1. The appellant Ram Murti has preferred this appeal against the order of the District Judge, Pilibhit, sitting as an Election Tribunal, declaring that the election of the appellant as the Adhyaksh of Zila Parishad, Pilibhit was void and that the office of the said Adhyaksh was still vacant.
2. The election for the office of Adhyaksh, Zila Parishad Pilibhit took place in November 1963. 25-11-1963 was the last date for filing nominations when the nomination papers of the appellant Ram Murti, the first respondent Subedar and the second respondent Ganga Prakash were filed. At the scrutiny of the nomination papers the Returning Officer rejected the nomination papers of Subedar under Section 13(c) of the U. P. Kshettra Samitis and Zila Parishads Adhiniyam (U. P. Act 33 of 1961), hereinafter referred to as the Act, on the ground that he being a Sarpanch was disqualified for being elected as the Adhyaksh of the Zila Parishad. The nomination paper of the second respondent was also rejected under Section 19(2) of the Act because he had not attained the age of 30 years. Thus the appellant Ram Murti was the only candidate left in the field and he was declared elected as the Adhyaksh under Rule 13 of the U. P. Zila Parishads (Election of Adhyaksha and Up-Adhyaksha and settlement of Election Disputes) Rules, 1961, hereinafter referred to as the rules, on 26-11-1963. Thereafter the election of Ram Murti was challenged in an election petition by Subedar and Ganga Prakash.
3. It was contended on their behalf that the nomination papers had been wrongly rejected and they prayed that the election of Ram Murti should be set aside. It was contended on behalf of the appellant Ram Murti that the nomination papers of Subedar and Ganga Prakash had been properly rejected as they were persons who were disqualified from being elected as Adhyaksh of the Zila Parishad and, secondly, that even if the nomination papers of the respondents had been improperly rejected the result of the election was not materially affected and, therefore, the respondents were not entitled to the relief, sought by them.
4. The Election Tribunal held, inter alia:
(i) That the State Government has no direct control over the office of Sarpanch, particularly in the appointment and removal of a Sarpanch, and has only an indirect control, over it. Even assuming that the government has a direct control over the office of the Sarpanch that by itself is not sufficient to hold that the disqualification mentioned in Section 13(c) is established. Even if an office carries with it certain allowances or honorarium or other advantages, other than a regular salary, then that office cannot be said to be an office of profit. A Sarpanch does not get any regular salary or allowance or even an honorarium but holds an elected office and, consequently, the office of Sarpanch of a Nyaya Panchayat could not be said to be an office of profit. Therefore, the rejection of the nomination paper of respondent Subedar was not justified in law.
(ii) That the nomination paper of respondent No. 2 had been properly rejected. The Tribunal further held that since the nomination paper of Subedar had been illegally rejected and he could not contest the election for which he was fully qualified and his exclusion resulted in the uncontested election of the appellant to the office of the Adhyaksh of the Zila Parishad, the election of the appellant was void and had to be set aside.
5 Aggrieved from the decision of the Tribunal the appellant has come in appeal to this Court.
6. Learned counsel for the appellant contended, firstly, that there is no provision in the Act laying down the ground on which an election could be set aside and, therefore, the respondent was not entitled to any relief. He further argued that the nomination paper of respondent Subedar had been properly rejected because he was discharging the duties of an Honorary Magistrate and, therefore, it was hit by the disqualification laid down under Section 13(c) of the Act
7. Section 19(1) of the Act provides for rules for 'resolution of doubts and disputes relating to the election of Adhyaksh and Upadhyaksha'. The rules lay down the procedure for the decision of election disputes. Sections 18 and 19 further provide for the qualification of a person who could hold the office of Adhyaksh of a Zila Parishad. Section 13 read with Section 26 of the Act lays down disqualification which would disentitle a person from holding the office of an Adhyaksh of a Zila Parishad. It may be that the Act does not specifically provides for the grounds to be set out in a petition for setting aside the election of an Adhyaksh of a Zila Parishad but there is provision with regard to the qualifications and the disqualifications of a person seeking the office of Adhyaksh and it would follow that where a person is not qualified or is disqualified to hold the office of an Adhyaksh of a Zila Parishad then in that the question could be raised in a petition by an aggrieved person. There is therefore no force in the contention of the learned counsel that because there is no specific provision for the grounds to be set out in a petition seeking to set aside the election of an Adhyaksh, the present petition was not maintainable.
8. The question raised before the Election Tribunal was the propriety of the rejection of the nomination papers of the respondents. It had to be seen whether their nomination papers were properly OK improperly rejected by the Returning Officer. The nomination paper of the first respondent was rejected on the ground that it was hit by Section 13(c) of the Act and he was a disqualified person because he held the office of Sarpanch of a Nyaya Panchayat. It has therefore to be seen by the Tribunal whether the first respondent was a disqualified person within the meaning of Section 13(c) of the Act. The Tribunal expressed the view that the holding of the office of Sarpanch of a Nyaya Panchayat did not attract the disqualifications as laid down in Section 13(c) of the Act. It held that the office of Sarpanch was not an office of profit within the meaning of Section 13(c) and, therefore, the first respondent was not a person who was disqualified to hold the office of an Adhyaksh of a Zila Parishad. The aforesaid finding of the Tribunal was not seriously challenged by the learned counsel before us. He however contended that the office of Sarpanch of Nyaya Panchayat came within the meaning of the expression 'honorary Magistrate' as used in Section 13(c) of the Act and, therefore, the first respondent could not hold the office of Adhyaksh of a Zila Parishad. He contended that a Sarpanch has to discharge magisterial duties and since he does not receive any remuneration he is in substance an honorary magistrate and, therefore, he was not qualified to seek election to the office of the Adhyaksh of a Zila Parishad. It could be said that certain offences under the Indian Penal Code and certain other acts are cognizable by a Nyaya Panchayat under the U. P. Panchayat Raj Act. But the Nyaya Panchayat acts as a body and no individual member of the Nyaya Panchayat is appointed as Magistrate. A Magistrate is appointed under Sections 12 and 14 of the Code of Criminal Procedure. The Code provides by Section 15 for the investment of of a Bench of Magistrate with any of the powers conferred or conferable by or under the Code and it further directs any two or more Magistrates to sit together as a Bench. The persons who are empowered to sit as a Bench under Section 15 of the Code are magistrates who themselves are appointed under Sections 12 or 14 of the Code.
9. In the present case no individual member of a Nyaya Panchayat can be said to have been appointed as a magistrate in the manner provided by Sections 12 and 14 of the Code of Criminal Procedure and a member, individually has no magisterial powers nor can he exercise any such power. It is only when he sits in the Nyaya Panchayat as a member that the Nyaya Panchayat discharges certain magisterial duties. It cannot be said that a member of a Nyaya Panchayat is either appointed as a magistrate or in his individual capacity discharges any magisterial functions. It is the Nyya panchayat collectively which does so.
10. Section 13(c) of the Act pointedly refers to the office of an honorary magistrate. If the intention of the legislature was to disqualify a member of the Panchayat or a Sarpanch of the Nyaya Panchayat they would have been included in the category of persons mentioned in Section 13(c) along with the honorary Magistrates, honorary Assistant Collector or honorary Munsif. The intention of the Legislature is made clear by the provision of Section 13(d). It disqualifies persons from holding the office of an Adhyaksh who have 'held any office under Government or any Zila Parishad, Kshettra Samiti, Gaon Sabha, Nyaya Panchayat or a person who has been dismissed for corruption or disloyalty to the State unless a period of five years has elapsed since his dismissal.' The aforesaid clause pointedly refers to a person having held the office under the Nyaya Panchayat. The Legislature thus clearly distinguishes a member or a Sarpanch of a Nyaya Panchayat and a person who holds or has held any office under such body. If a Sarpanch who was a member of a Nyaya Panchayat was intended to be excluded on the ground of his holding the office of a member of a Nyaya Panchayat or its Sarpanch, then he should have been specifically mentioned in Section 13(c) of the Act The only function which a Sarpanch is empowered to discharge when acting alone is under Section 23 of the Act. A Sarpanch when he apprehends that any person is likely to commit a breach of the peace or disturb public tranquility may issue notice to such person to show cause why he should not be made to execute a bond for keeping the peace, but after issuing such notice the matter has to be referred to a Bench and it is for the Bench to confirm the order or discharge the notice initially issued by the Sarpanch, It could be said that the Sarpanch by issuing a notice under Section 53 only discharges an executive function and the matter has to be decided by the Nyaya Panchayat as a body and the Sarpanch in his individual capacity does not discharge any magisterial function.
11. Learned counsel for the appellant referred to Section 3(32) of the U. P. General Clauses Act. A Magistrate under the said clause is defined as 'Magistrate shall include every person exercising all or any of the powers of a Magistrate under the Code of Criminal Procedure for the time being in force'. Learned counsel contended that because a Sarpanch exercises powers similar to a Magistrate under the Code of Criminal Procedure he should be deemed to be an honorary Magistrate within the meaning of Section 13(c). It has to be seen whether a Sarpanch under the U. P. Panchayat Raj Act is a person 'exercising all or any of the powers of a Magistrate under the Code of Criminal Procedure.' As mentioned above, no power of a Magistrate is conferred on a Nyaya Panchayat or a Sarpanch under the Code of Criminal Procedure. A Sarpanch participates in the deliberations of the Nyaya Panchayat and exercises powers conferred on the Nyaya Panchayat under the U. P. Panchayat Raj Act. A Sarpanch, therefore, could not be said to be a person exercising any of the powers of a Magistrate under the Code of Criminal Procedure. A Magistrate must be a person who is appointed under the Code of Criminal Procedure by the Government and he exercises the powers conferred on him under the Code of Criminal Procedure. A Nyaya Panchayat is constituted under the special provisions of the U. P. Panchayat Raj Act. Panches are persons who are elected by the people and members of a Nyaya Panchayat are nominated from the panel of elected members by the prescribed authority and then the Panches them-selves elect the Sarpanch. It is apparent that a Sarpanch is not appointed by the Government in the manner prescribed by the Code of Criminal Procedure and he only functions as a member of the Nyaya Panchayat as provided for by the U. P. Panchayat Raj Act. The expression 'honorary Magistrate' as used in Section 13(c) obviously refers to the well-known class of persons exercising Magisterial powers and appointed as such by the government to discharge their duties without getting any remuneration for the same. It would be stretching the meaning of the expression to include within its ambit a Sarpanch under the Panchayat Raj Act. There is thus no force in the contention that since the first respondent was a Sarpanch he was disqualified to hold the office of Adhyaksh of a Zila Parishad.
12. Learned counsel further contended that even if the nomination paper of the first respondent was improperly rejected he had still to show that the rejection of his nomination paper materially affected the result of the election. There were initially three candidates who were seeking election to the office of the Adhyaksh of the Zila Parishad. The nomination papers of two were rejected and the appellant was declared elected because there was no other person in the field, Learned counsel sought to argue that because the appellant belonged to a party which had a majority among the members of the Zila Parishad the result of the election was not affected by the rejection of the nomination paper of the first respondent. There is no force in this contention. The very fact that the nomination paper of the first respondent was improperly rejected is sufficient to invalidate the election of the appellant. It is difficult to speculate on the result of the election in case the first respondent was himself in the field. There is thus no force in the contention of the learned counsel that the result of the election was not materially affected by the improper rejection of the nomination paper of the first respondent.
13. The appeal fails and is dismissed.No one has appeared on behalf of therespondents, we, therefore, make no orderas to costs.