R. Dayal, J. - (1.) This is a special appeal against the order of Mr. Justice Tandon allowing a writ petition and quashing the appointment of the appellants to the office of Panch Nyaya Panchayat. Both these appellants were appointed Panches by the District Magistrate in the exercise of his powers under Sec. 43 of the Panchayat Raj Act. Sukhdeo Prasad filed a petition under Article 226 of the Constitution challenging the legality of their appointment on the ground that Baldi Singh was less than thirty years of age and Kedar Nath had been previously convicted of an offence under Sec. 457, I. P. C., and had been sentenced to three year's imprisonment.
(2.) Baldi Singh denied that he was less than thirty years of age and asserted that he was more than thirty years of age. Sukhdeo Prasad in his affidavit stated that Baldi Singh was less than thirty years of age and in support of his statement filed a certificate of the entries in the school register along with the petition and subsequently a certified copy of the deposition of Baldi Singh in a judicial proceeding in which he had given out his age, according to which he would be less than thirty years of age at the time of his appointment. The learned Judge preferred the statement of Sukhdeo Prasad and the evidence produced by him and held that Baldi Singh was less than thirty years of age at the time of his appointment. Rule 85 of the Panchayat Raj Act lays down that a person shall not be qualified to be appointed a Panch of a Nyaya Panchayat unless he is thirty years or over in age. The contention for the appellants is that this question of age was not to be decided by the learned Judge on the basis of mere affidavits and the documents produced by the petitioner. The question depended on evidence and parties could not properly lead full oral evidence in that connection. There is no bar to the decision of a question of fact in writ proceedings. Of course when it cannot be conveniently decided this Court will not decide a question of fact. It does not appear to us that the learned Judge went wrong in preferring the evidence produced on behalf of the petitioner to the mere vague statement of the appellant in the counter-affidavit that he was over thirty years of age and that his school certificate contained a wrong entry.
(3.) The other contention of Baldi Singh is that the proviso to Sec. 43 empowered the District Magistrate to waive the prescribed qualification and as the District Magistrate appointed him a Panch of the Nyaya Panchayat it must be presumed, unless the contrary is proved, that the District Magistrate had waived this qualification of age with respect to the appointment of Baldi Singh. There could be no question of waiver in the present case as the case of Baldi Singh appellant, in his counter-affidavit, had been that his recorded age in the register of members made him over thirty years of age. It was not alleged that any objection was raised before the District Magistrate and he then exercised his discretion. A counter-affidavit was filed on behalf of the District Magistrate by an Assistant District Panchayat Raj Officer. Nothing is stated therein to show that the District Magistrate had waived this qualification. Unless the District Magistrate knew or had the reason to know that Baldi Singh was below thirty years of age he had no occasion to think that he should waive the disqualification. The District Magistrate could waive the disqualification only when suitable per-sons possessing the prescribed qualifications were not available for appointment. There is no allegation that such persons were not available. The availability or non-availability of such persons is a question of fact. It is contended that it was for the petitioner to prove that the District Magistrate had not waived the disqualification. He could not have possibly stated it and surely could not have proved it. It was for Baldi Singh or for the District Magistrate to state and prove that in such circumstances the District Magistrate exercised his power of waiving the prescribed qualification.;