BANKEY BIHARI LAL Vs. THE COMMISSIONER AND OTHERS

JUDGEMENT

(1.) In our opinion, the order passed by the Commissioner of Bhagalpur Division setting aside the order of the sub -divisional officer appointing the petitioner as the Headman of village Nawadih in the district of Santhal Parganas, has got to be upheld on the simple ground that after the requisite two -thirds majority was not available on the 17th of May, 1967, the petition for appointment of a Headman had got to be rejected on that ground. The Sub -divisional Officer had no jurisdiction to adjourn the matter any further as he did, and all his orders and actions taken thereafter are ultra vires. A petition was filed under Sec. 5 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 (hereinafter called 'the Act') for appointment of a Headman of village Nawadih. Several candidates, including the petitioner, were there in the field willing to be so appointed. In exercise of the powers conferred by Clauses (i) and (ii) of Sub -section (2) of Sec. 71 of the Act, the Governor of Bihar was pleased to frame the Santhal Parganas Tenancy (Supplementary) Rules, 1950 (hereinafter called 'the Rules'). Under Sec. 5 of the Act a village Headman could be appointed only if the consent of at least two -thirds of the Jamabandi raiyats of the village was ascertained in the manner prescribed under the Rules. Rule 3 prescribes that on receipt of an application from a raiyat or a landlord under Sec. 5, the Deputy Commissioner, which would include in this case the Sub -divisional Officer holding the delegated power, shall issue a notice to the Jamabandi raiyats of the village. The consent of at least two -thirds of the persons recorded as Jamabandi raiyats of the village shall be ascertained by the Deputy -Commissioner by show of hands. Under the proviso to Sub -rule (2) of Rule 3, if on the date fixed at least two -thirds of the persons recorded as Jamabandi raiyats of the village fail to be present, the Deputy Commissioner shall fix another date and issue notices afresh, in the manner prescribed in Sub -rule 3(1); if on the date so fixed, at least two -thirds of the persons recorded as Jambandi raiyats again fail to be present, the Deputy Commissioner shall summarily reject the application made under Sec. 5. Sub -rule (4) of Rule 3 says that if at least two -thirds of the persons recorded as Jamabandi raiyats give their consent for appointment of Headman for the village, the Deputy Commissioner shall at once invite nomination for the appointment of Headman and proceed to make the appointment. In making the appointment, as required by Sub -rule (5), the rules prescribed in Schedule V appended to the Rules have got to be followed. There are, therefore, two stages in the appointment of a Headman. First, the question has to be decided with the consent of two -thirds of the persons recorded as Jamabandi raiyats as to whether a Headman should be appointed or not, Once the requisite majority of two -thirds is available to give the consent, then comes the next question as to who should be so appointed. In this case, on the 17th of May, 1967 out of 117 persons who are recorded as Jambandi raiyats of village Nawadih, as many as 106 were present. Only 58 gave their consent for appointment of the Headman, that is to say, even less than half of the total number of Jamabandi raiyats recorded in the village gave their consent for appointment of a Headman. It was much below the requisite majority of two thirds. That being so, the application filed for appointment of a village Headman upon which the proceedings started, ought to have been rejected on the ground that the requisite two -thirds majority was not available. The Sub -divisional Officer committed a serious illegality in adjourning the matter to 14.6.67 on which date 78 persons are said to have been present and all of them are said to have given their consent for appointment of a Headman. On this date, no doubt, two -thirds requisite majority was available, but whatever was done on 14.6.67, as I have said above, was all without jurisdiction and unwarranted under the Act or the Rules. The matter of appointment of a Headman on the petition filed in this case, failed on 17.5.67 as soon as there was no two -thirds majority available for giving their consent for appointment of a Headman. This application ought to have been rejected then and there by the Sub -divisional Officer.

(2.) In the view which we have expressed on the first point, we do not propose to express any opinion on the second question decided by the Commissioner as to whether the petitioner was a competent person to be appointed as a Headman of village Nawadih or not. This question does not arise now. In the result, the application fails and is dismissed, but there will be no order as to costs.