Gauhati High Court
Abdul Monnaf Sheikh vs The State Of Assam And 6 Ors on 27 March, 2026
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/17
GAHC010249442025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6405/2025
ABDUL MONNAF SHEIKH
SON OF NOSUMUDDIN SHEIKH, RESIDENT OF VILLAGE HATHSINGIMARI,
P.O- HATHSINGIMARI, P.S- SOUTH SALMARA, DISTRICT- SOUTH
SALMARA MANKACHAR, ASSAM-783135
VERSUS
THE STATE OF ASSAM AND 6 ORS
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT, DISPUR,
GUWAHATI-781006
2:THE DISTRICT COMMISSIONER
SOUTH SALMARA
ASSAM
PIN-783135
3:THE CHIEF EXECUTIVE OFFICER
SOUTH SALMARA ZILLA PARISHAD
SOUTH SALMARA
DISTRICT- SOUTH SALMARA MANKACHAR
ASSAM-783135
4:THE EXECUTIVE OFFICER
FEKAMARI ANCHALIK PANCHAYAT
DISTRICT SOUTH SALMARA MANKACHAR
ASSAM-783135
5:THE CONTROLLER OF EXAMINATION
ASSAM STATE SCHOOL EDUCATION BOARD (ASSEB)
DIVISION 2
BAMUNIMAIDAN GUWAHATI-781021
Page No.# 2/17
6:THE ASSAM STATE ELECTION COMMISSION
PANJABARI
GUWAHATI-781037
7:MAMUN SHAH
SON OF ABDUL SALAM SHAH
RESIDENT OF VILLAGE BOROBAGJHAPA
P.O- HAZIRHAT
DISTRICT- SOUTH SALMARA MANKACHAR
ASSAM
PIN-78313
Advocate for the Petitioner : MR. P MAHANTA, M DAS,A GOSWAMI
Advocate for the Respondent : SC, P AND R.D., MR. R M DEKA (R7),MR. K N CHOUDHURY
(R7),SC, EDU,GA, ASSAM,SC, A S E C
BEFORE
Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI
Advocate for the petitioner : Shri P. Mahanta, Advocate.
Advocates for the respondents : Shri S. S. Roy, GA, Assam.
Shri S. Dutta, SC, P&RD.
Shri K. N. Choudhury, Sr. Advocate.
Shri R. M. Deka, Advocate (R-7).
Date on which judgment is reserved : 16.03.2026
Date of pronouncement of judgment : 27.03.2026
Whether the pronouncement is of the
operative part of the judgment? : NA
Whether the full judgment has been pronounced? : Yes
Page No.# 3/17
JUDGMENT AND ORDER
The election of the Respondent No. 7 as Member of the No. 2
Fekamari Anchalik Panchayat and his subsequent election to the post of
President of the said Anchalik Panchayat are the subject matters of
challenge in this writ petition instituted under Article 226 of the
Constitution of India. The petitioner is also an elected Member who had
also contested for the post of President of the said Anchalik Panchayat.
The principal ground of challenge is that the Respondent No. 7 does not
possess the educational qualification, as required to be elected as a
Member of an Anchalik Panchayat.
2. The facts, as projected in the petition is that both the petitioner and
the Respondent No. 7 had contested and were elected as Members of the
said Anchalik Panchayat followed by an election for the President of the
same. A Resolution was accordingly adopted on 01.11.2025 whereby the
Respondent No. 7 was elected to be the President of the Panchayat. The
petitioner has contended that the Respondent No. 7 does not possess the
minimum educational qualification as required under the Assam Panchayat
Act, 1994 (hereinafter the Act). It is contended that Section 111 (2) (c)
provides that to be a President or Vice President or Member of an Anchalik
Panchayat, a candidate is required to possess minimum educational
qualification of HSSLC or equivalent. The said qualification is however
liable to be relaxed to HSLC if such Member belongs to Scheduled Caste,
Scheduled Tribes, OBC and MOBC. It is contended that the Respondent No.
7 belongs to an unreserved category and had contested the election for a
Member of the aforesaid Anchalik Panchayat from No. 28 Gotabari Khopati
Page No.# 4/17
Gaon Panchayat. It is also contended that while filing the nomination, in
the accompanying affidavit, he had declared himself to have passed the
Higher Secondary Examination in the year 2020. However, from
information gathered even by taking recourse to the Right to Information
Act, the petitioner could learn that such certificates were fake and forged
and therefore complaints were made. As no action was taken, the
petitioner had approached this Court by filing the instant writ petition.
3. I have heard Shri P. Mahanta, learned counsel for the petitioner. I
have also heard Shri K. N. Choudhury, learned Senior Counsel for the
respondent no. 7 assisted by Shri R. M. Deka, learned counsel; Shri S.
Dutta, learned Standing Counsel, P&RD and Shri S. S. Roy, learned State
Counsel, Assam.
4. Though the challenge has been made with regard to the election of
the Respondent No. 7 both as a Member and the President of the
concerned Anchalik Panchayat, the Respondent No. 7 has raised a
preliminary objection questioning the maintainability of the writ petition.
Under such circumstance, it was necessary to hear the contention
advanced by the Respondent No. 7 towards the aforesaid objection on the
maintainability of the writ petition.
5. Shri Choudhury, learned Senior Counsel for the respondent no.7 has
referred to the provisions of Article 243 0 of the Constitution of India,
which provides for a bar in challenging matters except by way of an
election petition. For ready reference, Article 243 0 is extracted herein
below:
“243-O. Bar to interference by courts in electoral matters
Page No.# 5/17Notwithstanding anything in this Constitution–
(a) the validity of any law relating to the delimitation of constituencies
or the allotment of seats to such constituencies made or purporting to be
made under Article 243K, shall not be called in question in any court;
(b) no election to any Panchayat shall be called in question except by an
election petition presented to such authority and in such manner as is
provided for by or under any Law made by the legislature of a State.”
6. He has also drawn the attention of this Court to Section 129(b) of the
Act which reads as follows:
“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.”
He has contended that under such provisions, the present petition is not
maintainable as the recourse is provided to an aggrieved party to approach
the Election Tribunal.
7. The learned Senior Counsel for the respondent no. 7 has also drawn
the attention of this Court to the nature of the allegation which is
specifically with regard to the educational qualification necessary for a
candidate to contest for the post of Member / Vice President / President.
While denying the allegations in toto and also raising counter allegations
questioning the locus of the petitioner, the learned Senior Counsel has
submitted that the said aspect is covered by Section 111(2)(c) of the Act
read with Rule 62 (1) of the Assam Panchayat (Constitution) Rules, 1995.
For ready reference, the aforesaid provisions of the Act and the Rules are
extracted herein below:
Page No.# 6/17
111. page 112 first part a… b…
(c) who has not passed the H.S.L.C or equivalent examination under any
Council or Board recognised by the State or the Central Government, as
the case may be, for the post of Zilla Parishad and Anchalik Panchayat
member:
Provided that in case of candidates belonging to Scheduled Castes,
Scheduled Tribes, Other Backward Classes (OBC) and More Other
Backward Classes (MOBC), the minimum educational qualification shall be
the H.S.L.C. or equivalent examination passed under any Council or Board
recognised by the State or the Central Government, as the case may be”.
Rule 62 (2) of the Assam Panchayat (Constitution) Rules, 1995:
“62. Conditions and procedure of disqualification under sub section
(2) of Section 111 of the Act.-
(1) .....
(2) Subject to the provisions of the Act, at the time of filing of
nominations, candidates shall furnish affidavit regarding their
required Educational Qualifications along with true copy of such
Certificates and also should produce the original Certificates before
the concerned Authorised Officers failing which, concerned
candidates shall be disqualified.
8. The learned Senior Counsel has submitted that there are four kinds of
disqualification and except for the aspect of disqualification on educational
qualification, there is a procedure prescribed for the matter to be
adjudicated by the District Commissioner on receipt of the information in a
particular manner. However, so far as the allegation of a candidate being
disqualified on account of not possessing the required educational
Page No.# 7/17
qualification, there is no such provision prescribed. In this connection,
attention of this Court has been specifically drawn to under Rule 62(2).
The learned Senior Counsel has submitted that under such provision in the
statute, the only recourse for the petitioner, if aggrieved, is to approach
the Election Tribunal.
9. Shri Choudhury, the learned Senior Counsel has relied upon a recent
decision of the Hon’ble Supreme Court in the case of Sandeep Singh
Bora v. Narendra Singh Deopa and Ors., reported in (2026) SCC
Online SC 136, wherein it has been laid down that in matters of the
present nature, the remedy lies in the form of an election petition. For
ready reference, the observations made by the Hon’ble Supreme Court are
extracted herein below:
“12. In view of the foregoing discussion, we summarise our conclusions as
under:-
I. By virtue of the express constitutional embargo contained in
Article 243-0 of the Constitution of India, the High Court is
precluded from exercising jurisdiction under Article 226 of the
Constitution where a law enacted by the State Legislature provides
for the remedy of an election petition to redress grievances arising
during the course of an election.
II. The election process cannot be lightly interdicted or stalled at
the behest of an individual grievance. The right to contest or
question an election being statutory in nature, must be strictly
construed and exercised in accordance with the statute governing
the field. The High Court must, therefore, eschew the grant of
liberal interim reliefs in favour of individuals and instead remain
Page No.# 8/17mindful of the overarching public interest in ensuring the smooth
and uninterrupted conduct of elections across the State.
III. In respect of individual grievances, the ultimate and exclusive
remedy lies by way of an election petition. Given the non-obstante
nature of Article 243-0 of the Constitution, its mandate is required
to be adhered to in both letter and spirit. Where the statute
provides a complete and efficacious mechanism for redressal, the
extraordinary exercise of jurisdiction under Article 226 of the
Constitution would defeat the very object for which Article 243-0
was enacted as a non-obstante provision.”
10. Reliance has also been made on a very recent judgment of a
Coordinate Bench passed in WP(C)/7351/2025 dated 23.02.2026 Aysha
Khatun Vs The State of Assam and Ors. In the said case, it has been
categorically held that in matters of dispute of similar nature, the only
recourse is to approach the Election Tribunal.
11. The learned Senior Counsel has submitted that for violation of the
precondition necessary to be qualified, there are four aspects. So far as the
first aspect is concerned, covered by Rule 62 (1)(a) relating to having two
or more children, there is a remedy provided in Rule 62 (1)(f), 62 (1) (g)
and 62 (1)(h). Similarly, for disqualification covered by Rule 62 (3)(a),
regarding the requirement to have sanitary toilet in the residence there is a
remedy provided in Rule 62 (3)(b), 62 (3)(c), 62 (3)(d) and 62 (3)(e). For
a disqualification on account of involvement in child marriage as laid under
Rule 62 (4)(a), there is a remedy provided in Rule 62 (4)(b), 62 (4)(c), 62
(4)(d) and 62 (4)(e). However, so far as the disqualification regarding
educational qualification is concerned, as provided in 62 (2) is concerned,
Page No.# 9/17
no such procedure has been laid down. He has accordingly submitted that
in absence of any express provision in the statute, the approach of the
petitioner to a writ Court is not permitted by law.
12. The learned Senior Counsel has reiterated that while all the
allegations are denied in toto, even the forum chosen by the petitioner by
means of this present petition under Article 226 of the Constitution of India
is erroneous. He has submitted that when the statute provides for an
alternative efficacious remedy by way of an election petition and
admittedly such Election Tribunal being in existence, this petition is liable
to be dismissed at the threshold.
13. Per contra, Shri Mahanta, learned counsel for the petitioner has
submitted that so far as filing of an Election Petition is concerned, there is
a period of limitation which is provided in Section 127 and the said period
of limitation is 60 days. He has submitted that if any disqualification comes
to light after the period of limitation in a given case, an aggrieved
candidate will be left remediless and therefore it cannot be said that there
is an absolute bar of a writ Court to entertain such a case. He has
submitted that in the relief sought for a writ in the nature of quo warranto
has also been prayed and therefore the aspect of having strict locus may
be considered by this Court.
14. By drawing the attention of this Court to Article 243 F of the
Constitution of India regarding disqualification from the Panchayat, the
learned counsel for the petitioner has submitted that even under Section
111 (1)(h), there is a provision for the State Government to frame laws in
that regard. For ready reference, the aforesaid provision of Section 111 (1)
(h) is extracted herein below:
Page No.# 10/17
“111 (1) (h)―if any question arises as to whether a member of a
Panchayat body at any level has become subject to any of the
disqualifications under this section, the question shall be referred for
decision of such authority and in such manner as the Government may by
law provide.”
15. Shri Mahanta, the learned counsel for the petitioner, in support of his
submission, has relied upon a decision of this Court in the case of Motiur
Rahman v. State of Assam & Ors. , reported in (2022) SCC Online Gau
2469 and the observations made in paragraphs 3 and 5 are pressed into
service which read as follows:
“3. The common issues involved herein are relatable to [a] insertion of
new sub-section [2] in Section 111 of the Assam Panchayat Act, 1994,
inserted by the Assam Panchayat [Amendment] Act, 2018, more
particularly, clause [a] in new sub-section [2] in Section 111; [b] insertion
of new Rule 62 in the Assam Panchayat [Constitution] Rules, 1995 by the
Assam Panchayat [Constitution] [Amendment] Rules, 2018; and [c] the
judgment and order dated 12,11,2021 passed by a Division Bench of this
Court in the writ petition, W.P.(C) no. 510/2020 [Ayesha begum vs. State
of Assam and others) and the resultant effect therefrom.
5. Dr. Ahmed, learned counsel for the petitioner in W.P.(C) no. 7705/2019
without disputing the facts stated therein, has submitted, by referring to
Article 243F of the Constitution of India and Section 127 & Section 129 of
the Panchayat Act, that the provisions in Section 111[2][a] of the
Panchayat Act and Rule 62 of the Panchayat Rules have given rise to a
dispute and because of the dispute, the petitioner has been sought to be
removed from the post of President of No. 72 Bandarkona Gaon
Page No.# 11/17Panchayat with the aid of those provisions. It is his submission that the
petitioner can only be removed from the post of President of the Gaon
Panchayat concerned by way of an election petition presented before the
Election Tribunal constituted under Section 127 of the Panchayat Act as
the Election Tribunal can adjudicate upon such dispute regarding
disqualification. By referring to sub-clause [b] of Clause [1] of Article 243F
of the Constitution, he has submitted that a person who has been chosen
by a democratic process can be disqualified by, or under any law made by
the Legislature of the State. The procedure prescribed in Rule 62[1][f] of
the Panchayat Rules cannot be pressed into service for removal of the
petitioner from the post of President of a Gaon Panchayat. Sub-clause [b]
of Section 129 of the Panchayat Act has a non obstente clause and it has
been provided that no election to any Panchayat shall be called in
question except by an election petition presented within 60 [sixty] days
from the date of declaration of election results to the Election Tribunal
constituted under Section 127 of the Panchayat Act. It is his further
contention that the kind of procedure with which the respondent
authorities had proceeded with to disqualify the petitioner in the case in
hand, could not have been resorted to in view of an express provision in
the form of Section 129[b] of the Panchayat Act. He has contended that
when there is an express provision in the Panchayat Act itself, the
concerned rule contained in the Panchayat Rules becomes inoperative.”
16. He has submitted that the aforesaid decision of the learned Single
Judge has been upheld by the Hon’ble Division Bench vide judgment dated
24.02.2022 and the observations made in paragraph 7 are pressed into
service which read as follows:
“7. Learned counsel for the appellant/writ petitioner would then argue that
one can only be removed from the post of President of a Gaon Panchayat
Page No.# 12/17by way of an election petition filed before the Election Tribunal constituted
under Section 127 of the Assam Panchayat Act, and in case of a
disqualification, it can be challenged before the Election Tribunal by a
candidate and it cannot be done by a bureaucrat. This submission of the
learned counsel for the appellant/writ petitioner is entirely misconceived
and, as such, did not find favour with the learned single Judge. Under the
Assam Panchayat Act, an election petition can be filed before the Election
Tribunal constituted under Section 127, wherein a challenge to an election
can be made on grounds which have been given under Section 127-A to
127-R.”
17. In support of his submission that a person cannot be left remediless,
the learned Counsel for the petitioner has relied upon a case of the Hon’ble
Supreme Court reported in (1999) 4 SCC 526 (K. Venkatachalam Vs. A.
Swamickan and Anr). The learned Counsel has accordingly submitted
that the preliminary objection be rejected and the matter be heard on
merits.
18. Shri Mahanta, the learned counsel has lastly submitted that amongst
the relief sought for, there is also a relief in the nature of quo warranto
wherein the strict requirement of locus may not be there.
19. Shri S. Dutta, learned Standing Counsel, Panchayat and Rural
Development Department has supported the respondent no. 7 on raising
the objection on the maintainability of the writ petition and has contended
that the appropriate forum would be an Election Tribunal.
20. By referring to the case of Ayesha Khatun (supra), the learned
Standing Counsel has submitted that for improper acceptance of
nomination, the only recourse is to challenge the same by way of an
Page No.# 13/17
election petition. He has also drawn the attention of this Court to
paragraph 75 of the said decision, as per which, it has been laid down that
for subsequent violation, the matter may be considered by the concerned
District Commissioner. However, the disqualification on the aspect of
educational qualification is a prior disqualification which cannot occur after
the election.
21. Shri Choudhury, the learned Senior Counsel for Respondent No. 7 in
his rejoinder has submitted that the judgment rendered by the Hon’ble
Single Judge in the case of Motiur Rahman (supra) has to be understood
to be a judgment on the facts and circumstances of the case. He has
submitted that in the said case, there was a peculiar situation when as on
19.11.2018, the incumbent had two children and on 27.02.2019, a third
child was born leading to the dispute. He has also questioned the bona
fide of the petitioner by submitted that there is gross discrepancy in his
identity.
22. He has submitted that the grievance, if any can be redressed only by
means of an election petition. He has submitted that in the case of
Ayesha Khatun (supra) it has been held that for improper acceptance of
nomination, the challenge can be made only by way of an election petition.
He has also drawn the attention of this Court to certain observations made
in the said case that only for subsequent violation of the provisions of law,
the same can be adjudicated by the concerned District Commissioner. He
has however clarified that disqualification on the aspect of educational
qualification is a prior disqualification and therefore any dispute arising
therefrom has to be adjudicated only by means of an election petition.
23. The rival submissions have been duly considered and the materials
Page No.# 14/17
placed before this Court have been carefully examined.
24. To address the issued before this Court, it is required to first
understand the challenge in its proper perspective. The challenge, in no
uncertain terms, is with regard to the qualification of the respondent no. 7
to be elected as a Member and subsequently as the President of the No. 2
Fekamari Anchalik Panchayat. It is specifically contended that the
respondent no. 7 does not possess the requisite educational qualification
as prescribed in Section 111 (2)(c) of the Act and that he has submitted
forged documents.
25. Section 111 (2)(c) of the Act is to be read with Rule 62 (2). The
aforesaid Rule starts with a conditional clause namely, ” Subject to the
provisions of the Act”.
While Section 111 (2) lays down the disqualifications for contesting in the
elections, the corresponding Rule 62 lays down the procedure to be
followed in case of such disqualifications.
26. Under the aforesaid Rule, four kinds of disqualifications have been
dealt with. Under Rule 62 (1) the disqualification of having more than two
children, Rule 62 (2) is with regard to the educational qualification, Rule 62
(3) is with regard to not having sanitary toilet at the residence and Rule 62
(4) is with regard to being involved in a child marriage.
27. A careful reading of the Rules would however show that while
procedures have been prescribed for dealing with disqualifications under
Rules 62 (1), 62 (3) and 62 (4), no such procedure has been laid down so
far as Rule 62 (2) is concerned. When no procedure has been laid down,
the District Commissioner of the concerned district will not have the
Page No.# 15/17
jurisdiction to adjudicate any dispute arising out of an allegation of
disqualification involving Rule 62 (2). As mentioned earlier, the present
allegation is with regard to a disqualification under Section 111 (2) (c) read
with Rule 62 (2).
28. So far as the case of Ayesha Khatun (supra) is concerned, it has
been held that election to a panchayat can be called in question only by
way of an election petition. In the instant case, however, this Court is only
confronted with a situation of allegation of violation of Section 111 (2) (c)
read with Rule 62 (2) and this Court has already held that since no
procedure is prescribed in the said Rule, it is only an election petition by
which the same can be challenged.
29. It is a settled position of law that when the law prescribes for a
particular procedure to be followed to do a particular thing, only that
procedure is required to be followed. In this connection, one may gainfully
refer to be landmark case of the Hon’ble Privy Council reported in AIR
1936 PC 253 [Nazir Ahmad Vs King Emperor ] wherein the following
observations were made:
“The rule which applied 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. This doctrine has
often been applied to Courts-Taylor V. Taylor(1875) 1 Ch. D. 426,
431.)”
30. So far as the case of K. Venkatachalam (supra) is concerned, as
cited by the learned counsel for the petitioner, the same only lays down a
Page No.# 16/17
person cannot be left remediless. However, in the instant case, the remedy
lies in the form of an election petition as provided under Section 127 of the
Act.
31. So far as the case of Motiur Rahman (supra) is concerned, the
Hon’ble Division Bench had agreed with the learned Single Judge.
However, the facts therein were involving violation of Rule 62 (1) and
therefore the decision rendered therein has to be understood in the
context to the facts of the case.
32. There is another aspect of the matter which requires consideration.
The allegations raised in the petition are in the realm of a factual dispute
wherein the educational qualification of the respondent no. 7 has been
questioned, including the documents submitted by him. Such questions
being disputed questions of fact, this Court would otherwise also would not
be the appropriate forum to decide such disputed questions of fact which
would require adducing of evidence and cross-examination.
33. At this stage, the aspect of the period of limitation prescribed in
Section 127 of the Act would require a consideration and in fact that is also
one of the apprehensions raised on behalf of the petitioner. An election
petition is to be filed within a period of 60 days. In the instant case, the
writ petition was filed on 10.11.2025 against the impugned resolution
dated 01.11.2025. This Court is of the opinion that interest of justice
would be served if the period spent in the present writ proceeding is
excluded from the period of limitation.
34. It is accordingly directed that while the writ petition is dismissed,
liberty is given to the petitioner to file an appropriate election petition as
Page No.# 17/17
per Section 127 of the Act and as mentioned above, the period of
limitation of 60 days has to be counted by excluding the period from the
date of filing of the writ petition i.e. 10.11.2025 till the passing of the
present judgment.
35. It is also clarified that the present order of dismissal is only on the
ground of maintainability / availability of a statutory remedy in the form of
an election petition and no opinion, whatsoever, has been expressed
touching upon the merits of the cases of either of the parties.
36. The writ petition accordingly stands disposed of in the manner
indicated above. Interim order passed earlier stands vacated.
37. No order as to cost.
JUDGE
Comparing Assistant
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