Gauhati High Court
Page No.# 1/ vs The State Of Assam on 20 February, 2026
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/11
GAHC010205422025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5320/2025
SHAHIDA AHMED
W/O MUSLIM UDDIN, RESIDENT OF VILLAGE AG MANDIA, PO MANDIA,
PS AND DIST BARPETA ASSAM
2: MAHIBUL HOQUE
S/O OSMAN ALI
RESIDENT OFVILLAGE GUPALPUR
PO POHUMARA
PS BAGHBOR
DIST BARPETA
ASSA
VERSUS
tHE STATE OF ASSAM
THROUGH THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT, DISPUR
GUWAHATI 06
2:THE DISTRICT COMMISSIONER
BARPETA ASSAM
3:THE CIRCLE OFFICER
CHENGA REVENUE CIRCLE
AUTHORISED OFFICER
VILLAGE AND PO CHENGA
DIST BARPETA ASSAM
4:THE BLOCK DEVELOPMENT OFFICER
GUMAFULBARI DEVELOPMENT BLOCK
Page No.# 2/11
DIST BARPETA
ASSAM
5:THE STATE ELECTION COMMISSION
ASSAM
REP BY ITS COMMISSIONER
PANJABARI
GUWAHATI 781037
6:THE DISTRICT ELECTION OFFICE
BARPETA
ASSSAM
7:ELOWARA KHATUN
W/O HASINUR AHMED
RESIDENT OF VILLAGE MOURIPAM
PO MANDIA
PS BAGHBOR
DIST BARPETA
ASSAM 78130
Advocate for the Petitioner : MR H A AHMED, MS S PARBIN,MR. R ALI
Advocate for the Respondent : GA, ASSAM, MR. S. DUTTA, SC, P AND R.D.,P. GHOSH,MR. A M
AHMED (R-7),MR H R A CHOUDHURY(R-7),MR. R. DUBEY, SC, A S E C
BEFORE
HON’BLE MR. JUSTICE SANJAY KUMAR MEDHI
Advocate for the petitioners : Shri H.A. Ahmed, Advocate.
Advocates for the respondents : Shri S. Dutta, S.C., P&R.D. Deptt.;
Shri N. Goswami, G.A., Assam;
Shri N.B. Kayastha on behalf of Shri R.
Dubey, S.C., A.S.E.C. &
Shri A.M. Ahmed, Advocate, R/7.
Date on which judgment is : NA
Reserved.
Page No.# 3/11
Date of pronouncement of : 20.02.2026.
Judgment.
Whether the pronouncement : NA.
is of the operative part of the
judgment?
Whether the full judgment : Yes.
has been pronounced?
JUDGMENT & ORDER (Oral)
The instant petition under Article 226 of the Constitution of India has been filed
challenging a Speaking Order dated 30.08.2025, issued by the District Commissioner,
Barpeta, whereby, the vote of the petitioner no. 2 qua the election to the post of
President of the 91 No. Agmandia Jadavpur Gaon Panchayat (Gaon Panchayat) has
been cancelled.
2. As per the facts projected, the two petitioners along with the respondent no. 7
are amongst the elected members of the aforesaid Gaon Panchayat. After the said
election was held, there was a requirement to elect the President of the said Gaon
Panchayat in which, the petitioner no. 1 and the respondent no. 7 had offered their
candidatures. The meeting for such election was scheduled on 04.07.2025 which was,
however, rescheduled on 14.07.2025. In the said meeting, both the petitioner no.1
and the respondent no. 7 had secured 5 (five) votes each and therefore, there was a
requirement to elect the President by toss of coin which is provided in Rule 45 of the
Assam Panchayat (Constitution) Rules, 1995 (hereinafter referred to as the Rules of
1995). However, the vote of the petitioner no. 2 was cancelled and resultantly, the
respondent no.7 was elected as the President.
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3. The petitioners had thereafter approached this Court by fling WP(C)/3991/2025.
This Court vide order dated 21.07.2025 had directed the petitioners to approach the
District Commissioner by filing a representation, who, accordingly was directed to
consider the same in accordance with law. For ready reference, the operative part of
the direction is extracted hereinbelow:
“7. In view of the statutory prescription made for resolving a dispute pertaining
to the election to the post of President of a Gaon Panchayat in the provisions of
the Act of 1994, this Court without entering into the merits of the submissions
made by the petitioner herein, requires the petitioner to approach the
jurisdictional District Commissioner, Assam, by way of submitting a
representation assailing the election of the respondent no. 8 as the President of
91 No. Agmandia Jadavpur Gaon Panchayat, within a period of 7(seven) days
from today.
8. On receipt of such representation from the petitioner, the jurisdictional
District Commissioner shall schedule a date of hearing in the matter and issue
notices to the petitioner, respondent no. 7 and other stakeholders involved in
the matter. Thereafter, the jurisdictional District Commissioner, upon hearing the
parties to the proceeding and also on receiving evidences as may be adduced
by the parties, shall pass orders with regard to the grievance raised by the
petitioner in the representation now required to be filed by the petitioner.
9. The petitioner shall file the said representation before the jurisdictional
District Commissioner along with a certified copy of this order.
10. The jurisdictional District Commissioner shall thereafter, dispose of the said
representation in the manner indicated herein above, within a period of 30
(thirty) days thereafter.”
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4. In terms of the aforesaid direction, the petitioners had submitted a
representation on 23.07.2025. After consideration of the same, the impugned
Speaking Order has been passed on 30.08.2025 by the District Commissioner, Barpeta,
cancelling the vote of the petitioner no.2. It is this action which has been put to
challenge in the present writ petition.
5. I have heard Shri H.A. Ahmed, learned counsel for the petitioners and Shri S.
Dutta, learned Standing Counsel, P&R.D. Department, Assam. I have also heard Shri
N. Goswami, learned State Counsel, Assam as well as Ms. N.B. Kayastha, learned
counsel appearing on instructions of Shri R. Dubey, learned Standing Counsel, Assam
State Election Commission. Shri A.M. Ahmed, learned counsel has represented the
respondent no. 7 and has also filed the affidavit-in-opposition.
6. Shri H.A. Ahmed, learned counsel for the petitioners has submitted that the
impugned order is unsustainable in law as irrelevant factors have been taken into
consideration. He has submitted that the conclusion reached by the District
Commissioner, Barpeta, to cancel the vote of the petitioner no. 2 is not based on
germane and relevant considerations. He has submitted that the consideration on the
aspect of secrecy of ballot has been misconstrued and grave prejudice has been
caused to the petitioners. By emphasizing that while the petitioner no. 1, who was one
of the candidates for the post of President and the petitioner no. 2, who is the elected
members whose vote has been cancelled have joined together, the same would show
that such cancellation on the ground of breach of secrecy was done mechanically.
7. By drawing the attention of this Court to Rule 46(7) of the Rules of 1995, the
learned counsel for the petitioners has submitted that there are five conditions in
which, a vote can be cancelled and none of those conditions were available and
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therefore, the impugned order is unsustainable in law. As regards the reference to The
Representation of People Act, 1951 (RoP Act, 1951), more particularly, Section 128
thereof, the learned counsel has submitted that the aforesaid provision would not have
any application to the present case as the same is on a different context altogether,
namely, that the persons who are responsible for recording or counting of votes are to
maintain secrecy. He has submitted that in the instant case, the petitioner no. 2 is
neither an officer, clerk, agent or any other person who was entrusted with any duty in
connection with recording or counting of the votes.
8. On the facts of the case, the learned counsel for the petitioner has submitted
that the allegation pertaining to observing a flash light while the petitioner no. 2 was
casting his vote and therefore, the conclusion that the petitioner no. 2 had clicked a
photograph of the ballot paper are on the realm of presumption and could not have
been made the basis for cancellation of the vote of the petitioner no. 2.
9. Per contra, both Shri Dutta, learned Standing Counsel, P&R.D. and Shri
Goswami, learned State Counsel have submitted that there is an underlying
requirement to maintain secrecy in voting process and the impugned order has taken
that aspect into consideration. It is submitted that there was a serious doubt on the
conduct of the petitioner no. 2 while casting his vote for the election of the President
of the Panchayat held on 14.07.2025 and accordingly, the impugned order has been
passed which may not require any interference.
10. Ms. Kayastha, learned counsel appearing on instructions of Shri R. Dubey,
learned Standing Counsel, A.S.E.C. has submitted that the Election Commission, as
such will not have any major role in the adjudication of the present lis.
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11. Shri A.M. Ahmed, learned counsel for the respondent no. 7, while endorsing the
submission of the learned counsel for the respondents has supported the impugned
Speaking Order dated 30.08.2025. By drawing the attention of this Court to the
affidavit-in-opposition filed by the respondent no. 7 on 16.12.2025, the learned
counsel has submitted that as per Section 46(6)(iv) of the Rules of 1995, there is a
requirement for the officer to ensure that the arrangement for voting would be done
under secrecy. By referring to Rule 54, the learned counsel for the respondent no. 7
has submitted that the aforesaid provision has made it clear that in the event, for
matters not provided in the Rules, those matters would be guided by the relevant
Rules under the RoP Act, 1951. He has submitted that in this context, the provision of
Section 128 of the RoP Act will have a significance. He has submitted that the
aforesaid Section 128 mandates of maintaining secrecy of voting and the same having
been breached by the petitioner no. 2, his vote has been rightly rejected.
12. The rival submissions have been duly considered and the materials placed
before this Court have been carefully examined.
13. The challenge made in this petition is against the Speaking Order dated
30.08.2025 passed by the District Commissioner, Barpeta, whereby the vote of the
petitioner no. 2 has been cancelled. It may, however, be noted that in this petition as
well as the earlier writ petition, being WP(C)/3991/2025, the petitioner no. 1, who is
one of the candidates and the petitioner no. 2 whose vote has been cancelled have
joined together and therefore, there is a common interest of the two petitioners. The
gist of the reasons cited to support the impugned action is breach of secrecy.
14. The Assam Panchayat Act, 1994 read with the Assam Panchayat (Constitution)
Rules, 1995 do not, as such lay down any requirement of maintaining secrecy in the
election for the post of President of a Gaon Panchayat, except a mention made in Rule
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46(6)(iv) of the Rules of 1995. Juxtaposed, Section 18 of the Act of 1994 which deals
with quorum and procedure has got specific reference of maintaining secret ballot for
a particular purpose, namely, in a No Confidence Motion. For ready reference, Section
18(5) is extracted hereinbelow:
“18(5) The voting in any meeting of Gaon Panchayat, if required shall be by
raising of hands, except in the meeting where no confidence motion is
discussed where the matter will be decided by secret ballot .”
15. As stated above, except for a passing reference in Rule 46(6)(iv) that the officer
shall cause such arrangement to be made to ensure secrecy of the ballot paper, there
is no other requirement to maintain secrecy. For ready reference, Rule 46(6)(iv) is
extracted hereinbelow:
“(iv) if, a member is unable to written or physically incapacitated from voting,
the Officer authorised under sub-rule (1), shall at the request of the member
take him to the screened compartment, ascertain his choice and accordinglymark the ballot paper and fold it and then insert it into the 2[concerned] ballot
box. The Officer shall cause such arrangement to be made as will ensure
secrecy of the ballot paper.”
16. Though the Act and the Rules may not, in adequate terms require maintenance
of secrecy, it has an inbuilt requirement that all elections are done fairly. The question
which requires consideration as to whether in the instant case, the vote casted by the
petitioner no.2 can be held to be in breach of the aforesaid requirement. The
allegation is of observing flashing a light while the petitioner no. 2 was casting his
vote. The learned counsel for the respondents have also submitted that there is an
admission by the petitioner no. 2 of clicking a photograph of the ballot paper which
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has, however, been denied by the learned counsel for the petitioner.
17. The objective to entrust the concerned “Officer to cause such arrangement to be
made as will ensure secrecy of the ballot paper ” is mainly ensure the security of the voter.
In other words, the voter should not feel threaten to cast his vote with his free will. In
the instant case, there is no allegation that the petitioner no. 2 was influenced in any
manner to cast his vote in a particular manner. On the other hand, the aspect that the
petitioner no. 1 who is the contesting candidate and the petitioner no. 2 have filed this
petition jointly would show their affiliation which cannot be held to be illegal by any
stretch of imagination.
18. So far as the aspect of Section 54 read with Section 128 of the RoP Act, 1951is
concerned, the aforesaid Section 128 reads as follows:
“128. Maintenance of Secrecy of voting – (1) Every officer, clerk, agent or other
person who performs any duty in connection with the recording or counting of
votes at an election shall maintain, and aid in maintaining, the secrecy of voting
and shall not (except for some purpose authorized by or under any law)
communicate to any person any information calculated to violate such secrecy:
1[Provided that the provisions of this sub-section shall not apply to such officer,
clerk, agent or other person who performs any such duty at an election to fill a
seat or seats in the Council of States.](2) Any person who contravenes the provisions of sub-section (1) shall be
punishable with imprisonment for a term which may extend to three months or
with fine or with both.”
The provision makes it clear that it is for the officer, clerk, agent or any other person
who performs any duty in connection with the recording or counting of votes who is
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entrusted to maintain secrecy. In the opinion of this Court, Section 128 of the RoP Act,
1951 will not have any application in the present case. The learned counsel for the
respondent no. 7 has also relied upon Section 127-J of the Assam Panchayat Act, 1994
which lays down penalty for failure to observe procedure for voting. The aforesaid
provision is to be read in the context of the preceding sections and the same would
make it clear that it would not come to the aid of the respondents to defend the
impugned action.
19. This Court is of the opinion that while the District Commissioner in the impugned
order dated 30.08.2025 has narrated the background, the factors which have been
relied upon do not seem to be relevant. As mentioned above, the entire basis of the
impugned action is on the realm of presumption that a picture was clicked by the
petitioner no. 2 only because of noticing a flash of light while the petitioner no. 2 was
casting his vote.
20. In the conspectus of the aforesaid discussion, this Court is of the opinion that
the Speaking Order dated 30.08.2025 is unsustainable in law and accordingly, the
same is interfered with and set aside. As a consequence thereof, the vote of the
petitioner no. 2 has to be held as a valid vote in which case, the number of votes of
the petitioner no. 1 and respondent no. 7 would be equal. In this connection,
reference may be made to Rule 45 of the Rules of 1995 which provides for taking
recourse to toss of a coin to decide. The aforesaid procedure is to be adopted to elect
the President of the concerned Gaon Panchayat.
21. The aforesaid exercise is required to be carried out expeditiously and in any
case, within a period of 3 weeks from the date of receipt of a certified copy of this
order. Till such time, the present arrangement of the respondent no. 7 acting as the
President would continue.
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22. The writ petition accordingly stands allowed.
23. No order as to cost.
JUDGE
Comparing Assistant
