JAGAN Vs. RAM KISHORE PANDEY

JUDGEMENT

(1.) This case was ordered to be connected with Civil Misc. Writ No. 187 of 1953. In Misc. Writ No. 187 of 1953, the learned Judge admitted the application, mentioned three points which were considered to arise in that case. These points have been argued in the present Writ case, and I now propose to deal with them after briefly giving the facts of the case.

(2.) The Panchayati Adalat of Bhabhot Circle, district Sultanpur, passed an order on the 27th June, 1951 holding that the applicants had committed an offence under Section 447, I. P. C. and sentenced them to a fine of Rs. 50/- each. A revision against this order was preferred before the Sub-Divisional Magistrate, Sadar, on the 30th July, 1951. When it was filed, there was no affidavit along with it as provided by Rule 95-A(l) of the Rules framed under the U. P. Panchayat Raj Act. An affidavit, however, was subsequently filed some months after revision had been filed. The matter came on for hearing before the learned Sub-Divisional Magistrate on a number of dates, and the learned Magistrate dismissed the revision by his order dated the 21st April, 1953 on the ground that the revision was incompetent, inasmuch as it was not accompanied by an affidavit. The present application under Articles 226 and 227 of the Constitution prays for setting aside the order of the learned Magistrate as also of the Panchayati Adalat. The learned Counsel has argued that the order of the learned Magistrate shows that he thought that he was helpless in the matter; and in view, of the defect of not filing an affidavit with the Revision application, he had no power to interfere with the order of the Panchayati Adalat. 2a. It was urged by the learned Counsel, in the first instance, that Rule 95-A is ultra vires, inasmuch as it is inconsistent with the provisions of Section 85 of the U. P. Panchayat Raj Act. I am unable to accept this contention of the learned Counsel. What Rule 95-A(l) lays down Ms that an application filed under Section 85 should be accompanied by an affidavit stating the specific grounds on which it is based, and a certified copy of the order against which it is made. Sub-rule (2) then goes on to provide that notice of the application would be sent to the opposite party with a copy of the application; and a report of the Sarpanch would also be called for. Sub-rule (3) says that the court shall, before passing orders on the application give a reasonable opportunity to both the parties of being heard. It would be clear from the provisions of this Rule that it really provides a procedure which is to be followed when a revision is preferred under Section 85 of the Act. section 85 of the Act says that a court may act on the application of any party or on its own motion. The Rule in further adds that that application should be accompanied by an affidavit. I find nothing inconsistent in the provisions of Section 85 and Rule 95-A. There are numerous instances in the different Acts where the Rules provide for the filing of additional documents, and the validity of the Rule has never been questioned on that ground. I, therefore, do not see any reason to hold that Rule 95-A is, 'ultra vires' as being inconsistent with the provisions of Section 85. The Rule really lays down the procedure and it is in no way inconsistent with the provisions of the section.

(3.) The next point that was argued was that the revision having once been admitted, it was not possible for the learned Magistrate to have rejected it on the ground that it was not accompanied by an affidavit. Here again I do not find it possible to agree with the contention of the learned Counsel. It is quite clear from Rule 95-A that the revision petition must be accompanied by an affidavit, and if a revision petition is filed without any affidavit, then obviously the revision is not complete, it could have been rejected the very moment that it was preferred; but if for some reason the defect was not noticed at that stage and was pointed out by the opposite party at the date of the final hearing, the position is really not in any way altered. The revision was a defective revision, and if the office of the Magistrate did not notice the defect, there is no reason for holding that the learned Magistrate had no jurisdiction at that stage to dismiss the revision on the ground that it was not accompanied by an affidavit. The revision being clearly a defective one, the learned Magistrate had a jurisdiction to dismiss it at any stage of the proceedings whenever the defect was brought to the notice of the learned Magistrate. From what I have stated above I am of the opinion that it is open to a Magistrate to dismiss a revision at any stage of the case before him, if he finds that it is defective and has not been properly filed.