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1987 DIGILAW 90 (PAT)

Kushnu Sinku v. State of Bihar

1987-03-26

S.B.SINHA

body1987
JUDGMENT S.B. Sinha, J. This writ application involved a very interesting question of law relating to interpretation of Rule 20 of the Wilkinson's Rule by reason where of the Governor General's agent and his assistants are authorised at their discretion to refer suits for decision to panchs. Rule 20 of the Wilkinson Rules read as follows:- "After the plaints had been filed and defendant's answer received. Either at the Sadar Station or any other part of the district where the Agent's on the assistant's cutchery may be at the same time. The panchayat to consist of three or five persons to be selected by the agents or assistants from amongst the person most conversant with the matter at issue. The persons to compose the panchayat shall not be nominated until the plaintiff, defendant and witnesses had been assembled. The plaintiff and defendant shall each be permitted to challenge any member of the panchayat and on giving sufficient reason for the challenge or other person or persons shall be selected to supply his or their place. The plaintiff and the defendant or their agents shall each be called on. On the Governor General's Agent or his assistant determining to refer a suit to a panchayat, and before the member of the Panchayat have been nominated to enter into engagement to abide by the decision of a Panchayat to be nominated by the Governor Generals Agent or his Assistant shall immediately direct a Moharrir to attend the Panchayat, whose duty it shall be under the direction of the Panchayat to record their proceedings and award. He shall then direct them to proceed forth with to some convenient place in his kutchery or adjoining it to investigate the matter at issue, when the pleadings shall have been finished and evidence taken the Panchayat shall direct the Moharrir the parties to retire, consult and decide on their award and when they have come to a decision they shall recall the Moharrir to record the award. Which award having been duly attested with their signature they shall deliver to the Court appointing it, by who a decree in conformity therewith shall be passed which shall not be appealable or set aside, unless corruption can be proved against the Panchayat or unless the award shall be contrary to the common law of the Country or the rules enacted by the Governor General in Council" . 2. 2. In this writ application although the vires of rule was challenged. But N.K. Prasad learned counsel appearing on behalf of the petitioner rightly did not press the same in view of various division bench decisions of the Court being 1958 Patna 336, 1970 P.L.J.R. 108. 3. For the purpose of disposal of this writ application it is not necessary to notice the facts of the case in great details. Suffice is to say that a suit was instituted by the Respondents 3 to 23 as against the petitioner. The said suit was decreed, but the learned commissioner by an order dated 21.6.68 in title appeal no. 108 of 163, remitted the matter back to the court of Deputy Commissioner for rehearing and disposal of the case in accordance with law. The Deputy Commissioner thereafter proceeded to dispose of the matter by appointing the punches. From the reports of the punches as contained in Annexures 5 and 6 to the writ application, it appears that one of the punches described himself as a lawyer and punch nominated by plaintiff whereas in Annexure 6, the 2nd punch described himself as the defendant punch meaning thereby that he was nominated by the defendants. Rule 20 of the Wilkinson's Rule as referred to here in before provides for appointments of either three punches or 5 punches by the authorities alone meaning thereby either the agent of the Governor General in Council of his Assistants. 4. By virtue of and under the provision of Wilkinson's Rule power has been conferred upon the authorities to nominate the punch for administration Civil Justice in Kholan area. Duties, functions and power of the authorities have been mentioned in the said rule by reason of the said rule. Although the Jurisdiction of the Civil Court has been taken away but the Court of the agent Governor General in Councilor his Assistants cannot be acquitted with Civil Court. The Governor General in Councilor his Assistants is not governed by the Code of Civil Procedure and their powers are confined only to the four corners of the provision of the said Act. Mr. The Governor General in Councilor his Assistants is not governed by the Code of Civil Procedure and their powers are confined only to the four corners of the provision of the said Act. Mr. N.K. Prasad learned counsel appearing on behalf of the petitioner urged various points in support of this writ application but laid main stress on the question as to whether in the fact and circumstance of the case, it was permissible for the Deputy Commissioner to get the punches nominated by the respective parties and nominating that the third punch himself. In terms of the provision of the aforementioned rule 20, the three punches were to nominate by the Deputy Commissioner for the purpose of disposal of the suit. The reason for conferring such a power upon the Deputy Commissioner who acts as an Assistant of the Governor General in Council is that all the three punches must be to his knowledge the most conversant with the Subject matter in issue. The opinion of the Deputy Commissioner as to whether a particular punch is most conversant with the matter in issue or not is a matter of his objective satisfaction. No other person farless the parties to the list can either nominate or appoint their respective punches or for that matter can even make any suggestion in relation there to. Obviously Rule 20 of the Wilkinson's Rule does not proceed in the way in which the legislature wanted the arbitrators to proceed. The punches so nominated by the Authorities under the Wilkinson's rule are not arbitrators within the meaning of the provision of Arbitration Act, 1940. 5. From what has been stated here in before and on a construction of Rule 20 of the Wilkinson's rule it is evident that the authorities named there in only has statutory power of nominating punches. In other words the authorities are statutory authorities and have no plenary power the Civil Court. 6. It is well settled principle of law that a statutory authority must Act, within the four corners of the statute. Reference in the connection may be made to A.I.R. 1975 Patna, page 241. It is also well settled that where a statutory authority is authorised to, exercise power in a particular way on a particular mode such power has to be exercised only in that particular mode or manner or not at all. Reference in the connection may be made to A.I.R. 1975 Patna, page 241. It is also well settled that where a statutory authority is authorised to, exercise power in a particular way on a particular mode such power has to be exercised only in that particular mode or manner or not at all. If such a power is exercised by the statutory authority any manner other that laid down in the statute whereby whereunder he derives his jurisdiction led must be held that in such event he is acting wholly without jurisdiction. Reference in this connection may be made 1976 S.C. page 789 and a decision of this court reported in 1980 B.B.C.J. 200. In view of the fact that in the instant case all the three punches were not nominated by the Deputy Commissioner, it must be held that the entire proceeding was vitiated in law and awards made by punches must be held to be wholly without Jurisdiction as such the decree passed pursuant thereto must be set aside. In the result the writ petition is allowed and the suit is remitted back to the Deputy Commissioner Singhbhum, Chaibasa for proceeding in accordance with law. There will not order as to costs. Application allowed.