K.S. Sidhu, J.
1. This is a writ petition under Article 226 of the Constitution. The petitioners are in cultivatory possession as tenants of agricultural land comprised in Khasra number 112, measuring 14 bighas 7 biswa, situate in area of village Harnathpura, Tehsil and District Jaipur. Apprehending the making of a way by force through that land by respondent 4, they filed a suit on Jan. 2, 1978, for perpetual injunction to restrain the said respondent from opening such a way through the petitioners' land. The said suit is still pending trial in the revenue court concerned. The petitioners also succeeded in obtaining a temporary injunction in that suit from the revenue appellate authority. The temporary injunction was affirmed by the Board of Revenue, inasmuch as the revision petition filed by respondent 4 against the said injunction was dismissed by the Board on April 20, 1981. Thereafter, on May 21, 1981, respondent 4 also filed a civil suit for a declaration that he has a right of way (rasta) through the land of field number 112 aforementioned and for a perpetual injunction restraining the present petitioners from obstructing him from passing through the said rasta. He also filed an application for temporary injunction, but the same was dismissed by the Civil Judge. His appeal from the order of dismissal of his application for temporary injunction was also dismissed by the Additional District Judge.
2. Thus, the petitioners' case is that the controversy between the parties regarding the existence or otherwise of a rasta through the land of field number 112 is sub-judice in two different suits, one pending in the revenue court and the other in the civil court. During such pendency, respondent 4 filed an application under Section 251, Rajasthan Tenancy Act, 1955 before the Gram Panchayat concerned for an order directing the petitioners to remove obstruction to the respondent's enjoyment of the right of way and to the restoration of his rasta through the petitioners' land. By its order, dated, Aug. 7, 1982, the Gram Panchayat dismissed the said application. On appeal by respondent 4, the Collector set aside the said dismissal on April, 5, 1983, and remanded the application under Section 251 of the R. T. Act, 1955 to the Tehsildar, Jaipur, for fresh decision according to law. By his order, dated, Jan. 12, 1984, the Tehsildar allowed the application under Section 251, R. T. Act, 1955, directing the petitioners to stop their disturbance of the user by respondent 4 of a portion of the petitioners' land comprised in Khasra number 112 as rasta and to restore respondent 4 to his enjoyment of the said rasta. The petitioners preferred an appeal before the Collector against the order of the Tehsildar. They also challenged the self-same order by way of a petition of revision before the Board of Revenue. After filing the revision, they withdrew from the appeal before the Collector with the result that the said appeal stands dismissed as withdrawn. By its order, dated, Mar. 21, 1984, the Board dismissed the revision.
3. After the dismissal of their revision by the Board of Revenue, the petitioners filed the present writ petition on April 21, 1984, challenging the order of the Tehsildar, dated, Jan. 12, 1984. Incidentally, they are also challenging the earlier order, dated, April 5, 1983, whereby the Collector had remanded the application under Section 251, R. T. Act, 1955 to the Tehsildar instead of the Gram Panchayat.
4. The main ground on which the order of the Tehsildar dated, Jan. 12, 1984 is challenged is that he had no jurisdiction to decide the question of the disputed rasta at all. It is submitted that the jurisdiction of the Tehsildar under Section 251, R. T. Act, 1955 (hereinafter called the Tenancy Act) to decide disputes as to rasta has been taken away by virtue of a Notification issued by the State Government of Rajasthan in exercise of its powers under Section 260 (1)(b) Rajasthan Land Revenue Act, 1956 (hereinafter called the Revenue Act). The notification on which reliance is placed by counsel for the petitioner, reads as under :
'No. F.6(41) Rev.B/60 dated June 17, 1961. In exercise of the powers conferred by clause (b) of Sub-section (1) of Section 260 of the Rajasthan Land Revenue Act, 1956, (Rajasthan Act No. 15 of 1956), and in supersession of this Department's Notification No. F.6(41) Rev. B/60, dated, the 17th June, 1960 the Government hereby directs that : --
(1) the power conferred on a Tehsilder by Sub-section (1) of Section 251 of the Rajasthan Tenancy Act, 1955, (Rajasthan Act No. 3 of 1955) of the disposing of application of the holder of land disturbed in the actual enjoyment of right of way, shall be exercised, in place of Tehsildar, by the Village Panchayat of the village in which the right of way has been disturbed is situate; and
(2) an appeal against an order passed by a Village Panchayat in any case decided under the power delegated to it by this notification, shall lie to the Collector of the district concerned'
Section 260 of the Revenue Act under which the aforementioned Notification was issued by the Government may also be reproduced for convenience of reference. It reads :
'260. Delegation-- (1) the State Government may by notification in the Official Gazette-
(a) xxx xxx xxx xxx xxx(b) direct, that any duties imposed and powers conferred by this Act or the rules made thereunder or by any other law for the time being in force or the rules made under such other law on any officer or authority appointed or constituted under this Act or the rules made thereunder shall be performed and exercised by any other lawfully appointed or constituted officer or authority specified in the notification, whether such other officer or authority shall have been appointed or constituted under this Act or the rules made thereunder or under any other law for the time being in force or the rules made under such other law, or(c)-(d) xxx xxx xxx xxx xxx xxx xxx xxx'.
5. The question which falls for determination therefore is whether the power of tehsilder conferred on him by Section 251, Tenancy Act to decide disputes as to rasta can be taken away by the State Government by a notification issued by it in exercise of its powers under Section 260 of the Revenue Act. If the Legislature has conferred on the State Government a power to withdraw the jurisdiction and powers of the Tehsildar under Section 251 of the Tenancy Act, there should be no difficulty in answering the question in the affirmative. But it cannot be answered in the affirmative for the simple reason that the Legislature has enacted Section 260 of the Revenue Act in such a manner as to confer only a limited power on the State Government to authorise an officer or authority other than the Tehsildar under Section 251 of the Tenancy Act. No power is conferred on the State Government by Section 260 of the Revenue Act to take away the powers of the Tehsildar vested in him by Section 251 of the Tenancy Act. The effect of the notification issued by the State Government under Section 260 of the Revenue Act, in terms of the present case, therefore, is that both the Tehsildar and the Panchayat have concurrent jurisdiction to decide disputes regarding rasta. The Tehsildar gets such power directly from the Legislature under Section 251 of the Tenancy Act. The Panchayat gets such powers by virtue of a notification issued by the State Government as a delegate of the Legislature. The delegate can Validly operate within the strict limits of his powers and not beyond them. Section 260 of the Revenue Act confers a limited and delegated power on the State Government in that it may authorise a Panchayat to exercise the powers of a Tehsildar under Section 251 of the Tenancy Act, but it does not authorise the State Government to withdraw the statutory powers of the Tehsildar under that section. For all these reasons, I must hold that the notification reproduced above is partly bad, but its bad portion is clearly severable from the good portion. Now, if the words 'in place of Tehsildar' occurring between the word 'exercised' and the word 'by' are deleted from the said notification, it will be rid of its vice of being ultra vires Section 251 of the Tenancy Act and Section 260 of the Revenue Act. I would accordingly hold that the words 'in place of Tehsildar' occurring in the notification issued by the State Government under Section 260 of the Revenue Act, are ultra vires that section and Section 251 of the Tenancy Act and therefore the notification shall be read as if these words do not occur there. The rest of the notification is valid.
6. That being so, it follows as a matter of necessary corollary that the powers of the Tehsildar under Section 251 of the Tenancy Act to decide disputed questions of rasta under that section have not been taken away by the aforementioned notification issued by the State Government under Section 260 of the Revenue Act, which has to be read minus the words 'in place of Tehsildar' as explained above. The order, dated, Jan. 12, 1984, must therefore be held to have been passed by the Tehsildar in the valid exercise of his jurisdiction and power under Section 251 of the Tenancy Act.
7. Mr. Dave then assailed the said order on merits. I am afraid this court cannot go into the merits of the impugned order in the exercise of its extraordinary powers under Article 226 of the Constitution. It will be seen that the order in question is appealable under Section 225 of the Tenancy Act and in fact the petitioner had preferred an appeal against it before the Collector competent to entertain such appeals. The said appeal has since been dismissed as withdrawn. The mere fact that the petitioner suffered the appeal to be dismissed as withdrawn is no ground to entertain this writ petition in respect of the same subject. The petitioner was ill advised in withdrawing from that appeal. He must bear the consequences of such withdrawal.
8. The mere fact that the controversy regarding the rasta in dispute is pending adjudication in two different suits, one instituted in a civil court and the other in a revenue court is no ground for holding that the Tehsildar should refrain from exercising his powers under Section 251 of the Tenancy Act. The powers conferred on the Tehsildar under Section 251 of the Tenancy Act are independent and can therefore be exercised by him as such regardless of the pendency of the two suits in the aformentioned courts. In fact Sub-section (2) of Section 251 itself makes it clear that the two remedies i.e. the one under Section 251 and the other by way of a regular suit in a competent civil court are independent of each other. The pendency of a suit will not take away the independent jurisdiction of the Tehsildar under Section 251 of the Tenancy Act and similarly making of an application to the Tehsildar under that section will not debar the party concerned from filing a regular suit in a competent civil court for the purpose of establishing his right in respect of a rasta.
9. For all these reasons, this writ petition fails and is dismissed in limine.