JUDGMENT : Sanjay Kumar Medhi, J. 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. 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. 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.” 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 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 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. 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. 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 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 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 accordingly mark 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 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 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 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. 22. The writ petition accordingly stands allowed. 23. No order as to cost.