JUDGMENT
Rajesh Balia, J.
1. Heard the learned Counsel for the parties. We deem it just and proper to dispose of this appeal and the petition at this stage so that this protracted litigation may come to an end.
2. The writ petition was filed by Gram Panchayat, Manadar challenging the order dated 26.12.1997 of the Collector Sirohi Ex. 7-A by which the Collector cancelled the auction made by the Panchayat of Papar Khar area lying within the pasture land at its disposal and directed Development Officer, Panchayat Samiti, Sheoganj to carry out auction of the Papar Khar area of the Gram Panchayat on 28.12.1997. The petitioner appellant Gram Panchayat challenged the authority of Collector to interfer with the disposal of Papar Khar area within the pasture land, lying within Gram Panchayat and vesting in it interalia on the ground that Papar Khar being natural produce grown at the pasture land allotted to Gram Panchayat to vest in the Gram Panchayat is wholly without jurisdiction and without authority of law. Apart from seeking a mandamus to quash that order which has infringed the exclusive right of the Gram Panchayat to deal with the natural produce vesting in it, petitioner also claimed for writ of prohibition restraining respondents from taking any proceedings for auction of 830 bighas of pasture land producing the natural produce Papar Khar which is vested in Gram Panchayat Manadar.
3. The petition has been dismissed by the learned Single Judge in limine on 23.2.1998 on the ground that the petitioner has an alternative remedy for filing civil suit for the restraining respondents from interfering their right. We have heard learned Counsel for the parties.
4. In the first instance we are of the opinion that where the petitioner seeks mandamus against statutory authority not to trespass the limits of its jurisdiction and infringe the exclusive jurisdiction and authority to be exercised by the petitioner, another instrumentally, of the State, under the provisions of the statute under which it has been constituted the ordinary remedy of filing of the civil suit cannot be considered ordinarily to be a bar or impediment in the exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India to keep any statutory functionary within the limit of its authority conferred under such statute and to protect the limits of authority and rights of the other functionary. Moreover the present case is not merely a matter of exercising power by respective authority but raises basic issue about right of any local authority which exercises sovereign functions of State, to act within the sphere of its authority and obligations, uninterrupted by executive interference except to the extent authorised by law. It is not only the duty of this court to protect the fundamental rights of the citizen, but is equally under obligation to watch that respective bodies constituted under the statutes are confined to act within their own jurisdiction and such authority is not transgressed by other statutory authorities. The question raised in this petition is not ventilation of private rights of any particular Gram Panchayat, but raises the very fundamental issue about the tendency of the general administrative authorities to interfere with the function and exercise of statutory powers vested in Gram Panchayat, the grass root democratic set up of the local self Government in the management of their property affairs and raising funds for their needs.
5. Ordinarily with reaching this conclusion we would have allowed this appeal and sent the case back to be decided by the appropriate bench. However, looking to the fact that no disputed question of fact has been raised before us and the position before us is admitted that the land in question is a part of pasture land which has been placed at the disposal of the Gram Panchayat and ‘Papar Khar’ is natural produce of that area which was authorised by it. It is also not disputed that revenue from such natural produce forms part of the fund of Gram Panchayat. The auction of ‘Papar Khar’ lease has been cancelled by District Collector and its reauction through Revenue Authority has been ordered, the matter is of substantial importance which depends on the interpretation of the statutory provisions. We deem it proper to decide the writ petition also on merits on the aforesaid premise. Both the learned Counsel too have suggested to adopt this procedure.
6. The facts necessary for the present controversy need be noticed. As per Ex. 1 the Jamabandi for Samwat Year 2058 to 2056 the land in question has been shown to be of the ownership of the State and of Kathedari of the Gram Panchayat. The nature of the land is shown to be pasture vide Annex. 1. According to report submitted by the Patwar Ganadar & Sheoganj on 23.4.1990 the area of the Papar Khar produce in the pasture land out of the total pasture land with the petitioner Gram Panchayat was reported to be 830 bighas, giving reference to total area of each Khasara number and out of that Khasara number the ‘area of Papar Khar was separately shown. It also shows the comparative figure of ‘Papar Khar’ area in the other land under the control of Revenue Deptt., within that patwar circle which was estimated to be 520 bighas. There is no dispute between the parties that the allotment of the Papar Khar Area falling under the Revenue Deptt. is being auctioned and allotted by the District Revenue Officers as per the Rajasthan Land Revenue (Papar Khar and Sajji Producing Areas Leases) Rules 1968 framed under the Rajasthan Land Revenue Act and hitherto before the Papar Khar growing area of Panchayat was auctioned by the petitioner Gram Panchayat for the collection of its natural produce and the Gram Panchayat was utilising revenue out of such collection of natural produce. For the year 1998-99 the petitioner Gram Panchayat auctioned the Papar Khar growing area (830 bighas referred to above) of its pasture land on 20.12.1997. The Collector in the first instance on 20.12.1997 sought to injunct Gram Panchayat from carrying out the auction proceedings. However the auction has taken place on 20.12.1997 itself. Therefore by the impugned order dated 26.12.1997 the Collector directed cancellation of the auction by opining that Papar Khar producing area in the pasture land of Gram Panchayat having not been declared as ‘classified area’, the Gram Panchayat has no authority to auction the said area for collection of natural produce and the allotment and collection of revenue of the natural produce be carried out by the District Development Officer Panchayat Samiti Sheoganj.
7. Relying on Rule 169 Mr. Lodha contends that since grazing grounds in question are of the petitioner Panchayat and the panchayat has been conferred authority to lease out such trees or natural produce growing on such grazing lands by private contract or public auction and is entitled to appropriate the income from such contract or auction towards the Panchayat fund. There being clear provision in this regard the Collector Sirohi had no authority to interfere with the auction proceedings of the Papar Khar growing area within the grazing grounds of the petitioner Panchayat.
8. The contention on behalf of the respondents is that notwithstanding that land in question were grazing land vested the petitioner, since the area of Papar Khar growth was not ‘classified’ as required under rules of 1968 framed under the Rajasthan Land Revenue Act for the allotment of lease areas of ‘Papar Sajji’ producing the Gram Panchayat did not acquire necessary authority to deal with auction and collection of revenue from Papar Khar grow on the pasture land in question and it remain subject to general control of revenue authorities of the District under the Rajasthan Land Revenue Act.
9. Having considered rival contentions and the provisions of the Rajasthan Panchayati Raj Act, 1994 the rules of 1996 and the Rajasthan Land Revenue (Papar Khar and Salji Producing Areas Lease) 1968 in our opinion the petition merit acceptance. The scheme of the Panchayati Raj Act makes it abondently clear that as far as possible endeavour is to make any Panchayati Raj Institution self supportive by putting the immovable property situated within the Panchayati Raj Institution at its disposal as the owner of such public properties and to appropriate income of such properties. Which includes the pasture areas as have been vested in the Panchayati Raj Institution or have been put under its disposal and it has also been vested with authority to deal with such properties in the manner provided under rules. It would be appropriate at this juncture to refer the provisions of Sections 63 & 64 of the Panchayati Raj Act and the Rule 169 of the Rules of 1996 which are relevant for the present purposes. It may be noticed that Section 63 authorises the Panchayati Raj Institution to acquire hold and dispose of property and to enter into contract. It also envisage that State may allocate any public property situate within jurisdiction of such Panchayati Raj Institution, which on such allocation vests in and under the control of such Institute. Thus for its purposes every Panchayati Raj Institution has been conferred with power to acquire hold and dispose of property and to enter into contracts. Section 64 delineates certain specific sources of income and receipts which may constitute the funds of the Panchayati Raj Institution, which includes other than specified contributions and incomes a residuary clause that all sums received by or on behalf of the concerned Panchayati Raj Institution. With these specific provisions. We notice Rule 169. It reads as under:
RULE 169:
[Grazing grounds: (1) In case a common grazing ground in any village has not been placed at the disposal of any Panchayat, it shall send its proposal for the taking over or establishing a new grazing ground to the Tehsildar.
(2) On the receipt of such proposal, the Tehsildar shall take action forthwith and intimate to the Panchayat about the decision taken within a period of three months from the date of the receipt or proposal from the Panchayat. If the sanction is not received by the Panchayat within a period of three months of the submission of the proposal, it may move the Vikas Adhikari who shall take steps for the allotment of grazing ground.
(3) The income from the trees and other natural produce growing on common grazing grounds shall be credited to the Panchayat fund.
(4) The Panchayat may lease out such trees or natural produce by private contract or public auction and may also sell dried, decaying and fallen trees in the aforesaid manner subject of the law for the time being in force.
(5) Cow dung on grazing grounds may also sold out by Panchayat by private contract or public auction.
(6) A Panchayat may extend the area of a grazing ground in case of increase in the number of cattle heads in which case sanction will be applied for as in the case of establishing a new grazing ground.
(7) The pasture lands shall not be utilized for any other purpose except for grazing cattle.
(8) Where any pasture land has been occupied unlawfully by any person, or has been utilised for any other purpose, the Panchayat shall make an application to the Tehsildar concerned under the law for the time being in force on the basis of survey record prepared as per Rule 165.]
10. From the scheme of the Rule it becomes clear that for any institution of panchayat common grazing grounds have occupied a special field of attention. It has been made imperative that every panchayat has sufficient grazing ground at its disposal. Sub-rule (1) provides that where any common grazing ground in any village has not been placed at the disposal of any Panchayat, or the grazing grounds placed at the disposal of any gram panchayat is not sufficient for its heads, it is required to send its proposal for taking over or establishing a new grazing ground to the Tehsildar. The action has to be taken by Tehsildar within three months from the date of receipt of the proposal, for sanctioning grazing ground for Panchayat and where Tehsildar fails to act within three months, the Vikas Adhikari has been obligated to take steps for allotment of the grazing grounds. Thus ensuring that sufficient grazing grounds is placed at the disposal of Gram Panchayat, as early as possible, the rule further provides that income from the trees and natural produces grown on common grazing grounds shall be credited to the Gram Panchayat under Sub-rule (3). This makes it abundantly clear that trees growing on the local grazing ground as well as all natural produce on gauchar land are the source of Panchayat funds and not to be appropriated by the revenue authorities to their own other use. It is not in dispute before us that ‘Papar Khar’ or Sajji is a natural produce of land or that it does not fall within Sub-rule (3) itself. This is also clear from the order of the State Govt. dated 6.6.1981, rejecting the suggestion made by the Collector Jaipur to treat Papar Khar as minor mineral and it has been clarified that the Paper Khar & Sajji are natural produce of land. Sub-rule (4) of Rule 169 authorises Panchayat to lease out trees or natural produce by private contract or public auction. It may again to be noticed that while under proviso to Section 63, all cases of acquisition or disposal of immovable property by the concerned Panchayati Raj Institution require the previous approval of the State Govt. This provision does not inhibit dealing with movable property of Panchayat Natural produce grown on pasture land is movable property of the gram panchayat. Wherever any natural produce growing on grazing ground transferred, which is authorised under Rule 169(3) it is not subject to condition of previous approval of State Govt. Therefore, conclusion is irresistable that right to lease out right to papar khar either by private contract or public auction which in effect is the right to collect Papar Khar, the natural produce of the pasture land, vesting in Panchayat, and the receipts of such natural produce of the grazing land is to be credited to the Panchayat fund.
11. The District Revenue Authorities have no jurisdiction to interfere with the matter. That right is conferred on the gram panchayat under the Provisions of the Act of 1994 and Rules of 1996 framed thereunder which are special provisions. We have not been shown provisions in the Land Revenue Act which trenches upon the authority of Panchayat in taking actions authorised by law for Panchayat for raising fund through disposal of natural produce of grazing ground. Reference to the rules framed under the Land Revenue Act for allotment of Papar & Sajji produce area are not relevant to examine contours of exercises of authority of concerned Panchayati Raj Institution in respect of grazing grounds placed under its control and disposal in as much as they do not operate in the field. Such transactions are governed by special provisions framed for that purpose by the legislature and rules framed thereunder. The authorities constituted under the Land Revenue Act are not allowed to entrench upon the authority of Panchayat with reference to power conferred on such authority under the Land Revenue Act, in respect of matter specifically dealt with by Panchayati Raj Act & Rules framed thereunder, except to the extent such power is saved by statute.
12. It may be noticed that while Rules of 1968, relied on by the respondents refer to disposal of papar khar and sajji etc. growing in classified area, under the 1994 Act & Rules framed thereunder no such inhibition on authority of Panchayat or any other Panchayati Raj Institution, has been envisaged to lease out trees or natural produce growing on common grazing ground, which can not only be done by public auction, but may also be done by private negotiation. Such authority is essentially in aid of collecting funds by such institute to discharge its obligation and in furtherence of financial self sufficiency to extent it is possible under the frame work of statute.
13. We allow the appeal and the order under appeal is set aside. We further allow the writ petition and quash the order dated 26.12.1997 passed by the District Collector Sirohi. We further restrain the respondents from interferring with the exclusive right of the petitioner to deal with the natural produce growing in the form of Papar Khar within the pasture land at its disposal. We hold that no person can be directed by the Collector to auction the natural produce the public grazing grounds placed at the disposal of the panchayat where the Panchayat itself is exercising its right to collect the revenue from the natural produce within its grazing grounds in accordance with the authority conferred on it under the Act and the Rules framed thereunder as discussed above. The question of exercise of such authority by other authorities would only arise if for any reason the administration of Panchayat is not in the hands of a duly constituted Panchayati Raj Institution through democratic process and its administration comes under the control of any authority appointed by State for its administration. Even in such event the receipts obtained from the disposal of the natural produce growing within the Panchayat grazing ground has to be credited to the funds of the Panchayat and cannot be appropriated by the said authority for its use. Any proceedings taken by any authority other than the petitioner appellant in the matter of pasture land in question for collecting natural produce growing on it lands stands quashed and in-effective.
14. No orders as to costs.