SURESH PASWAN Vs. STATE OF BIHAR

JUDGEMENT

(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 Section 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. Section 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 Section 32-A by the Bihar Panchayat Raj (Amendment) Act, 1995 in addition to Section 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 Section 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.