IMPORTANT POINT
The amended provisions of the Assam Panchayat Act regarding disqualification for having more than two children do not apply to children born before the amendment's effective date.

JUDGMENT :

(N. Unni Krishnan Nair, J.) :

Heard Mr. M. Ahmed, learned counsel, appearing on behalf of the petitioner. Also heard Mr. P. Handique, learned standing counsel, P & RD, Assam, appearing on behalf of respondents No. 1, 2, 5, 6 & 7; and Ms. Usha Das, learned Addl. Senior Government Advocate, Assam, appearing on behalf of respondents No. 3 & 4.

2. The petitioner by way of instituting the present writ petition, has presented a challenge to an order, dated 07.09.2021, issued by the Deputy Commissioner, Karimganj, removing her from the post of Ward Member of Ward No. 6 of North Karimganj Gaon Panchayat on account of violations of the provisions of Section 111(2)(a) of the Assam Panchayat Act, 1994.

3. The petitioner, herein, was elected as the Ward Member of Ward No. 6 of North Karimganj Gaon Panchayat. The petitioner, at the time of her such election; was a mother to 4(four) children and her last of such children was born on 22.09.2017.

4. The petitioner, at the time of her election, had filed the mandatory affidavit along with her nomination paper and therein, had mentioned that she did not have more than 2(two) living children at the relevant point of time.

5. Subsequently, a complaint came to be lodged in the matter and therein, it was alleged that the petitioner, herein, had sworn a false affidavit to the extent of declaring the number of children she had at the time of submission of her nomination paper and it was contended therein, that she had more than 2(two) living children at the relevant point of time. The said complaint having been received; the Deputy Commissioner, Karimganj, issued a Show Cause Notice to the petitioner, dated 16.08.2021, requiring her to show cause as to why, she should not be removed from the post of Ward Member of Ward No. 6 of North Karimganj Gaon Panchayat, for violation of the provisions of Section 111(2)(a) of the Assam Panchayat Act, 1994, read with the provisions of Rule 62(I)(a) of the Assam Panchayat (Constitution)(Amendment) Rules, 2018.

6. The petitioner on receipt of the said Show Cause Notice, proceeded to submit her reply in the matter on 21.08.2021, and therein, has referred to the amendment so effected to Section 111(2)(a) of the Assam Panchayat Act, 1994, wherein, it was provided that the provisions of the said section would not be applicable in respect of those persons who had more than 2(two) living children prior to the date of commencement of such amendment.

7. The Deputy Commissioner, Karimganj, thereafter, on consideration of the reply to the Show Cause Notice as submitted by the petitioner, herein, and also the fact that she had 3(three) living children on the date of filing of her mandatory affidavit and the said factor having been suppressed by her, a conclusion came to be drawn against the petitioner that she had filed a fraudulent affidavit with ulterior motive to deceive and mislead/misguide the authorities and basing on such conclusion; proceeded to remove the petitioner, herein, from the post of Ward Member of Ward No. 6 of North Karimganj Gaon Panchayat, in exercise of powers conferred upon the authority under the provisions of Rule 62(I)(a) of the Assam Panchayat (Constitution) (Amendment) Rules, 2018.

8. Mr. Ahmed, learned counsel for the petitioner, submits that the petitioner, herein, is not denying the fact that she had 4(four) living children on the date of submission of the nomination paper but as per the amended provision of Section 111 of the Assam Panchayat Act, 1994; the restriction of having not more than 2(two) living children would be applicable only in cases of children born after 19.03.2018. Since all the 4(four) children born to the petitioner were prior to 19.03.2018, hence, Mr. Ahmed, the rigors of the amended provision of Section 111 of the Act of 1994, would not at all be applicable in her case. As such, the learned counsel for the petitioner submits that the order, impugned herein, is illegal and hence, liable to be set aside by this Court.

9. M