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1997 DIGILAW 444 (PAT)

Suresh Paswan v. State Of Bihar

1997-06-24

N.PANDEY

body1997
Judgment N. Pandey, J. 1. This petition under article 226 of the Constitution of India is for an appropriate writ/order, quashing the decision of the Executive committee of Jagarnathpur Gram Panchayat (Gaya) dated 13-11-1995, whereby Ram baran Pd. Yadav (respondent) was selected to the post of Dalpati of the said Panchayat. A prayer has also been made to quash the order of the District panchayat Officer (respondent No.4), whereby, he accorded approval to the said appointment. 2. The main ground to attach the validity of the impugned appointment is since the Bihar Panchayat Village volunteer Force Rules, 1949 (in short the Rules, 1949 are ceased to have any legal existence by implied meaning of repeal of the Bihar Panchayat Raj Act, 1947, appointment of respondent No.8 by the Executive Committee and approval of the District Panchayat Officer, applying the procedures prescribed under that Rule, has to be declared illegal and without jurisdiction. It would be relevant to mention that in order to organise a Village Volunteer Force under the command of a Dalpati, the state Government as per the provisions of Sec.26 of the Bihar Panchayat raj Act, 1947 (in short the Act, 1947), had empowered the Executive Committee of each Gram Panchayat to make appointment etc. Sec.27 was the provision conferring power on the State to make Rules for the organisation of village Volunteer Force. Therefore, in exercise of such a power, the State government had framed the Bihar panchayat Village Volunteer Force rules, 1949, laying down different procedures for appointment of different authorities including Dalpaties. 3. But consequent upon the changes incorporated in the 73rd Constitutional (Amendment) Act, 1992, to bring inconfirmity with the directions, the state Government by repealing the Act, 1947 introduced the Bihar Panchayat raj Act, 1993 (in short the Act, 1993 ). In this Act the provision for organisation of a Village Volunteer Force, as available in the Act, 1947, was omitted. But later the Legislatures having felt the desirability to organise such a force, inserted Sec.32-A by the Bihar panchayat Raj (Amendment) Act, 1995 in addition to Sec.32 of the Act, 1993 with effect from 21-7-1995. In this Act the provision for organisation of a Village Volunteer Force, as available in the Act, 1947, was omitted. But later the Legislatures having felt the desirability to organise such a force, inserted Sec.32-A by the Bihar panchayat Raj (Amendment) Act, 1995 in addition to Sec.32 of the Act, 1993 with effect from 21-7-1995. By insertion of this provision, it was provided that a Gram Raksha Dal (Village volunteer Force) shall be organised under a Dalpati, appointed in a prescribed manner, for every Gram panchayat and all able-bodies persons of a village between a particular age group shall be members of such a force. It further shows that the State Government may make Rules for the organisation, duty and utilisations of Gram Raksha dal whereas as per Sec.26 of the repealed Act, the Executive Committee was empowered to organise such a force as per the Rules, prescribed. But under section 32-A of the Act, 1993, the Gram raksha Dal is to be organised under a dalpati appointed in the prescribed manner. Therefore, the Executive committee has not yet been empowered under the new Act nor a Rule has been framed, prescribing a procedure to organise the force. 4. Mr. Shahi learned counsel appearing for respondent No.8 submitted that from a bare reference to the provisions of Sec.27 of the Bihar and orissa General Clauses Act, 1917 it would appear that Rules framed under an earlier Act will be deemed to be framed under the new Act. In other words a Rule validly made, becomes part of the parent Act and survives the repeal of the Act under which it was framed, if not inconsistent with the provisions of the new Act. In support of the aforesaid submission, Mr. Shahi placed reliance to a decision of the apex Court in the case of Chief Inspector of Mines and Anr etc. V/s. Karam Chand thapar etc. , AIR 1961 S. C.838 and a decision of this Court in the case of Om prakash Choubey etc. V/s. The Director (Secondary Education) -cum -Additional secretary and Anr. etc. , 1985 PLJR 1110 ; 1985 BLJ 394. 5. The main controversy is therefore whether the Rules framed under section 27 of the Act, 1947 survived the repeal of the said Act, by the Act, 1993. V/s. The Director (Secondary Education) -cum -Additional secretary and Anr. etc. , 1985 PLJR 1110 ; 1985 BLJ 394. 5. The main controversy is therefore whether the Rules framed under section 27 of the Act, 1947 survived the repeal of the said Act, by the Act, 1993. Before endeavouring to answer the question, it would be useful to notice the provisions of Sec.27 of the Bihar and Orissa General Clauses Act, 1947: "where any enactment is repealed and re-enacted by a Bihar and Orissa Act (or Bihar Act) with or without modification then unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, bye-laws or form, made or issued under the repealed enactment, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force and be deemed to have been made or issued under the provisions so reenacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, by-law or form, made or issued under the provisions so re-enacted. " 6. From a bare reference to the aforesaid provision, it would appear that a Rule validly made becomes part of the parent Act and survives the repeal of the Act, provided it is not inconsistent with the provision reenacted. I have already noticed that at the initial stage while repealing the Act, 1947, the provisions to organise Village volunteer Force was not retained. But later inserting Sec.32-A, a provision was made to organise a Village Volunteer force under a Dalpati, appointed in the prescribed manner. Under Section 26 of the old Act such organisation was to be made by the Executive Committee whereas under the new provision such organisation and appointment of Dalpati is required to be made as per a procedure, which is yet to be prescribed. Unfortunately, up till now neither any procedure has been prescribed nor such a power has been delegated to the Executive Committee of a Panchayat. Thus, it is clear that the provisions of the new Act so far it is with respect to the organisation of the Force and appointment of Dalpati are not the same, as available under the old Act. Therefore, it would not be open to submit that the provisions of the Rule framed under the old Act will survive until fresh rules are framed by the State Government, as required under Sec.32-A of the new Act. Therefore, it would not be open to submit that the provisions of the Rule framed under the old Act will survive until fresh rules are framed by the State Government, as required under Sec.32-A of the new Act. It would be useful to notice that the Apex Court also in the case of chief Inspector of Mines and Anr. etc. V/s. Karam Chand Thapar etc. (supra) had held that to apply the provisions of general Clauses Act, one has to sec that such a Rule is not inconsistent with the re-enacted provisions. It would be relevant to notice that in the case of arun Kumar V/s. The State of Bihar and Ors. , c. W. J. C. No.10492 of 1994, also this court had taken a similar view and held that in absence of any specific provision, as prescribed under the new Act, no appointment of Dalpati can be made by the Executive Committee of the panchayat. 7. Before parting with this order, I must indicate that having learnt such anomalous situation, on my instruction, the Director, Panchayati Raj, had appeared before me in another case. He also accepted that no other provision was made so far for appointment to the post of Dalpati save and except the old rule. He, however, assured that within a period of four months statutory Rules with regard to organisation of the Force and appointment of Dalpati shall be introduced. 8. Since the appointment of respondent No.8 has to be quashed for want of the jurisdiction of the Executive committee, it is not necessary for me to go to the other controversies of the parties. Because such appointments have to be made afresh as per the provisions of the new Act. 9. For the reasons, stated above, I am constrained to hold that the relevant provision of the Rule 1949 does not survive the repeal of the Act under which it was framed because of inconsistency with the provisions, as incorporated under Sec.32-A. 10. Accordingly, the writ application is allowed to the extent, indicated above, and appointment of respondent no.8 is hereby quashed. The parties are left to bear their own costs. Application Allowed.