JUDGMENT : Panigrahi, C.J. - This is an application under Articles 226 and 227 of the Constitution praying for the issue of a writ of Certiorari for quashing the order of the District Collector, Cuttack, declaring the disputed lands to be 'communal lands' within the meaning of Orissa Act I of 1948. 2. The admitted facts are that plot Nos. 54 and 155 of village Kharira in P.S. Salepur are recorded as 'Puratan Patit' in the Anabadi Khata of the ex-proprietor Choudhury Gangadhar Das of Bhingarpur who is the Petitioner before us. These lands were leased out to one Bhaja Govind after the 1st April 1946. The opposite parties are the residents of the neighbouring village of Kankaraillo and some other villages. Kankaraillo lies adjacent to Plot No. 54. These villagers complained that the disputed plots 54 and 155 served as a sort of passage for their cattle and carts, to reach the grazing ground which has been recorded as plot No. 49 at the western end and the tank, plot No. 178, at the eastern end. They therefore prayed that suitable action may be taken against the lessees so hat their right of passage may not be interfered with. The Sub-Deputy Collector at Cuttack was directed to hold an enquiry and his report, marked as Annexure B, shows that the tank is recorded as three separate plots-Nos. 177, 178 and 179 and that, plots 177 & 179 are being used partly as a cremation ground and partly as a threshing floor. The tank itself is seldom used by the villagers, as there is not enough water at any time to enable the villagers, to use it either for irrigation or for other purposes. The enquiring officer's report also shows that the disputed plots were being used as grazing fields by the villagers. The Sub Deputy Collector accordingly recommended that action may be taken under Act I of 1948 holding that the lands were 'communal lands' within the meaning of that Act. On receiving the report of the Sub-Deputy Collector, the Collector declared the alienations by the zamindar by way of the lease to be void and inoperative and directed the Sub-divisional Officer to take necessary action' whatever that might mean. The lessor-landlord had therefore come up before us for quashing the order passed by the Collector. 3. Mr. On receiving the report of the Sub-Deputy Collector, the Collector declared the alienations by the zamindar by way of the lease to be void and inoperative and directed the Sub-divisional Officer to take necessary action' whatever that might mean. The lessor-landlord had therefore come up before us for quashing the order passed by the Collector. 3. Mr. Sinha appearing for the applicant points out that even if the report of the Sub-Deputy Collector be accepted, the lands cannot be said to satisfy the definition of the expression 'communal land' as laid down in Section 2 of the Act. They are not recorded either as Gochar or Sarbasadharan. They are doubtless waste lands, but whether they have been set apart for the common use of the villagers either explicitly or impliedly is a matter which the revenue authorities are not competent to decide. As the question involves the rights of the respective parties the Civil Court is the proper forum for adjudicating the question. Apart from the mere allegation of the villagers that the lands were being used for the passage of their cattle and carts, there is no evidence that the entire extent of 5 acres and odd was utilised for this purpose. It may well be that the villagers were permitted to take their cattle across the lands, but this did not mean that the entire extent was set apart for a common purpose. It appears to me that the villagers may at best claim a right of passage by way of an easement, over the lands, the title to which rests with the proprietor. The nature and the extent of the user are matters to be judicially determined by the civil court, and not by the revenue authorities after an enquiry. I am therefore led to conclude that it is impossible, on the very tenuous material placed before us, to agree with the finding of the enquiring officer that the lands are to be regarded as communal land' within the meaning of Act 1 of 1948. 4. The second point raised by Mr. Sinha is that, apart from the character of the land, the Collector, as such, has no power to declare any transaction, in breach of the provisions of the Act, as void. 4. The second point raised by Mr. Sinha is that, apart from the character of the land, the Collector, as such, has no power to declare any transaction, in breach of the provisions of the Act, as void. All that Section 5 lays down is that if a proprietor desires to alienate or convert into ryoti land any communal, forest or private land he can do so with the prior sanction of the Collector. Section 4 declares any transaction of the nature prohibited by Section 3 to be void and inoperative. If, therefore, the transaction is one which is hit by Section 3, Section 4 declares it to be void and inoperative., What the consequences of such a transaction would be, must be left to the courts to decide. It is not the function of the Collector, nor does the Act call upon him to declare any such transaction as void. Section 6 of the Act creates a bar to the validity of the order of the Collector being questioned in a Civil Court. But the order in the present case is not an order u/s 5, as the transaction too place before the Act was passed though in its operation it is retrospective in effect by reason of Section 1. There is therefore no question of obtaining the prior sanction of the Collector, because the lessor could not have obtained such permission before leasing out as the Act had not been passed. 5. We are therefore satisfied that the order of the Collector is not in accordance with the provisions of Orissa Act I of 1948 and that it should the declared void. We accordingly allow this application and order the issue of a writ quashing the proceedings before the Collector and declaring them to be void. Rao, J. 6. I agree. Final Result : Allowed