In view of the provisions of section 2-A and the said rules, the Grampanchayat is empowered to remove obstruction within a period of six months from the date when the encroachment is noticed for the first time by the panchayat. In the present case, it is not in dispute that the encroachment was noticed for the first time by the village panchayat in the year 1961 which is clear from the averments in the written statement. The notice for removal of enroachment is given on 28-5-1976. The power to remove encroachment is given to the village panchayat which is to be exercised within the time prescribed i.e. within six months from the date of notice of encroachment by panchayat. The notice issued by the village panchayat for removal of encroachment dated 28-5-1976 is, therefore, in contravention of the provisions of sub-section 2-A read with the relevant rules.
10. If the village panchayat has no right to remove encroachment after six months from the year 1961, the plaintiff could base his claim for injunction on that apprehension and seek injunction to restrain the defendant-panchayat from removing the obstruction caused by encroachment. If the apprehension of the plaintiff is seen in the light of the notice, the plaintiff was entitled for relief of injunction as claimed in the plaint.
Bombay High Court
Tukaram S/O Lingappa Nagthane vs Grampanchayat Karyalaya on 9 February, 1988
Equivalent citations: 1988 (3) BomCR 351
1. This second appeal is filed by the original plaintiff who has filed a suit against the Grampanchayat for declaration of ownership and also for injunction regarding the house bearing No. 117 of Village Sawargaon.2. The learned trial Judge dismissed the suit of the plaintiff on several grounds namely that the plaintiff has failed to establish his title. So also the suit is bad for want of notice to the Grampanchayat as per section 180 of the Bombay Village Panchayats Act, 1958. The trial Court found that even though the house belongs to the plaintiff, the portion of Baithak constitutes an encroachment made by the plaintiff.
3. The plaintiff went in appeal before the District Court at Nanded. The learned District Judge, Nanded, who heard the appeal, confirmed the findings recorded by the trial Court and dismissed the appeal.
4. The learned Counsel Shri Vaishnav, appearing for the appellant, tried to challenge the concurrent finding of facts regarding the encroachment. I do not find any reason to interfere with the finding of facts recorded by both the courts below. But the contention of the learned Counsel Shri Vaishnav regarding grant of injunction in the present case will have to be accepted. He contended that the claim of injunction by the plaintiff in the present case was based not merely on title but was also based on the illegal notice issued by the village panchayat for removal of encroachment. Both the Courts have proceeded on the footing in the matter of claim of injunction by the plaintiff that the said claim is based on title only. The courts have not at all considered the claim of injunction on the ground of illegal issuance of notice for removal of encroachment. I have gone through the judgments of both the courts and I find that the claim of the plaintiff for injunction is not considered in the light of the provisions of the Bombay Village Panchayats Act at all.
5. It admitted position as found by both the courts that the plaintiff has carried on construction on the encroachment portion. For the removal encroachment, the village Panchayat has issued notice under section 51 of the Bombay Village Panchayat Act on 28-5-1976 (Exhibit 28). The plaintiff has filed a suit thereafter contending inter alia that the notice of village panchayat is wrong and illegal and, therefore, claimed injunction restraining the village panchayat from causing any loss, damage to the house property of the plaintiff which includes the encroachment portion also.
6. On perusal of provisions of section 53 sub-sections (2) and (2-A) of the Bombay Village Panchayat Act, 1958, the challenge of the plaintiff to the notice of the village panchayat to for removal of obstruction seems to be justified.
7. Sub-section (2) of section 53 of the Bombay Village Panchayat Act empowers the panchayat to remove obstruction or encroachment but the power to remove obstruction or encroachment is to be exercised in the manner prescribed by sub-section (2-A).
Sub-section (2-A) provides that if any panchayat fails to take action under sub-section (2) within such time as may be prescribed, the Collector suo motu or on an application made in this behalf, may take action as provided in that sub-section.
8. The time limit as provided under sub-section (2-A) is prescribed by the rules known as the Bombay Village Panchayats (Period for removal of obstruction and encroachment) Rules, 1971. Sub-rule (3) of these rules provide that the time limit for the purposes of sub-section (2-A) of section 53 is six months from the date on which the obstruction, encroachment or unauthorised cultivation of the crop---
(a) is first noticed by,
(b) is brought to the notice of a Panchayat.
9. In view of the provisions of section 2-A and the said rules, the Grampanchayat is empowered to remove obstruction within a period of six months from the date when the encroachment is noticed for the first time by the panchayat. In the present case, it is not in dispute that the encroachment was noticed for the first time by the village panchayat in the year 1961 which is clear from the averments in the written statement. The notice for removal of enroachment is given on 28-5-1976. The power to remove encroachment is given to the village panchayat which is to be exercised within the time prescribed i.e. within six months from the date of notice of encroachment by panchayat. The notice issued by the village panchayat for removal of encroachment dated 28-5-1976 is, therefore, in contravention of the provisions of sub-section 2-A read with the relevant rules.
10. If the village panchayat has no right to remove encroachment after six months from the year 1961, the plaintiff could base his claim for injunction on that apprehension and seek injunction to restrain the defendant-panchayat from removing the obstruction caused by encroachment. If the apprehension of the plaintiff is seen in the light of the notice, the plaintiff was entitled for relief of injunction as claimed in the plaint.
11. The learned Counsel Shri Deshpande, appearing for the respondent-grampanchayat, contended that the provisions of sub-section (2-A) do not govern the right to exercise power vested in the village panchayat under sub-section (2) of section 53 of the Act. I am unable to appreciate this contention at all. If provisions of sub-sections (2) & (2-A) are harmoniously construed, it will have to be presumed that the power granted to the village panchayat under sub-section (2) for removal of encroachment has to be exercised within the time limit prescribed by sub-section (2-A) and thereafter it is for the Collector to act on an application or suo motu. The gram-panchayat cannot take any acting for removal of encroachment after the time limit prescribed under sub-section (2-A).
12. Shri Deshpande further contended that the claim of the plaintiff for injunction is not framed by the plaintiff in the light of the provisions of section 53 sub-sections (2) & (2-A) of the Act but the claim is purely based on title. I am unable to appreciate this contention because in the plaint the plaintiff has contended that the notice is wrongly issued and the plaintiff apprehends that the grampanchayat is likely to cause damage to the property of the plaintiff. Hence, he prayed for injunction. I, therefore, do not find any force in the contention of the learned Counsel regarding the frame of the suit and the relief claimed.
13. The third contention of Shri Deshpande is that the point regarding illegality of notice is not raised in the courts below. It is true that the point is not raised in this fashion but there is a reference to the arguments of the Advocates before the lower Appellant Court in the light of provisions of sub-section (2) of section 53 of the Act which suggests that the point was tried to be agitated by the Advocate for the appellant before the lower Appellate Court itself. The point of wrong notice is mentioned in the plaint and the relief of injunction is also claimed by the plaintiff. Therefore, it cannot be said that the point is raised for the first time in this second appeal. One more fact will have to be noted in this behalf that the plaintiff has filed the present suit after the notice to remove encroachment is issued by the village panchayat. The notice therefore, was very much the basis of the claim made in the suit. If the notice is bad under provisions of the Bombay Village Panchayats Act, 1958, the plaintiff is certainly entitled for injunction as claimed by him.
14. In the result, this second appeal is partly allowed. The findings recorded by the lower Appellant Court regarding failure of plaintiff to establish title to the encroached portion are confirmed but the plaintiff to entitled for injunction restraining the defendant from causing any loss or damage is the property is the plaintiff including the encroached portion. The plaintiff is also entitled for injunction restraining the defendant-respondent from acting or taking any steps pursuant to the notice dated 28-5-1976. There shall be no order as to costs.
No comments:
Post a Comment