Wanchoo, C.J. - (1.) THESE are two connected applications under Art. 226 of the Constitution by Maghraj (No. 12) and Dungarmal (No. 13) praying for writ of certiorari cancelling the orders of the panchayat at Parihara, and the Sub-divisional Magistrate Ratangarh, dated 28th July, 1952, 6th of October, J952, and 13th of March, 1953.
(2.) THE facts, which have led to these applications, may be briefly narrated. Shobha-chand, opposite party filed a complaint, under sec. 504 of the Indian Penal Code, against the two applicants before the village Panchayat Parihara THE panchayat had jurisdiction, under sec. 19 of the Bikaner State Village Panchayat Act (No. III) of 1928, to deal with a complaint under that section. THE complaint was dismissed by the panchayat on the 2nd of November, 1951, and the accused were acquitted. THEreafter, Shobhachand took the matter further on, and the case reached the Sub-divisional Magistrate, Ratangarh, in revision. That revision was decided by the Sub-divisional Magistrate on the 28th of July. 1952, and he set aside the acquittal, and remanded the case for re-writing the judgment, THE matter went back to the panchayat, and then on the 6th October, 1952, the panchayat convicted the two applicants. This time the two applicants went in revision to the Sub-divisional Magistrate. THE revision was dismissed, and consequently the present application were filed in May, 1953. The main contention of the applicants before us is that the Sub-division Magistrate had no power to remand the case to the panchayat for re-writing the judgment, and in doing so it exceeded its jurisdiction, and that all proceedings that took place after the 28th of July,I952, which was the date of the order of remand are, therefore, without jurisdiction. Reliance in this connection is placed on sec. 38 and 42 of the Bikaner State Village Panchayat Act (No. III) of 1928. Sec. 38 provides that the Panchayat shall not be competent to cancel, revise or alter any sentence or decree or final order passed by it saving ex parte decree or orders; and no sentence, decree or other order passed by it shall be subject to appeai, revision or review at the hands of any court or other authority. Thus the orders of panchayats were made final by this section, and were not subject to any appeal or revision. Sec. 42 conferred a limited jurisdiction on the Nazim either on a reference by the panchayat under sec. 41, or an his own motion, where any suit or case before the panchayat was of a complicated nature or of great importance, and it was thought fit that it should be tried by a regular court. In those circumstances, the Nazim could intervene either when the case or suit was pending in the panchayat, or even after it had been decided by the panchayat. If it was pending in the panchayat the Nazim could cancel the jurisdiction of the panchayat with respect to any suit or case or quash the proceedings before the panchayat. If the panchayat had also passed a decree or order,the Nazim could cancel the decree or order. On such action being taken by the Nazim. it was open to the party, who had filed the suit or the complaints, to institute it in a regular court under the provision of sub-sec. (2) of sec. 42. It is clear that the jurisdiction under sec. 42,did not authorise the Nazim to modify an order of the panchayat, or to remand the case to the panchayat for re-writing the judgment. All that the Nazim could do was either to cancel the jurisdiction of the panchayat or quash the proceedings before it in a pending case, or cancel the order or decree passed by the panchayat in a case already decided leaving to the parties to approach the proper court under sub-sec. (2). Therefore, when the Nazim in this case passed the order of the 28th July, 1952, setting aside the acquittal that may be taken to amount to cancellation of the order passed by the panchayat. But when he went further and ordered a remand and asked the panchayat to re-write the judgment, he was clearly exceeding his jurisdiction and passing an order which he could not pass under the law. The proceedings, therefore, that took place pursuant to this order of remand after the 28th of July. 1952, would thus be all without jurisdiction. It has, however, been urged by learned counsel for Shobhachand that the applicants should have come to this Court immediately after the order of the 28th July, 1952, was passed, and he they did not do so and submitted to the jurisdiction of the panchayat after the order of remand, and thereafter went in revision to the Sub-Divisional Magistrate when the panchayat convicted them, it was not open to them to challenge the jurisdiction of the panchayat after the remand, and that there was no reason for the delay which took place bringing this order of the 28th July before this court in order that it might be qushed by a writ of certiorari Reliance in this conndection is placed on O.A.O.K. Latchman Chettiar vs. Commissioner Corporation of Madras (1). That case related to election matter, and certion points were not urged before the Commissioner of the Corporation, and the Chief Judge of the Court of Small Causes. Thereupon the Madras High Court refused to permit those points to be urged before it in a writ of certiorari. We are of opinion that the facts and circumstances of that case are clearly distinguishable. The orders, that were passed by the Commissioner of the Corporation and the Chief Judge of the Court of Small Causes, were within their jurisdiction, thugh they went out of their way in relying on matters outside the purview of the election law. In this case, however, part of the order that has been passed; was beyond the jurisdiction of the Sub-Divisional Magistrate, for he could not under sec.42 pass an order of remand, Further there is provision under sub-sec. (2) of sec. 42 which permits Shobhachand to institute a case in the regular court. It is true that the applicants should have come to this Court immediately after the order of the 28th July, 1952, was passed, and there has certainly been delay. This edlay was apparently due to ignorance on their part of the powers of the Sub-Divisional Magistrate. But where the order passed by the Sub-Divisional Magistrate is clearly beyond his jurisdiction, and there is remedy provided for the opposite party, we think that this delay of nine months should not prevent us from setting aside an order which is clearl without jurisdiction. We, therefore, allow the applications, and set aside that part of the ordeer of the Sub-Divisional Magistrate, dated 28th July, 1952, by which he sent the case back to the panchayat for rewritting the judgment and the subsequent proceedings which took place after the asid order. This means that the order cancelling the acquittal stands, and it is open to Shobhachand to file complaint under sub-sec. (2) if he so desires. In view of the fact that the applicants did not come to this Court in timem, we order parties to bear their own costs.;