CHOPRA, J. - (1.) BY this writ petition filed under Art. 226 of the Constitution, the petitioners Jamatsingh and Hanspuri have prayed that by an appropriate writ, order or direction, the provisions of s. 124 (2) of the Rajasthan Panchayati Raj Act, 1994 (for short 'the Act') be declared illegal and be struck down; the notice (Annexure-2) dated 24. 1. 1995 issued by respondent No. 3 Vikas Adhikari, Panchayat Samiti, Revdar District Sirohi be declared illegal and quashed and respondent No. 4 Vikash Adhikari, Panchayat Samiti, Sirohi may be restrained from issuing similar notice to petitioner No. 2 Hanspuri; and it be declared that Gram Sabha is entitled to exercise all the rights and powers conferred upon it under the provisions of the Rajasthan Gramdan Act, 1971 ('hereinafter to be referred as 'the Act of 1971' ).
(2.) THE facts necessary to be noticed, for the disposal of this writ petition briefly stated are : that petitioners No. 1 Shri Jamatsingh and petitioner No. 2 Shri Hanspuri are the elected Presidents of Gram Sabhas of Gramdan villages Anadara and Krishanganj in District Sirohi. THEse Gram Sabhas are the creation of the Act of 1971. S. 11 of the Act of 1971 authorises the Collector of the District to declare a particular village as a Gramdan village and after declaration of a particular village as a Gramdan village, a Gram Sabha is constituted under s. 13 of the Act of 1971 and, thereafter, its executive committee is constituted and President is elected under s. 15 of the Act of 1971. S. 20 of the Act of 1971 further lays down that all land of the Gramdan village shall vest in the Gram Sabha. S. 26 deals with allotment of land by the Gram Sabha and s. 27 provides for the rights of the Gramdan Kisan. S. 30 deals with vesting of common lands in Gram Sabha and s. 31 provides for vesting of management of other unoccupied lands of the State Govt. in Gram Sabha. S. 43 of the Act of 1971 empowers the Gram Sabha to function as Panchayat. According to the petitioners, recently the State Legislature has amended the Rajasthan Panchayati Raj Act, 1994 by introducing sub-s. (2) to s. 124 of the Act, which reads as under : "s. 124 (2) On the date of commencement of the Rajasthan Panchayati Raj (Amendment) Act, 1994 (Act No. . . . . of 1994), s. 43 of the Rajasthan Gramdan Act, 1971 (Act No. 12 of 1971) shall stand deleted and as a result of such deletion, consequences enumerated in clauses (a) to (d) of sub-s. (1) shall ensue as if the Gram Sabha of a Gramdan Village referred to in the aforesaid deleted section was an existing Panchayati Raj Institution. " Thus, it is clear that by adding sub-s. (2) to s. 124 of the Act, the provisions of s. 43 of the Act of 1971 have been delected. It has been contended by the petitioners that after deletion of the provisions of s. 43 of the Act of 1971 by adding sub-s. (2) to s. 124 of the Act, petitioner No. l Jamatsingh has been served with a notice (Annexure 2) dated 24. 1. 1995, whereby he has been asked to handover the charge of the entire record of the Gram Sabha to the concerned Gram Sewak of the Panchayat Samiti. The petitioner No. 2 Hanspuri is also expected to be served with a similar notice from the Vikash Adhikari, Panchayat, Samiti, Sirohi. According to the petitioners, insertion of sub-s. (2) to s. 124 of the Act is unconstitutional. They have also pleaded that even if the provisions of s. 43 of the Act of 1971 have been deleted by insertion of sub-s. (2) to s. 124 of the Act, the constitution of Gram Sabhas under the provisions of the Act of 1971 does not come to an end and, therefore, the management of the property vesting in the Gram Sabhas cannot be taken over by the concerned Panchayat Samitis or for that matter, Gram Sabhas. In this respect, they have placed reliance on the minutes (Annexure 3) of the meeting dated 3. 8. 1994 held under the Chairmanship of the Revenue Minister, Govt. of Rajasthan. Reliance has also been placed on a letter (Annexure 4) dated 15. 11. 1994 written by the Deputy Secretary to the Govt. , Revenue Department, Govt. of Rajasthan to the Secretary, Gramdan Board, Jaipur. The petitioners have challenged the validity of the provisions of s. 124 (2) of the Act and in addition to that, they have also sought the reliefs as aforesaid. A reply to the writ petition has been filed on behalf of respondent Nos. 1,3 and 4 jointly and a separate reply to the writ petition has also been filed on behalf of respondent No. 5. In the reply to the writ petition filed on behalf of respondents No. l, 3 and 4, a preliminary objection has been raised that this writ petition is not maintainable because insertion of sub-s. (2) to s. 124 of the Act is the result of 73rd Amendment of the Constitution whereby Art. 243-N was incorporated in the Constitution and unless, the validity of Art. 243-N in challenged, the validity of sub-s. (2) to s. 124 of the Act cannot be challenged.
(3.) A rejoinder has also been filed on behalf of the petitioners reiterating the contentions raised in the writ petition. We have heard Mr. M. S. Singhvi, the learned counsel appearing for the petitioners, Mr. Vijay Bishnoi, learned counsel for respondents No. l to 4 and Mr. K. N. Joshi, the learned counsel appearing for respondent No. 5 and have carefully gone through the record of the case. It has been contended by Mr. M. S. Singhvi, the learned counsel appearing for the petitioners that keeping in view the aims and objects of the promulgation of the Act of 1971, the insertion of sub-s. (2) to s. 124 of the Act is totally unconstitutional. He has submitted that s. 4 of the Act of 1971 provides that the provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force and, therefore, the provisions of the Act of 1971 will prevail over the provisions of the Act and so, the provisions of s. 43 of the Act of 1971 could not have been deleted without bringing an amendment in the Act of 1971. Mr. Singhvi has further contended that even if it is held that insertion of sub-s. (2) to s. 124 of the Act is a valid piece of legislation, the Gram Sabhas constituted under the provisions of the Act of 1971 do not cease to function. The existence of Gram Sabha is still kept in tact and at best, it cannot exercise the powers conferred on it by "s -. 43 of the Act of 1971. This alternate submission has been supported by Mr. Vijay Bishnoi, the learned counsel appearing for respondents No. l, 3 and 4. ;