Jaibir Singh v. District Magistrate Bulandshahr — 1957 DIGILAW 8 (ALL)

JUDGMENT M.L. Chaturvedi, J. - This is a petition under Articles 226 and 227 of the Constitution. 2. The Petitioner and Respondents Nos. 3 to 5 along with several others were elected as members of the Gaon Panchayat of village Bisara, district Bulandshahr, in November 1955. After the election of persons to the Gaon Panchayat, appointments had to be made to the judicial branch of the Gaon Panchayat known as Nyaya Panchayat. Out of the entire body of elected Panches ten were to be appointed as members of the Nyaya Panchayat. The Sub-Divisional Magistrate sent his recommendations to the District Magistrate and a committee consisting of the District Magistrate, the Chairman of the District Board and Sri Ram Chandra Vakil, Member of the U.P. Legislative Assembly, then made final selections from the list sent by the Sub-Divisional Magistrate. The date of the appointments by this committee has not been mentioned either in the affidavit, filed along with the petition, or in the counter-affidavit, but Sri A.P. Singh Chauhan, counsel for Respondent No. 3, has conceded that these appointments were made when D.O. No. 26/XXXIII-702/55, dated Lucknow, 7-4-1956, was in force. The fact has been admitted in paragraph No. 8 of the counter-affidavit also. After the appointments had been made, the present petition was filed challenging the legality of the appointments and praying that the order of the committee be quashed and that a writ of mandamus be issued to the District Magistrate and the Sub Divisional Magistrate to select the Petitioner as a Panch of the Nyaya Panchayat. 3. The only point argued before me by the learned Counsel for the Petitioner is that, according to the Panchayat Raj Act and the Rules framed thereunder, the District Magistrate is the prescribed authority and he has been given the power to make appointments to the Nyaya Panchayat from the persons elected to the Gaon Panchayat. According to the D.O., a committee was appointed. The appointments were to be made by the committee and not by the District Magistrate. A copy of the D.O. has been filed today before me and the learned Counsel for the parties are agreed that that is a correct copy and that it may be taken into evidence. 4. I think there is force in the contention of the learned Counsel for the Petitioner. A copy of the D.O. has been filed today before me and the learned Counsel for the parties are agreed that that is a correct copy and that it may be taken into evidence. 4. I think there is force in the contention of the learned Counsel for the Petitioner. Section 43 of the U.P. Panchayat Raj Act says that the prescribed authority may appoint persons of certain qualifications to be Panches of the Nyaya Panchayat. Section 2(q) says that the prescribed authority means an authority to be notified as such by the State Government whether generally or for any particular purpose. There is Schedule I attached to the rules framed under the Act, which gives the list of persons appointed as prescribed authorities under the various sections of the Panchayat Raj Act and the Panchayat Raj Rules, Column I of this Schedule mentions the section or the rule, and column 2 names the prescribed authority. Against Section 43 of the Act 'prescribed authority' is mentioned as the District Magistrate. A notification, dated 1-12-1955, was also published in the UP Gazette according to which the District Magistrate was nominated as the prescribed authority for purposes of Section 43 of the UP Panchayat Raj Act. 5. It is thus quite clear that the prescribed authority u/s 43 is the District Magistrate of the district and not any committee which may be appointed by the District Magistrate or the State Government. The appointments have to be made by the District Magistrate, though it may be possible to argue that in making the appointments he may consult such persons as he may think proper. But under the D.O. of 7-4-1956, the position appears to be somewhat different, and the final appointing authority appears to be the committee and not the District Magistrate. Para. 1 of that D.O. says that the Sub-Divisional Magistrate should send up to the District Magistrate a panel of five names arranged in order of merit. Para. 2 then says, The final selection of Panches for the Nyaya Panchayat should be made from out of the penal sent up by the Sub-Divisional Magistrate by an assembly-constituency wise committee consisting of (i) the District Magistrate as Chairman, (ii) the president, District Board, (iii) Member or Members of the Legislative Assembly representing the constituency concerned, and (iv) Member or Members of Legislative Council, if any, residing in the constituency concerned. 6. 6. According to this D.O. the final selection is to be made by this committee and the overriding power appears to vest in the committee and not in the District Magistrate. Para. 2 of the D.O. is thus inconsistent with Section 43 of the U.P. Panchayat Raj Act and the Rules made thereunder, inasmuch as it confers power of appointment on a committee of which the District Magistrate is rarely the Chairman, leaving it possible for the committee to decide even against the wishes of the District Magistrate. 7. In paragraph 11 of the affidavit, filed along with the petition, it is stated that this committee made the appointments of Respondent Nos. 3 to 5 to the Nyaya Panchayat. The fact is not denied in the counter-affidavit, though in para. 8 of the counter affidavit it is said that the committee was formed to assist the District Magistrate and the appointments were made by the District Magistrate himself. The learned Counsel, Mr. Chauhan, however, admitted that the appointments were made in accordance with the directions contained in the D.O. of 7-4-1956. These appointments, therefore, must be held to be invalid; as having been made by the committee and not by the prescribed authority. 8. The petition is allowed and the appointments of Respondents Nos. 3 to 5 to the Nyaya Panchayat are set aside. It would be open to the District Magistrate to proceed to appoint Panches to the Nyaya Panchayat in accordance with law. 9. In view of the fact that the petition has not been seriously opposed, the parties will bear their own costs.