Abdur Rahman vs The State Of Assam And 2 Ors

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GAHC010155722026

2026:GAU-AS:12956
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3968/2026
ABDUR RAHMAN
SON OF MAYNAL HOQUE, PERMANENT RESIDENT OF VILLAGE
CHAGOICHARA PT.-I, P.O. DHUBRI, P.S. DHUBRI, PIN - 783324, DISTRICT
DHUBRI, ASSAM.
VERSUS
THE STATE OF ASSAM AND 2 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT
DEPARTMENT, DISPUR, GUWAHATI - 781006.
2:THE DISTRICT COMMISSIONER
DHUBRI DISTRICT - DHUBRI
ASSAM. PIN -783324
3:THE CHIEF EXECUTIVE OFFICER
DHUBRI ZILLA PARISHAD
DHUBRI
DISTRICT - DHUBRI
ASSAM. PIN -783324.
4:ATIUR RAHMAN
SON OF ABDUL ALI
RESIDENT OF VILLAGE - BIDYAPARA PART - II
P.O. A.M. CO. ROAD
P.S. AND DISTRICT - DHUBRI
ASSAM

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BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
For the petitioner Mr. SSS Rahman, Adv

For the Respondents : Mr. S Dutta, SC, PNRD
: Mr. K Mohammed, (R-4)

Date of reserve of the judgment : N/A
Date of pronouncement of judgment : 05.11.2026

Whether the pronouncement is of the
operative part of the judgment? : N/A

Whether the judgment has been pronounced? : N/A


UDGMENT RDER ORAL
J & O ( )

1. The petitioner has approached this Court, assailing the
order dated 23.07.2026 passed by respondent No. 2, whereby the
petitioner was declared disqualified from holding the office of Ward
Member of 73 No. Moritchar Gaon Panchayat with immediate effect.
The impugned order further observed that the seat is to be treated as
vacant henceforth.
2. The order was passed based on an application filed by
respondent No. 4, inter alia, alleging that the petitioner has more
than two children from multiple partners and does not have the
required educational qualification. Admittedly, the third child was
born on 04.06.2025.
3. The facts are not in dispute.
The petitioner contested the Panchayat election after his nomination

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was accepted as valid on 11.04.2025, and he was subsequently duly
elected as the Ward Member of the concerned ward.
4. The complaint was filed with the allegations as recorded
hereinabove. An inquiry was conducted, and a report was submitted.
Based on the report, the District Commissioner passed the impugned
order, declaring the petitioner disqualified and removing him from
office.
5. The District Commissioner exercised such power under
Section 111 of the Assam Panchayat Act, read with Rule 62 of the
Assam Panchayat (Constitution) Rules, 1995.
6. Section 111 of the Assam Panchayat Act prescribes the
disqualification of membership of Panchayat institutions. Rule 62 of
the Rules, 1995 provides the procedure for dealing with such
disqualification. However, the existence of a statutory disqualification
and the authority competent to adjudicate a dispute concerning such
disqualification are two distinct issues. The authority exercising
statutory power must act within the remit prescribed by the
Constitution and the parent enactment.
7. Article 243F of the Constitution of India deals with
disqualification for membership of a Panchayat and provides that
such authority may determine questions of disqualification as
provided by law made by the State Legislature.
8. On the other hand, Article 243-O provides that no
election to a Panchayat shall be called in question except by an
election petition presented to the authority and in the manner
prescribed by law.

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9. In the opinion of this Court, these two provisions are to
be read together so that the power to determine a disqualification is
exercised consistently with the constitutional scheme governing the
electoral process.
10. There is a distinction between a disqualification incurred
during the tenure of the elected office and an allegation that the
elected candidate was ineligible to contest the election in the first
instance. When the allegation is that a candidate suffered a
disqualification on the date of filing the nomination, the challenge, in
substance, relates to the acceptance of nomination and,
consequently, to the validity of the election. Such a dispute cannot be
converted into a proceeding to remove an elected member merely
because the alleged disqualification is discovered after the election.
However, the situation and considerations differ when a person,
having been validly elected after contesting the election,
subsequently incurs a disqualification during the tenure of office.
11. The Division Bench has authoritatively considered this
distinction in Minu Begum v. State of Assam (WA No.
174/2026, decided on 08/06/2026) . The Division Bench
examined the interplay between Article 243F and Article 243O of the
Constitution of India, Section 111 and Section 129 of the Assam
Panchayat Act, 1994, and Rule 62 of the Assam Panchayat
(Constitution) Rules, 1995.
The Division Bench held that where the foundation of the proceeding
is an allegation that the returned candidate suffered from a
disqualification on the date of filing of nomination, the dispute

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essentially concerns the validity of the election, and the acceptance of
a nomination is an integral stage of the electoral process, and a
challenge to such acceptance must be pursued through an election
petition before the competent Election Tribunal within the period
prescribed by law.
12. It further held that Rule 62 cannot be construed as
conferring on a District Commissioner parallel jurisdiction to
adjudicate such a dispute after the election has concluded.
13. The Division Bench also opined that the District
Commissioner's jurisdiction depends on the nature of the dispute, not
on the date on which the disqualification is discovered. The
subsequent discovery of information concerning an alleged pre-
existing disqualification does not change the character of the dispute
or confer jurisdiction on an authority that could not otherwise
entertain it.
14. In the present case, the impugned order proceeds on the
allegation that the petitioner acquired disqualification by having more
than two children after being elected as Ward member. Thus, the
conclusion recorded by the District Commissioner is based on an
alleged disqualification after filing the nomination papers and after
being elected.
15. Admittedly, the last date of filing nomination was
11.04.2025; the petitioner was notified as elected on 12.05.2025 and
the third child was born on 04.06.2025, thereby acquiring
disqualification. That being the position, the District Commissioner
has the requisite jurisdiction and competence to exercise its powers

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under Section 111 read with Rule 62.
16. The ground of the petitioner that no reasonable
opportunity of hearing was given does not advance the matter any
further in view of the undisputed facts that a notice was issued to the
petitioner on 08.10.2025, and the petitioner responded to such notice
by his reply dated 22.10.2025. In his reply, and also before this Court,
the petitioner contended that the third child was born during the
currency of his tenure; however, the child was born to his second wife
after his divorce from his first wife, and therefore the disqualification
was not triggered. Thus, it is admitted that the third child was born
after the petitioner was elected as a member of the concerned ward.
17. Section 111 makes no distinction between a child born
from a divorced wife and a child born from the second wife
subsequent to such divorce. Section 111 triggers disqualification for
having more than two children from single or multiple partners.
Marriage or divorce is irrelevant in this context. Therefore, the
petitioner's contention is not tenable in law.
18. Accordingly, for the reasons recorded hereinabove, the
present writ petition is devoid of merit. Accordingly, the same stands
dismissed.
19. The interim order passed earlier stands vacated.

JUDGE
Comparing Assistant