JAGAT NARAYAN, J. - (1.) THIS is a petition under Art. 226 of the Constitution against an order of the Additional Collector, Pali, setting aside an order of the Panchayat holding that there is a public way through the field of Pratap Singh, which he had obstructed.
(2.) THIS order was passed by the Panchayat in exercise of its power under sec. 24 (1) read with clause (a) of Item No. II of the Third Schedule. The Panchayat has power to widen, open, enlarge or otherwise improve any public street, culvert or bridge with minimum damage to the neighbouring fields under section 26 (1) (xiii ). An appeal lay against the order of the Panchayat to the Panchayat Samiti under sec. 26-A. But Pratap Singh filed an appeal to the Collector under the erroneous impression that the order passed by the Panchayat was under sec. 251 [1] of the Rajasthan Tenancy Act. It may be mentioned here that the power conferred on a Tehsildar by sub-sec. (1) of sec. 251 of this Act has been delegated to village Panchayats under Notification No. F. 6 (41) Rev. B/60 dated June 17, 1961 printed at page 1229 of the Revenue Code Vol. II. Sec. 251 (1) only applies to private rights of way and not to public way. The Additional Collector held that no appeal lay to him under sec. 251 (1) because of this. But he treated the appeal as a revision application under sec. 27-A. Now sec. 27-A (l) (c) lays down that a revision does not lie against an order of the Panchayat in an administrative matter from which an appeal lies under sec. 26-A to the Panchayat Samiti. The Additional Collector had therefore no jurisdiction to entertain a revision application under sec. 27-A against the order of the Panchayat regarding a public way. The order of the Additional Collector is thus without jurisdiction. On behalf of Pratap Singh my attention was drawn to notification No. F. 4 (L. J.) 2 (a) 26691, dated 22-4-60 which runs as follows: "in pursuance of sec. 88 of the Rajasthan Panchayat Act, 1953' (Act No. 21 of 1953), the State Government hereby directs that notwithstanding anything in clause (i) of the said section, no agricultural lands, forest lands and unculturable lands (not being abadi land as defined in clause (b) of sec. 103 of the Rajasthan Land Revenue Act, 1956) situated in a Panchayat Circle shall vest in or belong to the Panchayat of that circle or shall be under its directions, management and control. " It was contended that the jurisdiction of the Panchayat has been ousted so far as culturable lands and unculturable lands are concerned. This notification has been issued under sec. 88 of the Panchayat Act, the relevant part of which runs as follows: - "panchnyat property - (1) Subject to such reservations as may from time to time be made by the State Government all property of the nature hereinafter in this sub-section specified shall vest in and belong to a Panchayat, that it to say : (i) all common lands lying within its Panchayat Circle; (ii) all public streets together with the pavements, stones and other materials thereof and all trees, erections, materials and implements provided therefor; Now what has been held to be a public way by the Panchayat is claimed as part of his private agricultural land by Pratap Singh and not as a common land falling under sec. 88 (1) (i ). The above notification has therefore no application to it. Public paths | fall under sec. 88 (i) (ii) whereas unculturable and agricultural lands fall under sec. (1) (i ). The next contention on behalf of Pratap Singh is that from the order of the Additional Collector it appears that the land which has been held to be a public way is the private land of Pratap Singh. The order of the Additional Collector being without jurisdiction cannot be looked into for ascertaining whether the land in question is private land belonging to Pratap Singh. He should have produced evidence before the Panchayat which passed an order after issuing notice to him. The Panchayat held it to be a public path way. The next contention is that this matter is covered by sec. 91 of the Land Revenue Act. "land" is defined under sec. 103 of that Act. A public way is not included within the definition of land and therefore sec. 91 does not apply to it. Apart from this sec. 2 of the Rajasthan Land Revenue Act lay down that the provisions of Rajasthan Panchayat Act are not to be affected by the provisions of the Rajasthan Land Revenue Act. I accordingly find that the order passed by the Additional Collector is without jurisdiction and quash it. The order passed by the Panchayat is accordingly restored. The learned counsel for Pratap Singh, respondent, prays that the memorandum of appeal, which he filed before the Additional Collector, be returned to him for presentation to the Panchayat Samiti. This prayer is opposed on behalf of the petitioner. I direct that the memorandum of appeal may be returned to Pratap Singh, respondent, for presentation to the Panchayat Samiti. It will be for the Panchayat Samiti to decide whether or not to entertain the appeal. The writ petition is allowed as indicated above. In the circumstances of the case, I leave the parties to bear their own costs of these proceeding. . ;