DAVE, J. -
(1.)THIS is a writ application by one Sobhag Mal resident of village Mohanpura, in district Kotah, under Art. 226 of the Constitution of India.
(2.)THE petitioner's house in village Mohanpura is adjacent to that of respondent No. 3 Shri Moolchand. He had constructed a latrine in his house in the early part of the year 1954 but it was ordered to be demolished by the Gram Panchayat, Mohanpura and accordingly it was removed. THEreafter on 31st December, 1954, he presented an application to the same Gram Panchayat to obtain permission for constructing another latrine according to the plan submitted by him. THE Up-Sarpanch inspected the site and made a report that the plan submitted by the petitioner was not objectionable and he may be permitted to construct the latrine as desired by him. On 3. 1. 55, the Sarpanch on behalf of the Gram Panchayat, Mohanpura, accorded sanction asked for to the petitioner. Respondent No. 3 thereupon presented an application before the Gram Panchayat raising certain objections to the constructions which were allowed to be made by the petitioner. On 21st February, 1955 the members of the Gram Panchayat considered all the objections raised by respondent No. 3, and dismissed them. THEy maintained the sanction which was given to the petitioner on 3. 1. 55. Aggrieved by the decision of 3rd January respondent No. 3 presented an appeal before the Tehsil Panchayat, Pipalda. On 8. 6. 55 the Tehsil Panchayat allowed the appeal and ordered the petitioner to close the latrine immediately and further directed that in case of disobedience he will be liable to pay recurring penalty of of Rs. 1/- per day. At the same time, it directed the petitioner to construct his latrine at the place where it was erected earlier and which was removed by the Gram Panchayat. THE petitioner then closed the latrine as directed by the Tehsil Panchayat and started the construction of a new latrine. He presented another application to the Gram Panchayat on 31. 8. 56 to the effect that he had complied with the orders of the Tehsil Panchayat, that he was constructing a new latrine according to the directions of the Tehsil Panchayat and the Health Officer, Kotah. Up-Sarpanch inspected the site on 3. 9. 56 and on the same day the Sarpanch passed on order that the latrine which was being constructed by the petitioner could not cause offence to anybody and the petitioner was permitted to proceed with the construction. Meanwhile, the respondent No. 3 had presented an application on 30th August, 56 to the Gram Panchayat, Mohanpura complaining that the petitioner had dis-obeyed the orders of the Tehsil Panchayat and the new construction made by him would cause nuisance to him and damage to his property. THE Sarpanch passed an order on this application saying that it should be put up before the Board. It does not appear if it was ever put up in the meeting of the Gram Panchayat thereafter. On the next day i. e. 31. 8. 56 respondent No. 3 presented a similar application before the Tehsil Panchayat. In this application also, it was alleged by him that the petitioner was disobeying the orders of the Tehsil Panchayat and it was prayed that the petitioner should be directed to stop further construction. This application was finally decided by the Tehsil Panchayat on 16. 5. 57 and the petitioner was ordered to demolish the construction made by him. It is the validity of this order which is sought to be challenged by this application.
It is urged by the learned counsel for the petitioner that there was no regular appeal before the Tehsil Panchayat against any particular order of the Gram Panchayat and therefore, the Tehsil Panchayat had no jurisdiction to treat the application of respondent No. 3 as an appeal and to order the petiotioner to demolish the latrine constructed by him.
The learned counsel for the respondent No. 3 has on the other hand tried to justify the order of the Tehsil Panchayat. It is urged by him in reply, that under sec. 56 (6) of the Rajasthan Panchayat Act, 1953 (hereinafter referred to as the Act) the Tehsil Panchayat had powers of general supervision over the affairs of Gram Panchayat, that it had also authority to hear appeals from all the decrees, sentences, decisions, orders and directions made by the Panchayat and therefore, it cannot be said that it had exceeded its jurisdiction in passing the order which is sought to be impugned by the petitioner.
The respondents No. 1 and 2 have not filed any reply.
The record of Gram Panchayat and Tehsil Panchayat has been summoned and I have carefully gone into the same. I agree with the learned counsel for the respondent No. 3 to the extent that under sec. 58 (6) of the Act the Tehsil Panchayat has got powers of general supervision over the affairs of all Panchayats established within the local limits of its jurisdiction and it has also got powers to hear appeals from all orders in all the decrees, and sentences, decisions, orders and directions made by such Panchayats. These powers have, however, to be used by the Tehsil Panchayat not according to its whims and, caprices but according, to law and specially when the rights of third parties are involved in certain matters. In the present case there was no appeal before the Tehsil Panchayat. The respondent No. 3 had only made a vague application on 31. 8. 56 to the Tehsil Panchayat that its orders were disobeyed by the petitioner. The Tehsil Panchayat had no jurisdiction to treat this kind of application as an appeal when it was not directed against any particular order of the Gram Panchayat. It has already been pointed out above that on the application by the petitioner dated 31. 8. 56, Gram Panchayat had passed another order on 3. 9. 56 and if the respondent No. 3 was aggrieved by that order the proper course for him was to file an appeal against the same. It is, therefore, clear that the Tehsil Panchayat exceeded its jurisdiction when it treated the application of respondent No. 3 as an appeal. It further appears from the order of the Tehsil Panchayat dated 16-12-57 that it was itself not clear about its jurisdiction and therefore, at one place it has proceeded to remark that it had original jurisdiction in the matter and therefore, it could pass order against the non-petitioner. Assuming without admitting that the Tehsil Panchayat had the same powers as the Gram Panchayat had, it had a duty to act judicially in accordance with the direction contained in R. 11 of the Panchayat General Rules and it had no jurisdiction to pass any and every kind of order according to its likes and dislikes or whims or caprices without seeing what hardship it was causing to the petitioner. The first construction made by the petitioner was demolished by the Gram Panchayat. The petitioner had constructed another latrine after obtaining proper sanction from the Gram Panchayat. That construction was also ordered to be demolished by the Tehsil Panchayat on 8. 6. 56 simply because in its opinion it caused certain inconvenience to respondent No. 3. Without giving any reasons for dis-agreeing with the opinion of the Gram Panchayat it directed the petitioner to construct his latrine on the site where he had erected it originally and from where it was removed by the order of the Gram Panchayat. No clear direction was given by the Tehsil Panchayat about the exact location or about the type of the construction which the petitioner was to make. The petitioner therefore started construction according to his commensense and even then he took the extra precaution of submitting an application to the Gram Panchayat for approving the same. The Gram Panchayat did approve the new construction and yet strangely enough, it was ordered to be demolished by the Tehsil Panchayat again since in its opinion it would cause some inconvenience to the respondent No. 3. It may be pointed out that the only rule which has been framed under sec. 89 of the Act in the Rajasthan Panchayat (General) Rules, 1954 under sec. 24 clause 12 of the Act is R. 11 (1) which reads as follows: - "a register will be maintained in respect of all applications for sanction for construction of a new building or extension or alteration of a building. Members of the Panchayat will, if necessary, inspect the site and the sanction will be given after the inspection has been made No fee shall be charged for the inspection of site. "
A perusal of the said rule will show that it casts duty on Gram Panchayat to maintain a register in respect of applications for sanction for construction of new building or extention or alteration of a building. It further requires that the members of the Panchayat should, where necessary, inspect the site and sanction should be given thereafter. No fee is to be charged for the inspection of the site. According to this sub-rule, the petitioner, twice submitted applications before the Gram Panchayat. Both the times the Up Sarpanch inspected the site and permitted him to make constructions. There was, therefore no contravention of this rule either on the part of the petitioner or that of the Gram Panchayat.
Sub-R. 2 then lays down that the Panchayat should keep in its mind considerations pointed out in cl. (a) (b) (c) (d)& (e) while inspecting the site and giving sanction. The first consideration to be kept in view is that the passers-by on the public streets should not feel any inconvenience on account of the construction. The next consideration is that the passage of vehicles should not be restricted by the new construction. The Tehsil Panchayat has not said any where in its order if the construction made by the petitioner would cause any inconvenience to the passers-by on the public street or that it would restrict the passage of vehicles. Under clause (c) it is certainly necessary for the Panchayat to see that neighbours are not put to inconvenience in respect of light and air. But in the present case, even this is not applicable because the Tehsil Panchayat has not stated that the construction of the latrine by the petitioner would obstruct the light or air of the respondent No. 3 or any other neighbour in any way. The last consideration to be kept in mind by the Panchayat is that sanitation is not allowed to suffer. A perusal of the order of the Tehsil Panchayat shows that it has only remarked that respondent No. 3 would be put to inconvenience on account of the petitioner's latrine but it has not said clearly if it would cause instantiation. The order of the Tehsil Panchayat dated 8. 6. 56 on the contrary shows that respondent No. 3 has also got a latrine very close to the one which has been constructed by the petitioner and the Tehsil Panchayat has not given any good reason for restraining the petitioner to build his latrine at the same time and for discriminating between the petitioner and that of respondent No. 3. In fact the Tehsil Panchayat has proceeded in the matter as if there was a civil suit between the petitioner and the non-petitioner No. 3 about a private nuisance. It had however, no jurisdiction to function as Civil Court in its administrative jurisdiction. If the respondent No. 3 was aggrieved by the construction of a latrine by the petitioner, the proper course for him was to take recourse to civil court. The Tehsil Panchayat has obviously exceeded its jurisdiction in ordering the petitioner to demolish his latrine which was constructed by him with the permission of the Gram Panchayat.
The application is, therefore, allowed and the order of the Tehsil Panchayat dated 16-12-57 is hereby quashed. It may be made clear that this judgment will not debar the respondent No. 3 from seeking his remedy, if any, in a competent court. In the circumstances of the case the parties are allowed to bear own costs. .