Gauhati High Court
WP(C)/2297/2020 on 7 December, 2021
Author: Manish Choudhury
Bench: Manish Choudhury
GAHC010253732019
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WP(C)/7705/2019
Motiur Rahman
S/o Abdul Haque,
R/o Village-Zakiala,
P.O. Eraligool, P.S. - Patherkandi,
District - Karimganj, PIN-788723.
-Versus-
1. The State of Assam
Represented by the Principal Secretary,
To The Government of Assam,
Panchayat and Rural Development Department,
Dispur, Guwahati-781006.
2. The Commissioner, Panchayat and
Rural Development Department,
Juripar, Guwahati-781022.
3. The Deputy Commissioner,
Karimganj, Assam,
PIN-788710.
4. The Block Development Officer,
Patherkandi, Development Block,
District-Karimganj, Assam,
PIN-788723.
5. Muhibur Rahman
S/o Rafique Uddin
R/o Ward No. 7 Village-Islambasti,
P.O. Eraligool, District-Karimganj,
PIN-788723.
6. Abdus Salam,
S/o Late Abul Hussain,
R/o Ward No. 4, Village-Sunapur,
P.O. Eraligool District-Karimganj,
PIN-788723.
7. Abdul Rajjak
Page 1 of 36
S/o Late Rahmat Ali,
R/o Ward No. 7, Village-Islambasti,
P.O. Eraligool, District-Karimganj, PIN-78872.
WITH WP(C)/7503/2019
Motiur Rahman
S/o Abdul Haque,
Village-Zakiala,
P.O. Eraligool, P.S. Patherkandi,
District-Karimganj, PIN-788723.
-Versus-
1. The State of Assam,
Represented by the Principal Secretary,
To The Government of Assam
Panchayat and Rural Development Department,
Dispur, Guwahati-781006.
2. The Commissioner
Panchayat and Rural Development Department
Juripar Guwahati-781022.
3. The Deputy Commissioner, Karimganj,
Assam, PIN-788710.
4. The Block Development Officer,
Patherkandi Development Block,
District - Karimganj, Assam, PIN-788723.
5. Muhibur Rahman,
S/o. Rafique Uddin,
R/o. Ward No.7,
Village- Islambasti,
P.O. Eraligool, P.S. Patherkandi,
District-Karimganj, PIN-788723.
6. Abdus Salam,
S/o. Late Abul Hussain,
R/o. Ward No.4, Village-Sunapur,
P.O. Eraligool, P.S. Patherkandi,
District-Karimganj, PIN-788723.
Page 2 of 36
7. Abdul Rajjak,
S/o. Lt. Rahmat Ali,
R/o. Ward No.7, Village-Islambasti,
P.O. Eraligool, P.S. Patherkandi,
District-Karimganj, PIN-788723.
WITH WP(C)/7729/2018
Bahar Uddin,
S/o Late Abdul Noor,
R/O Village-Kurti, P.O. Kathaltuli,
P.S. Bazaricherra, PIN - 78825, District-Karimganj, Assam.
-Versus-
1. The State of Assam
Represented By its Commissioner and Secretary,
to the Panchayat and Rural Development Department,
Government of Assam,Dispur, Guwahati - 781006.
2. Assam State Election Commissioner,
House Fed Complex,
Dispur, Guwahati - 781006.
3. The Deputy Commissioner,
District, Karimganj, PIN - 788710.
WITH WP(C)/7789/2018
Jahanara Begom,
W/o- Md. Abdul Basit,
Village-Dakshinkul,
P.S. Badarpur, P.O. Bhangabazar,
Sub-Division - Karimganj,
District-Karimganj, Assam.
-Versus-
1. The State of Assam
Page 3 of 36
Represented by Its Commissioner & Secretary,
Panchayat & Rural Development Department,
Dispur, Guwahati-6.
2. The State Election Commission,
Represented by State Election Commissioner, Guwahati-6
3. The Deputy Commissioner, Karimganj, Assam.
WITH WP(C)/26/2020
Nargis Jahan,
W/o Faizul Islam,
Village-Bhangarpar Part-IV,
P.O. Bhangarpar, P.S. Borkhola,
Disrict-Cachar, Assam, PIN-788817.
-Versus-
1. The State of Assam,
Represented by the Principal Secretary
To The Government of Assam,
Panchayat& Rural Development Department,
Dispur, Guwahati-6.
2. The Commissioner,
Panchayat& Rural Development Department,
Juripar, Panjabari, Guwahati-781022.
3. The Deputy Commissioner, Cachar, Silchar,
P.O. Silchar, District-Cachar, Assam, PIN-788001.
4. The Chief Executive Officer,
ZillaParishadCachar,
P.O. Silchar, District-Cachar, Assam, PIN-788801.
5. The Block Development Officer,
Salchapra Development Block,
P.O. Salchapra, District-Cachar, Assam, PIN-788801.
6. Ismatara Begum Laskar,
W/o AktarHussainLaskar,
Village-Bhangarpar Part-I, P.O. Bhangarpar,
P.S. Borkhola, District-Cachar, Assam, PIN-788817.
Page 4 of 36
WITH WP(C)/1147/2020
Minuwara Khatun,
W/o- AynalHaque,
R/o- Village-PaharpurKatuli,
P.S-Baghbar, P.O- Mandia,
District-Barpeta, Assam, PIN- 781038.
-Versus-
1. The State of Assam
Represented by the Principal Secretary
to the Government of Assam,
Panchayat & Rural Development Department,
Dispur Guwahati- 781006
2. The Commissioner,
Panchayat & Rural Development Department,
Juripar, Guwahati-781022.
3. The Deputy Commissioner,
Barpeta, Assam.
4. The Block Development Officer,
Mandia Development Block,
District-Barpeta, Assam.
5. The Gaon Panchayat Secretary,
84 No. Bamundangra Gaon Panchayat,
Mandia Development Block,
P.O-Mandia, District-Barpeta, Assam, PIN-781308.
6. Kazi Saiful Islam,
S/o-Kazi Bahar Ali,
R/o-Village- Paharpur Katuli,
P.S-Baghbar, P.O- Mandia,
District-Barpeta, Assam, PIN- 781308.
7. Kayes Ali
S/o- Late Kitab Ali
R/o- Village-Paharpur Katuli,
P.S-Baghbar, P.O-Mandia,
District-Barpeta, Assam, PIN- 781308.
8. Anwar Hussain,
S/o- Late Jaukhan Ali,
Page 5 of 36
R/o- Village- Paharpur Katuli,
P.S- Baghbar, P.O- Mandia,
District-Barpeta, Assam PIN- 781308.
9. Golap Hussain,
S/o- Late Azimuddin,
R/o- Village-Paharpur Katuli,
P.S- Baghbar P.O- Mandia
District-Barpeta, Assam, PIN- 781308.
10. Mir Hussain,
S/o- Late Azimuddin,
R/o- Village-Paharpur Katuli,
P.S-Baghbar P.O-Mandia,
District-Barpeta, Assam, PIN- 781308.
WITH WP(C)/2297/2020
Joynal Abedin
S/o Israil Hoque, Village- Kathalguri,
P.O. Mathalguri, P.S. Chapar,
District-Dhubri, Assam.
-Versus-
1. The State of Assam
Represented By the Commissioner & Secretary
to the Government of Assam,
Panchayat & Rural Development Department,
Dispur, Guwahati-781006.
2. The Assam State Election Commissioner
represented by the Commissioner,
Housefed Complex, Dispur, Guwahati-781006.
3. The Deputy Commissioner,
Dhubri, District-Dhubri, Assam.
4. The Chief Executive Officer,
Dhubri Zilla Parishad, Dhubri, Assam.
5. The Block Development Officer
Chapar Salkocha Development Block, Chapar,
Page 6 of 36
District-Dhubri, Assam.
6. The Secretary
132 No. Rangamati Gaon Panchayat
under Chapar- Salkocha Development Block
District-Dhubri, Assam.
7. Abu Bakkar Siddique
S/o- Majar Ali, Village- Kushalmari,
P.O- Majergaon District- Dhubri,
Assam, PIN -783376.
8. Musharof Hussain,
S/O- Asharof Ali, Village-Majer Gaon,
P.O- Majergaon, District-Dhubri, Assam,PIN- 783376.
WITH WP(C)/2687/2020
Rabia Nurjahan Laskar,
W/o- Mahmod Hussain Barbhuiya,
R/O- Village-Ganigram Part III,
P.O- Mohadevpur, PIN- 788025, District-Cachar, Assam.
-Versus-
1. The State of Assam
Represented by the Principal Secretary
to the Government of Assam,
Panchayat & Rural Development Department,
Dispur, Guwahati- 781006
2. The Commissioner
Panchayat & Rural Development Department,
Juripar, Guwahati-781022.
3. The Deputy Commissioner,
Cachar, Silchar, PIN-788001, Assam.
4. The Ceo Cachar Zilla Parishad
District- Cachar P.O- Silchar PIN- 788001 Assam
5. The Block Development Officer,
Katigorah Development Block ,
P.O- Katigorah, District-Cachar, PIN-788805, Assam.
6. Dilenur Ahmed Barbhuiya,
Page 7 of 36
S/o- Late Billal Uddin Barbhuiya,
R/o- Village-Ganigram Part-III,
P.O-Mohadevpur,PIN- 788025, District-Cachar, Assam.
WITH WP(C)/2691/2020
Saraswati Rabidas,
W/o- Sri Ranjit Rabidas,
R/O- Village- Vernerpur,
P.O. Vernerpur, District- Hailakandi
PIN- 788163, Assam.
-Versus-
1. The State of Assam
Representedby the Principal Secretary,
to the Government of Assam,
Panchayat & Rural Development Department,
Dispur, Guwahati-06.
2. The Commissioner,
Panchayat & Rural Development Department,
Juripar Ghy-22
3. The Deputy Commissioner,
Hailakandi, Assam.
4. The Chief Executive Officer,
Hailakandi Zilla Parishad Hailakandi,
District-Cachar, P.O. Hailakandi,
PIN- 788151, Assam,
5. Block Development Officer,
Lala Development Block,
P.O. Amala, PIN- 788165, District-Hailakandi, Assam.
6. Sanjay Rabidas,
S/o- RandhirRabidas,
R/o- Village-Verenerpur T.E.,
P.O. Vernerpur, District-Hailakandi, PIN-788163, Assam.
Page 8 of 36
Advocates :
For the petitioner in : Mr. G.N. Sahewalla, Senior Advocate
W.P.(C) no. 7705/2019 : Dr. B. Ahmed
W.P.(C) no. 7789/2018 : Mr. A.K. Talukdar
W.P.(C) no. 7503/2019, W.P.(C) no. 26/2020 : Mr. H.I. Choudhury
W.P.(C) no. 2687/2020 & W.P.(C) no. 2691/2020
W.P.(C) no. 2297/2020 : Mr. S. Borthakur
For the Respondents : Mr. M. Nath, Standing Counsel,
Panchayat and Rural Development Department For the State Respondents : Ms. D.D. Barman, Additional Senior Government Advocate For the Respondent no. 5 in : Mr. H.R.A. Choudhury, Senior Counsel, WP(C)/7705/2019 : Mr. H.R. Choudhury WP(C)/7729/2018 & WP(C)/7503/2019 For the Respondent no. 6 : Mr. A.R. Talukdar In WP(C)/26/2020 For the Respondent nos. 7 & 8 : Mr. H. Ali In WP(C)/2297/2020 For the Respondent no. 6 in : Mr. F.U. Barbhuiya.
In W.P.(C) no. 2691/2020 Date of Hearing and Judgment & Order : 07.12.2021
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER [ORAL]
Heard Dr. B. Ahmed, learned counsel for the petitioner in W.P.(C) no. 7705/2019; Mr. A.K. Talukdar, learned counsel for the petitioner in W.P.(C) no. 7789/2018; Mr. H.I. Choudhury, learned counsel for the petitioner in W.P.(C) no. 7503/2019, W.P.(C) no. 26/2020, W.P.(C) no. 2687/2020 and W.P.(C) no.
Page 9 of 362691/2020 and Mr. S. Borthakur, learned counsel for the petitioner in W.P.(C) no. 2297/2020. Also heard Mr. M. Nath, learned Standing Counsel, Panchayat and Rural Development Department for the respondent authorities in the Panchayat and Rural Development Department; Ms. D.D. Barman, learned Additional Senior Government Advocate for the other State respondents; Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. H.R. Choudhury, learned counsel for the respondent nos. 5- 7 in W.P.(C) no. 7705/2019, W.P.(C) no. 7729/2018 and W.P.(C) no. 7503/2019; Mr. A.R. Talukdar, learned counsel for the respondent nos. 6 in W.P.(C) no. 26/2020; Mr. H. Ali, learned counsel for the respondent no. 7 & 8 in W.P.(C) no. 2297/2020; and Mr. F.U. Barbhuiya, learned counsel for the respondent no. 6 in W.P.(C) no. 2691/2020.
2. As the subject-matters involved in this batch of writ petitions, filed under Article 226 of the Constitution of India, are common and as agreed to by the learned counsel for the parties, all these writ petitions are taken up together for adjudication.
3. The common issues involved herein are relatable to [a] insertion of new sub- section [2] in Section 111 of the Assam Panchayat Act, 1994, inserted by the Assam Panchayat [Amendment] Act, 2018, more particularly, clause [a] in new sub-section [2] in Section 111; [b] insertion of new Rule 62 in the Assam Panchayat [Constitution] Rules, 1995 by the Assam Panchayat [Constitution] [Amendment] Rules, 2018; and [c] the judgment and order dated 12.11.2021 passed by a Division Bench of this Court in the writ petition, W.P.(C) no. 510/2020 [Ayesha begum vs. State of Assam and others] and the resultant effect therefrom.
4. In order to appreciate the respective contentions of the learned counsel for the parties, it would be apposite, at first, to narrate the facts involved, in brief, in each of the writ petitions.
Page 10 of 364.1. W.P.(C) no. 7503/2019 [Motiur Rahman vs. The State of Assam and 6 others] & W.P.(C) no. 7705/2019 [Motiur Rahman vs. The State of Assam and 6 others] :
The petitioner herein participated in the Panchayat election held in the month of December, 2018 by submitting his nomination on 19.11.2018, thereby, offering his candidature for the post of President of No. 72 Bandarkona Gaon Panchayat. When the election results were declared, the petitioner was declared elected for the post of President of No. 72 Bandarkona Gaon Panchayat. A certificate dated 15.12.2018 to that effect was issued by the Deputy Commissioner, Karimganj. At the time of filing his nomination i.e. on 19.11.2018, the petitioner had two living children. He was blessed with another child on 27.02.2019. After 27.02.2019, the respondent nos. 5, 6 and 7 filed a complaint before the Secretary, No. 72 Bandarkona Gaon Panchayat to remove him from the post of President in view of the provision contained in Section 111[2][a] of the Assam Panchayat Act, 1994, as amended ['the Panchayat Act', for short]. A show-cause notice was issued to the petitioner thereafter by the Deputy Commissioner, Karimganj on 12.09.2019 asking him to show-cause as to why he should not be removed from the post of President of the Gaon Panchayat. The petitioner had challenged the said show-cause notice dated 12.09.2019 by way of the writ petition, W.P.(C) no. 7503/2019. This Court while issuing notice of motion and directing the petitioner to file his reply to the show-
cause notice dated 12.09.2019 by an order dated 03.10.2019, had provided, in the interim, not to take any adverse action against the petitioner till the returnable date. But, by the impugned order dated 03.10.2019, the Deputy Commissioner, Karimganj had removed the petitioner from the post of President of No. 72 Bandarkona Gaon Panchayat. After the said order dated 03.10.2019 of this Court, the petitioner submitted a representation before the Deputy Commissioner, Karimganj on 04.10.2019 with the prayer to withdraw the impugned order dated 03.10.2019. But the Deputy Commissioner, Karimganj did not withdraw the impugned order dated 03.10.2019 and hence, this second writ petition assailing the impugned order dated 03.10.2019, along with the previous writ petition, W.P.(C) no. 7503/2019.
Page 11 of 364.2. W.P.(C) no. 7729/2018 [Bahar Uddin vs. The State of Assam and 2 others] :
The petitioner has stated that he has two wives and from each wife, he is having 5 minor children. One child was born on 18.09.2018. He intended to contest for the post of President of No. 35 Bagon Gaon Panchayat as an independent candidate in the Panchayat Election scheduled in December, 2018. In view of coming into effect of new Section 111[2][a] in the Panchayat Act and new Rule 62 in the Assam Panchayat [Constitution] Rules, 1995 ['the Panchayat Rules', for short], he submitted two separate representations before the Assam State Election Commission and the Deputy Commissioner, Karimganj respectively on 09.11.2018 with the prayer to allow him to file nomination to contest the Panchayat election scheduled to be held on 05.12.2018 and 09.12.2018 in the district of Karimganj. This writ petition has been filed seeking inter alia a direction to the respondent authorities to allow the petitioner to file nomination for the post of President of No. 35 Bagon Gaon Panchayat as an independent candidate on the ground that his last child was born on 18.09.2018, meaning thereby, the child was conceived prior to 19.03.2018 i.e. the date of coming into force of new Section 111[2][a].
4.3. W.P.(C) no. 7789/2018 [Jahanara Begom vs. The State of Assam and 2 others] : The petitioner has mentioned that two children were born to her in the year 2012 and in the year 2014 respectively. It was on 07.09.2018, the petitioner gave birth to another child. By a notification dated 05.11.2018, the Assam State Election Commission had notified the schedule of General Election to the Panchayats in the State of Assam. After the said notification, the petitioner visited the office of the Deputy Commissioner, Karimganj in order to file nomination to contest the election. After obtaining a nomination papers she found thatin clause 'e' in the prescribed format of the affidavit required to be submitted along with the nomination papers, a declaration was required to be made that the candidate 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 Panchayat Act. Finding the said clause in the prescribed format of the affidavit offending, she has preferred this writ petition seeking a direction inter alia to the respondents to accept her Page 12 of 36 nomination papers for the post of President of No.81 Lamajuar Gaon Panchayat under No. 5 Badarpur Legislative Assembly Constituency [LAC], Karimganj.
4.4. W.P.(C) no. 26/2020 [Nargis Jahan vs. The State of Assam and 5 others] : In the Panchayat election held in the month of December, 2018, the petitioner submitted her candidature for the post of Anchalik Panchayat Member from No. 125 Bhangarpur Gaon Panchayat under No. 6 Salchapra Anchalik Panchayat on 19.11.2018. Along with her nomination papers, she submitted an affidavit, sworn on 16.11.2018, in the prescribed format wherein she declared that she did not have more than two living children from single/multiple partners, as per the meaning of the provision under Section 111[2][a] of the Panchayat Act. Upon submission of the nomination papers and the affidavit, the Election Office, Cachar scrutinized the nomination papers as well as the affidavit and found the petitioner eligible to contest the election. Accordingly, she contested the election and when the results were declared, she was declared elected for the post of Anchalik Panchayat member from 125 No. Bhangarpur Gaon Panchayat under No. 6 Salchapra Anchalik Panchayat and to that effect, a certificate was issued by the Deputy Commissioner, Cachar on 15.12.2018. The case of the petitioner is that at the time of filing nomination i.e. on 19.11.2018, she had two living children. Another child was born to her on 02.10.2019. After the birth of the third child, the respondent no. 6 filed a complaint before the Deputy Commissioner, Cachar on 16.11.2019 seeking removal of the petitioner from the post of Anchalik Panchayat member from 125 No. Bhangarpur Gaon Panchayat under No. 6 Salchapra Anchalik Panchayat as per the provision contained in Section 111[2][a] of the Panchayat Act. The said complaint was forwarded to the Chief Executive Officer, Zilla Parishad, Cachar who caused an enquiry into the matter through the Block Development Officer, Salchapra Development Block and submitted a report on 12.12.2019. Acting on the said report, the Deputy Commissioner, Cachar passed the impugned order dated 26.12.2019 whereby the petitioner had been removed from the post of Anchalik Panchayat member from 125 No. Bhangarpur Gaon Panchayat under No. 6 Salchapra Anchalik Panchayat. The writ petition has been filed assailing inter alia the impugned order of Page 13 of 36 removal dated 26.12.2019 and for a direction to the respondent authorities to allow the petitioner to continue as the Anchalik Panchayat member from 125 No. Bhangarpur Gaon Panchayat under No. 6 Salchapra Anchalik Panchayat. By an interim order dated 03.01.2020, the operation of the impugned order of removal dated 26.12.2019 was stayed. The respondent no. 6 who had filed the complaint against the petitioner, has filed the connected interlocutory application, I.A.(Civil) no. 135/2020 seeking vacation of the said interim order dated 03.01.2020.
4.5. W.P.(C) no. 1147/2020 [Minuwara Khatun vs. The State of Assam and 9 others] : The petitioner was declared elected as a member of No. 84 Bamundongra Gaon Panchayat from No. 9 Paharpur Katli Gaon constituency in the Panchayat election held in the year 2018 and to that effect, a certificate dated 13.12.2018 was issued by the Deputy Commissioner, Barpeta. The petitioner has stated that at the time of filing the nomination in the month of November, 2018, the petitioner had two children which she had declared in the nomination papers as well as in an affidavit. During her continuance as a member of the Gaon Panchayat, a third child was born to her on 01.03.2019. The respondent nos. 6-10 filed a complaint before the Deputy Commissioner, Barpeta on 29.10.2019 seeking removal of the petitioner from the post of member of the Gaon Panchayat. An enquiry was caused by the Deputy Commissioner, Barpeta through the District Development Commissioner, Barpeta and the Block Development Officer, Mandia Development Block. An enquiry report was submitted by the said officials on 04.01.2020.Based on the enquiry report submitted by the said officials, the Deputy Commissioner issued a show-cause notice dated 04.01.2020 asking the petitioner to show-cause as to why she should not be disqualified under the provisions of Section 111[2] of the Panchayat Act read with Rule 62 of the Panchayat Rules. Aggrieved thereby, the petitioner has approached this Court assailing the said show-cause notice and seeking a further direction to the respondent authorities to allow the petitioner to continue as the member of No. 84 Bamundongra Gaon Panchayat from No. 9 Paharpur Katli Gaon constituency. An interim order was passed on 04.03.2020 whereby it was ordered that the Page 14 of 36 respondent authorities shall not to take any coercive measure against the petitioner during the pendency of the writ petition.
4.6. W.P.(C) no. 2297/2020 [Joynal Abedin vs. The State of Assam and 7 others] :
The petitioner contested for the post of member in Chapar-Salkhocha Anchalik Panchayat from 13 Chapar-Salkhocha and 132 Rangamati Gaon Panchayat in the Panchayat election held in the month of December, 2018. As on 19.03.2018, the petitioner had seven nos. of children and he was eligible in terms of the then extant provisions of the Panchayat Act and the Panchayat Rules. It was on 18.11.2018, he became the father of another child. A complaint was thereafter lodged on 13.11.2019 by some complainants including the respondent nos. 7 and 8 before the Deputy Commissioner, Dhubri seeking removal of the petitioner from the post of member of Anchalik Panchayat from 13 Chapar-Salkhocha and 132 Rangamati Gaon Panchayat on the ground that the petitioner became disqualified in view of the fact that another child was born to him after 19.03.2018. The Deputy Commissioner, Dhubri upon receipt of the said complaint, instructed the Sub-Divisional Officer [Civil], Bilasipara to take necessary steps as per the procedure. The Sub-Divisional Officer [Civil] Bilasipara forwarded the complaint to the concerned Block Development Officer on 04.12.2019 to take necessary action after proper verification and to submit a report. An enquiry report was prepared and submitted. Based on the findings in the said enquiry report, the Block Development Officer recommended removal of the petitioner. The Sub-Divisional Officer [Civil], Bilasipara had thereafter, wrote to the Chief Executive Officer, Dhubri Zilla Parishad on 27.01.2020 recommending the removal of the petitioner from the post of member in Anchalik Panchayat from 13 Chapar-Salkhocha and 132 Rangamati Gaon Panchayat.
Aggrieved thereby, the petitioner has approached this Court by this writ petition against the recommendation for his removal and for a direction to the respondent authorities not to act upon the said recommendation and to allow the petitioner to function as the Anchalik Panchayat member from 13 Chapar-Salkhocha and 132 Rangamati Gaon Panchayat.
Page 15 of 364.7. W.P.(C) no. 2687/2020 [Rabia Nurjahan Laskar vs. The State of Assam and 5 others] : In the Panchayat election held in the month of December, 2018, the petitioner contested by filing her nomination for the post of member of 140 No. Dudpur Ganigram Gaon Panchayat on 19.11.2018. In the said election, the petitioner got elected and a certificate dated 15.12.2018 was issued in favour of the petitioner declaring her so elected by the Deputy Commissioner, Cachar. It is the case of the petitioner that on the date of filing the nomination i.e. on 19.11.2018, the petitioner had two living children which she declared by swearing an affidavit along with the nomination. It was on 08.03.2020, the petitioner gave birth to her third child. As soon as the third child was born to her, a complaint was lodged before the Deputy Commissioner, Cachar by the respondent no. 6 seeking removal of the petitioner as she had purportedly become disqualified in view of the provisions contained in Section 111[2][a] of the Panchayat Act read with Rule 62 of the Panchayat Rules. After receipt of the said complaint, the Deputy Commissioner, Cacharby his order dated 01.06.2020 directed the Block Development Officer, Katigorah Development Block to cause an enquiry into the matter and to submit a report to that effect. The Block Development Officer issued a show-cause notice dated 05.06.2020 asking the petitioner to appear before him for the purpose of the said enquiry. Aggrieved by the said show-cause notice, the petitioner has preferred this writ petition assailing the said show-cause notice dated 05.06.2020 and seeking a further direction to the respondent authorities to allow her to continue as member of 140 No. Dudpur Ganigram Gaon Panchayat.
4.8. W.P.(C) no. 2691/2020 [Saraswati Rabidas vs. The State of Assam and 5 others] : The petitioner herein got elected to the post of President of Lalacherra Vernerpur Gaon Panchayat in the Panchayat election held in the month of December, 2018. For the purpose of such election, the petitioner had submitted her nomination on 15.11.2018. At the time of filing the said nomination, she also swore an affidavit dated 15.11.2018 declaring that she had two living children as on the said date. After she got elected for the post of President of Lalacherra Vernerpur Gaon Panchayat, a third child was born to her on 02.10.2019. After the birth of the Page 16 of 36 third child, the respondent no. 6 filed a complaint before the Deputy Commissioner, Hailakandi on 22.10.2020 highlighting the fact that the petitioner became mother of a third child after 19.03.2018 and thus, she had stood disqualified to continue in the post of President of Lalacherra Vernerpur Gaon Panchayat in view of the provisions contained in Section 111[2][a] of the Panchayat Act and Rule 62[1][b] of the Panchayat Rules. Upon receipt of the said complaint, an enquiry was caused by the Deputy Commissioner through the Block Development Officer, Lala Development Block who, in turn, submitted a report dated 30.12.2019 affirming the fact about the birth of the third child to the petitioner on 02.10.2019. Thereafter, the Deputy Commissioner, Hailakandi passed an order dated 11.06.2020 whereby the petitioner had been removed from the post of President of Lalacherra Vernerpur Gaon Panchayat. The petitioner thereafter preferred a representation dated 15.06.2020 with a prayer to recall the impugned order. As no response was received, the petitioner has preferred this writ petition assailing the impugned order dated 11.06.2020 with a further direction to allow her to continue in the post of President of Lalacherra Vernerpur Gaon Panchayat.
5. Dr. Ahmed, learned counsel for the petitioner in W.P.(C) no. 7705/2019 without disputing the facts stated therein, has submitted, by referring to Article 243F of the Constitution of India and Section 127 & Section 129 of the Panchayat Act, that the provisions in Section 111[2][a] of the Panchayat Act and Rule 62 of the Panchayat Rules have given rise to a dispute and because of the dispute, the petitioner has been sought to be removed from the post of President of No. 72 Bandarkona Gaon Panchayat with the aid of those provisions. It is his submission that the petitioner can only be removed from the post of President of the Gaon Panchayat concerned by way of an election petition presented before the Election Tribunal constituted under Section 127 of the Panchayat Act as the Election Tribunal can adjudicate upon such dispute regarding disqualification. By referring to sub- clause [b] of Clause [1] of Article 243F of the Constitution, he has submitted that a person who has been chosen by a democratic process can be disqualified by or under any law made by the Legislature of the State. The procedure prescribed in Page 17 of 36 Rule 62[1][f] of the Panchayat Rules cannot be pressed into service for removal of the petitioner from the post of President of a Gaon Panchayat. Sub-clause [b] of Section 129 of the Panchayat Act has a non obstente clause and it has been provided that no election to any Panchayat shall be called in question except by an election petition presented within 60 [sixty] days from the date of declaration of election results to the Election Tribunal constituted under Section 127 of the Panchayat Act. It is his further contention that the kind of procedure with which the respondent authorities had proceeded with to disqualify the petitioner in the case in hand, could not have been resorted to in view of an express provision in the form of Section 129[b] of the Panchayat Act. He has contended that when there is an express provision in the Panchayat Act itself, the concerned rule contained in the Panchayat Rules becomes inoperative.
5.1. Dr. Ahmed, during the course of his submission, has placed copies of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, the Andhra Pradesh Panchayati Raj Act, 1994, and the Haryana Panchayati Raj Act, 1994 to advance his contention that the provisions like new Section 111[2] [a] in the Assam Panchayat Act, 1994, as amended, and new Rule 62 in the Assam Panchayat [Constitution] Rules, 1995 as amended, are not incorporated in those Acts and in those Acts, the pari materia provisions had come into effect after a period from the respective dates of enactments of those Acts.
5.2. Mr. Borthakur, learned counsel for the petitioner in W.P.(C) no. 2297/2020 has submitted that the process leading to the birth of a child is relatable to the date when the pregnancy is conceived, which is anterior in point of time to the date of birth of the child. In such situation, the disqualification incorporated in the aforesaid provisions will not be applicable. According to him, the factum of pregnancy of the wife of the petitioner was detected on 14.02.2018 and the child was born on 18.11.2018 and, as such, it was prior to the date when the Rule 62[1][b] had been notified on 31.10.2018. Mr. Borthakur has additionally submitted that because of coming into force of Section 111[2] of the Panchayat Act and Rule 62 of the Page 18 of 36 Panchayat Rules, the constitutional right of the petitioner has been adversely affected and such a situation, as had occurred in the case of the petitioner, was not envisaged.
5.3. Mr. Talukdar, learned counsel for the petitioner in W.P.(C) no. 7789/2018 has submitted that the date of birth of the third child of the petitioner was 07.09.2018. He in similar lines to Mr. Borthakur, has submitted that the said birth was prior to the date of coming into force of Rule 62 of the Panchayat Rules and, as such, the petitioner cannot be disqualified with the assistance of Section 62[1][b] of the Panchayat Rules.
5.4. All the learned counsel for the petitioners have submitted that the points raised in this writ petition have not been deliberated by the Division Bench of the Court in the judgment and order dated 12.11.2021 passed in W.P.(C) no. 510/2020.
6. In response, Mr. Nath, learned Standing Counsel, Panchayat & Rural Development Department has submitted that the submissions made by Dr. Ahmed do not have any force. To buttress his submissions, Mr. Nath has referred to the provisions of Section 127 of the Panchayat Act and a notification dated 30.09.2000 issued under the Order of the Governor, whereby, the Governor of Assam had constituted different Panchayat Election Tribunals in the State of Assam describing their respective territorial jurisdiction. In the said notification, the jurisdiction of the Panchayat Election Tribunal has been clearly defined. As per the jurisdiction vested in the Panchayat Election Tribunal, only an election petition filed by any contesting candidate can be entertained and disposed of by the Panchayat Election Tribunal.
6.1. He has further submitted that the validity and legality of Rule 62[1][b] of the Panchayat Rules were challenged in the writ petition, W.P.(C) no. 510/2020 and the Division Bench by the judgment and order dated 12.11.2021 has affirmed the legality and validity of Rule 62[1][b]. In such view of the matter, there is no scope Page 19 of 36 for any other interpretation of Rule 62[1][b] of the Panchayat Rules which was inserted w.e.f. 31.10.2018.
6.2. It is his further submission that a detailed procedure for such removal has been laid down in Rule 62[1] of the Panchayat Rules and in all the writ petitions, the said procedure had been duly followed. Moreover, the birth of a third child or beyond after the date i.e. 19.03.2018 is completely factual. Since none of the petitioners has made any denial about the said factual aspect regarding birth of a third child or beyond after 19.03.2018, in none of these writ petitions any issue is left to be determined.
6.3. It is further submitted by him that Article 243F of the Constitution of India has empowered the State Legislature, by law, to provide for matters of disqualification and it is in exercise of that power, the Assam Panchayat [Amendment] Act, 2018 has been enacted and the Assam Panchayat [Constitution] [Amendment] Rules, 2018 have been framed in exercise of the powers conferred under Section 141 read with Section 111[2] of the Assam Panchayat Act, 1994, as amended.
7. I have considered the submissions advanced by the learned counsel from the petitioners' sides and the learned counsel for the respondents' side. I have also gone through the averments and contentions raised by the parties through their pleadings. I have also gone through the provisions of the Assam Panchayat Act, 1994; the Assam Panchayat [Amendment] Act, 2018; the Assam Panchayat [Constitution] Rules, 1995; and the Assam Panchayat [Constitution] [Amendment] Rules, 2018.
8. The common issue involved in this batch of writ petitions centers around the insertion of clause [a] of sub-section [2] of Section 111 of the Assam Panchayat Act, 1994 w.e.f. 19.03.2018 and insertion of Rule 62 of the Assam Panchayat [Constitution] Rules, 1995 w.e.f. 31.10.2018.
Page 20 of 369. The new sub-section [2] of Section 111 in the Assam Panchayat Act, 1994 has been inserted by the Assam Panchayat [Amendment] Act, 2018. The said Amendment Act received the assent of the Governor on 17.03.2018 and the same was published by a notification dated 19.03.2018. The notification was published in the Official Gazette on 19.03.2018. As per sub-section [3] of Section 1 of the Assam Panchayat [Amendment] Act, 2018, the said provision came into force at once. Clause [a] of sub-section [2] in Section 111 relevant for the purpose of adjudication of this batch of writ petition reads as under :
"[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."
10. The Assam Panchayat [Constitution] [Amendment] Rules, 2018 have been made in exercise of the powers conferred under sub-section [1] of Section 141 and sub-section [2] of Section 111 of the Assam Panchayat Act. By the said Assam Panchayat [Constitution] [Amendment] Rules, 2018, a new Rule 62 has been inserted vide Rule 2 thereof. The said set of rules was published by a notification dated 31.10.2018. The notification was published in the Official Gazette on 01.11.2018. As per sub-rule [2] of Rule 1 of the Assam Panchayat [Constitution] [Amendment] Rules, 2018, the rules came into force from the date of their publication in the Official Gazette. The new Rule 62 reads as under :-
"62. Conditions and procedure of disqualification under sub-
section (2) of Section 111 of the Act.-Page 21 of 36
(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 (PRl) 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;
(d) If the second child birth are twins, then he/she shall not be removed from membership of Panchayati Raj Institutions (PRl);
(e) If the first child birth are triplets, then he/she shall not be removed from membership of Panchayati Raj Institutions (PRl);
(f) The Gaon Panchayat Secretary on receipt of information of such additional child birth in respect of President, Vice-
President, Member of the 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 Page 22 of 36 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 the 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 and inform the matter to the State Government in Panchayat and Rural Development Department as well as Assam State Election Commission;
(h) The concerned Chief Executive Officer on receipt of information of such additional child birth in respect of President, Vice-President, Member of the Zilla Parishad shall inform the matter to the State Government through concerned Deputy Commissioner for removal of the President, Vice-President, Member concerned and accordingly, on establishment of such fact, the State Government in Panchayat and Rural Development Department shall remove the President, Vice-President, Member concerned of the Zilla Parishad under intimation to the Assam State Election Commission."
[Emphasis supplied]
11. The vires of the Assam Panchayat [Constitution] [Amendment] Rules, 2018 whereby the Rule 62 has been inserted, came to be challenged in a writ petition, W.P.(C) no. 510/2020. A Division Bench of this Court by its judgment and order dated 12.11.2021 has upheld the validity of the said Rule 62, inserted by the Assam Panchayat [Constitution] [Amendment] Rules, 2018, by its judgment and order Page 23 of 36 dated 12.11.2021. While upholding the validity of Rule 62, the Division Bench has observed as under :
"4. Subsequent to the amendment in the parent Act, the amendment was brought out in the Rules, which have already been referred above. These Rules are challenged before this Court.
* * * * * * * * * * * *
7. Therefore, it is not now left for the petitioner to challenge the validity of this Act as being violative of Articles 14 and 21 or any other constitutional or legal provisions. The legislative competence for making these amendments in any case has never been challenged. The only argument now raised by the petitioner before this Court is that although the Act prescribes that anybody having more than two children after the amendment has come into effect would be made ineligible whereas in the Rules even a person who is having two children at the time when the Act was effective has been made ineligible. Having read the Act as well as the Rules in detail, we fail to appreciate the argument of the learned counsel for the petitioner for the simple reason that the Rule only elaborates to some extent what the Act has stated.
8. Rule 2(1)(b) of the Assam Panchayat (Constitution) (Amendment) Rules, 2018, as pointed out by Mr. D. Saikia, learned Advocate General of the State is actually in two parts, firstly, it can be read that any person who prior to the effective date of implementation, i.e. 19.03.2018, was having two children but thereafter gives birth to a third child is ineligible and then it can also be read that any person who is having more than two children even before the date of implementation is still eligible but in case he gives a birth to an additional child after the effective date will then be ineligible. In other words, there is now clarity to this aspect that even if one is having more than two children, may be three, four or even five, prior to the date of commencement, he would not be ineligible but any additional child by the person from single partner or from a multiple partner after the date of commencement will make him ineligible.
* * * * * * * * * * * * Page 24 of 36
10. We find there is absolutely no conflict or ambiguity in these Rules. The writ petition has no merit and is hereby dismissed."
12. While upholding the validity of Rule 62, the Division Bench has referred to a decision of the Hon'ble Supreme Court of India in Javed and others vs. State of Haryana and others, reported in [2003] 8 SCC 369, wherein vires of similar provisions as like Section 111[2] of the Panchayat Act and Rule 62 of the Assam Panchayat Rules, incorporated in Section 175[1][q] and Section 177[1] of the Haryana Panchayati Raj Act, 1994 were challenged. In order to appreciate the exact nature of challenge made therein, it would be apposite to extract the relevant provisions of Section 175[1][q] and Section 177[1] of the Haryana Panchayati Raj Act, 1994 :
"175. (1) 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-
(q) has more than two living children:
Provided that a person having more than two children on or up to the expiry of one year of the commencement of this Act, shall not be deemed to be disqualified;
177. (1) If any member of a Gram Panchayat, Panchayat Samiti or Zila Parishad-
(a) who is elected, as such, was subject to any of the disqualifications mentioned in section 175 at time of his election;
(b) during the term for which he has been elected, incurs any of the disqualifications mentioned in section 175, shall be disqualified from continuing to be a member and his office shall become vacant.
(2) In every case, the question whether a vacancy has arisen shall be decided by the Director. The Director may give its decision either on an application made to it by any person, or on its own motion. Until the Director decides that the vacancy, has arisen, the members shall not be disqualified under sub-section (1) from continuing to be a Page 25 of 36 member. Any person aggrieved by the decision of the Director may, within a period of fifteen days from the date of such decision, appeal to the Government and the orders passed by Government in such appeal shall be final:
Provided that no order shall be passed under this sub-section by the Director against any member without giving him a reasonable opportunity of being heard."
13. The grounds of challenge made to the aforesaid provisions by a large number of writ petitions in Javed [supra] were categorized by the Hon'ble Supreme Court of India into 5 [five] categories and the same were :[i] that the provision was arbitrary and hence violative of Article 14 of the Constitution; [ii] that the disqualification did not serve the purpose sought to be achieved by the legislation; [iii] that the provision was discriminatory; [iv] that the provision adversely affected the liberty of leading personal life in all its freedom and having as many children as one chose to have and hence was violative of Article 21 of the Constitution; and [v] that the provision interfered with freedom of religion and hence violated Article 25 of the Constitution. All the grounds of challenge were considered by the Hon'ble Supreme Court of India and it was held 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 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 Page 26 of 36 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 than 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 women folk, 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.
* * * * * * * * * * * * Page 27 of 36
65. The challenge to the constitutional validity of Section 175(1)(q) and 177(1) fails on all 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 above said provisions are held liable to be dismissed."
[Emphasis supplied]
14. The answer to the submission of Mr. Borthakur that because of coming into force of sub-section [2] of Section 111 of the Panchayat Act and Rule 62 of the Panchayat Rules, the constitutional right of the petitioner has been adversely affected can be found in paragraph 22, apart from in paragraph 60, in Javed [supra]. It has been held that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a Statute. At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in Panchayat may be said to be a Constitutional right, a right originating in Constitution and given shape by statute. But then also, it cannot be equated with a fundamental right. There is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or holding, an elective statutory office.
15. With regard to the contention about absence of exactly similar provision in some other State Acts, it has already been observed in paragraph 14 in Javed [supra] that it is not permissible to compare a piece of legislation enacted by a State in exercise of its own legislative power with the provisions of another law, though pari materia it may be, but enacted by Parliament or by another State legislature within its own power to legislate. Two laws enacted by two different Governments and by two different Legislatures can be read neither in conjunction nor by comparison for the purpose of finding out if they are discriminatory. The sources of power are different and so do differ those who exercise the power. Article 14 does Page 28 of 36 not authorize the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject, its provisions are discriminatory. When the sources of authority for the two statutes are different, Article 14 can have no application. Further, there is no pleadings in the writ petition in question here. No foundation has been laid in the pleadings by the writ petitioner in the writ petition, W.P.(C) no. 7705/2019 making any such kind of contention, as has been advanced at the time of hearing, which deserves no acceptance as the vires has not been challenged. No party should be permitted to travel beyond its pleading, and all necessary and material facts should be pleaded in support of the case. But such is not the case here.
16. As has been noticed above, the validity of Rule 62[1][b] in the Assam Panchayat Act [Constitutional] Rules, as amended, has already been upheld by a Division Bench of this Court and in such view of the matter, the said decision is binding on this Court, meaning thereby, any other interpretation of Rule 62 is not permissible. Rule 62[1][b] is specific and unambiguous to the effect that a President, Vice President or Member of Zilla Parishad, Anchalik Panchayat and Gaon Panchayat will suffer the disqualification if he or she was having two or more than two children from single or multiple partners prior to the date of commencement of the Assam Panchayat [Amendment] Act, 2018 i.e. 19.03.2018 and gives birth to an additional child thereafter. There is no dispute at the bar that in this batch of writ petitions, such additional child, either third or beyond, was born to the concerned Panchayat Member after 19.03.2018 and the said child is living after two or more living children. The provision for such disqualification gets activated as soon as an additional child is born to an elected member of Panchayat after 19.03.2018 if he/she has atleast two children already on 19.03.2018 from single partner/multiple partners. The procedure as to how such member is to be removed has been laid down in the clauses subsequent to Rule 62[1][b].
17. With regard to the contention of Dr. Ahmed that a member of either the Gaon Panchayat or the Anchalik Panchayat or the Zilla Parishad who purportedly incurs Page 29 of 36 the disqualification under Section 111[2] of the Assam Panchayat Act, 1994, as amended, can only be removed by way of an election petition filed before the Election Tribunal constituted under Section 129 of the Assam Panchayat Act in view of the provisions contained in Article 243F of the Constitution of India also does not deserve acceptance.
18. In this connection, it appears apt to refer to the provisions of Section 129 of the Panchayat Act which reads as under :
" Section 129 Bar to interference by Courts in electoral matters Notwithstanding anything contained in this Act--
(a) the validity of any law relating to the delimitation of constituencies on the allotment of seats to such constituencies made under Article 243 of the Constitution of India shall not be called in question in any court;
(b) no election to any Panchayat shall be called in question except by an election petition presented within sixty days from the date of declaration of election results to the Tribunal constituted under Section 127."
19. The provisions of Section 129 have to be read in conjunction of Section 127 of the Panchayat Act which provides for the constitution of Panchayat Election Tribunal. Section 127 of the Panchayat Act reads as under :
"Section 129 : Constitution of Panchayat Election Tribunal The Government shall constitute such Panchayat Election Tribunals as may be necessary, on the recommendation of the High Court to dispose of all direct election petitions challenging elections under this Act. The jurisdiction, powers and functions and the headquarters of the Tribunal shall be decided by the Government in consultation with the High Court, except as provided in Section 10 of the Act."Page 30 of 36
20. As per the provisions of Section 127 of the Panchayat Act, the Government shall constitute such Panchayat Election Tribunals as may be necessary, on the recommendation of the High Court to dispose of all direct election petitions challenging elections under the Panchayat Act. The jurisdiction, powers and functions and the headquarters of the Tribunal shall be decided by the Government in consultation with the High Court, except as provided in Section 10 of the Panchayat Act. Section 10 of the Panchayat Act is for election of President and Vice- President of Gaon Panchayat and it is not necessary for the purpose of consideration of this batch of writ petition.
21. Thus, it is evident that it is the State Government who has been given the authority to constitute the Panchayat Election Tribunal on the recommendation of the High Court. The jurisdiction of such Panchayat Election Tribunals is required to be decided by the Government in consultation with the High Court.
22. Article 243F of the Constitution mentions about disqualification for membership. Sub-clause [b] of Clause [1] of Article 243F has prescribed that a person shall be disqualified for being chosen as, and for being, a member of a Panchayat if so disqualified by or under any law made by the Legislature of the State. Sub-clause [2] thereto has provided that if any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause [1], the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.
23. As per sub-clause [a] of clause [3] of Article 13 of the Constitution of India, a law includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. There is no dispute to the fact that the Assam Panchayat [Amendment] Act, 2018 is an Act passed by the Assam Legislative Assembly whereby sub-clause [2] of Section 111 in the Assam Panchayat Act, 1994 has been inserted and the Act of Assam Legislative Assembly satisfies the Page 31 of 36 requirement of sub-clause [b] of clause [1] of Article 243F of the Constitution of India.
24. The Assam Panchayat [Constitution] [Amendment] Rules, 2018 which have been made by the orders of the Governor also comes within the definition of a law. The Assam Panchayat [Constitution] [Amendment] Rules, 2018 have been published in the Official Gazette. It is settled that statutory rules, while subordinate to the parent statute, are, otherwise, to be treated as a part of the statute. It has been held in State of U.P. vs. Babu Ram Upadhyay, reported in AIR 1961 SC 751 that rules made under the statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act and are to be judicially noticed for all purposes of construction or obligation. There is no challenge in this batch of writ petition to the other provisions of Rule 62, other than the issue relatable to Rule 62[1][b] of the Panchayat Rules. No foundation laying any challenge to the procedure laid down in Rule 62 of the Panchayat Rules for removal of any member of Panchayati Raj Institution is found to have been made in the pleadings of any of the writ petitions.
25. The other question raised is that a member of Panchayati Raj Institution who has purportedly incurred the disqualification under Section 111[2][a] of the Panchayat Act can only be removed by way of an election petition presented before the Panchayat Election Tribunal. In that connection, a reference can be made to a notification bearing no. PDA.277/2000/32 issued by the Panchayat and Rural Development [A] Department, Government of Assam on 30.09.2000. By the notification dated 30.09.2000, the Government of Assam in exercise of its power conferred under Article 127 of the Assam Panchayat Act, 1994, as amended, and on the recommendation of the High Court had constituted 21 nos. of Panchayat Election Tribunals with the District Judges within their respective territorial jurisdiction to dispose of all direct election petitions challenging election under the Panchayat Act. The jurisdiction of the Election Tribunal have been specified as under :
Page 32 of 36"Jurisdiction - The Panchayat Election Tribunal shall have jurisdiction to entertain and dispose of election petition filed before it by any contesting candidate in respect of validity or propriety of the election."
26. A reading of the jurisdiction clause in the said notification makes it apparent that the Panchayat Election Tribunals shall have jurisdiction only to entertain and dispose of election petitions filed before it by 'any contesting candidate' in respect of validity or propriety of the election. It is trite law that a Tribunal assumes jurisdiction on a particular matter when such jurisdiction to entertain a particular matter has been vested in such Tribunal. In other words, existence of jurisdictional fact is sine qua non for any Tribunal to exercise jurisdiction on a particular subject. If the jurisdiction on a particular subject is not vested in a Tribunal and such Tribunal exercises its jurisdiction then any such decision will be void and non-est in law. To exercise a jurisdiction under particular subject matter, such jurisdiction has to be conferred. The meaning of the expression 'entertain' has been interpreted in a number of decisions by the Hon'ble Supreme Court of India. From the decisions in Lakshmi Rattan Engineering Works Ltd. vs. Asstt. Comm. Sales Tax, Kanpur and another, reported in AIR 1968 SC 488, and Durga Hotel Complex vs. Reserve Bank of India and others, reported in [2007] 5 SCC 120, it can be found that the expression 'entertain' has been interpreted as meaning 'adjudicate upon' or 'proceed to consider on merits'. The expression 'entertain' does not simply mean 'receive' or 'accept'. The Hon'ble Supreme Court had accepted the dictionary meaning of the word 'admit to consider'. The said view was also accepted in Hindusthan Commercial Bank Ltd. vs. Punnu Sahu [Dead] Through Legal Representatives, reported in 1971 [3] SCC 124. The expression 'to entertain and dispose of election petition' would mean the Panchayat Election Tribunal would have jurisdiction to accept, adjudicate upon and render its decision on an election petition but such election petition has to be presented by only 'any contesting candidate' and none else.
27. The existence of the jurisdictional fact is the requirement to exercise jurisdiction by Court or a Tribunal or an authority over a particular matter.The Page 33 of 36 Hon'ble Supreme Court of India in Arun Kumar and others vs. Union of India and others, reported in [2007] 1 SCC 732, has held as under :
"74. A "jurisdictional fact" is a fact which must exist before a Court, Tribunal or an Authority assumes jurisdiction over a particular matter. A jurisdictional fact is one on existence or non-existence of which depends jurisdiction of a court, a tribunal or an authority. It is the fact upon which an administrative agency's power to act depends. If the jurisdictional fact does not exist, the court, authority or officer cannot act. If a Court or authority wrongly assumes the existence of such fact, the order can be questioned by a writ of certiorari. The underlying principle is that by erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not possess.
* * * * * * * * * * * *
76. The existence of jurisdictional fact is thus sine qua non or condition precedent for the exercise of power by a court of limited jurisdiction."
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84. From the above decisions, it is clear that existence of 'jurisdictional fact' is sine qua non for the exercise of power. If the jurisdictional fact exists, the authority can proceed with the case and take an appropriate decision in accordance with law. Once the authority has jurisdiction in the matter on existence of 'jurisdictional fact', it can decide the 'fact in issue' or 'adjudicatory fact'. A wrong decision on 'fact in issue' or on 'adjudicatory fact' would not make the decision of the authority without jurisdiction or vulnerable provided essential or fundamental fact as to existence of jurisdiction is present."
28. In Jagmittar Sain Bhagat and others vs. Director, Health Services, Haryana and others, reported in [2013] 10 SCC 136, it has been held that the law does not permit any court/tribunal/authority/forum to usurp jurisdiction on any ground whatsoever, in case, such a authority does not have jurisdiction on the subject matter. For assumption of jurisdiction by a court or a tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found Page 34 of 36 to exist, the court or tribunal has power to decide on the adjudicatory facts or facts in issue.
29. Section 127 of the Panchayat Act gives the power to the Government to constitute Panchayat Election Tribunals on the recommendation of the High Court to dispose of all direct election petitions challenging elections under the Panchayat Act and it has also given the power to the Government to decide about the jurisdiction in consultation with the High Court to decide about the jurisdiction, power and functions of Panchayat Election Tribunal so constituted. The notification dated 30.09.2000 has conferred jurisdiction upon the Panchyat Election Tribunal only to the extent to entertain and dispose of Election petition filed before it by 'any contesting candidate' in respect of validity or propriety of the election. As the jurisdiction to decide about the disqualification of a member of a Panchyat, be it Gaon Panchayat or Anchalik Panchayat or Zilla Parishad, incurred under Section 111[2] of the Panchayat Act and Rule 62 of the Panchayat Rule has not been conferred upon the Panchayat Election Tribunals, the contention advanced by Dr. Ahmed in this regard is found bereft of any substance and accordingly, the same is not accepted. It can be iterated that the validity of the provision contained in Rule 62[1][b] has already been upheld by the Division Bench of this Court. The validity or legality of either Rule 62[1][f] or Rule 62[1][g] or Rule 62[1][h] has not been challenged in this batch of writ petition. It will be the procedure which is prescribed in Rule 62 of the Panchayat Rules which will govern the matter of removal of a member in the Panchayat Raj Institutions on incurring the disqualification under Section 111[2][a] of the Panchayat Act read with Rule 62[1][b] of the Panchayat Rules.
30. It may be stated, at the cost of repetition, that in all these writ petitions, it is not in dispute that the incident of birth of the third child or beyond to the member of the Panchayati Raj Institutions or the petitioner desirous of becoming a member of the Panchayati Raj Institutions, as the case may be, had occurred after the date, 19.03.2018. The process of removal of the concerned member in the writ petitions, Page 35 of 36 W.P.(C) no. 7503/2019 & W.P.(C) no. 7705/2019, W.P.(C) no. 26/2020, W.P.(C) no. 1147/2020, W.P.(C) no. 2297/2020, W.P.(C) no. 2687/2020 and W.P.(C) no. 2691/2020 on the ground of incurring the disqualification under Section 111[2][a] of the Panchayat Act read with Rule 62[1][b] of the Panchayat Rules has been initiated and/or has been completed by following the procedure laid down in Rule 62[1][f] or Rule 62[1][g] or Rule 62[1][h] of the Panchayat Rules. In view of the discussion made hereinabove and for the reasons stated therein, this Court does not find any merit in the contentions advanced on behalf of the petitioners in the said petitions. For the similar reasons, the writ petitions - W.P.(C) no. 7729/2018 and W.P.(C) no. 7789/2018 - are found devoid of any merit. As a result, the writ petitions are liable to be dismissed and the same are accordingly dismissed. The interim orders stand recalled. There shall, however, be no order as to costs.
JUDGE Comparing Assistant Page 36 of 36