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2025 DIGILAW 1581 (GAU)

Supa Nath, W/o Dipankar Nath v. State of Assam

2025-09-15

SANJAY KUMAR MEDHI

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JUDGMENT : SANJAY KUMAR MEDHI, J. Heard Shri H. A. Laskar, learned counsel for the petitioner. Also heard Shri K. Konwar, learned Addl. AG for the State respondents and Shri R. Dubey, learned Standing Counsel, State Election Commission. 2. As per the facts projected, the petitioner was a contesting candidate in the election for the post of Ward Member of Ward No. 1 of Katirail Gaon Panchayat under the 3/11 Katigorah Zilla Parishad which was held in May, 2025. However, she has lost the elections to the respondent no. 5. It is the case of the petitioner that the selected candidate – respondent no. 5 was disqualified as forged documents were submitted regarding her educational qualification. It is also her case that a false affidavit has been sworn regarding the marriage. The petitioner has filed representation / complaint before the Deputy Commissioner, Cachar on 08.08.2025 which has not been acted upon. 3. Shri Laskar, the learned counsel for the petitioner has submitted that the qualifications of the candidates are provided in Section 111 of the ASSAM PANCHAYAT ACT , 1994, as per which there is a particular requirement so far as educational qualification is concerned and further that the candidate should not be involved in a child marriage. He has submitted that on both these aspects, the respondent no. 5 was unqualified and to cover up the same, forged documents and false affidavit have been submitted which have been overlooked by the authorities. He accordingly submits that a direction be issued to consider and dispose of the complaint/ representation. 4. Per contra, Shri Konwar, the learned Addl. AG has submitted that the present application is not maintainable in view of Section 129 (b) of the Act of 1994. He has submitted that elections to any Panchayat can be called in question only by an Election Petition which is to be presented within 60 days from the date of declaration of the results. He has submitted that admittedly the results were declared in May, 2025 and within the prescribed period of time, no such Election Petition has been said to be instituted by the petitioner. 5. He has submitted that admittedly the results were declared in May, 2025 and within the prescribed period of time, no such Election Petition has been said to be instituted by the petitioner. 5. Shri Dubey, the learned Standing Counsel, State Election Commission, while supporting and endorsing the submissions made on behalf of the Department, has submitted that the Act itself had provided for remedy which was not availed of by the petitioner diligently and therefore no indulgence can be given to the petitioner by this Court which is a Court of Equity. 6. Shri Laskar, learned counsel for the petitioner in his rejoinder has drawn the attention of this Court to Section 111 (3) (ii) of the Act and has contended that the District Commissioner would have the power to decide such issue. The said averment has however been refuted by the learned Addl. AG by submitting that such powers under the aforesaid provision is only to decide disqualification on the ground of defection which is not the fact of the instant case. 7. The rival submissions have been duly considered and the materials placed before this Court have been carefully perused. 8. The undisputed facts is that the petitioner had contested the election from the aforesaid Ward mentioned and had lost the same. It is the private respondent no. 5, who was elected as a Ward Member. Section 11 of the Act of 1994 is for resolution of dispute for the election of President and the Vice President of the Gaon Panchayat which is to be decided by a District Commissioner and the said provision would not be applicable in the present case wherein the election is for a Ward Member. This Court has also examined the provisions of Section 111 of the Act which in connection with disqualifications. The power vested on the District Commissioner under Section 111 (3) (ii) is only on the aspect of defection. 9. Though the grounds for challenging the election of the respondent no. 5 is primarily based on the allegation that the said respondent no. 5 suffered from disqualification, it clearly appears that such challenge can be instituted only by an Election Petition under Section 129 of the Act. Such petition is required to be presented within 60 days from the date of declaration of the results. 5 is primarily based on the allegation that the said respondent no. 5 suffered from disqualification, it clearly appears that such challenge can be instituted only by an Election Petition under Section 129 of the Act. Such petition is required to be presented within 60 days from the date of declaration of the results. For ready reference, Section 129 (b) is extracted herein below: “129 (b) no election to any Panchayat shall be called in question except by an election petition presented within sixty days from the date of declaration of election results to the Tribunal constituted under Section 127.” 10. This Court has also been informed that under Section 127, Election Tribunals have been constituted with the concerned District Judge as the Presiding Officer. 11 . Considering the above and also the fact that the petitioner was a contesting candidate for a Ward Member, the remedy available to challenge the election of the respondent no. 5 is only by taking recourse to Section 129 (b) which however has not been done within the prescribed period. It is also not the case where the vires of Section 120 (b) has been questioned. 12 . It is a settled position of law that when there is a prescription to do a certain thing in a certain way, the said thing cannot be done in any other way. In this regard, it would be convenient to refer and rely upon the landmark judgment of the Hon’ble Privy Council in the case of Nazir Ahmad Vs. the King Emperor reported in AIR 1936 PC 253 (II) wherein the following observations were made- “… The rule which applies is a different and not less well recognized rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. …” 13 . Though the powers under Article 226 of the Constitution of India are unfettered, there are self imposed restrictions and the writs which may be issued are prerogative in nature. The power is to be exercised in an equitable manner wherein the conduct of the party approaching the Court attains paramount importance. …” 13 . Though the powers under Article 226 of the Constitution of India are unfettered, there are self imposed restrictions and the writs which may be issued are prerogative in nature. The power is to be exercised in an equitable manner wherein the conduct of the party approaching the Court attains paramount importance. In the instant case, there is no reasonable or acceptable explanation as to what prevented the petitioner to institute an Election Petition within the prescribed time and as to why such avenue was abandoned. 14 . In view of the above, the writ petition is held to be not maintainable and accordingly dismissed.