- Bookmark
- Share
- CaseIQ
Sita Ram v. District Magistrate
Factual and Procedural Background
This is a petition under Article 226 of the Constitution. Following village elections, members were elected to various Gaon Panchayats. The Nyaya Panchayat circle comprised ten Gaon Sabhas and two Panches were to be selected from each Gaon Sabha for appointment to the Nyaya Panchayat. Section 43 of the Panchayat Raj Act prescribes the authority to make such selections; the State Government by notification dated 1 December 1956 appointed the District Magistrate as the prescribed authority.
The petitioner alleges that the selections for the Nyaya Panchayat were made improperly (by a committee rather than by the District Magistrate). From the petitioner's Gram Sabha, respondents Nos. 2 and 3 were selected. The petitioner filed the present petition on 5 September 1956 seeking a writ of mandamus directing the District Magistrate to appoint the petitioner as a Panch and a writ of quo warranto requiring respondents 2 and 3 to show authority for their office.
Two D.O. letters from the Government (dated 7 April 1956, and 18 July 1956) are material. The April 7 letter appeared to direct that selections be made by a committee; the earlier case Jabir Singh v. The District Magistrate, Butandshahr (1957 A.L.J. 201) held appointments made in accordance with that April 7 letter to be inconsistent with Section 43 and therefore illegal. The July 18 letter clarified that the District Magistrate is the prescribed authority and may ignore the Sub-Divisional Magistrate's panel or the committee's advice if he considers other names more eligible.
On the pleadings: the petitioner alleged the committee considered names on 30 August 1956 and that respondents 2 and 3 were selected from the petitioner's Gram Sabha; the counter-affidavit stated the District Magistrate of Pilibhit selected respondents 2 and 3; subsequent rejoinder alleged final selection by the committee. The petition also raised two specific objections: (1) respondent No. 3 was under 30 years of age and thus ineligible; (2) respondent No. 2 had a past conviction argued to involve moral turpitude and therefore disqualifying under Sec. 5-A(h) of the U.P. Panchayat Raj Act.
Legal Issues Presented
- Whether the appointments to the Nyaya Panchayat were made by the District Magistrate (the prescribed authority under Sec. 43 of the Panchayat Raj Act) or by a non‑official committee, and whether selections made by the committee (if any) were illegal.
- Whether respondent No. 3 is under 30 years of age and thus ineligible for selection to the Nyaya Panchayat.
- Whether respondent No. 2's past conviction (for giving false information under Sec. 182, I.P.C.) constitutes an offence involving moral turpitude so as to disqualify him under Sec. 5-A(h) of the U.P. Panchayat Raj Act, and whether any disqualification has been removed by the State Government.
Arguments of the Parties
Petitioner's Arguments
- The appointments of respondents Nos. 2 and 3 were made by a committee and not by the District Magistrate; under the law (Sec. 43) only the District Magistrate is authorised to make the selections, so the committee-made appointments are illegal.
- Respondent No. 3 was below 30 years of age and therefore ineligible; a school certificate was produced before the Sub‑Divisional Officer indicating a lower age.
- Respondent No. 2 had been convicted (under Sec. 182, I.P.C.) for lodging a false report and that conviction involved moral turpitude, disqualifying him under Sec. 5‑A(h) of the U.P. Panchayat Raj Act.
Respondents' / State's Arguments
- The District Magistrate, as the prescribed authority, made the selections (as stated in paragraph 4 of the counter‑affidavit); the committee only considered names and tendered advice. The selections were therefore lawful.
- Respondent No. 3 is not shown, to the petitioner's knowledge, to be under 30; the petition relies only on an objection and a school certificate which is not reliable proof of age.
- Respondent No. 2's counsel contended that the offence for which respondent No. 2 was convicted does not disclose moral turpitude, and further argued (as stated at the bar) that it was for the petitioner to prove that any statutory disqualification had not been removed by the State Government.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jabir Singh v. The District Magistrate, Butandshahr, 1957 A.L.J. 201 | Held that appointments made in accordance with the D.O. letter dated 7 April 1956 (which directed selection by a committee) were inconsistent with Sec. 43 of the Panchayat Raj Act and therefore illegal because they were not made by the proper authority. | The court relied on that decision to show that the April 7, 1956 direction (committee making selections) conflicted with Sec. 43. It then examined the subsequent July 18, 1956 government letter which clarified that the District Magistrate is the prescribed authority and may ignore committee recommendations; consequently, appointments made after that clarification cannot be presumed to have been made by the committee. |
Court's Reasoning and Analysis
The court's analysis proceeded in a series of discrete steps tied closely to the pleadings and documentary material:
- Statutory authority and notification: Section 43 of the Panchayat Raj Act confers the power to appoint Panches of the Nyaya Panchayat on the "prescribed authority"; Section 2(q) defines "prescribed authority" as one notified by the State Government. The Government's notification dated 1 December 1956 designated the District Magistrate as the prescribed authority. Therefore, as a matter of statute and executive notification, the District Magistrate is the appointing authority.
- Effect of government instructions (April 7 and July 18, 1956 letters): The April 7 letter had earlier been read as directing selection by a committee — a direction inconsistent with Sec. 43 — and this inconsistency was the basis of the earlier decision in Jabir Singh. The July 18 letter, subsequently issued, clarified that the committee is a non‑official advisory body and that the District Magistrate (as prescribed authority) may accept or disregard the Sub‑Divisional Magistrate's panel or the committee's advice and may select other eligible persons. The court found that the July 18 letter rectified the earlier mistake and established that the appointing authority is the District Magistrate.
- Implication for presumption of who made appointments: After the July 18 clarification, appointments cannot be presumed to have been made by the committee; the District Magistrate may properly consult subordinate officers (Tahsildar, Sub‑Divisional Officer) and others acquainted with local electors before making an administrative appointment. Such consultation does not make the appointment illegal so long as the District Magistrate himself makes the final decision.
- Burden and proof as to who actually made the appointment: The petitioner did not positively aver that the appointments were made by the committee. The affidavit stated only that the committee considered names on 30 August 1956 and that the two respondents were selected from the petitioner's Gram Sabha; the counter‑affidavit, however, expressly stated that the District Magistrate selected respondents Nos. 2 and 3. The rejoinder later asserted final selection by the committee, but on the material before the court the petitioner failed to prove that the District Magistrate did not make the appointments.
- Age issue (respondent No. 3): An objection was raised before the Sub‑Divisional Officer relying on a school certificate indicating respondent No. 3 was under 30; the court held school certificates are not a reliable, conclusive proof of age. No copy of the school certificate was produced to the court; the petitioner's affidavit did not explicitly state that respondent No. 3 was actually under 30. The counter‑affidavit stated that respondents 2 and 3 were more than 30. On these facts the court was not persuaded that the petitioner proved respondent No. 3 to be under 30 and therefore ineligible.
- Conviction and disqualification (respondent No. 2): There was an admission that respondent No. 2 had been convicted under Sec. 182, I.P.C. (giving false information to a public servant knowing it to be false, intending to cause the public servant to use his lawful power to the injury or annoyance of any person). Section 5‑A(h) of the U.P. Panchayat Raj Act disqualifies a person convicted of an offence involving moral turpitude from being chosen, nominated, or appointed to offices in Gaon Panchayat/Gaon Sabha/Nyaya Panchayat.
- Moral turpitude analysis: The court analysed Sec. 182, I.P.C. and concluded that knowingly making a false charge to injure another — which was the nature of respondent No. 2's conviction (charging others with theft leading to prosecution) — is an act that involves a serious type of moral turpitude. The court emphasised the gist of Sec. 182 is the making of a false statement to the knowledge of the maker for the purpose of injuring another, and such conduct constitutes moral turpitude.
- Burden as to removal of disqualification: The statutory disqualification can be removed by the State Government in the manner provided by Rules (proviso to Sec. 5‑A). There was no assertion by respondent No. 2 that the disqualification had been removed; the court held it was not incumbent on the petitioner to prove the negative (that removal had not occurred). Rather, the respondent, who would have special knowledge of any removal, should have proved that removal. On the affidavits and admissions, the court concluded the disqualification had not been removed.
- Resulting relief: Because the petitioner failed to establish that the appointments were made by the committee (and not by the District Magistrate) and failed to prove respondent No. 3 was under 30, the petition failed as to respondent No. 3. Because respondent No. 2 was shown to have been convicted of an offence involving moral turpitude and no removal of disqualification was proven, the petition succeeded in respect of respondent No. 2.
Holding and Implications
Final Ruling:
The petition is dismissed against the Third Respondent (respondent No. 3), and allowed against the Second Respondent (respondent No. 2): a writ of mandamus is issued restraining respondent No. 2 from acting as a member of the Nyaya Panchayat by virtue of the selection made on 30 August 1956.
Consequences for the parties:
- Respondent No. 2 is disqualified from acting as a member of the Nyaya Panchayat in consequence of his prior conviction under Sec. 182, I.P.C., which the court held involves moral turpitude and falls within the disqualification in Sec. 5‑A(h) of the U.P. Panchayat Raj Act; the court issued a mandamus preventing him from working as a member.
- The petitioner's challenge to respondent No. 3 based on age failed for lack of adequate proof; respondent No. 3 remains entitled to act as a member (no writ issued against him).
- On costs, the court directed that the parties bear their own costs (2nd and 3rd respondents shared the same counsel and the court considered that directing each party to bear their own costs appropriate).
Broader implications: The court accepted the July 18, 1956 Government letter as clarifying that the District Magistrate is the prescribed appointing authority and that committee advice is only advisory; appointments made after that clarification cannot be presumed to be committee appointments. The opinion does not purport to set a novel, sweeping precedent beyond the interpretation and application of Sec. 43, the Government letters, and the statutory disqualification in Sec. 5‑A(h) as applied to a conviction under Sec. 182, I.P.C.
Chaturvedi, J.:— This is a petition under Art. 226 of the Constitution.
2. Elections were held in different villages for electing members to the Gaon Panchayat, and a number of persons were duly elected. The circle of the Nyaya Panchayat of the locality consists of ten Gaon Sabhas and two Panches from each Gaon Sabha are to be selected for appointment as Panches to the Nyaya Panchayat. The prescribed authority for making the selections is the District Magistrate of the district as provided by Sec. 43 of the Panchayat Raj Act. Paragraph 6 of the affidavit, filed along with the petition, says that the District Magistrate asked for names of the members who were eligible for appointments as Panches of the Nyaya Panchayat, and the Sub-Divisional Officer of Bisalpur sent a list of such persons to the District Magistrate. The Sub-Divisional Officer in his turn consulted the Tahsildar before sending up the names. Under certain orders of the Government, there is a committee appointed comprising of the District Magistrate as the Chairman, one member of the Legislative Assembly and the President of the District Board as members. Selections were made to the Nyaya Panchayat and, from the Gaon Sabha of the petitioner, respondents Nos. 2 and 3 were selected as Panches to the Nyaya Panchayat. While the matter was still before the Sub-Divisional Officer, it appears that an objection was raised to the selection of respondent No. 3 on the ground that he was below 30 years of age and was thus not eligible for selection. The objection was presumably overruled by the District Magistrate and the appointments were made as mentioned above. After the appointments, the present petition was filed on the 5th September, 1956 praying that a writ of mandamus be issued directing the respondent no. 1 (the District Magistrate) to appoint the petitioner as a Panch to the Nyaya Panchayat and that a writ of quo warranto be issued asking the respondents nos. 2 and 3 to show by what authority they claimed to be Panches of the Nyaya Panchayat. The first contention of the learned counsel for the petitioner is that the appointments of respondents Nos. 2 and 3 were made by a committee and not by the District Magistrate, and under the law it is only the District Magistrate who is authorised to make the selections and not the committee. Sec. 43 of the U.P Panchayat Raj Act says that the prescribed authority shall appoint such number of persons as may be fixed to be Panches of the Nyaya Panchayat. This section confers power on the prescribed authority, and Sec. 2(q) of the Act says that the prescribed authority means an authority to be notified as such by the State Government whether generally or for any particular purpose. The Government has by a notification dated December 1, 1956, appointed the District Magistrate to be the prescribed authority for purposes of Sec. 43 of the Act. It is thus clear that the appointments to the Nyaya Panchayat have to be made by the District Magistrate.
3. The learned counsel for the petitioner has today filed copies of two demi-official letters issued by the Government and has relied on these two letters to show that the appointments that are to be made to the Nyaya Panchayat are to be made by a committee and not by the District Magistrate. He says that the instructions contained in these letters must have been obeyed. The first letter is dated April 7, 1956, and it came up for consideration by me in a case on the 2nd January last. (Jabir Singh v. The District Magistrate, Butandshahr . 1957 A.L.J 201.). In that case it was admits ted that the appointments were made in accordance with the directions contained in the D.O letter dated April 7, 1956. The directions given in this letter appeared to me to be inconsistent with the provisions of Sec. 43 of the Act, inasmuch as the selection to the Nyaya Panchayat was to be made by the committee and not by the District Magistrate. I consequently held that the appointments made in that particular case were not made by the proper authority and were, therefore, illegal. Those selections, it appears, were made before July 18, 1956, on which date another letter was issued by the Government to the District Magistrate of Muzaffarnagar. Mr. K.B Asthana, learned Junior Standing Council, stated at the bar that the copies of this letter were sent to all the District Magistrates. Mr. S.C Khare today states that he is neither challenging nor accepting that statement. I think that a definite statement made at the bar should be accepted as correct, unless it is challenged by the other side, which is not the case here.
4. This letter of July 18, 1956, begins by saying that the non-official committee should confine itself, as far as possible, only to the Panches who have been recommended by the Sub-Divisional Magistrates; but if the District Magistrate is of the opinion that more eligible names have been left out or where the names sent up by the Sub-Divisional Magistrate do not fulfil the qualifications laid down in the Act and the Rules, it will be open to him, as the prescribed authority, not to restrict himself to the panel submitted by the Sub-Divisional Magistrate, or the advice given by the committee. The previous letter of April 7, 1956, has not been specifically superseded, but it has been made quite clear in this letter that, if the District Magistrate is of the opinion that some more eligible names have been left out, it would be open to him to select the more eligible persons and to ignore the list of the Sub-Divisional Magistrate as also the advice given by the committee. The letter clearly says that the committee is a non-official committee and also declares the District Magistrate as the prescribed authority. I am of the opinion that the Government has rectified the mistake which was committed in the D.O letter dated April 7, 1956, and it has now been made clear that the appointing authority is the District Magistrate, who is the prescribed authority, and that it is open to him not to accept the recommendations of the Sub-Divisional Magistrate and the advice given by the committee.
5. The position, therefore, that emerges after a regarding of the two letters is that the Sub-Divisional Magistrate is still to send his list and that list is to be placed before the committee of which the District Magistrate is the Chairman, and the committee is to tender its advice, but the District Magistrate is not bound to accept it and can make appointments of persons who have not found favour either with the Sub-Divisional Magistrate or the committee. Any appointments, that are made after the clarification of this position, cannot be presumed to have been made by the committee and not by the District Magistrate. The District Magistrate is not expected to know every person in the district, who has been elected as a member of the Gaon Panchayat, and he naturally has to consult the Tahsildar, the Sub-Divisional Magistrate and other persons who are in a better position to be acquainted with the inhabitants of the district. The order that he has to make is an administrative order and, if it is made after consulting the persons, who are expected to know the different members of the Gaon Panchayats, it cannot be said that he is, in any way, acting illegally. Still if the petitioner is able to prove in any particular case that the appointment was made by the committee and not by the District Magistrate, the appointment will have to be held to be illegal.
6. In the instant case the petitioner does not say that the appointments were made by the committee. What is stated in paragraph 9 of the affidavit, filed along with the petition, is that there is a committee consisting of a member of the Legislative Assembly, the President of the District Board, and the District Magistrate, and that this committee considered the names of the candidates for selection to the Nyaya Panchayat on the 30th August, 1956. Paragraph 10 says that respondents Nos. 2 and 3 were selected as Panches to the Nyaya Panchayat from the petitioner's Gram Sabha. It is nowhere stated that the selections were made by the committee and not by the District Magistrate, and a consideration of the names by the committee cannot be said to be invalid. In paragraph 4 of the counter-affidavit it has been stated that the District Magistrate of Pilibhit selected the respondents Nos. 2 and 3 as members of the Nyaya Panchayat, and it is after this that a mention is made in the rejoinder affidavit that the final selection was done by the committee and not by the District Magistrate. According to the statute and also according to the directions issued by the Government, the appointing authority is the District Magistrate and, on the affidavit filed in this case, I am not satisfied that it has been proved that he did not make the appointments in the instant case.
7. The other point argued is that respondent No. 3 is less than 30 years of age and is, therefore, not eligible for selection as a number of the Nyaya Panchayat. In paragraph 14 of the affidavit filed along with the petition, it is said that an objection was raised before the Sub-Divisional Officer that respondent no. 3 was less than 30 years of age and his school certificate was produced before him. On the strength of this the Sub-Divisional Officer thought that the respondent was not eligible. On this point again it has not been staged that to the petitioner's knowledge the third respondent is less than 30 years of age. Reference has only been made to an objection raised before the Sub-Divisional Officer, which was upheld on the strength of a school certificate. It is well known that school certificates do not afford reliable proof of age and it often happens that the correct age is not disclosed to the school authorities and lower age is mentioned in these certificates. Even if such a certificate was produced, that could not obviously be conclusive proof that the third respondent was less than 30 years of age. No copy of that certificate has been filed before me, and the affidavit, filed along with the petition, does not say that the respondent was really less than 30 years of age. In paragraph 5 of the counter-affidavit it is stated that the 2nd and 3rd respondents are more than 30 years of age. The rejoinder affidavit is silent on the point. On these facts, I am unable to hold that the petitioner has succeeded in proving, in the proceedings before me, that the third respondent is less than 30 years of age and is not eligible for selection as a member of the Nyaya Panchayat.
8. The objection against the selection of the second respondent appears to be more formidable. It has been stated in paragraph 20 of the affidavit, filed along with the petition, that the second respondent has been convicted and fined Rs. 25/- for lodging a false report in the police against some third persons charging them with the offence of theft. In paragraph 6 of the counter-affidavit it is admitted that the 2nd respondent find a report in the police station charging Nand Lal and others with theft, but the police considered the charge to be false and prosecuted the 2nd respondent who was convicted for the commission of an offence under Sec. 182, I.P.C and sentenced to a fine of Rs. 25/-. This is said to have happened 18 or 20 years ago. There is thus a clear admission of the fact that the 2nd respondent has been convicted of the commission of an offence under Sec. 182, I.P.C According to Sec. 5-A(h) of the U.P Panchayat Raj Act, a persons, who has been convicted of an offence involving moral turpitude, is disqualified from being chosen, nominated or appointed to any office in the Gaon Panchayat, Gaon Sabha, or the Nyaya Panchayat. The contention of the learned counsel for the petitioner is that the 2nd respondent has been convicted of an offence involving an offence of moral turpitude, and thus could not be appointed or selected as a member of the Nyaya Panchayat. The contention of the learned counsel for the 2nd respondent is that the offence for which the 2nd respondent has been convicted does not disclose moral turpitude. I do not agree with the learned counsel for the 2nd respondent.
9. Sec. 182, I.P.C prescribes punishment for an act of giving information to a public servant, which the person knows or believes to be false and intending thereby to cause such public servant to use his lawful power to the injury or annoyance of any person, (I have not mentioned irrelevant portions of the section). The offence for which the 2nd respondent was convicted was that he charged certain persons of the commission of an offence of theft. That charge was found to be false and false to his knowledge, and it ended in his own conviction for bringing a false charge. I think the making of a false charge knowing it to be false with the object that the accused should be prosecuted and punished, is certainly an act which involves a serious type of moral turpitude. The gist of the offence is that the person, who brings a charge, knows it to be false and still, in order to injure some other person, for some improper motive of his, moves the prosecuting authorities in order to injure that person. The gist being a false statement to the knowledge of the person, I think, such an act clearly involves moral turpitude.
10. The learned counsel for the 2nd respondent argued that the moral turpitude should be an ingredient of the offence. In my opinion, moral turpitude is clearly an ingredient of the offence, when the offence consists of an act of giving false information knowing it to be false in order to injure somebody else. The 2nd respondent was thus not eligible for selection as a member to the Nyaya Panchayat. It is true that the offence was committed long ago but clause (h) of Sec. 5-A would cover every case where a conviction has been recorded irrespective of the time that may have elapsed from the date of the recording of the conviction. In order to obviate hardship in proper cases, a proviso has been attached to the section, which says that this disqualification as well as a number of others may be removed by the State Government in the manner laid down in the Rules. It is nobody's case that the disqualification of the 2nd respondent has been removed by the State Government. But Mr. Saxena, learned counsel for the 2nd respondent, says that it was for the petitioner to have proved that the disqualification was not removed. I do not agree with this contention. The petitioner was to prove that the 2nd respondent was convicted of an offence involving moral turpitude, which he has proved and which has been admitted on behalf of the 2nd respondent; and it is nowhere said by the 2nd respondent that the disqualification has been removed. The 2nd respondent would have special knowledge of the removal of the disqualification, and it was for him to prove that it was removed. Further, the circumstances make it quite clear that the disqualification has not been removed.
11. For the above reasons, this petition is dismissed against the third respondent, but it is allowed against the 2nd respondent and a writ of mandamus shall issue to him not to work as a member of the Nyaya Panchayat by authority of the selection made on the 30th August, 1956. As the 2nd and 3rd respondents are represented by the same counsel, I think the proper order would be to direct the parties to bear their own costs.
Alert