JUDGMENT

W. Broome, J. - This writ petition filed by Gajram Singh challenges an order of the Sub-Divisional Officer, Sahaswan (district compensation statement would hence not be Budaun), dated 6-3-1963, ousting the petitioner from the post of Panch of a Nyaya Panchayat on the basis of an election petition filed by Musharraf Ali and Badri (O. Ps. 2 and 3). The Petitioner's appointment has been held to be invalid because he was below 30 years of age at the time of selection.

(1) That no election petition could lie against the appointment of a Panch of a Nyaya Panchayat because there was no election at all.

(2) That even if the petitioner was improperly appointed despite his being under-age, the defect must be deemed to have been cured by virtue of clause (12) of rule 83 of the Panchayat Raj Rules.

(3) That the election petition was not filed by a person entitled to file such a petition in accordance with the provisions of rule 24 (2).

2. It must be conceded that the word "election" normally means a process by which a person is chosen for office by the casting of votes by electors and would not ordinarily include a mere appointment or selection without a poll. The wording of Section 12-C of the Panchayat Raj Act, how-ever, shows that for the purpose of an election petition under that section "election should be treated as including an appointment. The section runs:

"The election of a person as Piadhan of a Gaon Sabha or as member of a Gaon Panchayat including the election of a person appointed as a Panch of the Nyaya Panchayat under Section 43 shall not be called in question except by an application presented ......."

3. It is clear from this that the appointment of a Panch of a Nyaya Panchayat is to be deemed a species of election, against which an election petition can be validly filed in accordance with the provisions of Section 12-C. There is thus no force in the first contention advanced on behalf of the petitioner.

4. We now come to the second point. Rules 83 lays down the procedure for appointment of Panches of a Nyaya Panchayat and clause (12) of that rule provides :

"The orders of the District Magistrate about the appointment of Panches shall be final and shall not be called in question for any defect in the observance of the procedure laid down in this rule".

5. Mr. Sapru has drawn our attention to clause (10) of the same rule, which states that "the District Magistrate may, where necessary, pass order relaxing any prescribed qualifications"; and he argues that the 'passing of such an order would be a mere matter of procedure and consequently the failure to pass such an order would be a defect in the observance of the procedure laid down by rule 83 and would be curable under clause (12) . This argument, however, cannot. bear scrutiny. Even if the passing of the order relaxing qualifications be taken to be a matter of procedure, the existence of those qualifications stands on an entirely different footing and cannot be deemed to be a mere procedural matter. Section 43 of the Act specifically provides that no person may be appointed as a Panch of the Nyaya Panchayat unless he has the prescribed qualifications; and rule 85 lays down that a person shall not be qualified to be appointed a Panch unless he is 30 years or over in age. We are unable to subscribe to the view that the appointment of a person who is disqualified by reason of being under-age can be treated as a mere defect in procedure.

6. The final argument advanced on behalf of the petitioner is based on the wording of clause (2) of rule 24 of the Panchayat Raj Rules, which runs:

"The application may be presented by only candidate in whose favour votes have been recorded or whose nomination paper was rejected or by any ten or more electors of the Sabha."

7. Musharraf Ali and Badri were undeniably candidates for the post of Panch along with the petitioner: Musharraf Ali (0. P. 2) was actually appointed a Panch by the District Magistrate, while Badri (0. P. 3), though offe