GATTANI, J. - (1.) THE circumstances, which led to the filing of this writ petition brought for the purpose of getting the order of Addl. Collector, Sri Ganganagar dated 6th May, 196)8 set aside may be briefly narrated as follows : - According to the petitioner, shop No. 69 situated in Tel Bazar No. 1 Mandi Jetsar was leased out by it to respondent No. 2 Meharumal. After sometime res-pondent No. 2 encroached upon the open lands (Sideways) lying on both sides of this shop and when asked upon Harnand Singh Overseer on 25 9 1965 reported that the respondent No 2 had encroached upon land measuring 10' x 5' on the eastern side and 10 x 4' on the western side of the shop vide Annexures 1 and 2. THE Sarpanch of the petitioner Panchayat, therefore, on that very day issued a notice to the respondent No. 2 for removing the encroachments vide Annexure 3. When the respondent No. 2 did not comply with the notice Annexure 3, nor did he appear before the Panchayat and show any cause, he was fined a sum of Rs. 15/-and was further directed to remove the encroachments within a week vide Annexure 4. When Annexure 4 also proved fruitless and respondent No. 2 did not appear, he was on 14-10-1965 further fined at the rate of Re. 1/- per day till the encroachments were not removed. He was further asked to remove the encroachments vide Annexure 5. It might be stated here that vide notice Annexure 4 this respondent was asked to show cause why he should not be fined at the rate of Re. 1/- per day, because of his not obeying the order of the petitioner. Even Annexure 5 made no effect upon respondent No. 2.
(2.) THEREAFTER a notice Annexure 6 was issued again to respondent No. 2 on 1-12-1967 for removing the encroachments and paying the fine, but with no effect. Another notice Annexure 7 dated 17-1-1968 was issued to him for removing the encroachments, otherwise the petitioner was to do the same at his cost. The res-pondent refused to accept notices Annexures 6 and 7. On 17-1-1968 another notice Annexure 8 was issued to respondent No. 2 as to why the shop No. 69 be not leased out to any other. Respondent No 2 refused this notice as well On 18-1-1968, however, the respondent No. 2 presented a representation to the petitioner vide Annexure 10. This is to the effect that notices till now issued to him were illegal and void and were issued because of personal ill-will with him, otherwise there were other persons and relations of the petitioner also who had encroached upon the lands of the panchayat, but they were not touched. On 25-1-1968 respondent No. 2 moved the Additional Collector, Sri Ganganagar in revision. The later while deciding that revision on 6-5-1968 maintained the fine of Rs. 15/- upon the respondent No. 2, set aside the order of fine at the rate of Re. 1/- per day. As for the removing of the encroachments, the Additional Collector held that Meharumal respondent No 2 had no doubt wrongfully encroached upon the petitioner's land by raising constructions which were liable to be removed but as there were many other such unlawful constructions, the Panchayat should dismantle the unlawful construction raised by Meharumal along with similar other unauthorised constructions raised by many other persons. Aggrieved by this order of Addl. Collector (Annexure 12), this writ petition was filed on 18-8-1968. The writ petition has been opposed by respondent Meharumal but it is rather surprising that no reply has been filed by him, nor any document has been filed on his behalf throughout this period of more than 3-1/2 years. The only point that has been urged by the learned counsel for the petitioner is that the Additional Collector, Sri Ganganagar had no jurisdiction to entertain any revision against the orders of the petitioner and as such the impugned order deserves to be quashed. It was contended by the learned counsel for the petitioner that the order the occupier of any building requiring him to remove the encroachment on a public way comes under the administrative power of the petitioner under sec. 26 (1) (ii) of the Rajasthan Panchayat Act (hereinafter referred to as the Act I ). Such an order is made appealable under sec. 26a (1) of the Act, but that appeal lies to the concerned Panchayat Samiti. Sec. 27 (1) of the Act authorises a Panchayat to impose fine which may extend upto Rs. 15/-, if a person disobeys an order of the Panchayat passed under sec. 26 of the Act and if the disobedience is a continuing one with a further fine which may extend to one rupee for every day after the first during which the disobedience continues. An order imposing fine is made appealable under sec. 27 (4) of the Act, but here again the appellate authority is the concerned Panchayat Samiti, Obviously the respondent No. 2 did not file an appeal either under sec. 26a (1) or under sec. 27 (4) of the Act before the Panchayat Samiti. Though the word 'revision' has not been used in Chapter III of the Act (which consists of sec. 23a to 27a) the State Government under sec. 27a (2) of the Act gives the Collector the power to call for records under sec. 27a (1) of the Act. That section reads as follows - "sec. 27-A - Power to call for records - (1) The State Government may for the purpose of satisfying itself as to the correctness, legality and propriety of - (a) any order passed by the Collector or the Officer-in-charge of Panchayats under any provision of this Act, or (b) any order passed by a Panchayat Samiti in administrative matters under sec, 26-A, or otherwise, or (c) any order passed under this Act in administrative matters by a Panchayat from which no appeal lies under sec. 26-A. call for and examine the connected records and may confirm vary of rescind such order. (2) The State Government may by notification in the Official Gazettee delegate its powers under sub sec. (1) to any officer or authority subject to such restrictions, if any, as may be specified in the notification. " A perusal of this section would reveal that action can be taken by the Collector in relation to an order passed by the Panchayat Samiti in administrative matters under sec. 26-A of the Act or otherwise or against the order passed by a Panchayat under the Act in administrative matters from which no appeal lies under sec. 26-A of the Act. As stated above respondent No. 2 Meharumal preferred only one revision against the various orders of the Gram Panchayat. So far as order asking him to remove the encroachments is concerned, sec. 27-A of the Act no doubt authorises the Collector to interfere in the order passed by a Panchayat Samiti, but there is no provision of direct interference by the State Government or Collector against the order of a Gram Panchayat. So far as the orders relating to imposition of fines are concerned, here again those orders are made appealable under sec. 27 (4) of the Act and as such the question of interference by the Collector against an order passed by the Sarpanch, Gram Panchayat under sec. 27 of the Act does not arise. Thus it is clear that the respondent No. 2 failed to avail the remedies of appeals available to him under sec. 26-A (1) and sec. 27 (4) of the Act and approached the Collector who, as stated above, had no jurisdiction to interfere in the circumstances of the case. The contention of the learned counsel for the respondent No. 2, however, is that even though the Addl. Collector had no jurisdiction to entertain the revision in the manner he did,thiscourt may not exercise its prerogative power as the impugned order is otherwise just and reasonable. Reliance in this connection was placed upon Dahya Bhain Soma Bhai vs. Ramaji Kesarji (1), wherein it was held that in a case where the relief sought is by writ of certiorari, the High Court is not bound to interfere, if the impugned order even though without jurisdiction is otherwise just and right. In that case an order directing restoration of land to the respondent passed without jurisdiction but which was not unjust was not set aside at the instance of the petitioner because the petitioner himself had deprived the respondent of the possession of land without due process of law. Obviously the facts of the case in hand are poles apart from the facts of the case relied upon by the learned counsel for respondent No. 2. In the present case the Addl. Collector also has admitted that the respondent No. 2 had made unlawful encroachments and that the construction raised by him deserves to be demolished. All that he has further said is that there were many such other cases which require demolition and that unauthorised encroachments made by respondent No. 2 should be removed only when other such encroachments are removed. The impugned order of the Addl. Collector shows that the Gram Panchayat had already drawn proceedings against all such persons who had similarly encroached upon public ways. It might be a matter of coincidence that the case of respondent No. 2 was first to be decided. By now more than 3i years have passed and it has not been contended by the learned counsel for the respondent No. 2 that the Gram Panchayat has not taken action against those intruders or that cases against them though once initiated were withdrawn or that this respondent has been discriminated in the matter. In these circumstances, the finding of the Addl, Collector, Sri Ganganagar that only after encroachments made by other persons are removed, the encroachments made by respondent No. 2 should be removed, can hardly be justified, because every such intruder may raise this cry and in that way there will be no beginning of the removing of encroachments. In the Gujrat case the petitioner himself was at fault as he had dispossessed the respondent. In the present case the fault is of the respondent No. 2, who has been enjoying the unauthorised construction raised by him for the last so many years. The result of the above discussion is that this writ petition succeeds and it is hereby accepted with costs. The impugned order of the Addl Collector, Sri Ganganagar dated 6-5-1969. copy of which is Annexurel2 is hereby set aside. Let an appropriate writ be issued. . ;