Bapna, J. - (1.) THIS is a petition under Article 226 of the Constitution of India.
(2.) THE case of the petitioner Badrilal is that he has a Chabutri adjacent to his shops in the town of Chhipabarod, Mohalla Holi-ka-Khoont market. It was said that a certain dispute arose in 1935 in respect of this Chabutri, and the District Magistrate gave a decision on 24th November, 1935, that the Chabutri belonged to the petitioner, but that he should not make any construction on the Chabutri. On 20th November, 1955, the petitioner requested the Gram Panchayat that he should be permitted to open four doors of his premises on this Chabutri. THE Gram Panchayat gave the permission on 15th April, 1956, Ex. P. 3 Brij Mohanlal, a neighbour, who had raised certain objec-tions before the Gram Panchayat, filed an appeal to the Tehsil Panchayat of Chhipabarod, and that authority set aside the sanction given by the Gram Panchayat by its order dated 25th June, 1956, (Ex. P. 4.) and restrained the petitioner from opening the doors towards this Chabutri. THE petitioner has come to this Court on the allegation that no sanction for opening the doors was required under the Rajasthan Panchayat Act,1953, and he had made a mistake in making an application, but that, in any case, it was the fundamental right of the petitioner to use and enjoy his property in any manner he liked, and the Tehsil Panchayat had acted illegally in restraining the petitioner from opening the doors towards the Chabutri. Brij Mohanlal, the Tehsil Panchayat and the Gram Panchayat of Chhipabarod were made respondents in this petition. Only a reply has been filed on behalf of respondent No. 3 the Gram Panchayat of Chhipabarod and none on behalf of the other two respondents. It was contended for the respondent that the Gram Panchayat had jurisdiction to grant or withhold sanction, and that if it granted sanction, an appeal lay to the Tehsil Panchayat, and the Tehsil Panchayat acted within its jurisdiction in withholding the sanction. It was also contended during the course of arguments before the learned Single Judge of this Court that the order passed by the Tehsil Panchayat was an administrative order and was not amenable to the jurisdiction of this Court. As the question raised by the respondent was of some importance, the case was directed to be laid before Division Bench. It may be mentioned that among the obligatory duties of Panchayats laid down by sec. 24 of the Rajasthan Panchayat Act, (Act No. XXI of 1953) appears item No. 12 "regulation of the construction of new buildings or of the extension or alteration of of existing buildings", Learned counsel for the petitioner contended that the "buildings" referred to in this item must be the public buildings of the Panchayat, for the opening words of sec 24 permit the exercise of jurisdiction within the limits of the funds at its disposal. The extent of the duties according to the funds at its disposal appearing in the opening wards of sec. 24 does not mean that these duties are to be performed only in cases where funds are required. Item 16 may be quoted, for instance where it permits the allotment of places for storing manure. Obviously the discharge of this duty does not require any utilisation of funds. Similarly the regulation of the construction of new buildings or the extension or alteration of existing buildings may pertain to building which may not require any expenditure. The language is wide enough to regulate the construction of private buildings or the extension or alteration of existing buildings. The Rules framed under this Act clearly point out to this conclusion, for under Rule 11 of the Panchayat (General) Rules provision is made for making applications by private individuals, for inspection of the site by members of the Panchayat, and for the principles to be kept in mind in according or refusing sanction. The first contention raised by learned counsel that the Gram Panchayat had no jurisdiction whatsoever to deal with an application of this nature to grant sanction for making a new construction or altering an existing building has no force, Learned counsel next contended that the petitioner only wanted to open doors in his own building towards the Chabutri which was his own, and that no reasonable ground existed for refusing the sanction. This takes us to the objection raised by learned counsel for the respondent that it was an administrative act, and the discretion exercised cannot be interfered with. As to what is an administrative order or a judicial or quasi judicial order has been explained by their Lordships of the Supreme Court in Province of Bombay vs. Khushaldas S. Advani (1 ). The observations of Kania C. J. at page 226, after a review of various cases, may be quoted here: - "it seems to me that the true position is that when the law under which the authority is making a decision, itself requires a judicial approach, the decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an enquiry judicial, provided in coming to the decision the well-recognised principles of approach are required to be followed. In my opinion, the conditions laid down by Slesser L. J. in his" judgment correctly bring out the distinction between a judicial or quasi judicial, decision on the one hand and a ministerial decision on the other. " The conditions laid down by Slesser L. J. are reproduced at page 225, and they are as follows: - "wherever any body of persons (1) having legal legal authority (2) to determine questions affecting rights of subjects and (3) having the duty to act judicially (4) act in excess of their authority - a writ of certiorari may issue. " It was observed by Slesser L. J. that the existence of each was necessary to determine the nature of the act in question. Applying the test in the present case, we find that there was a body of persons, viz. , the Gram Panchayat. Legal authority had been conferred upon it under the Rajas-than Panchayat Act. The Gram Panchayat was requested to giant sanction, and there having been an objection, it was the Gram Panchayat which was called upon to determine questions affecting rights of subjects. It was the duty of the Gram Panchayat to act judicially, because that direction is to be found in Rules 11 of the Panchayat (General) Rules 1954. That Rule laid down: - (1) That a register should be maintained in respect of all application for sanction for construction of a new building or extension or alteration of a building. (2) That the members of the Panchayat should, if necessary, inspect the site and the sanction should be given after the inspection has been made. (3) That the members of the Panchayat should 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. The Gram Panchayat was not authorised to grant or refuse sanction according to its likes or dislikes, or whims (and caprices. It was to be refused or granted in accordance with the principles given in Rule 11 (2), mentioned above. We have, therefore, only to see whether in refusing sanction the Tehsil Panchayat had acted in excess of their legal authority. This leads us to the examination of the grounds on which the refusal was made. If the refusal was made in accordance with the principles which have been cited above, the act would be within their jurisdiction. If it was not based on those principles, and there is no reasonable ground to be found in the order, the result will be different. The order of the Tehsil Panchayat is dated 25th June, 1956. After referring to the preliminary facts the Tehsil Panchayat observes as follows: - "the appellant has drawn our attention to the order of the District Magistrate, lklera, dated 24th November, 1935, wherein it is clearly stated that this Chabutri shall not be included in any construction of the house, and that no construction will be made upon it. It is clear from this order that the Chabutri will not be utilised in any manner, and shall remain as it is. If four doors will be opened on this Chaburti, the Chaburti will be utilised for passage to the four doors, and thus it would become a part of the construction, and shopkeeper will keep his goods on the Chabutri, and in this manner it would be contrary to the previous order of the District Magistrate. " The majority of the members, who heard the appeal, therefore, decided that the respondent should not be permitted to open the doors on the Chabutri, nor should he be permitted to make any construction adjacent to the Chabutri. A perusal of this order shows that it does not at all refer to the principles laid down in Rule 11 for the guidance of Gram Panchayat in the matter of according or refusing sanction. Badrilal petitioner, who is admittedly the owner of the Chabutri, had the power to utilise it, and the previous order of the District Magistrate only prevents any construction being made upon it or its being included in any construction. What Badrilal wanted was to open doors towards this Chabutri, and not to include it in any construction or to make any construction over it. The petitioner can even now put his goods, and sit or utilise it in any manner he likes beyond making any construction over it. It will still remain in the same condition even after the doors are opened in the premises of the petitioner towards the Chabutri. The Tehsil Panchayat has obviously acted in excess of the powers conferred upon it by the Act. The order seems to have been passed on a misconception and misunderstanding of the order of the District Magistrate. The petition is accordingly allowed, and the order of the Tehsil Panchayat of Chhipabarod dated 25th June, 1956, is set aside. The petitioner will get his costs from Brij Mohanlal, counsel's fee being assessed at Rs. 50/- per hearing. . ;