Dave, J. - (1.)THIS is a writ application by Kishore Singh and Rawat Umed Singh under Art. 226 of the Constitution of India.
(2.)THE petitioners' case is that in village Balau there is a field Khasra No. 216/10 known as Jogasar and that it is a Khudkasht field of petitioner No. 2 Rawat Umed Singh. He holds a "khudkasht Parcha" in respect of the said field. Petitioner No. 1 is in the service of the petitioner No. 2* and he is cultivating the field in dispute in the capacity of the petitioner No. 2's employee. THE petitioner proceeds to say that on 29. 7. 57, non-petitioner No. 3 Karna filed an application before the Gram Panchayat Ranigaon to the effect that the land in dispute was a Gochar land, that the petitioners had started cultivation of that land and cutting the trees and that they should be restrained from cultivating the said field. On the presentation of the said application, the Gram Panchayat, non-petitioner No. 2, passed an order dispossessing the petitioner No. 1 and further imposing upon him a fine of Rs. 15/ -. Aggrieved by this decision dated 1. 9. 57. petitioner No. 1 preferred an appeal to the Tehsil Panchayat, non-petitioner No. 1, On 7. 10. 57, the Tehsil Panchayat accepted the appeal and remanded the case for enquiry. Even after remand, the Gram Panchayat held by its decision dated 16. 2. 58, that the field in dispute was Gochar land and it again imposed a fine of Rs. 15/ -. THE petitioners again went in appeal to the Tehsil Panchayat, but their appeal was dismissed on 2. 8. 59. THE petitioners now seek to challenge the validity of the said decisions by this application.
It is urged by the learned counsel for the petitioners that Khasra No. 216/10 is a Khudkasht field of Rawat Umaid Singh, petitioner No. 2, and that this is apparent from Parcha Lagan No. 14 produced by him and marked Ex. 1. It is urged that neither the Gram Panchayat nor the Tehsil Panchayat had any jurisdiction to declare the said Patta-shud field as a Gochar land and that their orders being wholly without jurisdiction should be set aside.

None of the 3 non-petitioners has cared to appear in this Court or file any reply to contest the application.

Learned counsel for the petitioners has shown me a certified copy of the document Ex. 1 which is on record and it appears from the said document that Khasra No. 216/10 is recorded as Khudkasht of Jagirdar Umed Singh, petitioner No. 1. The document is signed by the Jagir Settlement Officer on 21-9 57. I have perused the decision of the Gram Panchayat (Ex. 3) and it appears therefrom that the Panchayat was conscious of the fact that the Settlement Department had decided the matter in favour of the petitioner No ). 2, but it was adjudged by the Panchayat to be wrong on the ground that the decision was given ex parte. It was further observed by the Panchayat that they had passed a resolution declaring the disputed land as a Gochar land. The judgment of the Tehsil Panchayat also shows that it had knowledge about the fact that petitioner No. 2 was holding a Patta from the Settlement Department in respect of the disputed field and this was one of the arguments advanced by the petitioner at the time when the appeal was heard. The Tehsil Panchayat, however, turned down this objection on the ground that the Gram Panchayat had jurisdiction to remove all obstructions from a land under sec. 24 (1) of Rajasthan Panchayat Act.

It may be observed that sec. 24 (1) of the said Act which has been referred in the judgment of the Tehsil Panchayat simply lays down that it shall be the duty of each Panchayat within the limits of the funds at its disposal to make adequate provision for carrying out the requirements of the area under its jurisdiction in regard to the following matters, namely, (i) Construction, repair and maintenance of public walls, tanks and ponds for the supply of water for drinking, washing and bathing purposes, and regulation of sources of water supply for drinking purposes. " It is clear from a plain reading of the said provision that one of the obligatory duties cast by the law on the Panchayat is that if there are funds at its disposal, then within those funds, the Panchayat should make a provision for construction, repair and maintenance of public wells, tanks and ponds for the supply of water for drinking, washing and bathing purposes and also for regulation of sources of water supply for drinking purposes. This section does not empower the Panchayat to deprive others of the land in their possession. The Tehsil Panchayat, therefore, erred in thinking that by virtue of sec. 24 (1) it was empowered to deprive the petitioners of their possession of land in order to increase the supply of water in the tank. Similarly, the Gram Panchayat committed an error in depriving the petitioners of their land on the mere ground that it had passed a resolution to that effect. It would suffice to say that the Gram Panchayat has got no absolute power to deprive others of their property simply by passing a resolution. Neither the Gram Panchayat nor the Tehsil Panchayat had any jurisdiction to declare as Gochar Bhoomi that land which was recorded as Khudkasht of petitioner No. 2 in the Settlement Record. Sec. 5 (28) of the Rajasthan Tenancy Act, 1955, defines 'pasture land' as meaning that land which is used for the grazing of the cattle of a village or villages or recorded in Settlement Records as such at the commencement of this Act or thereafter reserved as such in accordance with the rules framed by the State Government. It is not the case for the non-petitioners that the land in dispute was recorded as Gochar land or pasture land in the Settlement records at the commencement of the Rajasthan Tenancy Act. On the other hand, the petitioner No. 2 has shown by producing Ex. 1 that his land is entered as his Khudkasht in the Settlement Record. If the Gram Panchayat or the Tehsil Panchayat thought that the land in dispute should have been reserved as pasture land, then they should have taken steps to get it reserved as such, in accordance with the rules framed by the State Government. The non-petitioner No. 1 or No. 2 had no jurisdiction to declare petitioner No. 2's Khudkasht land as Gochar land or to deprive the petitioners of their possession. It was also wrong on their part to impose a fine for disobedience of their orders which were not legal.

The writ application is therefore allowed and the orders of the Gram Panchayat Ranigaon dated 16. 2. 58 and of the Tehsil Panchayat, Barmer, dated 2. 8. 59 are hereby quashed. Since the non-petitioners have not appeared to contest the application, the petitioners are left to bear their own costs. .

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