WANCHOO, C. J. - (1.) THIS is an application by Poonma and others under Art. 226 of the Constitution for issue of a writ of mandamus and prohibition and it is prayed that the Gram Panchayat, Koselao, be prohibited from functioning as such. It is further prayed that the Rajasthan Government be prohibited from realizing the fine imposed on the applicants.
(2.) THE case of the applicants is that a body of persons was functioning as Gram Panchayat, Koselao, with Sardarmal Jain as Sarpanch. This Panchayat passed an order on the 3rd of July, 1950 requiring the applicants to remove their fencing from certain baras in their possession on the ground that the land enclosed in the fencing was open space of the village and part of village paths. THEreafter, on the 12th of July, 1950 the Panchayat imposed fines on the applicants on the ground that they had not carried out the order dated 3rd of July, 1950. THEse fines were imposed under sec. 17 (4) of the Marwar Village Panchayats Act, 1950. THE applicants say that they approached the Sub-Divisional Officer, Bali, against the order of the Panchayat but failed to get any redress. THEreafter they moved the Minister incharge in revision. For some time the Minister incharge ordered stay of execution of the said order but later dismissed the revision. THE Tehsildar of Bali then took steps to recover the fines and consequently the present application has been filed. The applicants raised three points in support of their case. But they gave up one of them relating to the non-issue of notification as required by sec. 4 of the Panchayats Act. The remaining points which have been urged on their behalf are (i) that as no order was published as required by rule 8 of the Rules framed under sec. 75 of the Panchayats Act, the Panchayat was not properly constituted and, therefore, all proceedings before the Panchayat were null and void and it should be prohibited to function as such; and (ii) that the Panchayat was acting without jurisdiction in passing the order under dispute. The application has been opposed on behalf of the Gram Panchayat as well as by the Rajasthan State. The main contentions on behalf of the opposite parties are that rule 8 of the Panchayat Rules is merely directory and not mandatory and its non-compliance does not invalidate the functioning of the Panchayat, and further that the Panchayat had jurisdiction to act in the manner that it did. We shall first examine the arguments with relation to rule 8 which is as follows : - "when a Panchayat has been constituted, the Collector shall issue an order by publication in the Government Gazette stating: - (a) the name and situation of the Panchayat area; (b) and the name of the Panches and Sarpanch. " The contention of the applicants is that this was not done and, therefore, the Panchayat which started functioning from March, 1950 was not properly constituted as the provision is mandatory. We are of opinion that the publication provided by the rule is merely for the information of the public. The Panchayat is established by a notification under sec. 4 of the Act and, thereafter elections are held, and when the elections are over, rule 8 enjoins on the Collector to publish in the Government Gazette the names of the Panchas and Sarpanch and the name and situation of the Panchayat area. So far as the name and situation of the panchayat area is concerned, that is also given in the notification under sec. 4 by which the Panchayat is established and this rule, thus, merely provides in part for repetition of what has been done under sec. 4 already. The other part of the rule provides for the publication of the names of the Panches and Sarpanch obviously for the information of the public. We are of the opinion that even if there is any irregularity in strict compliance of this part of the rule, that would not vitiate the constitution of the Panchayat. In this particular case, we may mention that the notification has been made but it was made in November, 1952 long after the Panchayat had been constituted. Rule 8 also contemplates the notification to come after the constitution of Panchayat but, of course, it is expected that it will come within a reasonable time thereafter. There is, however, no provision in the Act or in the Rules which lays down that if this notification under rule 8 is not made, the Panchayat would not be entitled to function. We may point out that sec. 14 provides that no act of the Panchayat shall be deemed to be invalid by reason of any irregularity in the appointment of any Panch, naib-sarpanch or the Sarpanch. Now, if the Panchayat can function inspite of this irregularity, the mere omission of the notification of the names in the Government Gazette should not, in our opinion, invalidate the functioning of the Panchayat. We, therefore, hold that Rule 8 is only directory and the fact that it was complied with some delay would not invalidate the functioning of the Panchayat. We now come to the next contention that the Panchayat had no jurisdiction to pass the order which it did, asking the applicants to remove their fencing and later to fine them for having failed to do so. The power of the Panchayat aire given in sec. 17 and reliance is being placed on clauses (i) and (xvii) of sec. 17 (1) which are as follows : - "17 (1) It shall be the duty of a Panchayat. subject to such rules as may be prescribed and within the limits of the fund at its disposal, to make arrangement for carrying out the requirements of the area under its control in regard to the following matters : - " (i) the construction and maintenance of village path, and to require by notice, giving a reasonable period, the owner or occupier of any building to remove any encroachment on a public way or drain ; (xvii) to look after public health, sanitatio and open spaces in the village; Provided that nothing in this sub-section shall be deemed to impose any duty or confer any power upon the panchayat with respect to any matter under the direct administrative control of any department of the State. Provided further that nothing shall be done under this sub-section to interfere with the legal rights of any persons. '' Sub-sec. (2) of sec. 17 provides that "any dispute arising on account of any of the provisions to sub-sec. (1) shall be referred to the Minister-in-Charge whose decision thereon shall be final". Sub-sec. (4) provides that "any person who disobeys a general regulation or a special order under this section shall be punished with fine by the Panchayat which may extend to Rs. 25- and if the breach is a continuing breach, with a further fine which may extend to Rs. 2/- for every day after the first during which the breach continues". Chapter III in which sec. 17 appears is headed "administrative functions and powers". But it cannot be denied that so far as the order of the panchayat affects the legal rights of any persons, the Panchayat has not been given the jurisdiction to deal with them. The jurisdiction in case there is a dispute between the Panchayat and the person whose legal right is affected, vests in the Minister-in-Charge. It seems to us, therefore, that whenever the panchayat passes an order of the nature affecting the legal rights of any person, it should first give notice to that person to show cause why an order affecting his legal rights should not be passed, particularly when the order affects possession of immovable property by the party concerned, as in this case. When such notice is given, the party concerned can appear before the Panchayat and plead that his legal right is affected and there being thus a dispute between him and the Panchayat concerned, the matter has to be referred to the Minister-in-Charge under sub-sec. (2) of sec. 17. In the case before us, the complaint before the Panchayat was that the applicants had fenced certain land which was claimed to be open village land or over which village paths were said to lie. The Panchayat purported to act in this case under sec. 17 (1) clauses (i) and (xvii ). It is urged that the Panchayat is authorised under clause (xvii) to look after open spaces in the village and, therefore, it can take the action which it did in this case. We must say that the words "open spaces in the village" are very vague, but it is obvious that they do not mean any open space in the village which the Panchayat chooses to treat as such. They obviously refer to such open spaces as by long user have become dedicated to the use of the public, and it is only such open spaces in the village which the panchayat can claim to look after. Suppose that a certain piece of land was not an open space on the date when the Panchayat first came to be established under sec. 4. The Panchayat could not claim to interfere with the pre-existing possession of persons on the ground that at some time before it establishment the land was said to be open space in the sense that it had been dedicated for use of the public. It is, therefore, very essential, when a Panchayat interferes with the legal rights of any person, that a notice should be given to the person before the Panchayat passes an order. We find from the proceedings of the Panchayat dated 3rd July, in this case, that on that date the Panchayat met and dealt with the complaint from some members of the public to the effect that the applicants had fenced land on which village paths ran and also land which had been used from time immemorial as a playing field for the village school. We have seen the application dated 2nd July, 1950 and there is no mention in that application as to when the applicants had fenced the land. The applicants in their affidavit in para (1) say that they had fenced the land before the establishment of the Panchayat. There is no affidavit by the opposite party to contradict this statement of the applicants. If this is correct, there was really no open space which the Panchayat, when it was established, could look after at this place. In any case, it was the duty of the Panchayat when it got the complaint dated 2nd July, 1950 and when its order for removing the fencing was bound to interfere with the legal right of possession which the applicants must be claiming, to give notice to the applicants to show cause why the fencing should not be removed. If that had been done, the applicants might have appeared before the Panchayat and shown cause to the effect that they had been in possession before the establishment of the Panchayat and there was no open space there which the Panchayat could look after its establishment. What we find, however, is that the Panchayat passed an ex parte order on the 3rd of July, 1950 giving notice to the applicants to remove the fencing within two days failing which further action would be taken against them. Then on the 12th of July the members of the Panchayat go and inspect the spot and take some statements ex parte and pass an order fining the applicants. We are, therefore, of opinion that the Panchayat had no jurisdiction, in view of the second proviso to sec. 17 (1) to do anything which would interfere with the legal rights of any body and the order that was passed on the 3rd of July, 1950 was certainly of the nature interfering with the legal rights of the applicants as the applicants were admittedly in possession of the land and had fenced it some time before the order of the 3rd July, 1950. In these circumstances, the only course open to the Panchayat was to give notice to the applicants to show cause why their possession should not be removed by the removal of the fencing, and if the applicants appeared and showed cause claiming a legal right, then the Panchayat would have no jurisdiction further except to refer the matter for the decision of the Minister-in-Charge under sub-sec. (2) of sec. 17. This procedure not having been followed, the subsequent proceedings finding the applicants were also, in our opinion, without jurisdiction. We do not know what order the Sub-Divisional Officer passed on the representation of the applicants, but we have a copy of the Minister's order to the effect that the Minister had no reason to interfere with the decision of the Panchayat. The order of the Minister gives no reasons and it is not clear whether it refers to the order of the Panchayat fining the applicants or to t!he earlier order requiring the applicants to remove the fencing and give up possession. The orders in this particulars case being of a quasi-judicial nature, it was, in our opinion, necessary for the Minister to give reasons for the order that he passed so that in case the matter was taken to this Court on a writ of certiorari, this Court may be able to know the grounds of the Minister's order. However, as the Panchayat had not followed the procedure which, in our opinion, it was bound to follow in a case of this kind, and as no notice was issued to the applicants to show cause why their possession should not be removed from the land by removing the fencing, all further proceedings which took place thereafter must be set aside. But we would like to point out that if the Panchayat wants to take up this matter, it can proceed in the manner referred to above and if there is a dispute by the applicants as to their legal right, the matter would have to be referred to the Minister-in-Charge under sub-sec. (2) of sec. 17 of the Act. We, therefore, allow this application and set aside the orders of the Panchayat dated the 23rd of July, 1950, 12th of July, 1950, and 22nd of July, 1950. Considering that the applicant has no succeeded on the main ground on which he came to this Court, we order parties to bear their own costs. . ;