Rexona Begum Laskar v. The State of Assam and 5 Ors

JUDGMENT Date : 29-08-2024

¶1Heard Mr. S Dey learned counsel for the petitioner. Also heard Mr. P Handique, learned standing counsel, PNRD appearing for respondent Nos.1, 2, 4, 5 & 6 and Mr. J Handique learned Govt. Advocate appearing for the respondent No.3.

¶2By way of the present writ petition, an order dated

21.12.2022 (Annexure – 9 to the writ petition) passed by the Deputy Commissioner, Hailakandi, whereby, the petitioner who was a ward member of Ward No.3, North Narainpur GP was disqualified to be member of No.3, North Narainpur GP under Algapur Development Block on the ground that she gave birth to the fourth child on

14.09.2019, which disqualifies her under Rule 62 of Assam Panchayat (Constitution) (Amendment) Rules, 2018 read with sub-section 2 of Sec.111 of the Assam Panchayat Act, 1994.

¶3The basic ground raised by the petitioner is that the Deputy Commissioner had passed the aforesaid order on an erroneous presumption of facts and law, inasmuch as the fourth child Page No.# 3/7 of the petitioner was born on 14.03.2018, whereas the Deputy Commissioner had held it to be 14.09.2019. It is her further case that no reasonable opportunity of hearing was granted to her to defend her case.

¶4The brief facts of the case is that, one organisation namely, Axom Jatiyatabadi Juva Satra Parishad lodged a complaint before the Deputy Commissioner, Hailakandi requesting removal of the petitioner as the ward member of the concerned GP on the ground that she had given birth to her fourth child on 14.03.2019.

¶5It is also on record that the Joint Secretary, to the Govt. of Assam, Panchayat & Rural Development Department communicated to the Deputy Commissioner Hailakandi that the President of Dr. Himanta Biswa Sarma Fans Club, has informed the said Joint Secretary that the petitioner had given birth to her fourth child on 14.09.2019 and therefore, in the event such fact is true, same is in violation of the Rules 62 of the Assam Panchayat (Constitution) (Ammendment) Rules, 2018 and accordingly, the Joint Secretary requested the Deputy Commissioner to submit a report and take necessary action. Thereafter by communication dated

10.10.2022, the Chief Executive Officer, Zila Parishad, Hailakandi asked the petitioner to appear before the Chief Executive Officer, Zila Parishad, Hailakandi on 11.00 AM to respond to the allegation that she had violated Section 2 (1)(b) of Assam Panchayat Raj (Amendment) Act, 2018. It was further asked to the petitioner to explain why actions should not be inflicted upon her. Page No.# 4/7

¶6Thereafter the petitioner requested the Executive Officer for providing a complaint petition and other documents on the basis of which the aforesaid notice was issued. However, no such document was furnished though a hearing took place at 15.12.2022 at 11.00 AM. In that proceeding a written statement was also recorded which shows that the petitioner has refuted such allegation. Thereafter on 21.12.2022, the impugned order was passed.

¶7An affidavit has been filed by the Additional Deputy Commissioner, Hailakandi, wherein the fact that a complaint has been received from the Dr. Himanta Biswa Sarma Fans Club, North Narainpur and the communication of the Joint Secretary are admitted. It is also discernible from the affidavit that on receipt of such representation from Dr. Himanta Biswa Sarma Fans Club, North Narainpur, an enquiry was conducted through one Namrata Sahu, ACS, Assistant Commissioner & Executive Magistrate, Hailakandi and she was asked to submit a report along with all supporting documents within seven days. Thereafter, as per the affidavit-in-opposition, said Ms. Sahu submitted a report on 09.12.2022, with an observation that as per existing report, concerned SDM&HO, 4th child namely Sahil Ahmed Laskar of the petitioner was born on

14.09.2019. Thereafter a report dated 06.10.2022 was received from the BDO, Algapur and another report dated 28.10.2022 from the CEO, Zilla Parishad on the matter and both the report suggested that fourth child of the petitioner was born on 14.09.2019 and on the basis of such report the Deputy Commissioner, Hailakandi has issued the order of removal dated 21.12.2019. Page No.# 5/7

¶8From the specific averments made in the affidavit, it is seen that the entire decision was taken on the basis of the report submitted by the Executive Magistrate, the BDO and the CEO of Zilla Parishad. However, admittedly such enquiry was done by the aforesaid authorities without the petitioner being part of such enquiry, no copy of such enquiry report or the materials of such enquiry report was disclosed to the petitioner giving her an opportunity to rebut the finding of such enquiry report and admittedly the Deputy Commissioner arrived at the final conclusion on the basis of such report.

¶9Rule 62 of the Assam Panchayat (Constitution) (Amendment) Rules, 2018 prescribes that an affidavit is to be filed at the time of filing of the nominations by a candidate that the candidate is having not more than two living children from a single or multiple partners. Sub rule (f) further provides that the on receipt of any information that any child is born after 19.03.2018, the Gaon Panchayat Secretary shall inform the same to the concerned Deputy Commissioner through Chief Executive Officer, Zilla Parishad and on receipt of such information the concerned Deputy Commissioner is to examine the matter and on established fact (emphasis supplied) can remove President, Vice President of the Gaon Panchayat concerned accordingly under intimation to the State Government as well as Assam State Election Commission.

¶10Thus from the aforesaid rule, it is clear that an elected member cannot have more than two children on or after 19.03.2018. Page No.# 6/7 Therefore, in the considered opinion of this court, to have a conclusion of existence of an "established fact", as required under sub rule (f) shall necessarily mean giving a reasonable opportunity of hearing to the person concerned against whom the information as regards violation of clause 3 of Rule 62 is alleged.

¶11In the case in hand, admittedly the complaint was not initiated by the Gaon Panchayat Secretary, rather it was initiated by the Deputy Commissioner himself on the basis of the complaint received from an organisation namely Himanta Biswa Sarma Fan Club and the affidavit clearly establishes that the petitioner was neither given any copy of such complaint nor any copy of the enquiry conducted by the Deputy Commissioner was furnished to the petitioner.

¶12That being the position, in the considered opinion of this court the impugned order has been passed in derogation of the principles of natural justice.

¶13The principles 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 is also have a right to know the material on the basis of which the allegation is proposed to Page No.# 7/7 be decide.

¶14Law is by now well settled that until and unless the adherence of principles of natural justice is excluded, every action which results in civil consequences must follow due procedure of principles of natural justice which has not been followed in this case. On this count alone the impugned decision of the Deputy Commissioner is liable to be set aside.

¶15A reasonable opportunity means a fair chance to present the case/respond to the show cause. In the case in hand, in a situation, when the petitioner had appeared before the authority and sought for copies of the complaint, non grant of the same and non furnishing of the enquiry report on the basis of which determination was made, cannot be termed as a reasonable opportunity, though a notice was issued.

¶16Accordingly the writ petition stands allowed by setting aside the order dated 21.12.2022 issued by the Deputy Commissioner, Hailakandi. However, it is made clear that the respondent shall be at liberty to initiate a fresh enquiry, strictly in accordance with law, if so advised.

¶17The parties to bear their own cost.

JUDGE Comparing Assistant

PageoNo.#o1/7 GAHC010004202023 ooooooo 2024:GAU-AS:8588 ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/117/2023ooooooooo REXONAoBEGUMoLASKARo W/OoMASUKoAHMEDoLASKARo VILL-oKALINAGARoPT.VII,oNORTHNARAINPUR,oP.S.oALGAPUR,oDIST.o HAILAKANDI,oASSAM VERSUSo THEoSTATEoOFoASSAMoANDo5oORSo REP.oBYoTHEoPRINCIPALoSECRETARYoTOoTHEoGOVT.oOFoASSAM,o PANCHAYAToANDoRURALoDEVELOPMENToDEPARTMENT,oDISPUR,o GUWAHATI-6. 2:THEoCOMMISSIONER oPANCHAYAToANDoRURALoDEVELOPMENToDEPARTMENT oASSAM oPANJABARI oGUWAHATI-781037. 3:THEoDEPUTYoCOMMISSIONER oHAILAKANDI oASSAM oPIN-788155 4:THEoCHIEFoEXECUTIVEoOFFICER oHAILAKANDIoZILLAoPARISHAD oHAILAKANDI oASSAM oPIN-788155 5:THEoBLOCKoDEVELOPMENToOFFICER oALGAPURoDEVELOPMENToBLOCK oDIST.oHAILAKANDI oASSAM oPIN-788150. Page No.# 2/7 6:THE SECRETARY NORTH NARAINPUR GAON PANCHAYAT P.O. NORTH NARAINPUR DIST. HAILAKANDI ASSAM PIN-78880 Advocate for the Petitioner : MR. N H BARBHUIYA, MS N J BEGUM Advocate for the Respondent : SC, P AND R.D., GA, ASSAM BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY