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Madhya Pradesh High Court · body

2002 DIGILAW 980 (MP)

Raghubar Patel v. State of M. P.

2002-10-23

A.K.MISHRA

body2002
ORDER 1. Petitioner in this writ petition is challenging the action of Janapad Panchayat, Jabalpur in making the nominations under M.P. Gram Nyayalaya Adhiniyam, 1996 (hereinafter referred to as 'the Act') Act No. 26/97 on the ground that nominations were made when the Rules were not framed. The process adopted is contrary to the Rules which have been framed subsequently to the nominations made. 2. Petitioner is resident of village Pipariya within the Janapad Panchayat, Jabalpur and is former President of Janapad Panchayat, Jabalpur. State of M.P. enacted M.P. Gram Nyayalaya Adhiniyam, 1996 which received the assent of the President on 24th April, 1997 State Government issued a notification No. F-17(e)-37-2000-XXI-B(2) dated 11.1.2000 published in M.P. Rajpatra (Asadharana) dated 11.1.2000 fixing 26th January, 2001 for the coming in force of the Act. The State Government on 1.2.2001 by notification No. 21-G.N. Pr-J-31-2001 in exercise of powers under section 3 of the Act, declared the area comprising of Gram Panchayats forming circles and head quarters of the Gram Nayalaya. Thereafter, notification under section 4 was issued by the State Government in exercise of the powers u/s 4 of the Act on 9.2.2001 for establishment of Gram Nyayalaya. On 21.3.2001 Chief Executive Officer, Janapad Panchayat, Jabalpur issued a circular P-2 to all the Gram Panchayats for nomination of members of Gram Nyayalaya and calling of eligible person to file their applications in the Janapad Panchayat. Applications were received by 27.3.2001. Meeting of Janapad Panchayat was held on 30.3.2001. 3. Petitioner submits that nomination was to be made unanimously. Three members of the Janapad Panchayat Jabalpur Smt. Urmila Agrawal, Mahobia and Shri Rajeev Patel did not agree with the nominations and gave a written objection P-3 on 30.3.2001 itself. Unqualified persons have been nominated by the President. The provisions of the Act have not been followed. As the State Government did not frame any Rules, the action is illegal. Nominations were not done unanimously. The nominations were not published in the official gazette. Procedure has not been followed, thus, nominations deserve to be quashed. Writ petition was filed on 8.5.2001. 4. A return has been filed by the respondents contending that petitioner has no locus standi to call in question the validity of the action. Petitioner cannot be said to be an aggrieved person. The nominations were not published in the official gazette. Procedure has not been followed, thus, nominations deserve to be quashed. Writ petition was filed on 8.5.2001. 4. A return has been filed by the respondents contending that petitioner has no locus standi to call in question the validity of the action. Petitioner cannot be said to be an aggrieved person. The State Government has already framed the Rules, M.P. Gram Nyayalaya Niyam, 2001 in exercise of the powers conferred under the Act. The written objection is of no purport inasmuch as certain modifications in rules have already taken place. Memo R-2 has been issued on 17.6.2002 whereby minimum educational qualification for the members of SC/ST community is reduced to 5th class from 8th class examination for women candidates. The age has been reduced to 25 years. Section 11 of the Act is not mandatory. Thus, non-framing of the Rules cannot come in the way. It is incorrect that nominations were not made unanimously. Resolution indicates that nominations were made unanimously. 5. Shri R.P. Kanojiya, learned counsel for the petitioner, submitted that in the absence of framing of the Rules it was not open to make the nominations. Nominations have been made in contravention of the procedure prescribed under the Act and the Rules. The Rules have been framed subsequently. Thus, it is a case where the nominations should be reconsidered in accordance with the Rules framed by the State Govt. It is further submitted that there was no unanimity with respect to the nominations. Objections were filed. There is overwriting of the resolution. Thus, it is a case where nominations to the Gram Nyayalaya cannot be said to be proper. 6. Shri B.N. Mishra, learned Govt. Advocate appearing for the respondents, submitted that nominations have been made unanimously. The Rules were framed subsequently. There are certain modifications made in the Rules. Thus, no interference is called for in the writ petition. 7. M.P. Gram Nyayalaya Adhiniyam has been enacted with a view to settle the petty disputes at the village level itself and has the wholesome purpose. The Act extends to the whole of M.P. except the local limits of the Municipal Corporation, Municipal Council and Nagar Panchayat of Cantonment Board. Under section 4 of the Act State Govt. 7. M.P. Gram Nyayalaya Adhiniyam has been enacted with a view to settle the petty disputes at the village level itself and has the wholesome purpose. The Act extends to the whole of M.P. except the local limits of the Municipal Corporation, Municipal Council and Nagar Panchayat of Cantonment Board. Under section 4 of the Act State Govt. may by notification establish a Gram Nyayalaya for every circle which shall be known by the name of the head quarters of the circle. Section 3 deals with the Constitution of Circle. The State Government may declare any area comprising ten or more Gram Panchayats to be a circle for the purposes of this Act and also specify its headquarters. 8. As provided in section 5 of the Act every Gram Nyayalaya shall consist of seven members to be nominated by the Janapad Panchayat unanimously out of them one shall be a law knowing person and in case the Janapad Panchayat fails to nominate any member unanimously within sixty days from the date of establishment of Gram Nyayalaya under section 4, or from the date of occurrence of any vacancy, as the case may be, the State Government shall nominate such member. Thus, it is incumbent on Janapad Panchayat to nominate member 'unanimously' that too within 60 days of establishment of the Gram Nyayalaya under section 4. One law knowing person has to be nominated, one seat each shall be reserved for persons belonging to scheduled castes, scheduled Tribes and other Backward Classes as provided by sub-section (2) of section 5 of the Act. In addition one seat shall be reserved for women and shall be allotted by rotation to different categories. 9. Qualifications are also statutorily prescribed under section 6 of the Act. No person shall be eligible for nomination unless he has completed the age of 45 years on the date of nomination and is ordinarily resident of the circle for which such Gram Nyayalaya is established has passed eighth standard in case of members belonging to scheduled caste and scheduled tribes and matriculation in case of others. These qualifications were in force at the time when nominations in question were made. There is a power given to the State Govt. Janapad Panchayat to relax the qualifications for SC and ST persons. 10. These qualifications were in force at the time when nominations in question were made. There is a power given to the State Govt. Janapad Panchayat to relax the qualifications for SC and ST persons. 10. As provided by section 7 of the Act a person shall be disqualified for being elected and for being a member of a Gram Nyayalaya if he a Sarpanch or Up Sarpanch of a Gram Panchayat or an office bearer of a Janpad Panchayat, or Zila Panchayat or a member of Legislative Assembly or a Member of Parliament or Chairman or Vice Chairman of a Krishi Upaj Mandi Samiti or President or Vice President of any Co-operative Institution or for the time being disqualified for being elected under the provisions of the Madhya Pradesh Panchayat Avam Gram Swaraj Adhiniyam, 1993 (No.1 of 1994) or any other law relating to elections. Section 8 deals with filling of vacancy. The vacancy shall be filled in by nomination in accordance with the provisions of this Act and the member so nominated shall hold office for the terms specified in section 9. Under section 10 declaration in the prescribed form stating that he has ceased to be a member of any political party. 11. Members of the Gram Nyayalaya shall be deemed to be a public servant as provided by section 15 and they are entitled to Honorarium, travelling and daily allowances. 12. Section 11 of the Act is relevant. Same is quoted below: "Section 11. Nomination -- The State Government may, by notification in the official Gazette, make rules for nomination of members." 13. The law knowing person nominated by the Janpad Panchayat under section 5 shall be ex-officio Secretary of the Gram Nyayalaya. The Secretary shall assist the Gram Nyayalaya in the performance of the functions under this Act and shall perform such other functions as may be prescribed as provided by section 13 of the Act. 14. Section 16 of the Act deals with the jurisdiction of the Gram Nyayalaya to contend non-obstante clause overrides the provisions of the Code of Civil Procedure or the Code of Criminal Procedure or the Madhya Pradesh Land Revenue Code and in the matter Gram Nyayalaya has exclusive jurisdiction. 14. Section 16 of the Act deals with the jurisdiction of the Gram Nyayalaya to contend non-obstante clause overrides the provisions of the Code of Civil Procedure or the Code of Criminal Procedure or the Madhya Pradesh Land Revenue Code and in the matter Gram Nyayalaya has exclusive jurisdiction. A Gram Nyayalaya shall have exclusive jurisdiction to hear and determine any suit for recovery of money not exceeding one thousand rupees and also the execution and other miscellaneous proceedings arising there from and for that purpose the Gram Nyayalaya shall be deemed to be civil Court. The Gram Nyayalaya can inquire and try offences under sections 160, 172, 174, 175, 178, 179, 180, 269, 277, 279, 283, 289, 290, 294, 323, 334, 336, 341, 352, 358, 374, 379, 4H, 426, 428, 447, 448, 506 (first part), 509 and 510 of the Indian Penal Code, 1860. In addition Gram Nyayalaya has the power to hear and dispose of cases under section 248 and 250 of M.P. Land Revenue Code, 1959 and for that purpose the Gram Nyayalaya shall be deemed to be the Court of Tehsildar. Proviso to sub-section (1) of section 16 of the Act confines the power of Gram Nyayalaya to impose a fine not exceeding Rs. 500/-. In case Gram Nyayalaya feels that imposition of higher fine is warranted in the circumstances of the case, it may refer the case to the Sub-Divisional Officer who shall, after giving the party concerned an opportunity of being heard pass such orders in respect of fine as he may deem fit. Certain excepted items from the jurisdiction of the Gram Nyayalaya are enumerated in sub-section (2) of section 16. Certain excepted items from the jurisdiction of the Gram Nyayalaya are enumerated in sub-section (2) of section 16. Sub-section (2) of section 16 of the Act is quoted below : "(2) Notwithstanding anything contained in sub-section (1), the Gram Nyayalaya shall not – (i) try suits – (a) on a balance of partnership account, (b) for a share or part of a share under an intestacy or for a legacy or part of a legacy under a will; (c) for the recovery of rent of any immovable property; (d) for foreclosure, sale or redemption in the case of a mortgage or for the declaration of any other right to or interest in, immovable property; (e) by or against minors or persons of unsound mind; (f) by or against the Central Government or the State Government servant or a local authority or any statutory body or a public servant acting or purporting to act in his official capacity; (g) the cognizance of which by Civil Court is barred under any law for time being in force. (ii) take cognizance – (a) of an offence in a case where the accused is a previous convict; (b) of the offences under sections 379, 411 and 428 of the Indian Penal Code where the value of the property or the animal, as the case may be, is more than Rs. 500/-; (c) of the offences of sections 172, 174, 175, 178, 179 and 180 unless these offences have been committed in relation to a Gram Nyayalaya; (d) of an offence in a case where either the complainant or the accused is a public servant or a member of a Gram Nyayalaya." 15. The suit of revenue case before the Gram Nyayalaya shall be instituted on presentation of plaint or application in such manner as may be prescribed. Gram Nyayalaya can take cognizance of any offence as provided under section 18 upon receiving a complaint of facts which constitute such offence; upon a police report of such facts. An effort has to be made by Gram Nyayalaya to make an effort for reconciliation between the parties. Legal practitioner is barred from making appearance in the Gram Nyayalaya on behalf of the parties. The State Govt. is empowered to make the Rules for regulating the practice and procedure of the Gram Nyayalaya. This power is conferred under section 21 of the Act. Finality of the decision. Legal practitioner is barred from making appearance in the Gram Nyayalaya on behalf of the parties. The State Govt. is empowered to make the Rules for regulating the practice and procedure of the Gram Nyayalaya. This power is conferred under section 21 of the Act. Finality of the decision. The decision of the Gram Nyayalaya in any suit or criminal case tried by it shall be final as provided by section 31 of the Act. Revision can be filed against the final decision of the Gram Nyayalaya in Civil Cases before the Civil Judge, Class I; in Criminal Cases before the Judicial Magistrate, Class I; and in revenue cases before the Sub-Divisional Officer. Gram Nyayalaya also has the power to impose the penalties subject to maximum as provided by section 22 of the Act. Cases of limitation, Court fee are also dealt by the Act. Every case under this Act shall be instituted before the Gram Nyayalaya within whose jurisdiction the cause of action arises or the defendant or any of the defendants in the suit actually or voluntarily resides or carries on business or personally works for gain. For civil suit limitation is 3 years, for criminal case one year from the date on which the offence was committed. Court fees shall be charged for every civil and revenue case instituted before the Gram Nyayalaya as may be prescribed. Gram Nyayalaya has the power to award compensation to the extent of Rs. 100/-. If a Gram Nyayalaya is, after enquiry, satisfied that a case brought before it was false and frivolous or vexatious, such Gram Nyayalaya may order the plaintiff or complainant, as the case may be, to pay to the accused such compensation not exceeding one hundred rupees as it thinks fit. 16. Rules have been framed by the State Govt. on 9th April, 2001 in exercise of powers conferred by section 32, read with sections 6, 10, 11, 12, 13, 14, 17, sub-section (1) of section 21, 26, 29 of the Act. The Rules are called M.P. Gram Nyayalaya Rules, 2001 (hereinafter referred to as 'the Rules'). The Rules contain different chapters. Chapter I contains preliminary provisions, commencement and definitions. Chapter II, Rule 3 to 17 deal with the Trial of Civil suits/Revenue cases. Chapter III; Rule 18 to 33 deals with Trial of Criminal cases. Chapter IV for General Procedure from Rule 34 to 51. The Rules contain different chapters. Chapter I contains preliminary provisions, commencement and definitions. Chapter II, Rule 3 to 17 deal with the Trial of Civil suits/Revenue cases. Chapter III; Rule 18 to 33 deals with Trial of Criminal cases. Chapter IV for General Procedure from Rule 34 to 51. Chapter VI deals with Nomination of member and election of Pradhan. Chapter VII deals with Honorarium, Travelling allowance and daily allowances to members. Chapter VIII contains Miscellaneous Rules for procedure, etc. 17. The sections 5, 6 and 11 are relevant. They are quoted below : "5. Constitution of Gram Nyayalaya -- (1) Every Gram Nyayalaya shall consist of seven members to be nominated by the Janpad Panchayat unanimously out of whom one shall be a law knowing person and in case the Janpad Panchayat fails to nominate any member unanimously within sixty days from the date of establishment of Gram Nyayalaya under section 4, or from the date of occurrence of any vacancy, as the case may be, the State Government shall nominate such member. (2) One seat each shall be reserved for persons belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes: Provided that if no candidate belonging to any of these categories is available then the seat reserved for that category shall stand de-reserved. (3) One seat shall be reserved for Woman and shall be allotted by rotation to different categories. 6. Qualification for membership of Gram Nyayalaya -- No person shall be eligible for nomination as a member of a Gram Nyayalaya unless he -- (a) has completed the age of 45 years on the date of nomination. (b) is ordinarily resident of the circle for which such Gram Nyayalaya is established. (c) has passed eighth standard in case of members belonging to Scheduled Caste and Scheduled Tribes and matriculation in case of others : Provided that in any area, which shall be mentioned in the rules, if a member belonging to Scheduled Caste or Scheduled Tribe, who has passed eighth standard examination is not available, the Janpad Panchayat or the State Government, as the case may be, may nominate a suitable person after relaxing the prescribed age limit and educational qualifications: Provided further that in case a law knowing person is not available the minimum age may be reduced to 25 years. 11. 11. Notification -- The State Government may, be notification in the official Gazette, make rules for nomination of members.' 18. Rule 52 deals with nomination of member and election of Pradhan. Same is quoted below : "52. Notification of Member -- (1) The Janpad Panchayat shall nominate members who possess the qualification prescribed under section 6 of the Act. The nomination so made shall be communicated to the State Government. Nominations so received shall be examined and if found to have been properly made, of persons qualified to be so nominated, its approval shall be communicated to the concerning Janapad Panchayat. The Chief Executive officer shall thereafter convey a meeting as provided in rule 53. (2) In case, the Janpad Panchayat fails to nominate the members under section 5 of the Act, the State Government shall nominate the members of Gram Nyayalaya out of the panel of names which shall not exceed three times the number of vacancies sent by the Collector in consultation with District and Sessions Judges. (3) A meeting shall be held by the Chief Executive Officer by giving a notice of seven days in advance to all members of Janpad Panchayat for nomination of the members of the Gram Nyayalaya. Any of the members present in the meeting shall propose the name of the member to be nominated under section 5 and 6 of the Act for the Gram Nyayalaya and that proposal shall be seconded by all the members present in the meeting. If there is no consent to the names for nominating the members present in the meeting then it will be mentioned in the minutes book and• such member shall not be nominated. (4) If the State Government is satisfied that the proceeding relating to the nomination of members in the Janpad Panchayat contravenes the provisions by section 5, 6 and 7 by the Act or the proceeding is found unlawful or to be vitiated by other reasonable ground then the Government or the officer authorised by it may set aside the nomination proceeding and may pass suitable order." 19. The time when the nomination in the instant case was made the Rules were not enacted by the State Govt. The nominations have to be made in accordance with the Rules made by the State Govt. by the notification in the official gazette. The State Govt. The time when the nomination in the instant case was made the Rules were not enacted by the State Govt. The nominations have to be made in accordance with the Rules made by the State Govt. by the notification in the official gazette. The State Govt. framed the Rules but they came into force on 10th April, 2001 whereas the nominations were made on 30.3.2001 on which date the Rules were not in force. The qualification which was prevalent as the provision of section 6 an incumbent has to be of 45 years on the date of nomination and has to be the resident of the circle for which Gram Nyayalaya is established has passed 8th standard in case of members belonging to scheduled caste and scheduled tribe and matriculation in case of others. 20. Sub-rule (1) of rule 52 of the Rules provides that the Janpad Panchayat shall nominate members who possess the qualification prescribed under section 6 of the Act. The nomination so made shall be communicated to the State Government. Nominations so received shall be examined and if found to have been properly made, of persons qualified to be so nominated, its approval shall be communicated to the concerning Janapad Panchayat. In the instant case there was no reference made to the State Government for approval as the Rules were not in force. The power to relax the qualification in case an incumbent is not qualified of scheduled castes and scheduled tribes candidate was not exercised. The Janapad Panchayat or the State Govt. has the power to relax the age limit and educational qualification but in the instant case there is no such relaxation made. 21. The allegation of the petitioner is that unqualified persons have been nominated. The respondents in the return contend that written objection P-3 which was raised with respect to the person of 8th class being available and 5th class, was nominated and inspite of the fact that law knowing person of 45 years of age was available, candidate of 42 years of age was selected. The respondents have contended that as per amendment R-2 dated 17.6.2002 minimum qualification for SC/ST community is reduced to 5th class from 8th class for women candidates, but this provision inserted with effect from 1.5.2002 cannot have the retrospective effect when the unamended provision of section 6 as quoted above was in force. 22. The respondents have contended that as per amendment R-2 dated 17.6.2002 minimum qualification for SC/ST community is reduced to 5th class from 8th class for women candidates, but this provision inserted with effect from 1.5.2002 cannot have the retrospective effect when the unamended provision of section 6 as quoted above was in force. 22. The submission is also raised that nomination made in the absence of Rules are illegal and arbitrary. The procedure prescribed in the Rules has not been followed. The respondents contend that the provision of section 11 are not mandatory, in my opinion, provision of section 11 are mandatory. The nominations have to be made in accordance with the Rules. In the absence of procedure for making nominations provided under the Rules, in my opinion, cannot be said to be envisaged by section 11. The Rules have been framed by the State Govt. Janapad Panchayat ought to have waited for framing of the Rules but the members were nominated without waiting for framing of the Rules which were framed seven days later to the date when the nominations were made. Though the word 'may' is used but 'may' has to be interpreted as 'shall' in the context and consideration of purpose for which the Gram Nyayalayas have been established. In my opinion, following procedure of the Rules is necessary. The Rules have been framed, the nominations made must be as per the Rules, I am unable to accept the submission that section 11 is not a mandatory provision. It has been fairly conceded by the learned counsel for the respondents that the procedure prescribed under the Rule 52 has not been followed. The nominations made also require the approval of the State Government. 23. Perusal of the resolution R-3 indicates that qualifications have not been considered which is necessary to be considered not only under section 6 but as provided in Rule 52(1) of the Rules until and unless the nominations are approved by the State Govt. Meeting for election of Pradhan cannot be held. Rule 53 contains the provisions for meeting for election of Pradhan. Meeting can be convened after the approval by the State Govt. as provided under sub-rule 1 of Rule 52 of the Rules. Meeting for election of Pradhan cannot be held. Rule 53 contains the provisions for meeting for election of Pradhan. Meeting can be convened after the approval by the State Govt. as provided under sub-rule 1 of Rule 52 of the Rules. Since the Rules have not been adhered to as they were not enacted at the time when nominations were made, in my opinion, it is a fit case to direct the reconsideration of the entire nominations made on 30.3.2001 to be done in accordance with the provisions of the Act and the Rules. Once the matter is re-examined and nominations are made, they have to be approved by the State Govt. in accordance with the Rule 52, thereafter Pradhan has to be elected as per provisions of section 12 and Rule 53. Let this exercise be done within six weeks. 24. It is made clear, the decisions rendered by Gram Nyayalaya remains protected as per doctrine of factum valet. No decisions can be questioned on the ground that constitution was not proper. 25. Resultantly, writ petition is allowed in part in terms of the above directions.