Jesmina Khatun Vs the State of Assam and Othrs

6:BLOCK DEVELOPMENT OFFICER JALESHWAR GOALPARA ASSAM. 7:CHILD DEVELOPMENT PROTECTION OFFICER LAKHIPUR ICDS PROJECT LAKHIPUR GOALPARA ASSAM 8:ALI HUSSAIN VILL.- TIAPARA P.O.- TAKIMARI P.S.- LAKHIPUR DISTRICT GOALPARA ASSAM

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Advocate for the Petitioner : MR H DAS, D BARUAH

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Advocate for the Respondent : SC, P AND R.D., H R KHAN (R-8),MR. M ALI(R-8),GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE RAJESH MAZUMDAR

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JUDGMENT & ORDER(ORAL)

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Date : 04-12-2025

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Heard Mr. H. Das, learned counsel for the petitioner. Also heard Mr. N. Das, learned Government Advocate appearing for the respondent No. 2, 3 & 4. Ms. P. Thapa, learned counsel appears on behalf of Mr. S. Dutta, learned counsel for the respondent No. 1, 5 & 6 and Mr. A. Ali, learned counsel has appeared for the respondent No. 8.

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2. This writ petition has been filed challenging the order No. GDG 58/P Election/2025/Pt/18 dated 16.07.2025 passed by the District Commissioner, Goalpara

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by which the petitioner was removed from the post of Gaon Panchayat Member from 1-No Ward Nathongdonga Tiapara Takimari Haguripara Gaon Panchayat in the district of Goalpara.

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3. This is the second round of litigation for the petitioner. The petitioner had earlier instituted WP(C) No.4051/2025 wherein she had challenged the proceedings initiated by the District Commissioner, Goalpara based on an application filed by the respondent No.8 herein seeking disqualification of the petitioner as a Gaon Panchayat Member of the Village 11 No. Takimari, Haguripara. The further challenge was to the enquiry report dated 31.05.2025 as well as the second complaint filed by the respondent No.8 and also to the consequential hearing held on 27.06.2025.

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The order dated 23.07.2025 passed in WP(C) No. 4051/2025 had recorded the important facts necessary for determination of the said writ petition at paragraph-4. The said paragraph is reproduced herein below for the sake of convenience;

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I. The petitioner got elected as Gaon Panchayat Member of village 11 No. Takimari, Haguripara under No. 1 Nathongthonga Tiapara Gaon Panchayat under Joleswar Anchalik Panchayat in the district of Goalpara, under the Assam Panchayat Act, 1994.

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II. The wife of the respondent No. 8 also contested the said election and got defeated. The respondent No. 8 filed an application before the District Commissioner, Goalpara, interalia, alleging that the petitioner/ elected candidate is disqualified for being elected as a Member of Gaon Panchayat for the reason of having three children inasmuch as according to the respondent No. 8, the third child was borne on 22.08.2021.

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III. On the basis of such complaint, the District Commissioner, Goalpara conducted an enquiry through an Executive Magistrate, who in turn submitted a report.

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IV. The report goes to show that during enquiry, some of the neighbor of the petitioner admitted that the petitioner had two children and some section of the people stated that the petitioner is having three children.

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V. It is further revealed in the enquiry that the family

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member and husband of the candidate also stated that the third daughter, namely, Zenifar Akhtara expired after four months of her birth. However, no death certificate from the Kabarsthan certifying such death could be produced by them. According to the report, the enquiry officer also recorded the statement of the Anganwadi Worker who stated that said Zenifar Akhtara is alive and there is a record of her presence. The enquiry officer did not find any record in the office of the Joint Director of Health Services as regards death of the child, however, there was a record of vaccination of the said child in a medical centre.

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VI. Thus, it was concluded that the candidate kept her third child in some other place and sworn a false affidavit before the concerned officer and therefore, there is violation of Section 111(2) of the Assam Panchayat Act, 1994 and Rules 62(1), which disqualifies a person to be elected as a Member of Gaon Panchayat.

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VII. Thereafter on 05.06.2025, the petitioner filed an application before the District Commissioner, Goalpara, interalia, contending that, though the third child was born, however, the said child died on 02.11.2021, after three months of birth and accordingly, she also submitted birth certificates of first two children and a death certificate from Kabarsthan of the deceased third child.

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VIII. Thereafter, based on such application, the District Commissioner sought presence of Child Development Protection Officer, Lakhipur ICDS Project, Lakhipur, workers Aolatoli Anganwadi Centre, Lakhipur and President/ Secretary of Takimari Maragara Kabarsthan, Lakhipur.

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IX. Thereafter, a notice of hearing was issued to the petitioner on 24.06.2025 for hearing on 27.06.2025 at 10.30 am.

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4. During hearing of the said writ petition, this Court had observed that interference in the enquiry proceeding at that stage would not be justified, inasmuch as, the District Commissioner had the jurisdiction to conduct the enquiry for proper adjudication of the allegations levelled against the petitioner. However, it was observed

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that since an enquiry was conducted by the Executive Magistrate and the finding of such enquiry would have a bearing on the final decision that may be taken by the District Commissioner, the petitioner had a right to get such copy of the enquiry report and would also have the right to be given a reasonable opportunity of hearing to defend her case. Based on the aforesaid observation, this Court, at paragraph-20 of the said order, had held as follows;

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“ 20. In the given fact of the present case, what is required to be determined is whether the petitioner was having a living a child in term of Section 111 (2) of the Panchayat Act, 1994 and under Rule 62 (1)(f) inasmuch as it is the case of the petitioner that the third child, died in the meantime. Therefore, an opportunity to the petitioner is required to be given in the given fact of the case. Accordingly, it is directed that though the DC shall be at liberty to proceed with the disqualification proceeding initiated against the petitioner, the copy of the enquiry report and any other materials that is brought on record in support of disqualification shall be furnished to the petitioner and the matter be proceeded thereafter giving reasonable opportunity of hearing to the petitioner.”

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5. It is the unrebutted assertion of the petitioner that although the order in the writ petition was passed on 23.07.2025, till then the petitioner was not served with the copy of the order dated 16.07.2025 passed by the District Commissioner whereby the petitioner stood removed from the post of Gaon Panchayat Member.

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The case of the petitioner now is that the aforesaid order dated 16.07.2025 had been passed without giving the petitioner to a reasonable opportunity of hearing, more so, since this Court was not even informed of the existence of the order dated 16.07.2025, even though the earlier writ petition filed by the petitioner was disposed on 23.07.2025. The learned counsel for the petitioner submits that WP(C) No. 4051/2025 was filed on 17.07.2025, on which date the petitioner did not have knowledge of the order dated 16.07.2025 and even on the day when the matter was

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taken up for disposal, the said order was not brought to the notice of this Court by the respondents.

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6. Mr. H. Das, learned counsel appearing for the petitioner has submitted that it has already been recorded in the order dated 23.07.2025 that the petitioner ought to have been afforded a reasonable opportunity of being heard not only to enable her to present her side of the story before the adjudicating authority but also to contradict and assail the enquiry report and the other documents which were taken on record by the District Commissioner, Goalpara while passing order to the detriment of the petitioner. The learned counsel for the petitioner has submitted that this Court had noticed that a hearing had been arranged on 27.06.2025 at 10:30 A.M and thereafter had directed the respondent authorities to afford a reasonable opportunity to the petitioner to defend her case.

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7. Mr. H. Das, learned counsel for the petitioner has submitted that the petitioner has substantial evidence to show that the child which has been alleged to her 3^rd living child is not her child and given a reasonable opportunity, the same could have been demonstrated before the concerned authority. It is the submission of Mr. H. Das, learned counsel that the petitioner was not afforded any opportunity to participate in the enquiry conducted by the Executive Magistrate and therefore, her defense to the allegation leveled by the respondent No.8 was never brought on record, save and accept her application by which she could only assert facts but could neither take appropriate steps to bring on record the different documents nor to question/crossexamine the witnesses whose statements had been taken on record by the Executive Magistrate to come to a finding against the petitioner.

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8. The learned counsel for the petitioner therefore submits that the enquiry report by the Executive Magistrate, impugned order dated 16.07.2025 and all other consequential actions of the respondent authorities deserve the interference of this Court.

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9. Mr. N. Das, learned Government Advocate appearing for the respondent No. 2, 3

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& 4, who were involved in the enquiry proceedings, has submitted that the Executive Magistrate had conducted the enquiry based on the complaint received from the respondent No. 8 and statements of the official witnesses such as Angawadi Worker as well as official documents such as the record maintained by the Angawadi Centre etc., were taken into account by the Executive Magistrate while coming to a conclusion. It has also been submitted by Mr. N. Das, learned Government Advocate that the Executive Magistrate had also visited the house of the petitioner during the enquiry proceeding to ascertain the fact. However, the visit to the house of the petitioner is disputed by Mr. H. Das, learned counsel appearing for the petitioner.

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10. The learned counsel appearing for the respondents has drawn the attention of this Court to the order dated 16.07.2025 which refers to a report by the Block Development Officer, Jaleswar Development Block vide his letter dated 01.07.2025 and the report of the Secretary of the Takimari Gaon Panchayat communicated vide letter dated 01.07.2025 regarding the findings against the petitioner for having multiple living children, thus violating the eligibility norms for being allowed to contest the elections and thereafter to hold the post of Gaon Panchayat Member.

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11. Mr. N. Das, learned counsel for the respondents has submitted that the impugned order dated 16.07.2025 being based on the enquiry conducted not only by the Executive Magistrate but also based on the report of the BDO, Jaleswar Development Block and the Secretary of the Takimari Gaon Panchayat , there would be no occasion for this Court to interfere in the aforesaid order and accordingly he has prayed for the dismissal of the writ petition.

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12. Mr. M. Ali, learned counsel for the respondent No. 8 has submitted that the complaint was lodged by the respondent No. 8 on receiving the information that the petitioner had three living children which would disqualify the petitioner from participating in the election and holding the post of Gaon Panchayat Member and therefore, he had informed the authority regarding the same. The findings of the enquiry, as were pointed out by the learned counsel appearing for the respondent No.

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2, 3 & 4 demonstrates that the petitioner, in fact, had more than two living children on the date of her contesting the elections and therefore, in view of the ascertained facts, he submits that the writ petition does not need further consideration and deserves to be dismissed.

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13. This Court has considered the submissions made by the learned counsel appearing for the contesting parties and also perused the material available on record. By the order dated 03.11.2025, this Court had directed the respondents to ensure the relevant record regarding the proceeding against the petitioner be placed before this Court today without fail. However, the learned counsel for the official respondents has submitted the soft copies of the records forwarded to him by the authorities, which contain a handwritten note titled “observation on the inquiry made on 24/05/2025” containing only an illegible signature, and a few photographs. Situated thus, this Court is proceeding to decide the matter on the basis of the material available on record. 14. The respondent No.2 has filed affidavit-in-opposition, wherein the facts of the Magisterial enquiry, the fact of the recording of the statements of the Anganwadi Worker alongwith reference to the records of the Anganwadi centre during the enquiry conducted by the Executive Magistrate have been affirmed.

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It has also been stated in the affidavit-in-opposition that the enquiry had already been conducted into the allegation leveled against the petitioner and therefore, no further inquiry was called for. It has been asserted that it was on the basis of the enquiry report from the Executive Magistrate concerned as well as the report of the CEO, Zilla Prishad , the report of the BDO, Jaleswar Development Block and the Secretary, Takimari Gaon Panchayat the petitioner was disqualified.

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15. From the record available with the writ petition and in the affidavit-in-reply filed by the petitioner, it is seen that the petitioner has taken specific stands that she did not have three living children on the date of her contesting the election or on the date of her filing of the affidavit in support of her nomination for the election. It is also the specific case of the petitioner that she was not given an opportunity to participate in

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the enquiry proceeding held by the Executive Magistrate. The stands taken by the respondents in their affidavit-in-opposition as also the submission made by Mr. N. Das, learned counsel for the official respondents reveals that the District Commissioner had depended not only upon the report of the Executive Magistrate but had also referred to some report of the CEO, Zilla Parishad, the report of the BDO, Jaleswar Development Block and the Secretary, Takimari Gaon Panchayat.

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16. There is no assertion in the affidavit-in-opposition that the petitioner was allowed to participate in the enquiry held by the Executive Magistrate. Even if this Court assumes that the enquiry conducted by the Executive Magistrate, the CEO, Zilla Parishad, the BDO, Jaleswar Development Block and the Secretary, Takimari Gaon Panchayat can be classified as preliminary enquiry, in which case the said enquiries would not require the participation of the petitioner, it was the bounden duty of the District Commissioner to have brought all the reports to the notice of the petitioner and to have given her an opportunity of defending her case by confronting the different witnesses whose statements had been relied upon during the enquiry and also to put up challenge to the different official records which the enquiring authority had placed reliance to the finding against the petitioner. The petitioner also deserved to be given opportunity during the hearing before the District Magistrate to adduce evidence in her defence.

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17. In the present case, this Court finds that, save and accept being given a copy of the report of the Executive Magistrate, a copy of the complaint and an opportunity to be present on 27.06.2025 before the District Commissioner, the petitioner was not given any effective opportunity to defend her case. The earlier order passed by this Court on 23.07.2025 has also referred to the relevant provision of the Assam Panchayat Act, 1994 and the Assam Panchayat (Constitution) Rules, 1995 to come the conclusion that the said provision would require a reasonable opportunity to the affected person to submit his or her case before adverse orders are issued against her. 18. In view of what has been noticed above, this Court has no hesitation to quash

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and set aside the order dated 16.07.2025 passed by the District Commissioner, Goalpara vide No. GDG 58/P Election/2025/Pt/18, removing the petitioner from the post of Gaon Panchayat Member from 1-No Ward Nathongdonga Tiapara Takimari Haguripara Gaon Panchayat in the district of Goalpara. The consequential corrigendum dated 19.07.2025, insofar as it relates to the petitioner, is also interfered with.

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19. It is seen that this Court had, in the earlier round of litigation, allowed the District Commissioner to proceed with the enquiry against the allegation leveled on the petitioner. Keeping up in the spirit of the aforesaid order, the District Commissioner, Goalpara is given the liberty to proceed with the enquiry, if he so deems fit, regarding the allegation leveled against the petitioner in accordance with law. It is made clear that, in case, the enquiry proceeding are continued, the same shall be commenced only after informing the petitioner about the specific allegations against her and after providing copies of all the reports which the respondents would desire to rely upon and also to give the petitioner a reasonable opportunity to defend, which opportunity would include the opportunity to confront witness and other evidence which are proposed to be relied upon during the enquiry proceeding.

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20. It is also made clear that since the matter relates to the election of the Gaon Panchayat Member, in the event the District Commissioner deems it fit to continue with the enquiry proceeding, the same shall be concluded within a period of 6(six) weeks from the date of the order. It is made clear that in the event the enquiry is continued, the petitioner shall participate and co-operate with the said enquiry to ensure that the same is brought to its logical conclusion without any delay being attributed to her.

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21. Writ petition stands disposed. No costs.

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JUDGE

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Jesmina Khatun v. the State of Assam and Othrs

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Jesmina Khatun v. the State of Assam and Othrs

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