M.L. Chaturvedi, J. - (1.) THIS is a petition under Articles 226 and 227 of the Constitution.
(2.) THE Petitioner and Respondents Nos. 3 to 5 along with several others were elected as members of the Gaon Panchayat of village Bisara, district Bulandshahr, in November 1955. After the election of persons to the Gaon Panchayat, appointments had to be made to the judicial branch of the Gaon Panchayat known as Nyaya Panchayat. Out of the entire body of elected Panches ten were to be appointed as members of the Nyaya Panchayat. The Sub -Divisional Magistrate sent his recommendations to the District Magistrate and a committee consisting of the District Magistrate, the Chairman of the District Board and Sri Ram Chandra Vakil, Member of the U.P. Legislative Assembly, then made final selections from the list sent by the Sub -Divisional Magistrate. The date of the appointments by this committee has not been mentioned either in the affidavit, filed along with the petition, or in the counter -affidavit, but Sri A.P. Singh Chauhan, counsel for Respondent No. 3, has conceded that these appointments were made when D.O. No. 26/XXXIII -702/55, dated Lucknow, 7 -4 -1956, was in force. The fact has been admitted in paragraph No. 8 of the counter -affidavit also. After the appointments had been made, the present petition was filed challenging the legality of the appointments and praying that the order of the committee be quashed and that a writ of mandamus be issued to the District Magistrate and the Sub Divisional Magistrate to select the Petitioner as a Panch of the Nyaya Panchayat. The only point argued before me by the learned Counsel for the Petitioner is that, according to the Panchayat Raj Act and the Rules framed thereunder, the District Magistrate is the prescribed authority and he has been given the power to make appointments to the Nyaya Panchayat from the persons elected to the Gaon Panchayat. According to the D.O., a committee was appointed. The appointments were to be made by the committee and not by the District Magistrate. A copy of the D.O. has been filed today before me and the learned Counsel for the parties are agreed that that is a correct copy and that it may be taken into evidence.
(3.) I think there is force in the contention of the learned Counsel for the Petitioner. Section 43 of the U.P. Panchayat Raj Act says that the prescribed authority may appoint persons of certain qualifications to be Panches of the Nyaya Panchayat. Section 2(q) says that the prescribed authority means an authority to be notified as such by the State Government whether generally or for any particular purpose. There is Schedule I attached to the rules framed under the Act, which gives the list of persons appointed as prescribed authorities under the various sections of the Panchayat Raj Act and the Panchayat Raj Rules, Column I of this Schedule mentions the section or the rule, and column 2 names the prescribed authority. Against Section 43 of the Act 'prescribed authority' is mentioned as the District Magistrate. A notification, dated 1 -12 -1955, was also published in the UP Gazette according to which the District Magistrate was nominated as the prescribed authority for purposes of Section 43 of the UP Panchayat Raj Act.;