Bapna, J. - (1.) THIS is a petition under Art. 226 of the Constitution. According to the facts mentioned in the petition, the petitioner Banshilal of Chhoti Khatu, Tehsil Did-wana had purchased some house property from Sanwalram Tiwari on the 28th September, 1956. In April, 1957, Binshilal started building on land in front of his house which he alleged was included in the sale-deed. Non-petitioners Zorawarchand and Doongarmal and Bhomraj of the same village made an application to the Gram Panchayat on the 27th April, 1957, that the land on which Banshilal was trying to build was an open land used as a passage for the houses opening on the said land, and that if Banshilal would make a construction, then there will be inference in the enjoyment of their properties. The Gram Panchayat gave a notice to Banshilal and made enquiry, and came to the conclusion that the open land in front of the house of Banshilal where he wanted to build was part of public place used for the way to the houses opening on the said land. An order was passed on the 9th May, 1957, by the Gram Panchayat that Banshilal should remove all encroachment on the open land within 24 hours and in particular remove the stone slabs fixed in the land. A further direction was made that in case of default, the stone slabs will become the property of the Panchayat, and that in any case the stones and the pattis will be removed at the expense of Banshilal. Banshilal filed an appeal in the Tehsil Panchayat. The Tehsil Panchayat made further inquiries and concurred with the Gram Panchayat that the open land beyond the Chabutari of the house of Banshilal was public land and that any encroachment by Banshilal would interfere with the passage over that land to the various houses opening on it. An order was made that Banshilal should remove all stones and the new construction made by him. A further rider was added that so long as Banshilal would not remove this encroachment, he would be liable to a penalty of Re. 1/- per day. THIS order was passed on the 5th August, 1957. Banshilal has come to this Court by this writ petition which was filed on the 17th August, 1957.
(2.) IT was contended on behalf of the petitioner that the Panchayat had no power to deal with a case of disputed title and that in any case the Tehsil Panchayat had no jurisdiction to impose a penalty for non-removal of the Chabutari and the stone slabs newly constructed by the petitioner. A reference to sec. 24 of the Rajasthan Panchayat Act makes it clear that it is one of the obligatory duties of the Panchayat to make adequate provision for carrying out the requirements of the area under its jurisdiction in regard to several matters including removal of encroachments on public streets, public places and property vested in the Panchayat. It is provided under sec. 26 that a Panchayat shall have power to do all acts necessary for and incidental to the execution of its obligatory and discretionary duties, and in particular, among other things, to require the owner or occupier of any land or building to remove any encroachment on a public way or drain. Taking these two sections together, the Gram Panchayat has power to direct removal of encroachment on a public place or public way. It would defeat the provisions of the Act if the jurisdiction of the Gram Panchayat to direct removal of encroachment from a public place or way be considered to be taken away by a mere assertion of title by the person who is alleged to have made the encroachment. So far, therefore, the present petitioner challenges the order of the Gram Panchayat which has since merged in the order of the Tehsil Panchayat, directing the petitioner to remove the encroachment, the petitioner's objection cannot prevail. As to the second part of the order of the Tehsil Panchayat, sec. 27 no doubt permits the imposition of a fine for every day of disobedience in case the disobedience is a continuing one; but that provision can only be applied when there is first of all an order which has to be complied with either within a specified time or within a reasonable time. In case, the person to whom the direction is given does not comply with the order a motion has to be made to the Panchayat that the order has been disobeyed. If the Panchayat is satisfied that the order has been disobeyed it can impose the fine as mentioned in that section including fine for a continuing disobedience. In the present case while the Gram Panchayat gave 24 hours for removal of the encroachment, the Tehsil Panchayat in its order has not mentioned any time within which the compliance was to be made, and, therefore, there was no occasion to impose a continuing fine in this case. We, therefore, allow the petition to this extent that the order of the Tehsil Panchayat purporting to impose the fine for every day of the disobedience at the rate of Re. 1/-is set aside. The rest of the petition stands dismissed. There will be no order as to costs. .;