Jaikishan v. Collector, Ganganagar — 1963 DIGILAW 214 (RAJ)

TYAGI, J.—This writ application of Jai Kishen, who was nominated as a chairman of the Nyaya Panchayat, Thandewala by the Collector, Ganganagar, under sec. 27 C (6) of the Rajasthan Panchayat Act presents an important question of law namely whether a member once appointed as Chairman of the Nyaya Panchayat by the Collector can subsequently be removed by him or not. In the instant case, petitioner was appointed as Chairman on 27th May, 1961 but later on it was ordered by the Collector that a Chairman may be elected by the Nyaya Panchayat as a result of which respondent No. 3 Satpaul Singh was declared duly elected on 30th October, 1961. It is under these circumstances that the present writ application has been filed by the petitioner with a prayer that an appropriate writ, order or direction be issued to quash the proceeding taken for electing the Chairman of the Nyaya Panchayat and the Government may be restrained from removing him (the petitioner) from the office of Chairman of the said Nyaya Panchayat. 2. In order to appreciate the question in its right perspective, it will be convenient to mention the relevant facts that have given rise to this situation. It is alleged that after the general election of the Panchayats in 1960, the Nyaya Panchayat, of Thandewala was constituted on 17th February, 1961 and thereafter a meeting of the members of the Nyaya Panchayat was called by the Collector on 25th February, 1961 to elect its Chairman, but somehow that meeting did not take place on the appointed date and the Chairman could not, therefore, be elected by the members of the Nyaya Pachayat. It is stated that on May 27, 1961 the Collector nominated the petitioner as the Chairman of the said Nyaya Panchayat and the oath of office was also administered to him on 31.5.1961. On 16th October, 1961 it is alleged that the Collector issued a notice calling the meeting of the members of Nyaya Panchayat to elect its chairman and consequently non-petitioner No. 3 was declared elected as Chairman of the said Nyaya Panchayat on 30th October, 1961. It is on account of this election that the petitioner felt aggrieved and therefore he has challenged the election of non-petitioner No.3. 3. It is on account of this election that the petitioner felt aggrieved and therefore he has challenged the election of non-petitioner No.3. 3. It may be mentioned that the petitioner has not disclosed the circumstances and the reasons as to why the meeting of the Nyaya Panchayat, which was called on 25th February, 1961, could not be held. When this case came up for hearing on 4th September, 1963 the Court asked the learned counsel for the petitioner to furnish the circumstances under which the members of the Nyaya Panchayat failed to elect their Chairman, but these facts have not been placed on record in spite of the order of the Court, but during the course of his arguments learned counsel for the petitioner however disclosed that the officer appointed by the Collector to conduct the meeting of the Nyaya Panchayat to elect the chairman on 25th February, 1961 could not reach the place of meeting and, therefore, the meeting could not be held on the appointed date. He has further admitted that after 25th February no attempt was, however, made by the Collector to call the meeting till 30th October, 1961 when the Nyaya Panchayat elected respondent No. 3 as its chairman. 4. None of the three respondents have preferred to file a reply to this writ application but Mr. Rastogi has appeared on behalf of respondent No. 3 Satpaul Singh who has now been declared as duly elected chairman of the Nyaya Panchayat. On enquiry from Mr. Rastogi, he could not also throw any light about the facts and circumstances which were responsible for the failure of the members of the Nyaya Panchayat to elect their chairman on 25th February, 1961. 5. Mr. Mridul appearing on behalf of the petitioner has vehemently urged before me that under the Rajasthan Panchayat Act there is no power given to the Collector or to the State Government to remove a person from the office of the chair man of a Nyaya Panchayat if he is once elected or appointed to that office. His contention is that holding of a meeting to elect a chairman after his client was appointed to that office under sec. 27C of the Rajasthan Panchayat Act and worked there for about five months is nothing but an ingenious device discovered by the Collector to remove the petitioner which he could not otherwise do under the Act. His contention is that holding of a meeting to elect a chairman after his client was appointed to that office under sec. 27C of the Rajasthan Panchayat Act and worked there for about five months is nothing but an ingenious device discovered by the Collector to remove the petitioner which he could not otherwise do under the Act. It has also been urged that in the absence of any reply on behalf of the respondent to controvert the facts mentioned in his affidavit, this position must be accepted by the Court that the members of the Nyaya Panchayat had failed to elect their Chairman when called upon to do so on 25th February, 1961 and, therefore, under the proviso to clause (6) of sec. 27C of the Act, the Collector had validly appointed the petitioner to work as the Chairman of the said Nyaya Panchayat and that the petitioner had acquired a right to hold that office till he is either removed by a vote of no-confidence or by the expiry of his term as a member of the Nyaya Panchayat. 6. Mr. Rastogi on behalf of respondent No. 3 has urged that the appointment of the petitioner to office of Chairman under sec. 27C(6) was uncalled for, as under the circumstances disclosed by Mr. Mridul, it cannot be said that the members of the Nyaya Panchayat had failed to elect the Chairman. He has also contended that if under a mistaken view of the situation the Collector had appointed the petitioner as a Chairman of the Nyaya Panchayat, the petitioner cannot claim any right to remain in the office as his appointment is cab initio void and therefore the Collector was justified to call a meeting of the Nyaya Panchayat to elect the chairman. 7. Contention raised by learned counsel for the parties pose the following two questions for the decision of the Court : (i) Whether the appointment of the petitioner as Chairman of the Nyaya Panchayat was valid; and (ii) Whether after the appointment of the petitioner as Chairman could the Panchayat elect another Chairman to replace the petitioner before the expiry of his term under the Act. 8. Relevant provision of the Act that deals with the election or appointment of a Chairman of the Nyaya Panchayat is contained in clause (6) of sec. 8. Relevant provision of the Act that deals with the election or appointment of a Chairman of the Nyaya Panchayat is contained in clause (6) of sec. 27-C of the Act which reads as follows : "27C.(6) The members of a Nyaya Panchayat shall elect within a month from the date of the administration of oath, one from amongst themselves to be the Chairman of such Nyaya Panchayat: Provided that if they fail so to elect the Chairman within the specified period, the officer in-charge of Panchayats shall appoint one from amongst the members to be such Chairman." 9. From the perusal of this clause it is clear that if the Collector, who is officer-in-charge of the Panchayats in his district, comes to the conclusion that the members of a Nyaya Panchayat have failed to elect the Chairman, within one month from the date of the constitution of the Nyaya Panchayat, he can appoint one of the members of such Panchayat as a chairman. It may be noted here that there is no provision in this Act to regulate the terms of the appointment of such a Chairman. In the absence of any specific provisions in the Act governing the tenure of the appointed Chairman, it is urged that he would work as a Chairman, in the same manner as if he were elected to that job and would, therefore, continue to function as such as long as his term is not expired by the afflux of time or he is not removed therefrom by passing a vote of no-confidence against him. Mr. Rastogi in this connection has referred to the order of the Collector by which the petitioner was appointed, which reads as follows : ^^U;k; iapk;r FkkUnsokyk lfefr jktflaguxj ds gq;s lk/kkj.k fuokZpu ds le; ernkrkvksa dh vksj ls fdlh lnL; dks v/;{k in ds fy;s ugha pquk] blfy;s jktLFkku iapk;r ,DV] 1952 dh /kkjk 27 lh¼6½ ds vUrxZr fn;s x;s vf/kdkjksa dks mi;ksx esa ykrs gqos mä ,DV dh /kkjk 9 ds ¼3½ ds vuqlkj eSa pEikyky dkspj Jh xaxkuxj blds }kjk Jh tSfdku oYn —ikjke 19 vkj-ch- dks U;k; iapk;r FkkUnsokyk dk v/;{k fu;qä djrk gwWA 10. It appears from this order that the Collector was perhaps working under the proviso to cl. (6) of sec. It appears from this order that the Collector was perhaps working under the proviso to cl. (6) of sec. 27-C of the Act which requires the simultaneous election of the Chairman with the constitution of the Nyaya Panchayat, and since the Chairman could not be elected at the time of the general election, therefore, he thought that he could exercise the authority to appoint the Chairman vested in him by virtue of the proviso to cl. (6) of sec. 27-C of the Act, and it is under that mistaken notion about his authority under the law that he appointed the petitioner as Chairman of the Nyay Panchayat. While passing this order the Collector has also tried to draw his authority from the provisions sec. 9(3) of the Act which deals with the nomination in place of the co-opted members of the Panchayat in the event the Panchayat fails at its first meeting to co-opt the requisite number of persons. In the instant case, this provision of the Act is obviously in-applicable and to appoint a Chairman by drawing authority under this provision viz. sec. 9(3) of the Act is a mistake patent on the face of the record. 11. Now the Court has to see whether under the circumstances of this case, as disclosed by Mr. Mridul, while addressing the Court, can it be said that the members of the Nyaya Panchayat really failed to elect Chairman so as to attract the provisions of the proviso to sub-sec. (5) of sec. 27C of the Act. It may be noted that after the election of the members to the Nyaya Panchayat were held on 17th February, 1961, the Collector had called a meeting of the Nyaya Panchayat to elect its Chairman on 25th February, 1961, but this meeting could not be held as the Returning Officer appointed by the Collector could not reach the spot of meeting in time. Thereafter it so appears that the Collector did not take any steps under cl. (6) of sec. 27C of the Rajasthan Panchayat Act to get the Chairman elected within one month from the date of the constitution of the Nyaya Panchayat and therefore election of the Chairman could not take place within the prescribed period, Under these circumstances, it cannot be said with any justification that the members of the Nyaya Panchayat failed to! (6) of sec. 27C of the Rajasthan Panchayat Act to get the Chairman elected within one month from the date of the constitution of the Nyaya Panchayat and therefore election of the Chairman could not take place within the prescribed period, Under these circumstances, it cannot be said with any justification that the members of the Nyaya Panchayat failed to! elect the Chairman, and therefore the Collector had an authority to appoint the petitioner as Chairman in the exercise of his power under the proviso to clause (6) of sec. 27C of the Act. In my opinion, there was no inaction on the part of the members of the Nyaya Panchayat for which blame could be laid at their doors for not electing their own Chairman as they were never called upon by the Collector after the first meeting was adjourned on account of the failure on the part of the Returning Officer who did not reach the place of meeting. It is regrettable to note that the Collector did not even care to call another meeting of the Nyaya Panchayat within the prescribed period to get the Chairman elected and when one month expired he chose to appoint the petitioner as Chairman without carrying out his duty faithfully that was enjoined on him by clause (6; of sec, 27-C of the Act. Under these circumstances, the authority of the Collector under the proviso to clause (6) of sec. 27C was not at all attracted as the members of the Nyaya Panchayat cannot be said to have failed in their duty to elect their Chairman. I regret that I cannot accept the averment made by the petitioner in his affidavit that the members of the Nyaya Panchayat had failed to elect the Chairman and therefore his appointment as Chairman by the Collector in exercise of his authority under the proviso was valid in law. It has been provided by the legislature that the officer-in-charge of Panchayats shall appoint a member as a Chairman only when the members have failed so to elect. In the present case, it cannot be said that members of the Nyaya Panchayat had failed to elect their Chairman and, therefore, the very appointment of the petitioner as Chairman was obviously uncalled for and illegal. In the present case, it cannot be said that members of the Nyaya Panchayat had failed to elect their Chairman and, therefore, the very appointment of the petitioner as Chairman was obviously uncalled for and illegal. In my opinion, the petitioner had no right to stick to the office of the Chairman as his appointment was not in accordance with the provisions of the law. 12. Mr. Mridul has also argued that the Collector cannot call a meeting of the members of the Nyaya Panchayat to elect the Chairman unless there is a clear vacancy. His contention is that to hold such an election without a clear vacancy is nothing but a device to remove the present occupant. This argument is not without force. In my opinion, the Collector has no authority under the law to remove the Chairman who has been lawfully appointed by him, nor can he order a fresh election of the Chairman unless there is a clear vacancy, but this argument can be of any avail to the petitioner only when his appointment is held to be valid. The argument advanced by Mr. Mridul presupposes the valid election or appointment of a Chairman in accordance with the provisions of the Act and the rules made thereunder. As it has already been observed that the appointment of the petitioner by the Collector was not warranted by the circumstances then obtainable the petitioner cannot legally claim that he has a right to continue in the office. In view of the said discussion, the petitioner, who, under the circumstances referred to above, shall be treated as the usurper of the office of the Chairman of the Nyaya Panchayat, cannot challenge the election of respondent No. 3. 13. As the appointment of the petitioner was not in accordance with the provisions of law, he has no right to invoke the extraordinary jurisdiction of this Court to seek the relief as prayed in his writ application. The petition is, therefore, dismissed with costs.