JAGAT NARAYAN, J - (1.) THIS is a petition under Art. 226 of the Constitution challenging the validity of an order of the Panchayat Samiti Chaksu which was confirmed by the Additional Collector, Jaipur.
(2.) THE petitioner owned a Kachvha house in village Kot Khawda which he wanted to convert into a Pucca one. He accordingly applied for permission to do so to the Panchayat of village Kot Khawda (Ex. R. 1 ). He stated in his application that he was willing to pay such Nazrana as the Panchayat may fix. Along with his application he filed a plan in which his house as well as neighbouring houses were shown. THE plan was drawn to scale. THE application of Prabhata was published by the Panchayat and objections were invited within one month and 3 days of the publication. One Shanker Khatik filed an objection but later on he withdrew it after entering into a compromise with Prabhata. A member of the Panchayat belonging to the ward in which the house was situated was asked to make a local inspection and he submitted a report. Two panchas were then deputed to take measurements on the spot. At that time the Kachcha house of the petitioner was standing. THEy took measurements of this house and recorded them. THEy found that the house measured 14-1/4 yds. from east to west and 9-1/4 yds. from north to south. On the report of these Panchas the Panchayat accorded the necessary permission to Prabhata to convert his house into a Pucca one and directed him to pay Nazrana at the rate of 31 np. per sq. yard. This resolution of the Panchayat is dated 3. 12. 61. Prabhata then demolished his Kachcha house and started constructing a Pucca house at the site at which the Kachcha house stood. On 3. 1. 62 three villagers Mansharam, Parbatiya Ram and Poonam Chand preferred an appeal before the panchayat Samiti against the order of the Panchayat grating permission to the petitioner to convert his house into a Pucca one. The main ground taken in this appeal was that Prabhata had been permitted to open a door towards the south of his house in the new constructions in spite of the fact that no such door existed pin the Kuchcha house. It may be mentioned here that the houses of the three persons who filed the appeal are situated towards the South of the house of the petitioner beyond the public way. It was mentioned in the application that they sit in front of their houses and tie cattle there and there was an apprehension of breach of peace taking place if the petitioner was permitted to open a door towards their houses as there was enmity between them and the petitioner for several years. It was also alleged that the Panchayat did not follow the rules and they had permitted the petitioner to construct a house so as to leave a lane only 3 ft. vide towards the east of his house which was not sufficient for the passage of cattle and bullock carts. It was not alleged in this appeal that in constructing the Pucca house the petitioner had in any way encroached upon land which was not included in his Kachcha house. The Panchayat Samiti was of the opinion that as the persons who had filed the appeal had not raised any objection to permission being granted before the Panchayat they could not prefer an appeal against the order. It however purported to act in exercise of its supervisory jurisdiction and set aside the order of the Panchayat on the ground that the prescribed procedure had not been followed. It directed the Panchayat to take fresh proceedings in accordance with the procedure prescribed in Rajasthan Panchayat and Nyaya Panchayat (General) Rules 1961. It further directed the Panchayat not to grant permission to the petitioner to open a door towards south. Further it ordered that the Panchayat should direct the petitioner to so construct his Pucca house as to leave a passage 17 ft. wide between his house and the Chobutra of the three persons who had filed an appeal before the Panchayat Samiti. It was observed that a passage 17 ft. wide was necessary for the passage of motor trucks. Against the order of the Panchayat Samiti Prabhata preferred a revision application which was dismissed by the Additional Collector. The order of the Panchayat Samiti and the order of the Additional Collector were challenged under the present writ petition. Mansharam, Prabatiaram and Poonamchand appeared before me and contested the writ petition. Having heard the learned counsel for the parties I am satisfied that the order of the Panchayat Samiti which was confirmed by the Additional Collector is illegal. The application which the petitioner made to the Panchayat for permission to convert his Kachcha house into a Pucca one on payment of Nazrana may be treated as a combined application for permission to convert the Kachcha house into a Pucca house and to transfer abadi land on which his house was standing by private negotiations on payment of Nazrana as contemplated by rule 226 (1) (a) of the Rajasthan Panchayat and Nyaya Panchayat (General) Rules 1961. I shall first deal with the application of the petitioner for permission to convert the Kachcha house into a Pucca one. All that he wants is to build a Pucca house on the site of his Kachcha House. As I have already mentioned above the Panchayat made an inspection of the Kachcha house and took measurements of it which have been recorded. It had not been even urged in the appeal filed by respondents 3 to 5 that the Pucca constructions made by the petitioner extended beyond his Kachcha house on any side. The Kachcha house was surrounded by walls on all the four sides. The Panchayat Samiti has directed that the petitioner should not be allowed to open a door towards the south and that he should so build his Pucca house as to leave a space of 17 ft. between the Chabutra of the respondents and his house. It has to be seen whether these directions can lawfully be given. Under the Panchayat Act as originally enacted the regulation of the constructions of new buildings or of the extension or alteration of existing buildings was one of the obligatory duties of the Panchayat under sec. 24 (12 ). This duty was to be discharged in accordance with rule 11 of the Panchayat (General) Rules 1954. The rule ran as follows - "rule regarding the regulation of the construction of new buildings or of the extension or alteration of existing buildings under sec. 24 (12) - (1) 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. (2) The members of the Panchayat shall ordinarily keep the following things in their minds while inspecting the site and giving sanction - (a) that the passers-by on the public streets will not feel any inconvenience if sanction is given; (b) that the passage of vehicles will not be restricted; (c) that the owners of the neighbouring buildings will not be inconvenienced in respect of light and air, and (d) that sanitation and beauty shall not suffer. " It was held by a Division Bench of this Court in Badri Lal vs. Brij Mohanlal (1) that the Panchayat was not authorised to grant or refuse sanction according to its likes or dislikes or whims or caprices. It was to be refused or granted in accordance with the principles given in rule 11 (12 ). Sec, 24 has since been amended. Under sec. 24 (1) it is the duty of the Panchayat to make reasonable provision in regard to all or any of the matters specified in Third Schedule. The regulation of the constructions of new buildings and the extension or alteration of existing buildings is a matter appearing in clause (p) of para I of the Third Schedule. The para is headed "'in the sphere of sanitation and health. " The Rajasthan Panchayat and Nyaya Panchayat (General) Rules 1961 came into force on 20th March, 1961. Rule 354 (1) of these Rules runs - "all existing rules made under the Act and in force at the commencement of these Rules shall, upon commencement, stand superseded as if such existing rules were a Rajasthan law and have been repealed by another Rajasthan law. " The new Rules however do not contain rules regarding regulation of constructions of new buildings and the extension or alteration of existing buildings. In my opinion the intention behind rule 354 (1) is only to repeal rules relating to such matters concerning which new rules have been framed. In this view of the matter R. 11 of the Panchayat (General) Rules 1954 is still in force and in granting or refusing permission the Panchayat has to apply its mind to this rule. As has already been mentioned above there is a public way towards the south of the house of the petitioner. The petitioner has a right to open as many doors in his house as he likes provided he does not encroach upon the civil rights of any one else. In opening a door towards the public way the civil right of the respondents is in no way interfered with. The reason given by the Panchayat Samiti that as there is long standing enmity between the petitioner and the three respondents he should not be allowed to open a door towards their houses because it is likely to lead to a breach of peace is absurd. Such a reason for refusing permission to open a door is neither contemplated by rule 11 nor by the civil law of the land.
(3.) FURTHER the plan filed by the petitioner shows that the width of the passage between the Chabutra of the contesting respondents and the petitioner is 15 ft. This has been the width of this passage for a very long time eversince the Kachcha house of the petitioners was constructed. In the opinion of the Panchayat this passage was sufficiently wide for the passing of vehicular traffic in the village. There is no rule or bye law laying down that the width of the passages should be at least 17 ft. It is accordingly quite arbitrary for the Panchayat Samiti to direct that in reconstructing of his house the petitioner should leave 2 ft. of land more for passage. Rule 11 does provide that in granting or refusing sanction the Panchayat should bear in mind that the passage of vehicles will not be restricted. That only means that the width of the existing passage should not be reduced when an old building is reconstructed. It does not authorise the Panchayat to direct any one to leave some of his own land for the passage of vehicles while reconstructing his house. The power to regulate the construction, extension or alteration of buildings is intended to be utilised for maintaining the existing facilities and amenities mentioned in rule 11 rather than for enlarging them at the expense of the applicant. A accordingly find that both the directions given by the Panchayat Samiti with regard to the permission to the petitioner to reconstruct his house are illegal and arbitrary and I set them aside. Coming now to the application for the transfer of abadi land occupied by the existing house of the petitioner by private negotiations as contemplated in rule 266 (1) (a) I find that the Panchayat substantially complied with the rules prescribed in Rajasthan Panchayat and Nyaya Panchayat (General) Rules 1961 and the Panchayat Samiti had no jurisdiction to interfere with the order passed by the Panchayat in this behalf. In the proceedings of the Panchayat it is recorded that the application of the petitioner was duly published. The presumption from this is that it was published in the manner prescribed by the rules. Rule 260 lays down that one copy of the application shall be affixed to a conspicuous place on the land proposed to be sold. In the proceedings it was noted that the application was pasted but it was not noted where it was pasted. The presumption in the present case from the proceedings of the Panchayat is that it was pasted on the Kachcha house of the petitioner. There was no material before the Panchayat Samiti to show that this was not done. As such it had no jurisdiction to hold that R. 260 was not complied with. R. 256 provides that the applicant shall deposit a sum of Rs. 2/- with his application towards the expenses of the preparation of the plan of the land sought to be purchased and R. 257 provides that the Panchayat shall get a plan prepared by a competent person. In the present case the applicant himself got a plan prepared to scale and filed it along with his application. In my opinion there was thus substantial compliance with RR. 256, and 257. ;