Legislative power to regulate qualifications and disqualifications for Panchayat officeholders in public interest.

ORDER :

1. Heard Dr. B. Ahmed, learned counsel for the appellant. Also heard Mr. M. Nath, learned Standing Counsel, P & RD Department for the respondent Nos. 1, 2 and 4 as well as Mr. H.R.A. Choudhury, learned senior counsel for the respondent Nos. 5, 6 and 7.

2. This writ appeal has been filed by the appellant/writ petitioner challenging the judgment and order dated 07.12.2021 passed by the learned Single Judge in WP(C) No. 7705/2019 and other connected writ petitions, by which the writ petitions were dismissed.

3. The appellant/writ petitioner was the President of No. 72 Bandarkona Gaon Pancayat, who was elected on 15.12.2018. At the time of filing his nomination, the appellant/writ petitioner was having two children. However, after assuming the charge of President, another child was born to the appellant/writ petitioner.

4. Consequently, a complaint was filed before the concerned authority and the matter reached the Deputy Commissioner of the concerned district. The Deputy Commissioner, after giving show cause notice to the appellant/ writ petitioner, removed him from the post of President by exercising powers given under Section 111(2)(a) of the Assam Panchayat Act, 1994 read with Rule 62 of the Assam Panchayat (Constitution) Rules, 1965.

5. At this stage, it must be stated that the Assam Panchayat Act, 1994 was amended in the year 2018 and the limit of two children was imposed by the amending Section 111 of the said Act. The vires of the Assam Panchayat (Constitution) (Amendment) Rules, 2018 was put to challenge before this Court in WP(C) No. 510/2020 (Ayesha Beghm vs. State of Assam & Ors.). The writ petition was dismissed by order dated 12.11.2021 and the amendment incorporated was upheld. This Court has also been informed that the matter ultimately reached the Apex Court where the SLP was dismissed in limine. The judgment of this Court upholding the vires of the amendment was based on the decision of the Apex Court in the case of Javed & Ors. vs. State of Haryana & Ors., reported in AIR 2003 SC 3057, where a similar provision in the Harayana Panchayati Raj Act was put to challenge. It was held by the Apex Court in Para 60, 61, 62, 63, 64 and 65 of the judgment as under :

60. Looked at from any angle, the challenge to the constitutional validity of Section 175(1)(q) and Section 177(1) must fail. The right to contest an election for any office in Panchayat is neither fundamental nor a common law right. It is the creature of a statute and is obviously subject to qualifications and disqualifications enacted by legislation. It may be permissible for Muslims to enter into four marriages with four women and for anyone whether a Muslim or belonging to any other community or religion to procreate as many children as he likes but no religion in India dictates or mandates as an obligation to enter into bigamy or polygamy or to have children more than one. What is permitted or not prohibited by a religion does not become a religious practice or a positive tenet of a religion. A practice does not acquire the sanction of religion simply because it is permitted. Assuming the practice of having more wives than one or procreating more children than one is a practice followed by any community or group of people, the same can be regulated or prohibited by legislation in the interest of public order, morality and health or by any law providing for social welfare and reform which the impugned legislation clearly does.

61. If anyone chooses to have more living children that two, he is free to do so under the law as it stands now but then he should pay a little price and that is of depriving himself from holding an office in Panchayat in the State of Haryana. There is nothing illegal about it and certainly no unconstitutionality attaches to it.

62. It was submitted that the enactment has created serious problems in the rural population as couples desirous of contesting an election but having living children more than two, are feeling compelled to gi