Fateha Khatun Vs the State of Assam and 4 Ors.

Heard Mr. MI Hussain, learned counsel for the petitioner. Also heard Mr. N Goswami, learned State counsel and Mr. K Konwar, learned Additional Advocate General representing the P&RD Department.

¶26

As agreed to by the learned counsels for the parties and taking note of the issues raised, the matter is taken up for final disposal at the motion stage.

¶27

Issue notice, returnable forthwith.

¶28

By the present application, the petitioner has assailed annexure 6 and order dated 19.07.2025, more particularly, order under No.GDG.58/P.Election/2025/Pt/80 whereby the petitioner, an elected Gaon Panchayat Member of 10 No. Chalakura Gaon Panchayat under 12 No.

¶29

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¶30

Kalshabhanga Rowkhowa Gaon Panchayat has been removed by the Deputy Commissioner as Gaon Panchayat Member in exercise of power under Section 111(2)(a) of the Assam Panchayat (Amendment) Act, 2018 read with Rule 62(1)(b) of the Assam Panchayat (Constitution) Rules, 1995.

¶31

It is the case of the petitioner that the petitioner was elected as Member of the aforesaid Gaon Panchayat in the last Panchayat Election, however, based on a complaint lodged by the defeated candidate alleging that the petitioner was having four children on the date of filing nomination, the Deputy Commissioner disqualified the petitioner without adherence of procedure laid down under the Assam Panchayat (as amended up to date) Act, 1994 (hereinafter referred to as Act, 1994) and the Assam Panchayat (Constitution) Rules, 1995 (hereinafter referred to as Rules, 1995) and without giving any opportunity of hearing to the petitioner. While taking the decision, the petitioner was not even allowed to place her case before the authorities inasmuch as it is the case of the petitioner that the four children were born prior to the cut of date i.e. 19.03.2018. According to the petitioner, had an opportunity been granted to the petitioner, she could have established that she cannot be disqualified for the ground of having four children in term of the mandate of the Act, 1994.

¶32

The learned State counsel representing the parties submits that the impugned order was based on an enquiry conducted by the Deputy Commissioner in term of the provision of the Act, 1994 and the Rules, 1995 and there is no prescription of giving any opportunity of hearing under the Act, 1994 or the Rules, 1995. Therefore, it cannot be said that

¶33

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¶34

the Deputy Commissioner has committed error in deciding the matter based on the enquiry report and by not hearing the petitioner.

¶35

I have given anxious consideration to the argument advanced by the learned counsel for the parties.

¶36

Section 111(2) of the Act, 1994 outlines the conditions and procedure for disqualification of Panchayat Members, primarily on the ground of having more than two living children from a single or multiple parents, subject to the condition that, such disqualification shall not be applicable in respect those persons, who have more than two children prior to date of commencement of this Act, 1994.

¶37

The condition and procedure of disqualification under Subsection 2 of Section 111 of the Act, 1994 are enumerated under Rule 62 of the Rules, 1995. Rules 62 (1) (b) empowers the Government or the concerned district authority to remove any President/ Vice-president or Member of Zila Parishad, Anchalik Parishad and Gaon Panchayat, if he or she is having more than two children from single and multiple parents prior to 19.03.2018 and give birth to an additional child. However, there is an exception to such provision, when the second child birth are twins and when the first child birth are triplets.

¶38

In terms of Rules 62(1)(f), the Gaon Panchayat Secretary on receipt of information of such additional child birth, is mandated to inform it to the concerned District Commissioner through the Chief Executive Officer, Zila Parishad. Such provision further prescribes that, thereafter the concerned District Commissioner is to examine the matter and on establishment of fact, is empowered to remove such President, Vice-president, Member

¶39

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¶40

etc., under intimation to the State Government, as well as to the Assam State Election Commission.

¶41

From the aforesaid mandate of law and the procedure prescribed, it is very clear that certain procedure has been laid down under Rule 62 for the removal of a Member of Gaon Panchayat, President, Vice-president etc. and such procedure, when it relates to Gaon Panchayat, is to be initiated at the end of the Gaon Panchayat Secretary, on receipt of information and it is to be routed to the District Commissioner, through the office of the Block Development Officer and the Chief Executive Officer of Zila Parishad.

¶42

In the case in hand, what is seen is that the information of additional child birth was directly given before the District Commissioner, who in turn conducted an enquiry through the Executive Magistrate. In the considered opinion of this court, though such procedural lapse may not be fatal, however, in the fitness of things such information ought to have been given by the defeated candidate before the Secretary of the concerned Gaon Panchayat.

¶43

Now from the Rule, 62(1)(f) what is seen is that the concerned District Commissioner/ Deputy Commissioner is empowered to examine the matter and such District Commissioner can remove a President, VicePresident, Member of Goan Panchayat concerned, on establishment of such fact. Therefore, to have a satisfaction that fact alleged is established, it shall necessarily require an enquiry and adjudication, may be summary in nature.

¶44

There is no doubt in the mind of the court that the District Commissioner/ Deputy Commissioner is having jurisdiction to conduct an

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¶46

enquiry for proper adjudication/ to get the fact established, so as to come into a just conclusion. However, at the same time as urged by the learned counsel for the petitioner and as has been noticed by this court that though an enquiry was conducted and though finding of such enquiry may have a bearing on the final decision taken by the District Commissioner, the petitioner is having a right to get such copy of the enquiry report and she must be given a reasonable opportunity of hearing to defend her case. Reasonable opportunity shall include furnishing of a copy of the allegation as well as the enquiry report.

¶47

It is true that in the Act, 1994 and the Rules, 1995, no specific procedure has been outlined / prescribed for such hearing however, in absence of specific exclusion of right of hearing of the elected candidate against whom disqualification is sought is required to be given a reasonable opportunity of hearing.

¶48

The principle of natural justice mandates that a reasonable opportunity must be given to a person before taking any action against him. The adjudicating authority must disclose all the material placed before it and must give reasonable opportunity to the affected to submit his/ their case. A fair hearing means that a person against whom an adverse order is passed should be informed of the charges against him giving him an opportunity to submit his explanation to the charges and the person also has a right to know the material on the basis of which the allegation is proposed to be decided, which is totally absent in the present case.

¶49

In the given fact of the present case, what is required to be determined is whether the petitioner was having four children as on 19.03.2018 in term of Section 111 (2) of the Panchayat Act, 1994 and under Rule 62 (1)

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¶51

(f) inasmuch as it is the case of the petitioner that the all the children were born prior to such date. Therefore, an opportunity to the petitioner is required to be given in the given fact of the case. However, no such opportunity was given to the petitioner, resulting her disqualification inasmuch as an elected candidate cannot be lightly disqualified in the manner it has been done.

¶52

Accordingly, the impugned order under No. GDG. 58 /P.Election/ 2025/ Pt/ 80 dated 19.07.2025 stands set aside with a liberty to the District Commissioner to proceed afresh based on the complaint lodged by the defeated candidate by providing a copy of the complaint lodged and enquiry report if any to the petitioner and after giving a reasonable opportunity of hearing to the petitioner. It is needless to say that the defeated candidate, based on whose allegation, the proceeding was initiated by the District Commissioner, shall also be given an opportunity of hearing.

¶53

With the aforesaid determination and direction, the writ petition stands disposed of.

¶54

JUDGE

¶55

Comparing Assistant

Fateha Khatun v. the State of Assam and 4 Ors.

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Fateha Khatun v. the State of Assam and 4 Ors.

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