of those persons, who have more than two children prior to the date of commencement of said Act. Section 111(2) of the Assam Panchayat Act, 1994 came into force w.e.f. 19.03.2018 (published in the Assam Gazette, Extraordinary).
22) The Petitioner, in this petition, stated that he had three living children at the time of contesting the said 2018 December Gram Panchayat Election and declared about it by swearing an affidavit in his nomination (Annexure-B) which was accepted. But from the reading of the said affidavit dated 16.11.2018 (Annexure-B), particularly Para-3(e) of the same, it can be seen that the petitioner in his said affidavit suppressed the fact of having the third living children from his single/multiple partners nor mentioned the date of birth of his said third child in that affidavit dated 16.11.2018 (Annexure-B), except stating that he did not have more than 2 (two) living children from single/multiple partners as per the meaning of the provision under Section 111(2)(a) of the Assam Panchayat Act, 1994 (as amended-up-to date) and Rules thereunder.
23) Even in this petition, except the date of birth of his fourth child, the petitioner did not mention the date of birth of his third child, whether it was prior to 19.03.2018 or thereafter. It is already noted above that the amended provisions of Section 111(2) of the Assam Panchayat Act, 1994 came into force w.e.f. 19.03.2018.
24) From the affidavit (Page-13) filed along with this writ petition, it is seen that the petitioner sworn the said affidavit on 20.06.2020 stating that, amongst others, the statements made in Page No.# 9/10 Paragraph Nos. 3, 4 and 7 of this petition are matters of record of the case.
25) It is well settled that the courts of law are meant for imparting justice between the parties.
One, who comes to the Court, must come with clean hands. The conduct of a petitioner has always been considered as relevant consideration for exercise of the jurisdiction of the Court under Article 226 of the Constitution. As settled, there are several forms of misconduct that may deprive the applicant of a remedy, like: (i) failure to fulfill the requirement of full and frank disclosure of all facts,
(ii) failure previously to take a point when it was reasonably open to him and (iii) an ulterior motive.
26) In the case of Namdeo Lokman Lodhi -Vs- Narmadabai and Others, reported in AIR 1953 SC 228, the Hon'ble Apex Court have held that -
It is a maxim of equity that a person who comes in equity must do equity and must come with clean hands and if the conduct of the tenant is such that it disentitles him to relief in equity, then the Court's hands are not tied to exercise it in his favour.
27) The Hon'ble Supreme Court in the case of Chancellor -Vs- Bajayananda Kar, reported in 1994 (1) SCC 169 have held that -
A writ petition is liable to be dismissed on the ground that the petitioner did not approach the Court with clean hands. Suppression of material fact made when the petitioner had knowledge of the same, is fatal for maintaining a petition.
28) In the case of R. Vishwanatha Pillai -Vs- State of Kerala , reported in (2004) 2 SCC 105, the Hon'ble Supreme Court have held that -
A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner.
29) The Hon'ble Apex Court in the case of Raj Kumar Soni and Another -Vs- State of U.P. and Another, reported in (2007) 10 SCC 635 observed that -
It is a fundamental principle of law that a person invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India must come with clean hands and must make a full and complete disclosure of facts to the Court. Parties are not entitled to choose their own facts to put- forward before the Court. The foundational facts are required to be pleaded enabling the Court to scrutinize the nature and content of the right alleged to have been violated by the authority.
30) In Ramjas Foundation and Another -Vs- Union Of India and Others, reported in 2010 (11) SCALE 598 the Hon'ble Supreme Court have held that -
The principle that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to Page No.# 10/10 the cases instituted in others courts and judicial forums. The object underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issue(s) arising in the case.
31) The Hon'ble Supreme Court in the case of Amar Singh -Vs- Union of India, reported in (2011) 7 SCC 69 have held that -
This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions.
32) From the statements made by him in this petition and the annexures enclosed with it; this Court is of the view that the petitioner, except stating the date of birth of his fourth child, has deliberately refrained from mentioning the details of his living children in the case that were born to him from his single/multiple partners, specifically that of his third child, whether it was born before or after coming into the force of Section 111(2) of the Assam Panchayat Act, 1994 that came into force w.e.f. 19.03.2018. These acts of the petitioner clearly reflect that he did not approach the Court with clean hands and suppressed the material facts before the Court.
33) Considering the entire aspects of the matter and for the reasons above, this Court is of the opinion that the petitioner is not entitled to the relief he sought for and this writ petition accordingly, being devoid of merit, stands dismissed.
JUDGE Comparing Assistant