GOVERNMENT PLEADER v. KOLI NANJI BHAGWAN — 1963 DIGILAW 120 (GUJ)

J. B. MEHTA, N. M. MIABHOY, J. ( 1 ) THESE two petitions are made under section 3 of the Contempt of Courts Act 1952 by two different sets of petitioners. The petitioner in Criminal Application No. 937 of 1962 is the Government Pleader and the petitioners in Criminal Application No. 62 of 1963 claim to be respectively the President and members of the Nyaya Panchayat of Chogath. There is only one respondent in the first petition. He is one Koli Nanji Bhagwan a resident of the Chogath village. The same respondent also appears as respondent No. 1 in Criminal Application No. 62 of 1963. The second respondent in that application is one Natwarlal a pleader practicing in the District of Bhavnagar. Respondent No. 3 in that petition is the State of Gujarat. Both the petitions arise out of a criminal complaint filed by respondent Nanji Bhagwan drafted by the other respondent Natwarlal and presented in the Court of the learned Judicial Magistrate First Class at Vallabhipura-Umrala. The allegation of both the sets of petitioners is that that complaint contains certain passages which constitute contempt of the Nyaya Panchayat of Chogath which is alleged to have been in existence at the relevant time and of which the petitioners in Criminal Application No. 62 of 1963 claim to be the President and members. In Criminal Application No. 937 of 1963the impugned passages are set out in paragraphs 5 to 10. In the other petition the passages alleged to be contemptuous of the Nyaya Panchayat are not set out. However Mr. Vyas appearing for the petitioners in that petition addressed us on the basis that the passages set out in the petition of the Government Pleader were the only passages which constituted contempt of the Nyaya Panchayat. ( 2 ) THE facts leading up to the presentation of the two petitions may shortly be stated. There is no dispute that a Nyaya Panchayat was constituted for the dram Panchayat of the village Chogath under sec. 28 (1) of the Saurashtra Gram Panchayat Ordinance 1949 (hereafter called the Ordinance) and that that Nyaya Panchayat was in existence till 18 June 1959 when the Bombay Village Panchayats Act 1958 (hereafter called the Panchayats Act ) came into operation in that area. 28 (1) of the Saurashtra Gram Panchayat Ordinance 1949 (hereafter called the Ordinance) and that that Nyaya Panchayat was in existence till 18 June 1959 when the Bombay Village Panchayats Act 1958 (hereafter called the Panchayats Act ) came into operation in that area. There is also no dispute that at the commencement of the Panchayats Act the petitioners in Criminal Application No. 62 of 1963 were respectively the President and the members of the Nyaya Panchayat. Respondent Koli Nanji Bhagwan ( hereafter called Nanji simpliciter) was prosecuted before the Nyaya Panchayat of Chogath ( hereafter called Nyaya Panchayat) and convicted in Criminal Case No. 65 of 1960-61 for the offences under sections 426 447 and 269 Indian Penal Code and was fined Rs. 15/for each of the offences. Nanji preferred Criminal Revision Application No. 33 of 1960 in the Court of Sessions at Bhavnagar. His conviction and sentence for the offence under sections 426 and 269 were set aside but his conviction and sentence for the offence under sec. 447 were confirmed by the Sessions Court Bhavnagar. The judgment in that Criminal Revision Application was delivered on 26th of November 1960. Nanji resisted his convictions on the ground amongst others that the Nyaya Panchayat which had convicted him was not validly constituted. The Sessions Court rejected his that contention. Nanji obtained a certified copy of that judgment on 14th December 1960. ( 3 ) NANJI was convicted and sentenced as aforesaid on the complaint filed by one Bhagwan Kawa. It appears that that Bhagwan Kawa started proceedings before the same Nyaya Panchayat sometime in January 1961 for recovery of the amount of the fine and proceedings were started before that Nyaya Panchayat in connection with such recovery. Nanji was summoned before the Nyaya Panchayat on 14th January 1961 and again on 14th of February 1961. The Nyaya Panchayat again conducted some further proceedings on the 25th of February 1961. On that date some evidence was taken by the Nyaya Panchayat. One Khokhar Ahmed Akbar was the secretary of the Nyaya Panchayat and one Kanbi Bechar Kalyan was the Police and Revenue Patel of the village Chogath. The secretary put some questions to Nanji. The Nyaya Panchayat directed the Revenue and Police Patel to go to the house of Nanji and inspect the boundary between the fields of Nanji and Bhagwan Kawa. The secretary put some questions to Nanji. The Nyaya Panchayat directed the Revenue and Police Patel to go to the house of Nanji and inspect the boundary between the fields of Nanji and Bhagwan Kawa. The Revenue and Police Patel went to the spot accompanied by two panc has named Kanbi Ravji Radma and kanbi Jiva Mavji. Accordingly the aforesaid three persons the Police Patel and the two panchas entered the premises of Nanji After this Nanji presented the impugned complaint on 13th of March 1961 in the court of the learned Judicial Magistrate First Class at Vallabhipura-Umrala. The complaint was against 9 persons in all. The President and the four members of the Nyaya Panchayat figured therein as accused Nos. 1 to 5 the Police Patel figured accused No. 6 the Secretary as accused No. 7 and the two panchas as accused Nos. 8 and 9. Nanji alleged that the aforesaid respondents had committed offences under sections 117 153 120 119 166 147 167 193 182 etc. of the Indian Penal Code. The complaint was based on the main allegation that the Nyaya Panchayat was not a validly constituted body and that therefore the petitioners in Criminal Application No. 62 of 1963 were neither the President nor the members of a valid Nyaya Panchayat. The complaint alleged that inspite of the aforesaid legal and factual position the aforesaid persons had arrogated to themselves the functions of the Nyaya Panchayat and had committed the aforesaid offences by doing the aforesaid acts on 14th January 1961 14 February 1961 and 25th of February 1961 The allegations were that there were two factions in the village that the aforesaid 9 persons were members of one faction that the petitioner Lalji Patel the alleged President of the Nyaya Panchayat was also an M. L. A. ; that taking advantage of his high position he was exercising pressure on big and small officers and getting things done according to his own desire that the accused Nos. 2 to 9 aforesaid were acting according to the wishes of that person and that all the aforesaid persons had entered into a conspiracy and hatched a plot to harass the members of the opposite group and thereby they committed the aforesaid offences. Process was issued against all the aforesaid accused persons. 2 to 9 aforesaid were acting according to the wishes of that person and that all the aforesaid persons had entered into a conspiracy and hatched a plot to harass the members of the opposite group and thereby they committed the aforesaid offences. Process was issued against all the aforesaid accused persons. Amongst other grounds the accused resisted the complaint on the ground that the cognizance thereof was bad as sanction of the Government was necessary for prosecuting all the accused persons except accused Nos. 8 and 9 and that the prosecution of those two accused persons was also bad because they were alleged to have committed the aforesaid crimes jointly with the aforesaid other accused persons. That contention was upheld by the learned Magistrate and on 25th of February 1961 the learned Magistrate dismissed the complaint. After this the President and the members of the Nyaya Panchayat made an application No. 22 of 1962 in the Court of the learned Sessions Judge at Bhavnagar requesting the Court to take proceedings against Manji and Natwarlal respondent No. 2 in the second petition Nanji and Natwarlal resisted the proceed lag. Whilst these contempt proceedings were pending in the Sessions Court Bhavnagar the learned Government Pleader presented in this Court Criminal Application No. 937 of 1962 and rule was issued thereon on 18 of December 1962. Thereafter on 29th of December 1962 the learned Sessions Judge at Bhavnagar decided the Criminal Application No. 22 of 1962 and disposed it of. He came to the conclusion that there was no valid reason shown for taking any action against either Nanji and Natwarlal. Thereafter the same persons presented Criminal Application No. 62 of 1963 in this Court on 11th of March 1963 and obtained a rule thereon on 1st of April 1963. ( 4 ) BOTH Nanji and Natwarlal resist the contempt proceedings. The main ground on which they resist the petition is that the Nyaya Panchayat was not a validly constituted body. They also contend that the Nyaya Panchayat ceased to exist on and from the commencement of the Panchayats Act. It is common ground that fresh elections were held in 1960 under the Panchayats Act and a new dram Panchayat was elected on 31st of July 1960. They also contend that the Nyaya Panchayat ceased to exist on and from the commencement of the Panchayats Act. It is common ground that fresh elections were held in 1960 under the Panchayats Act and a new dram Panchayat was elected on 31st of July 1960. The next contention is that because of the coming into existence of this new Gram Panchayat under the provisions of the Panchayats Act the old Nyaya Panchayat even if it was validly constituted and was in existence had ceased to exist in law. Nanji and Natwarlal also urge that in any case they had bona fide reasons for believing that the Nyaya Panchayat was not in existence and that these reasons were supplied by certain acts committed by the Nyaya Panchayat and certain other officers. Finally they contend that in any case even if the Nyaya Panchayat was still existing after the passing of the Panchayats Act or after the election of the new dram Panchayat that Nyaya Panchayat was not a Court within the meaning of the Contempt of Courts Act 1952 They further contend that in any case even if it is a Court it cannot be regarded as a Court subordinate to the High Court and that therefore this Court has no jurisdiction to punish them for the alleged contempt of Court. They contend that in any case even if the Nyaya Panchayat was still in existence it was powerless to function as a Court by virtue of the provisions contained in sec. 83 of the Panchayats Act. On the merits both the aforesaid respondents Nanji and Natwarlal contend that the impugned passages do not in law constitute contempt of Court. ( 5 ) WE have heard the learned advocates on both the sides on all the aforesaid questions which arise on account of the allegations in the petitions and the affidavits which have been filed by both the sides. ( 5 ) WE have heard the learned advocates on both the sides on all the aforesaid questions which arise on account of the allegations in the petitions and the affidavits which have been filed by both the sides. On the whole we have come to the conclusion that though the Nyaya Panchayat of Chogath continued to exist even after the commencement of the Panchayats Act and was in existence on the aforesaid relevant dates on which Nanji was called and proceedings against him were conducted on 14th January 1961 and 14th and 25th of February 1961the Panchayat did not retain to itself all the powers of a Nyaya Panchayat which it formerly possessed and that its members retained only a few powers of a Nyaya Panchayat. We have further come to the conclusion that even on the assumption that the Nyaya Panchayat is a Court subordinate to the High Court within the moaning of section 3 of the Contempt of Courts Act 1952 the only power which was saved to the Nyaya Panchayat of Chogath was such that it cannot be considered to be a Court within the meaning of the aforesaid sec. 3 and that therefore even on the assumption that the impugned passages constitute contempt none of the two respondents aforesaid can be dealt with under section 3 aforesaid. ( 6 ) MR. Vakharia first contends that after the repeal of the Ordinance neither the Panchayat of Chogath nor its Nyaya Panchayat was saved. The contention is entirely based upon the nomenclature which the Legislature has used in its saving sec. 186 of the Panchayats Act. In that section the Legislature says that the Panchayats and the Nyaya Panchayats constituted under the repealed Act shall be deemed to be Panchayats and the Nyaya Panchayats respectively under the Panchayats Act. Now under the Ordinance the term Panchayat and Nyaya Panchayats were not used. Instead the Ordinance used the terms Gram Panchayats and Nyaya Panchas. Mr. Vakharia contends that therefore as the same terms have not been used in sec. 186 sub-secs. (1) and (5)the provisions of which we will reproduce hereafter the Gram Panchayats and Nyaya Panchas constituted under the Ordinance were not saved. We cannot agree with this submission. In our judgment the distinction is without any difference. Mr. Vakharia contends that therefore as the same terms have not been used in sec. 186 sub-secs. (1) and (5)the provisions of which we will reproduce hereafter the Gram Panchayats and Nyaya Panchas constituted under the Ordinance were not saved. We cannot agree with this submission. In our judgment the distinction is without any difference. The non-use of the term dram or village before the word Panchayat and the use of the word Panchayat after Nyaya instead of Pancha in our judgment hardly makes any difference. In substance the bodies described are the same and there is no reasonable ground on the basis of which we can say that whereas the statutes which had used the word Panchayats and Nyaya Panchayats were intended to be saved those which had used similar but not the same terms were not similarly intended. ( 7 ) THE next contention of Mr. Vakharia is that even if the Village Panchayat of Chogath is saved by sub-section (2) of section 186 of the Panchayats Act in any case its Nyaya Panchayat is not saved after the 1 August 1960 Therefore the next question for consideration is as to whether the Nyaya Panchayat of Chogath did or did not cease to exist on or from the 1st of August 1960. Before we discuss this question it will be convenient to mention a few admitted facts. It is not disputed by Mr. Vakharia that if his first contention is rejected then in spite of the repeal of the Ordinance under which the Village Panchayat of Chogath was established the Gram Panchayat of Chogath (hereafter called the old Panchayat) continued to exist by virtue of the provision contained in sub-secs. 1 and 2 of section 186 of the Panchayats Act and that the members and the office bearers of the old Panchayat became the office bearers and members of the fictional Village Panchayat which came into existence by virtue of the fiction enacted in sub-sec. (3) of section 186 aforesaid (hereafter called the fictional Village Panchayat ). Mr. Vakharia also does not dispute that under sub-section (5) of section 186 Nyaya Panchayat of Chogath which had been constituted under the Ordinance also continued to exist as the fictional Nyaya Panchayat (hereafter called the fictional Nyaya Panchayat ) of the fictional Village Panchayat inspite of the repeal of the Ordinance. Mr. Vakharia also does not dispute that under sub-section (5) of section 186 Nyaya Panchayat of Chogath which had been constituted under the Ordinance also continued to exist as the fictional Nyaya Panchayat (hereafter called the fictional Nyaya Panchayat ) of the fictional Village Panchayat inspite of the repeal of the Ordinance. It is not disputed that after this elections were held for constituting the village Panchayat of Chogath under the Panchayats Act and that a new Village Panchayat of Chogath came into existence on 1st August 1960. It is also not disputed that though a new Village Panchayat has come into existence under the Act new Nyaya Panchayat has not been constituted for the village of Chogath under the Panchayats Act. Mr. Vakharias contention is based upon the constitution of this new Village Panchayat on 1st August 1960 and the non-constitution of the new Nyaya Panchayat for the village under the Panchayats Act. His contention is that the fictional Nyaya Panchayat died with the death of the fictional Village Panchayat and the birth of the new Nyaya Panchayat. The answer to this question depends upon the true construction of sub-section (5) of section 186 of the Panchayats Act which is the saving section. In order to understand the arguments of Mr. Vakharia it will be convenient first to reproduce sub-sections (1) to (5) and sub-section (11) of section 186 aforesaid. The answer to this question depends upon the true construction of sub-section (5) of section 186 of the Panchayats Act which is the saving section. In order to understand the arguments of Mr. Vakharia it will be convenient first to reproduce sub-sections (1) to (5) and sub-section (11) of section 186 aforesaid. Those sub-sections are as follows :--"186 Notwithstanding the repeal of the said laws and the foregoing provisions of this Act- (1) any local area declared to be a village immediately before the coming into force of this Act shall be deemed to be a village under this Act; (2) the panchayats constituted under the said Acts immediately before the said date (hereinafter called the old panchayats) shall be deemed to be panchayats of the respective villages (hereinafter called the new panchayats ) (3) The Sarpanch the Deputy Sarpanch or Upa-Sarpanch and the members or panchas elected or appointed for the old panchayats and holding office immediately before the said date shall respectively be deemed to be the Sarpanch the Upa-Sarpanch and the members of the new panchayats; (4) the said Sarpanch the Upa-Sarpanch and the members shall hold office as such Sarpanch the Upa-Sarpanch and members for the period for which they would have held office under the said Acts subject however to the provisions relating to disqualification resignation removal and vacancy provided in this Act; (5) any Nyaya Panchayats constituted by or for the old panchayats shall be deemed to have been constituted by or for the said village or villages for the new panchayats thereof until they are reconstituted under this Act and the Chairman and deputy Chairman members or panchas elected or appointed for the Nyaya-Panchayats of the old panchayats and holding office immediately before the said date shall respectively be deemed to be the Chairman Deputy Chairman and the members or panchas of the Nyaya Panchayats of the new panchayats;. . . . . . . . . . . . . . . (11) all proceedings pending before the old Panchayats and Nyaya Panchayats of the old panchayats shall be deemed to have been instituted and to be pending before the new panchayats and Nyaya Panchayats of the new panchayat as the case may be and shall be heard and disposed of by the said panchayats or Nyaya Panchayats. as the case may be under this Act; ( 8 ) MR. as the case may be under this Act; ( 8 ) MR. Vakharias contention is that the true interpretation of sub-section (5) is that the fictional Nyaya Panchayat which came into existence under that sub-section was to co-exist with the fictional Village Panchayat and that the life of the fictional Nyaya Panchayat depended upon the life of the fictional Village Panchayat. He contends that the duration of the fictional Nyaya Panchayat constituted under subsection (5) aforesaid is limited until the fictional Village Panchayat is reconstitued. From sub-section (5) aforesaid it is quite clear that the fictional Nyaya Panchayats are to remain into existence until they are reconstituted under this Act. The contention of Mr. Vakharia can be right only if the pronoun they in the above quoted expression stands for the fictional Village Panchayats. On the other hand if that pronoun stands for the fictional Nyaya Panchayats then the argument of Mr. Vakharia must break down. Now it is difficult to agree with Mr. Vakharia that the pronoun they in the above expression stands for fictional Village Panchayats. One can read the expression in that way only by breaking the rules of syntax. Both the syntax and the context show that the pronoun they must stand for the fictional Nyaya Panchayats and not for fictional Village Panchayats. Moreover the scheme of the Panchayat Act cannot support the interpretation for which Mr. Vakharia contends. A Village Panchayat under the Panchayats Act is not required to be established by any notification or act of the Government. The Village Panchayat follows and becomes established under section 5 the moment a village is established under section 4 of the Panchayats Act. On the establishment of such a Village Panchayat the members thereof have got to be elected under section 11 of the Panchayats Act and thereupon the Panchayat becomes constituted. On the other hand a Nyaya Panchayat does not automatically become established for a Village Panchayat on either the establishment or the constitution of the Village Panchayat. Under section 63 of the Panchayats Act a Nyaya Panchayat has got to be established by a notification of the Government. Moreover under that section there cannot be a Nyaya Panchayat for one village but a Nyaya Panchayat has got to be constituted for a group of villages not being less than five in number. Under section 63 of the Panchayats Act a Nyaya Panchayat has got to be established by a notification of the Government. Moreover under that section there cannot be a Nyaya Panchayat for one village but a Nyaya Panchayat has got to be constituted for a group of villages not being less than five in number. Section 64 prescribes the mode in which a Nyaya Panchayat has got to be constituted. A Nyaya Panchayat has to be constituted from persons elected by each of the constituent Village Panchayats for the civil and criminal administration of justice for which it has to be constituted. Therefore if the contention of Mr. Vakharia were right then there will be an interregnum in each and every village in the matter of the Nyaya Panchayats on the cessation of the fictional Village Panchayats and the birth of the new Village Panchayats under the Panchayats Act. Unless the language of sub-section (5) of sec. 186 compels one to do so it will not be proper to construe sub-section (5) in such a manner that an interregnum will be created in the aforesaid matter. ( 9 ) HOWEVER Mr. Vakharia reinforces his argument by reference to two more expressions in sub-section (5 ). Mr. Vakharia firstly lays emphasis upon the word reconstituted used in the aforesaid expression which deals with the life of the fictional Nyaya Panchayats. Sub-section (3) of section 145 and sub-section (1) of sec. 145 provide for the reconstitution of a Village Panchayat on its dissolution under its respective provisions. Section 33 of the Village Panchayats Act provides for the election of Sarpanch and Upa-Sarpanch on the occasion among others of the reconstitution or a Village Panchayat under sections 145 and 146. He contends that though the term reconstituted has been used in conjunction with the Village Panchayat no such term has been used in conjunction with a Nyaya Panchayat under the Panchayats Act. In our judgment the argument has no merit. The expression reconstituted has been used in the aforesaid three sections because a new Village Panchayat comes to be constituted during the life of an existing Village Panchayat. Therefore the expression reconstituted does not appear to be a term of art or a technical term having a special meaning. In our judgment the argument has no merit. The expression reconstituted has been used in the aforesaid three sections because a new Village Panchayat comes to be constituted during the life of an existing Village Panchayat. Therefore the expression reconstituted does not appear to be a term of art or a technical term having a special meaning. Moreover if the expression until they are reconstituted under this Act has to be construed as referring to the Village Panchayats and their reconstitution then there cannot be any doubt whatsoever that the whole sub-section will reduce itself to a nullity. In that case the Legislature must be taken to have provided that the fictional Nyaya Panchayats were to remain into existence until the fictional Village Panchayats came to be reconstituted either under section 145 or 146 of the Panchayats Act. This means that fictional Nyaya Panchayats will continue to exist until the fictional Nyaya Panchayats are dissolved for the reasons mentioned in section 145 or those mentioned in section 146 of the Act. Section 145 permits dissolution of Village Panchayat on the grounds of excess or abuse of powers incompetence or persistent default in the performance of duties or functions or failure to obey the lawful orders of public authorities or persistent disobedience to such officers. Section 146 permits dissolution of Village Panchayats on the alteration of the limits of a village by a Commissioner. It is impossible to find any rational consecution or dependence between the existence of the fictional Nyaya Panchayats and their reconstitution in the aforesaid ways. On the other hand if we are to interpret the aforesaid expression in its ordinary grammatical sense it will lead to an eminently reasonable result. It will mean that the fictional Nyaya Panchayat still remains in existence until a new Nyaya Panchayat is established and constituted under the Panchayats Act. ( 10 ) MR. Vakharia further contends that the expression that the Chairman deputy Chairman and members or panchas of the Nyaya Panchayats of the new Panchayats used in the last part of sub-sec. (5) Indicates in any case that the fictional Nyaya Panchayats were necessarily linked with the fictional Village Panchayats. We cannot agree. In our judgment the expression Nyaya Panchayats of the new Panchayats is not a limitative expression. It is not intended to limit the life of the fictional Nyaya Panchayat with that of the fictional Village Panchayat. (5) Indicates in any case that the fictional Nyaya Panchayats were necessarily linked with the fictional Village Panchayats. We cannot agree. In our judgment the expression Nyaya Panchayats of the new Panchayats is not a limitative expression. It is not intended to limit the life of the fictional Nyaya Panchayat with that of the fictional Village Panchayat. The expression has been used only to describe the fictional Nyaya Panchayat and not to limit it. That expression in our judgment is not intended in any way to override the former expression until they are constituted under this Act which really deals with the life of the fictional Nyaya Panchayat. Under the circumstance in our judgment it is not possible to agree with the above contention of Mr. Vakharia. ( 11 ) MR. Vakharia seeks to support his aforesaid contention also by reference to sub-section (1) of section 65 of the Panchayats Act. That sub-section is as follows:-- (1) Save as otherwise provided by this Act the term of office of a member of the Nyaya Panchayat shall expire with the term of the panchayat which elected him. Mr. Vakharias contention is that under this sub-section the life of a member of a Nyaya Panchayat is dependent upon the life of the Panchayat and the two lives are linked together. Therefore he contends that as soon as the new Panchayat elected under the Panchayats Act replaces the fictional Village Panchayat the terms of the office of the fictional Nyaya Panchayat also comes to an end. In our judgment the argument is not sound for more than one reason. In the first instance sub-section (1) of section 65 saves the other provisions of the Panchayats Act and those other provisions would include sub-sec. (5) of sec. 186 aforesaid. If sub-sec. (5) of sec. 186 provides for the life of the fictional Nyaya Panchayat as in our opinion it does then sub-section (1) of sec. 65 has no application. That such is the intention of the Legislature is also emphasized by the commencement of sec. 186 which says that the provisions thereof shall apply notwithstanding the provisions preceding that section which will include sub-sec. (1) of sec. 65. Secondly sub-sec. (1) speaks of the term of the Panchayat and that latter expression has been defined in sub-section (26) of section 3 of the Panchayats Act. 186 which says that the provisions thereof shall apply notwithstanding the provisions preceding that section which will include sub-sec. (1) of sec. 65. Secondly sub-sec. (1) speaks of the term of the Panchayat and that latter expression has been defined in sub-section (26) of section 3 of the Panchayats Act. The definition says that the expression means the period for which members of the Panchayat elected or deemed to be elected shall hold office under sec. 27 and sec. 27 provides that the members of a Panchayat shall save as otherwise provided in the Panchayats Act hold office for a term of four years. The expressions term of the Panchayat or term of office of a member of the Panchayat do not appear to be used in sec. 186 in any of the sub-sections which create the fictions of Village Panchayats and members thereof. On the contrary the term of office of the members of the fictional Village Panchayat has been prescribed to be the same which they would have held under the repealed Ordinance. Moreover the term of office of a member of the Nyaya Panchayat under sub-sec. (1) of section 65 is linked with the term of the Panchayat which elected him. Therefore the term of office of a member of a Nyaya Panchayat is not linked with the term of a fictional Village Panchayat but is linked with a Panchayat which elected the members of the Nyaya Panchayat. For these reasons in our judgment sec. 65 is also inapplicable to a fictional Panchayat constituted under sec. 186 sub-sec. (5) of the Panchayats Act. The Legislature could not have intended to have applied sec. 65 to such a fictional Nyaya Panchayat for as already pointed out a Nyaya Panchayat constituted under the Village Panchayats Act first has to be established by a notification of the Government and thereafter it has got to be elected in accordance with the provisions contained in sec. 64. It is to a Nyaya Panchayat which has been so established and constituted that the provisions of section 65 sub-sec. (1) apply. ( 12 ) THE next question for consideration is as to what powers the fictional Nyaya Panchayat of Chogath possess on its coming into existence under sub-sec. (5) of sec. 186 of the Panchayats Act. Mr. 64. It is to a Nyaya Panchayat which has been so established and constituted that the provisions of section 65 sub-sec. (1) apply. ( 12 ) THE next question for consideration is as to what powers the fictional Nyaya Panchayat of Chogath possess on its coming into existence under sub-sec. (5) of sec. 186 of the Panchayats Act. Mr. Vakharia contends that even if the former Nyaya Panchayat of Chogath becomes a fictional Nyaya Panchayat under the Panchayats Act it does not necessarily possess all the powers which will be possessed by a Nyaya Panchayat established under sec. 63 and constituted under sec. 64 of the Panchayats Act. In fact Mr. Vakharia goes to the length of stating that the fictional Nyaya Panchayat will be a still-born Panchayat under the Panchayats Act. In any case he contends that even if the fictional Nyaya Panchayat is born alive it will have only truncated powers and will not possess the full plenitude of the powers of a Panchayat constituted under sec. 64. As already pointed out under the Panchayats Act there cannot be a Nyaya Panchayat for one village only. It is necessarily to be for a group of villages the number of which is not less than five. Therefore Mr. Vakharia contends that only those fictional Nyaya Panchayats which administered civil and criminal justice in a group of at least five villages will endure under the Village Panchayats Act. We cannot agree. In our judgment the commencement of sec. 186 to which we have already referred viz. that that section will apply notwithstanding the previous provisions of the Village Panchayats Act is a clear answer to Mr. Vakharias aforesaid contention. In our judgment notwithstanding the provision contained in sec. 63 the fictional Nyaya Panchayat will continue to exist inspite of the fact that it had not complied with the provisions contained in sec. 63. Nyaya Panchayats have been given both civil and criminal powers of a limited nature. Section 73 mentions suits triable by such Panchayats and sec. 75 mentions offences which can be taken cognizance of by such Panchayats. Sections 74 76 and 77 mention suits and offences cognizance of which is barred to Nyaya Panchayats. There is no doubt that these provisions apply to the fictional Nyaya Panchayats as well. Section 73 mentions suits triable by such Panchayats and sec. 75 mentions offences which can be taken cognizance of by such Panchayats. Sections 74 76 and 77 mention suits and offences cognizance of which is barred to Nyaya Panchayats. There is no doubt that these provisions apply to the fictional Nyaya Panchayats as well. Sections 68 69 83 and 86 are however provisions relating to institution of suits and criminal cases and the place where and the mode in which they are to be tried. Section 86 provides that a suit or criminal case shall be instituted before the member of the Nyaya Panchayat and in his absence before the Sarpanch and in the latters absence before the Upa-Sarpanch. Section 67 provides for the place at which the Nyaya Panchayat is to sit for the hearing of a suit or trial of a case. It says that the hearing of such suit or trial shall take place in the village where such suit or case is instituted. Section 68 provides that a Nyaya Panchayat shall be presided over at each such place by one of its members. Section 69 provides that the Secretary of the Panchayat of the village where the Nyaya Panchayat is sitting shall act as the judicial clerk of the Nyaya Panchayat. Section 83 prohibits a member of the Nyaya panchayat from the village where the sitting of the Nyaya Panchayat is held from sitting in the Nyaya Panchayat when the Nyaya Panchayat is trying a suit or a criminal case. The question for consideration is whether these provisions and specially the prohibitions contained therein do or do not apply to the fictional Nyaya Panchayat. Now if we turn to sub-section (5) of sec. 186 we find that that sub-section does not say anything regarding the mode the meeting place and the manner of the trial of suits and cases. All that that sub-section states is that the Nyaya panchayat shall be deemed to be one constituted under the Panchayats Act. Mr. Desai on behalf of the Government contends that if there is no express provision regarding the mode of trying a suit or a criminal case then provisions of sub-sec. (8) of sec. 186 will apply. In our judgment the submission is not valid. Mr. Desai on behalf of the Government contends that if there is no express provision regarding the mode of trying a suit or a criminal case then provisions of sub-sec. (8) of sec. 186 will apply. In our judgment the submission is not valid. That sub-section only saves an appointment notification notice tax fee order scheme licence permission rule by-law or form made issued imposed or granted under the repealed statutes and does not save the provisions relating to hearing and disposal of suits and criminal cases. Moreover even if sub-sec. (8) includes any such matter it is quite clear that that will not save the provisions of the repealed statutes which are inconsistent with the provisions of the Panchayats Act because sub-sec. (8) in terms provides that the aforesaid things are saved only in so far as they are not inconsistent with the provisions of the Panchayats Act. ( 13 ) SUB-SECTION (11) of section 186 however throws light on the subject. That sub-section deals with pending proceedings. The section says in terms that such pending proceedings shall be deemed to have been instituted and to be pending before the fictional Nyaya Panchayats. But as regards the hearing and the disposal of such proceedings the sub-section gives a specific direction. That sub-section says in terms that such proceedings shall be beard and disposed of by the said. . . . . Nyaya Panchayats. . . . . . . . . under this Act. Therefore as regards pending proceedings it has been definitely stated that the proceedings shall be heard and disposed of in accordance with the provisions contained in the Act. Under the circumstances in regard to pending proceedings the application of secs. 67 68 69 and 83 is not excluded. Those sections will not be excluded by the non-obstinate clause contained in the commencement of section 186 to which a reference has already been made which provision excludes the application of the previous provisions of the Panchayats Act. Therefore in respect of pending proceedings there is no doubt whatsoever that under the Panchayats Act the hearing of the suit or the trial of a criminal case pending in the Nyaya Panchayat of Chogath will take place in the village of Chogath itself and the Secretary of the Village Panchayat will act as the judicial clerk of the Nyaya Panchayat. But it is also equally clear that the members of the Nyaya Panchayat will be prohibited from the sitting of the Nyaya Panchayat for the disposal of the suit or the criminal case. this is so because of the provision contained in sec. 83 of the Panchayats Act. In view of the aforesaid position which has been specifically provided for can it be said that the prohibition contained in section 83 of the Act will not be applicable to suits and criminal cases instituted after the commencement of the Panchayats Act before the fictional Panchayat for which no specific provision is made in the Act ? In our judgment if any specific provision were made then that provision would have the benefit of the non-obstante clause at the commencement of sec. 186 which says that the provision of sec. 186 applies notwithstanding the foregoing provisions of the Village panchayats Act. But if there is no such specific provision then it is quite clear that the provision contained in sec. 83 will not be saved. In out judgment therefore where we have a case like the present where under the old law there was only one village for which a Nyaya Panchayat was constituted the members of that Nyaya Panchayat will have only the power of receiving plaints and complaints under sec. 86 of the Act and will not have the power of disposing of the plaints and complaints. The members are prohibited from disposing of such suits and criminal cases by virtue of the provision contained in section 83 of the Panchayats Act. ( 14 ) FOR the aforesaid reasons in our judgment the fictional Nyaya Panchayat of Chogath had no powers of a Nyaya Panchayat except that the members of that Panchayat have the power of receiving plaints and complaints. ( 15 ) THE next question for consideration is whether a truncated Nyaya Panchayat of the aforesaid kind can be said to be a Court within the meaning of section 3 of the Contempt of Courts Act 1952 Very learned arguments were advanced in our Court as to whether a Nyaya Panchayat constituted under section 64 of the Village Panchayats Act is or is not a Court within the meaning of the Contempt of Courts Act. For the purpose of answering this question a number of sections of the Panchayats Act including those which we have already mentioned will require examination. But in our judgment having regard to our aforesaid conclusion that the fictional Nyaya Panchayat of Chogath had only truncated powers it is not necessary to discuss that question with reference to a Nyaya Panchayat constituted under section 64. The question for our consideration is whether where we have a case like the present where the members of the Nyaya Panchayat have no power other than that of receiving a plaint or a complaint such members can be said to be Judges and the Nyaya Panchayats of which they are members can be said to be Court within the meaning of the Contempt of Courts Act1952 A number of cases were cited in our Court to establish the ingredients of a Court within the meaning of the Contempt of Courts Act. It is not necessary for us to examine all those authorities. Whatever difference of opinion there may be regarding some of the other tests for which the learned advocates on the two sides contended for there is perfect unanimity amongst the judicial authorities that in order that a body may be a Court or a person may be a Judge it is necessary that the body or the person must be capable of pronouncing a definitive judgment (vide section 19 of the Indian Penal Code ). In our judgment neither the fictional Nyaya Panchayat of Chogath nor the members thereof answer the aforesaid test in view of our conclusion that the Nyaya Panchayat as such had no powers of hearing and disposing of civil and criminal cases and that the only power which the members thereof possessed was that of receiving plaints and complaints. There is one more reason why the members of the fictional Nyaya panchayat of Chogath cannot be regarded as Judges. It will be noticed that under section 8b the power to receive plaints and complaints is not only with the members of the Nyaya panchayat but also with the Sarpanch and the Upa-Sarpanch. The latter are not even the members of the Nyaya Panchayat. In fact under the proviso to sub-section (2) of section 64 these two office bearers are disqualified from being chosen as members of a Nyaya Panchayat. The latter are not even the members of the Nyaya Panchayat. In fact under the proviso to sub-section (2) of section 64 these two office bearers are disqualified from being chosen as members of a Nyaya Panchayat. ( 16 ) IN view of our above conclusions it is not necessary to determine whether the impugned passages do or do not constitute contempt; for even if they do it is quite clear that they will not constitute contempt of a Court as the body in respect of which and in regard to whose members the allegations were made do not constitute a Court or Judges. ( 17 ) FOR the aforesaid reasons in our judgment both the petitions must fail and must be dismissed with costs. Rules discharged with costs. .