Wanchoo C. J. - (1.) THIS is an application under Art. 226 of the Consitu-tion by Misrimal against the Gram Panchayat, Siwana.
(2.) NO one has appeared on behalf of the Gram Panchayat to oppose this application. The facts of this case may be briefly mentioned. The applicant is a resident of village, Siwana, where there is a Gram Panchayat. The applicant purchased a dilapidated shop inside the main gate of Siwana from certain persons by a registered sale-deed dated the 16th of July, 1953. These persons are said to have handed over the 'patta' of the land, on which this shop stands, to the applicant and the applicant thereafter applied to the Tehsildar, Siwana, for grant of 'patta' to him. Proceedings in that connection are said to be pending before the Tehsildar. Soon after this purchase became known, certain mohallawalas complained to the Gram Panchayat, Siwana, that the land, over which the dilapidated shop stood, should not be allowed to be built upon and proceedings should be taken to restrain the applicant from obtaining Patta of this land. The reason for this was that if any construction was made on this land, the public way would become narrow and there would be inconvenience to the public. There upon a notice was issued to the applicant by the Panchayat on the 29th of September, 1953, and he was told that the land of the shop abutted on the public way (is dukan kee zamin aam raste par aai hui hai) and, therefor, nobody could be allowed to build on it. In reply to this notice, the applicant appeared before the Panchayat and objected that the land was not a public way and that he had purchased it from its rightful owners and had applied for Patta to the Tehsildar and that the Panchayat should not interfere in the matter. There-upon the Panchayat passed an order on the 24th of August, 1954. In this order the Panchayat says that the place has been inspected and the inspection shows that if the land is given on Patta to a private person, the way would become narrow and the public would suffer. Consequently, the Panchayat decided to recommend to the Tehsildar that no Patta should be granted of this land. It may be noticed that in this order the Panchayat did not say that the land was part of the public way; nor did it pass any order prohibiting the applicant from proceeding with the Patta proceedings. All that was decided was to recommend to the Tehsildar, who was dealing with the Patta proceedings, not to grant a Patta to the applicant, as possession of a private person on this piece of land would result in narrowing the public way and causing inconvenience to the public generally. It may be mentioned that this piece of land has been lying vacant and that is why the Panchayat said that if anything is built upon it, the public way would become narrow, assuming that this piece of land had become a public way. Nothing seems to have happened for about a year. But in September, 1955, the matter was again taken up by the Panchayat and an order was passed on the 11th of September, 1955, asking the applicant to remove the materials which he was collecting on this spot of land within a period of seven days, failing which action would be taken against him, as provided by law. It seems that the applicant in this period started collecting some materials. That is why the Panchayat took this action An order was passed on the 11th of September, 1955, by the Panchayat in this connection. This order purports to be based on the earlier order based on the notice dated 29th of September, 1953, which we have already mentioned; but in fact, it goes far beyond that order. Nothing was said in the earlier order that the land was part of the public way. All that the earlier order did was to make a recommendation to the Tehsildar not to grant a Patta. The Panchayat, by its earlier order, decided nothing one way or the other, but in the order dated 11th of September, 1955, the Panchayat said that the earlier order was to the effect that the land was part of the public way (yah zamin aam raste kee hai ). Having thus assumed that the earlier order decided that the land was part of the public way, the Panchayat went on to give notice to the applicant to remove his material within seven days The applicant did not obey this order of the Panchayat and thereupon, the Panchayat fined him on the 19th of September, 1955, under the provisions of sec. 27 of the Rajasthan Panchayat Act, 1953 (Act No. XXI of 1953 ). That order was taken in revision by the applicant to the District Judge as till then there was no Tehsil Panchayat before which an appeal could be filed. The District Judge has dismissed the revision. Hence, the applicant has come to, this Court for a writ of certiorari. The applicant's contention is that the Panchayat has no power in a case of this kind to intervene and decide a dispute of a civil nature between itself and a member of the public and then proceed on the basis of that decision to fine a person concerned because he does not submit to the decision of the Panchayat. The relevant provisions of the Panchayat Act in this connection are sec. 24 (7), sec. 26 (ii) and sec. 27. Sec. 24 (7) empowers the Panchayat to order removal of encroachments on public streets, public places and property vested in the Panchayat. Sec. 26 gives power to the Panchayat to do all acts necessary for, and incidental to the execution of its duties and authorise it to require by notice the owner or occupier of any building to remove any encroachment on the public way or drain. The contention on behalf of the applicant is that these powers given to the Panchayat can only be used by it in those cases where there is no dispute that the encroachment is on a public street, or public place or on property vested in the Panchayat and that the Panchayat can only order removal of the encroachment when there is no dispute of this nature. It is urged that these provisions do not give power to the Panchayat to decide a dispute as to the ownership and possession of land between itself and a private person. Broadly speaking, this contention is correct, namely that these two provisions under which the Panchayat seems to have acted in this case do not give the Panchayat power to decide a dispute between itself and a private person as to the ownership and possession of land, and after deciding that dispute, to give notice to the person to remove the encroachment and if he fails to do so, fine him under sec. 27 of the Act. But we must point out that the mere raising of a dispute by a private person, where the Panchayat is taking action under sec. 24 (7) or sec. 26 (ii) is not enough to oust the jurisdiction of the Panchayat. The Panchayat must, before its jurisdiction is ousted, be satisfied that the dispute raised by the private person has some foundation prima facie and if the Panchayat is satisfied that there is some foundation for the dispute, the Panchayat: should stay its hand and let the dispute be decided before the proper authority. If, on the other hand, the Panchayat is of opinion that the dispute raised is purely imaginary and has no foundation whatever in support of it, the Panchayat is not bound to stay its hand simply because some person has thought it fit to raise an imaginary dispute. We are, therefore, of opinion that if a dispute of this nature is raised when the Panchayat is taking action under sec. 24 (7) or sec. 26 (ii), the first thing that the Panchayat has to enquire is whether the dispute has some foundation or is absolutely without foundation. If after such enquiry, as it thinks fit, it comes to the conclusion that the dispute is with some foundation, it has to stay its hands and must abide by the decision of the proper authority. If, on the other hand, it comes to the conclusion that the dispute is without any foundation whatsoever, it can go on to take action under these provisions. This will not, in our opinion, in any way affect the interest of private persons injuriously, for, if the Panchayat decides that the dispute is without foundation and the private person is not prepared to submit to that decision, all that he has to do is not to obey the Panchayat. He will then be fined under sec. 27 of the Panchayat Act and this will give him the right to appeal to the Tehsil Panchayat under sec. 27 (4) where the correctness of the order of the Panchayat holding that there was no foundation for the dispute or claim can be gone into. Let us now look to the facts of this case and see whether the Panchayat acted with jurisdiction. It may be mentioned that the Panchayat itself took no action in the matter. What happened was that after the applicant purchased the plot and had applied for grant of Patta to the Tehsildar, some mohallawalas objected to the grant of a Patta and moved the Panchayat to recommend to the authorities concerned not to grant the Patta. When the matter first came before the Panchayat, it passed an order which, in our opinion, was not improper, namely that it decided to recommend to the Tehsildar not to grant a Patta to the applicant. It seems that thereafter the applicant smarted collecting materials even before he had been granted Patta by the Tehsildar and this perhaps led the Pancha) at to believe that he would make construction even before he got the Patta. The Panchayat, therefore, intervened. It seems to have assumed that the land was part of the public way and ordered the applicant to remove the encroachment. There was no real attempt at enquiry by the Panchayat to see whether the claim of the applicant was bona fide or not. In this case, however, it is not worthwhile sending the case back to the Panchayat, for, on the materials before us, it is clear that there is some foundation for the claim made by the applicant and the dispute raised by him The matter is already pending before a proper authority, namely the Tehsildar, for grant of a Patta. In these circumstances, we must hold that as there was some foundation for the claim made by the applicant, the Panchayat had no jurisdiction to pass the order which it did on the 11th of September, 1955, and to fine the applicant. We, therefore, allow the application and quash the order of the District Judge dated 19th of January 1956 and of the Panchayat dated the 19th of September, 1955, and the 11th of September, 1955 fining the applicant. We express no opinion on the merits of the case and it will be for the proper authority to decide whether the Patta should be granted to the applicant or not. As no-body has opposed the application, we pass no order as to coses. . ;