Monowara Khatun Vs Rifa Zulka and 8 Ors.

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GAHC010284972025

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2026:GAU-AS:3446-DB

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Writ Appeal No.413 of 2025

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Monowara Khatun, A.P. Member, Mayarchar G.P., Wife of Rofiqul Islam Akond, Resident of Village: Mayarchar, PO: Nayeralga, PS: Bilasipara, District: Dhubri, Assam, PIN – 783348.

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…… Appellant

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-Versus-

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Rifa Zulka,

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Wife of Sofiqul Islam, Resident of Village: Nayeralga Pt. IV, PO: Nayeralga, District: Dhubri, Assam, PIN – 783348.

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Robiul Islam, Son of Sheikh Abdullah, Resident of Village: Nayeralga Pt. III, PO: Nayeralga, District: Dhubri, Assam, PIN – 783348.

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Nuruddin Ahmed,

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Son of Nowshad Ali Sk, Resident of Village: Dudhnath Hill, PO: Tilapara, District: Dhubri, Assam, PIN – 783348.

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Sobura Khatun, Wife of Sukur Ali, Resident of Village: Kajaikata Pt. I,

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PO: Bilasipara, District: Dhubri , Assam, PIN – 783348.

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…… Opposite Parties/ Writ Petitioners

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The State of Assam, represented by the Additional Chief Secretary to the Government of Assam, Panchayat & Rural Development Department, Dispur, Guwahati – 781006.

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The Assam State Election Commission, represented by the Secretary, Panjabari, Guwahati – 781037.

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The District Commissioner, Dhubri, PO & District: Dhubri, Assam, PIN – 783301.

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The Circle Officer, Dhubri Revenue Circle, PO & District: Dhubri, Assam, PIN – 783301.

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The Executive Officer, Nayeralga Anchalik Panchayat, PO: Nayeralga, District: Dhubri, Assam, PIN – 783348.

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…… Respondents/ Opposite Parties

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– BEFORE – HON’BLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR HON’BLE MR. JUSTICE ARUN DEV CHOUDHURY

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For the Appellant(s) : Mr. M.K. Choudhury, Sr. Advocate, assisted by Mr. H.R. Ahmed, Advocate.

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For the Respondent(s) : Mr. T.J. Mahanta, Sr. Advocate, assisted by Mr. D.A. Kaiyum, Advocate for respondent Nos.1 to 4.

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: Mr. S. Dutta, Standing Counsel, Panchayat & Rural Development Department for respondent Nos.5 and 9.

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: Mr. R. Dubey, Advocate for respondent No.6.

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: Mrs. S. Sarma, Junior Government Advocate, Assam for respondent Nos.7 and 8.

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Date of hearing : 09.03.2026.

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Date of Judgment : 09.03.2026 .

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J UDGMENT & ORDER (ORAL)

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(Ashutosh Kumar, CJ)

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We have heard Mr. M.K. Choudhury, learned Senior Advocate, assisted by Mr. H.R. Ahmed, learned Advocate for the appellant; Mr. T.J. Mahanta, learned Senior Advocate, assisted by Mr. D.A. Kaiyum, learned Advocate for respondent Nos.1 to 4; Mr. S. Dutta, learned Standing Counsel, Panchayat & Rural Development Department for the respondent Nos.5 and 9; Mr. R. Dubey, learned Advocate for respondent No.6 and Mrs. S. Sarma, learned Junior Government Advocate, Assam for respondent Nos.7 and 8.

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2. The judgment impugned in the present appeal is dated 15.12.2025, passed by a learned Single Judge of this Court in WP(C) No.4272/2025.

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3. Nayeralga Anchalik Panchayat, Dhubri (No.5) was constituted on 07.05.2025 and for the first time, a meeting was held on 11.07.2025, meant for electing the President and the Vice-President of the said Anchalik Panchayat. On that day, there was no quorum available and, therefore , the meeting was adjourned to 15.07.2025.

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On this adjourned date, i.e. 15.07.2025, six persons were present, who voted for two of the members as President and VicePresident of the said Anchalik Panchayat. The person, who was elected as President, is the appellant before this Court.

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The private respondents questioned it on the ground that there was still lack of quorum on 15.07.2025 and that they did not have the notice of the adjourned date of meeting.

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4. The learned Single Judge, on the aforenoted grounds, namely, the meeting being non-quorate and no effective notice to the writ petitioners/ respondents, set aside the election and directed for a fresh election on 29.12.2025, which date was fixed suo motu by the Court.

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5. While evaluating the aforenoted judgment, this Court was of the view that the date for next election ought not to have been fixed by the learned Single Judge but should have been left to the authorities, with effective notice to all the members for attending such meeting.

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6. Be that as it may, the order passed by the learned Single Judge was never interfered with and the elections were, though, held on 12.01.2026 in which respondent No.1 and another were elected as President and Vice-President of the Anchalik Panchayat. Needless to state that the appellant had contested the said election.

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7. This closes the issue for the present but on the insistence of Mr. M.K. Choudhury, learned Senior Advocate for the appellant, further discussion is being made so as to clear the doubts whether for the purposes of election of the President and Vice-President of the Anchalik Panchayat, Section 46 of the Assam Panchayat Act, 1994 (hereinafter to be referred as the “Act of 1994”), which deals with quorum, would be applicable or would it be governed by Section 37 of the Act of 1994 read with Rule 48 of the Assam Panchayaat (Constitution) Rules, 1995 (hereinafter to be referred as the “Rules of 1995”) .

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8. Section 37 of the Act of 1994 clearly provides that only the directly elected members of the Anchalik Panchayat shall elect, from

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amongst the directly elected members, two members as President and Vice-President, respectively, of the Panchayat in a meeting which shall be called the first meeting of the Anchalik Panchayat, to be convened by and presided over by the Deputy Commissioner of the District in the manner prescribed.

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[Emphasis supplied]

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9. The manner has been prescribed in Rule 48 of the Rules of 1995, which are being extracted herein for the sake of clarity:-

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“ 48. Election of President and Vice-President of Anchalik Panchayats:- (1) The Deputy Commissioner or the Officer authorised by him in this behalf as under, sub-section (1) of Section 37 of the Act, shall as soon as possible after the completion of election as under Section 32 of the Act, convene the first meeting of the Anchalik Panchayat comprising the members as under subsection (1) of Section 32 of the Act, by fixing a date, time and place and specifying the purpose and by causing a written notice to be served on each of the said members of the Anchalik Panchayat at least seven days before the date so fixed. Such meeting shall be presided over as under sub-section (1) of Section 37 of the Act, and such Officer shall not be entitled to vote.

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(2) The Officer as under sub-rule (1), shall administer an oath of affirmation as under Section 134 of the Act, to the members present before commencement of the meeting.

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(3) If one-third of the total number of members as under sub-section (1) of Section 32 of the Act, called to the meeting under sub-rule (1) are not present within an hour of the time fixed for the meeting, the Officer as under sub-rule (1) shall adjourn the meeting pending fixation of another date by the Deputy Commissioner not later than fifteen days from the date of such meeting.

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(4) The Officer as under sub-rule (1) shall, immediately after oath taking as under sub-rule (2) of sub-section (1) of Section 32 of the Act, to propose and second names of persons from amongst themselves for election of a President and a Vice-President of the Anchalik Panchayat. The said Officer shall record the name of each candidate proposed for different offices and shall reject any proposal if the candidate refuses to stand for election.

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(5) If, only one candidate is proposed and seconded against either of the offices, the officer as under sub rule (1), shall thereupon declare him to be duly elected as the President or the Vice-President as the case may be, of the Anchalik Parnchayat.

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(6) If, more than one candidate are proposed and seconded against either of the offices, the Officer as under sub-rule (1), shall conduct the election in the following manner-

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(i) the Officer as under sub-rule (1), shall cause to prepare as many ballot papers separately for each of the offices as there are members present as under clause (a) of sub-section (1) of Section 32 of the Act, in FORM-IV appended herewith in the language of the region and whereupon the names of the candidates shall be written line-wise in the order in which the proposals were made;

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(ii) the Officer as under sub-rule (1), shall allow the members present as under clause (i) of sub- rule (6) to inspect the two separate ballot boxes to be used for the purpose and thereafter secure and seal such ballot boxes and place them before him. The Officer shall provide a compartment screened from observation by other persons in which the members can mark the ballot paper;

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(iii) the Officer as under sub-rule (1), shall thereafter handover one such ballot paper as prepared under clause (i) of sub-rule (6) to each of the members present after putting his signature on the back of each ballot paper. He shall then instruct the members to enter the compartment one by one and put a cross mark against the name of the candidate of his choice in the ballot paper supplied, fold it and then insert it into the respective ballot box kept in front of the Officer; and

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(iv) if, a member is unable to write or physically incapacitated from voting, the Officer under sub-rule (1) shall, at the request of the member, take him to the screened compartment, ascertain his choice and accordingly mark the ballot paper, fold it and then insert it into the concerned ballot box. The said Officer shall cause such arrangement to be made as will ensure secrecy of the ballot paper.

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(7) Immediately after the voting is over, the Officer as under sub-rule (1), shall open the ballot boxes one by one, take out the ballot papers therefrom, count them and record the number thereof in a statement. A ballot paper shall be invalid on the grounds as under clauses (a), (b), (c), (d) and le) of sub-rule (7) of the Rule 46 of these rules.

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(8) The Officer as under sub-rule (1) shall, after completion of counting and recording of votes received by each candidate for either of the Officer, declare the candidate who has secured highest number of votes against respective

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offices, to be duly elected as the President and the Vice-President of the Anchalik Panchayat concerned.

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(9) In case of equality of votes in either of the said election, declaration of election shall be given by the Officer as under sub-rule (1), in the manner prescribed under Rule 45.

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(10) Declaration as to the election to the Offices of the President and VicePresident of the Anchalik Panchayat by the Officer as under sub-rule (1) shall be final.”

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10. Mr. Choudhury, learned Senior Advocate has argued that a composite reading of Rule 48, referred to above, would definitely give an impression that the electoral college would consists of a minimum of one third of the total number of members under sub-section (1) of Section 32 of the Act of 1994 and, therefore, there remains an inconsistency requiring reconciling the different provisions of the Act and the Rules so far as the election of the President or Vice-President or the first meeting of the Panchayat is concerned.

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11. We, in this context, also deem it necessary to reproduce Section 46 of the Act of 1994 for clarity:-

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“ 46. Quorum of the Anchalik Panchayat meeting: (1) One third of the total numbers of members of the Anchalik Panchayat shall form a Quorum of transacting business at a meeting of the Anchalik Panchayat. If at the time appointed for a meeting a quorum is not present, the person presiding shall wait for thirty minutes, and if within such period, there is a quorum, proceed with the meeting, but if within such period, there is no quorum, the person presiding shall adjourn the meeting to such hour or some future date as he may fix. He shall similarly adjourn the meeting at any time after it has begun, if his attention is drawn to the want of quorum. At such Adjourned meetings/no quorum shall be necessary and the business which would have been brought before the original meeting, shall be transacted.

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(2) Every meeting shall be presided over by the President or if he is absent, by

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the Vice-President and if both are absent or if the President is absent and there is no Vice-President, the members present shall elect one from among themselves to preside.

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(3) All questions shall unless otherwise specifically provided, be decided by a majority of votes of the members present and voting shall be by raising of hands. The Presiding Member, unless he refrains from voting, shall give vote before declaring the number of votes for and against a question and in case of equality of votes, he may give his casting vote.

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(4) No member of an Anchalik Panchayat shall vote on, or take part in the discussion of, any question coming up for consideration at the meeting of the Anchalik Panchayat or any committee, if the question is one in which apart from its original application to the public he has any direct pecuniary interest.

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(5) If the person presiding is believed by any member present at the meeting to have any such pecuniary interest in any matter under discussion, and if a motion to that effect is carried, he shall not preside at the meeting during such discussion, or vote on, or take part in it. Any member of the Anchalik Panchayat may be chosen to preside over the meeting during the continuance of such discussion.

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(6) No proposition shall be discussed at any ordinary meeting unless it has been entered in the notice convening such meeting or in the case of a special meeting, in the written request for such meeting. A member may propose any resolution connected with or incidental to the subjects included in the list of business. The President may propose any urgent subject of a routine nature not included in the list of business if no member objects to it. No permission shall be given in the case of a motion or proposition to modify or cancel any resolution within three months after the passing thereof except in accordance with sub-section (8). The order in which any business or proposition shall be brought forward at such meeting shall be determined by presiding authority who, in case it is proposed by any member to give particular proposition, shall put the proposal to the meeting and be guided by the majority of votes given for or against the proposal.

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(7) Any ordinary meeting may, with the consent of a majority of the member present, be adjourned from time to time, but no business shall be transacted at any adjourned meeting other than left undisposed at the meeting for which the adjournment took place.

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(8) No resolution of Anchalik Panchayat shall be modified or cancelled within six months after the passing thereof except by a resolution passed by not less

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than one half of the total number of members at an ordinary or special meeting, and notice thereof shall have given fulfilling the requirements of subsection (4) and setting forth fully the resolution which it is proposed to modify fully or cancel at such meeting and motion or proposition for the modification or cancellation of such resolution.”

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[Emphasis supplied]

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12. This quorum of one third of total number of members of Anchalik Panchayat is specifically for the purposes of transacting business at a meeting of Anchalik Panchayat. The election of the President and Vice-President would not come in the category of “transacting business” for which separate Rule (Rule 48 read with Section 37 of the Act) is applicable.

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13. With the specific provision contained in Section 37 of the Act of 1994 regarding election of the President and the Vice-President of the Anchalik Panchayt, there can be no manner of doubt that such election has to be held in the first meeting or in a meeting which is held for the first time after constitution of the Panchayat for the purposes of electing the President and the Vice-President, which would be deemed as first meeting and that the electoral college would be of the directly elected members and the candidates would be also the directly elected members for such posts.

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14. The provisions contained in Section 32 of the Act of 1994 and sub-rules (2) and (3) of Rule 48 of the Rules of 1995 have to be read, perforce, ejusdem generis, i.e. such stipulation regarding one third of the total number of members is mandated for the purposes of administering oath to the newly elected members and not for constituting the electoral

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college or the qualification of any member to contest for election, which according to Section 37 of the Act of 1994, would be available only to directly elected members and not all the members.

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15. Seen in this background, it appears that fresh elections were held, the date in the first instance having been decided by the Court but later changed to another date, in which the appellant and the private respondent and another had contested.

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16. In view of this situation, appellant having garnered lesser number of votes (four votes) than the respondent No.1, who could obtain seven votes out of eleven polled votes of elected members, nothing remains to be decided in the present appeal.

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17. For the aforenoted reason, we close this appeal with the observation that it would be open for the appellant to question the election, if so deemed necessary, of the respondent No.1 and another before an appropriate forum.

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18. The appeal stands disposed off.

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JUDGE CHIEF JUSTICE

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Digitally signed Mukut by Mukut Sharma Date: 2026.03.10 Sharma 18:15:44 +05'30'

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Comparing Assistant

Monowara Khatun v. Rifa Zulka and 8 Ors.

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Monowara Khatun v. Rifa Zulka and 8 Ors.

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