Law Web: When jurisdiction of civil court is barred in respect of removal of encroachment in Gram panchayat area?

Sub-section (2) of Section 53 provides for a power of the Village Panchayat to remove any encroachment in any open site not being the private property whether such a site is vested in the panchayat or nor. As found by me above, there is a total failure on the part of the non-applicants even prima facie for showing that the property is their private property. They have not been able to prove it even remotely except for showing some tax receipts and mutation made in the year 1994 in respect of Kuccha Kotha. However, whether there is an encroachment or not whether it is the private property of the non-applicants; the burden would certainly be on the non-applicants to prove that the suit property is their private property and that it is not an encroachment. That being so, in my opinion, sub-section (2) of Section 53 of the said Act gives a power and duty to the applicant Village Panchayat to remove the encroachment. In fact, proviso to subsection 2 of Section 53 was added by amending Act No. 38 of 2006 to provide for compulsion on the Village Panchayat to remove the encroachments. By the amendment, appellate power was conferred on the Commissioner in place of 'Standing Committee' of Zilla Parishad for obvious reasons. It is in this background the letter dated 17.2.2011 notice dated 26.4.20911 were issued to the non-applicants so also resolutions were passed in the Gram Sabha on 25.4.11 and 26.4.2011. Sub-section (3-A) above clearly shows that any person if aggrieved by the action taken under sub-section (2) of Section 53, he maywithin thirty days from the date of exercise of such power, appeal to the Commissioner and after making such enquiry, the Commissioner may pass such orders as it deems necessary. The notices as well as resolutions made by Gram Sabha would clearly "exercise of such powers" occurring in sub-section (3A) of the Act. Thus, it is clear that the remedy provided by sub-section (3-A) is an appellate remedy against any action taken under sub-section (2) of Section 53 of the said Act. It will be also pertinent to note that the Act does not provide for any remedy thereafter i.e. after the exercise of the appellate power by the Commissioner and, in my opinion, the remedy of sub-sec. (2) of Section 53 is in order to check the menace of encroachment everywhere including the villages and that is why the power is given to the Panchayat to follow the procedure and remove the encroachment. The procedure under section 53 of the said Act clearly appears to be summary in nature but still there is remedy provided by sub-section (3A) of section 53. I have perused the said notice dated dated 17.2.2011 and 26.4.2011 as well as resolutions dated 25.4.2011 and 26.4.2011. In my opinion, the notices and the resolutions clearly fall within the purview of sub-section (2) of Section 53 of the said Act. It is thus clear that provisions of Section 53(2) and (3A) are squarely attracted in the instant case and, therefore, the jurisdiction of the Civil Court stands excluded.

Equivalent Citation : 2014 (5)MhLj 189

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revision Application No. 57/2012

Decided On: 16.06.2014

Village Panchayat
Vs.
Wasudeo Ramchandraji Mohod

Coram:A.B. Chaudhari, J.

1. Applicant-Village Panchayat, Antora, the original defendant in the Regular Civil Suit No. 2/2011 has put to challenge the order dated 22.09.2011 (below Exh. 1) passed by learned Civil Judge, Junior Division Ashti, with a further prayer to dismiss the Suit as not maintainable.

2. The applicant-Village Panchayat Antora is governed by the provisions of the Maharashtra Village Panchayats Act (hereinafter referred to as "the said Act " in short). The non-applicants filed RCS No. 2/2011 in the Court of Civil Judge, Jr. Dn. Ashti and challenged the letter dated 17.02.2011 and notice dated 26.04.2011 and resolution of Gram Sabha dated 25.04.2011 and 26.04.2011 as illegal, null and void, without jurisdiction and also sought permanent injunction from damaging/demolishing the construction over the suit site. In the Suit, the non-applicants stated that Plot No. 127 in Ward No. 2 village Antora admeasuring 45 x 45 is owned by them and they are in possession since 1962 with mutations in their name with Village Panchayat, Antora. None objected to their possession. On 22.12.2010 they submitted an application with map for proposed construction of a house and since there was no communication from the applicant-Village Panchayat about acceptance or rejection of permission to make construction from 22.02.2011 to 23.04.2011 there was a deemed permission for construction upon completion of two months statutory period. The non-applicants were allotted Plot No. 127 in the year 1962 by Bajrang Housing Cooperative Society for construction of a house and thus they were the owners of Plot No. 127. There being a deemed permission as aforesaid, the attempt to demolish their house as per notices and resolutions under challenge was illegal. The suit was accompanied by injunction application and the trial Court had ordered status quo. The applicant-village Panchayat, after appearance in the Civil Court, filed a preliminary objection to the maintainability of the suit on the ground that the Maharashtra Village Panchayats Act at least insofar as Sections 52 and 53 are concerned, provide for specific remedy and, therefore, the jurisdiction of the Civil Court was barred. It was also stated in the reply that there is no sanction to Plot No. 127 at Antora by any authority or by the Gram Panchayat and not a single document was placed on record about the ownership or possession of the non-applicants and it was for the first time in the year 1994 mutation in the Gram Panchayat record was shown as Kuccha Kotha and nothing more. But then that was an encroachment and, therefore, when the application was received by the applicant-Gram Panchayat with proposed construction map, the non-applicants were called upon to produce original documents and title documents of the suit property etc, but not a single document was ever produced. According to the applicants, there is no residential Plot No. 127 allotted to the non-applicants/plaintiffs and though by letter dated 17.02.2011 the non-applicants were called upon to produce the original documents they could not do so and hence there was no question of deemed sanction. The trial Court, thereafter, decided to frame and tried the preliminary issues in view of the objections raised by the applicants and, accordingly, the following three preliminary issues were framed :

1) Whether this Court has jurisdiction to entertain the present suit in view of provision under section 52 of the Bombay Village Panchayat Act?. Yes
2) Whether this Court has jurisdiction to entertain the present suit in view of provision under section 53 of the Bombay Village Panchayat Act?. Yes
3) Whether this Court has jurisdiction to entertain the present suit in view of provision under Section 59 of the Bombay Village Panchayat Act?. Yes

3. The parties were directed to lead evidence on the aforesaid preliminary issues and, accordingly, in all five witnesses were examined and cross-examined on the preliminary issues. The trial Judge upon hearing the evidence and the counsel for the parties, held that the Civil Court has jurisdiction to entertain the suit and, thus, answered the preliminary issues accordingly. Hence the present Civil Revision Application.

4. Mr. Avinash Gharote, learned counsel for the non-applicants/respondents raised a preliminary objection to the maintainability of the Revision Application on the ground that First Appeal would lie against the impugned order since it has a force of decree. The submission was examined by this Court and counsel for both the parties were heard. This Court did not find any substance in the submission of Mr. Gharote that order on preliminary issue as to the jurisdiction of the Court would be a decree. Hence the said objection is overruled.

5. In support of the Revision Application, Mr. M.M. Sudame learned counsel for the applicant made the following submissions :-

(i) That Sections 52 and 53 of the said Act provides for remedies under the said Act which is a special law. The suit filed by non-applicants was clearly barred and for that matter will have to be held to be impliedly barred. The Civil Court does not have jurisdiction since the remedy is clearly provided under the provisions of Sections 52 and 53 of the said Act. The remedy provided is alternate and effective remedy and the jurisdiction of the Civil Court is clearly barred.
(ii) The plaint and documents and the impugned order clearly shows that the non-applicants do not have a single document showing their title to the suit property when the plaint avers that plot No. 127 was allotted to them by Bajrang Cooperative Society. Not a single document is forthcoming and there is neither any primary evidence nor secondary evidence brought on record by the non-applicant about their title to the suit property. The suit property is part and parcel of the Village Panchayat land falling within its territorial jurisdiction and the non-applicants are the encroachers.
(iii) The payment of Gram Panchayat taxes in respect of the suit plot that too from 1994 would not confer title on the non-applicants and, therefore, the action taken by the Village Panchayat in accordance with the provisions of Sections 52 and 53 of the said Act could not be challenged before the Civil Court because the special Act namely, Village Panchayat Act, provides for specific remedies under the provisions of the said Act against such notices/resolutions or as the case may be. Hence, the jurisdiction of the Civil Court is clearly barred.
(iv) The prayers made in the suit clearly indicate that the challenge to the letters and notices and the resolutions of Gram Sabha could be raised before the authorities provided by the special law and not before the Civil Court.
(v) In the absence of any prima facie proof of title that too after allowing the non-applicants to produce oral as well as documentary evidence, it could not be said that the Civil Court would be entitled to entertain the suit in respect of action of removal of encroachment by Gram Panchayat in accordance with the procedure provided by the said Act. He, therefore, contended that the suit is liable to be dismissed as being not maintainable. He cited the following decisions:-

1) MANU/SC/7717/2007 : (2007) 11 SCC 40 : Commissioner of Municipal Corporation vs. Prem Lata Sood and others
2) MANU/SC/7618/2007 : (2007) 11 SCC 58 : B. Bharat Kumar and others vs. Osmania University and others
3) MANU/MH/0583/1986 : 1986 Mh. L.J. 618 : Gram panchayat Kuhi vs. Vijaykumar Bhalotiya
4) MANU/MH/1491/2009 : 2010 (3) Mh. L.J. 196 : City of Nagpur Corporation vs. Indian Gymkhana
5) MANU/MH/0442/2013 : 2013 (5) ALL MR. 190 : The Commissioner Akola vs. Bhalchandra Mahashabde

6. Per contra, Mr. Avinash Gharote, learned counsel for the non-applicants vehemently opposed the Revision on merits. He argued that the non-applicants have been paying taxes in respect of the suit property to the Gram Panchayat. None of them have raised any objection about their possession or payment of taxes to the Gram Panchayat. Form 8 shows the entry of the name of the non-applicants as the persons in the possession of the suit filed and at least for the present, the non-applicants are entitled to go to Civil Court to prevent the demolition of the construction since they have been in possession. The Civil Court is the only Court which will have jurisdiction to find out the title and the authorities under the Village Panchayats Act cannot adjudicate on the issue of title and, therefore, the only remedy available to the non-applicants was to file Civil Suit. The non-applicants are the owners and the suit property is their private property. Though it is true that the documents of allotment of plot to the non-applicants from the Bajrang Cooperative society are not with the non-applicants as on date; they may get the documents in future but then only on that ground the suit cannot be thrown out. He further argued that the non-applicants having been in possession of the suit property for a number of years or from 1962 onwards without any objection raised by the Gram Panchayat or anybody the same cannot be disturbed. He then argued that the non-applicants had applied for permission to make construction and for two months nothing was done either by refusal or accepting the construction plan and, therefore, there was a deemed sanction in favour of the non-applicants in law and as such, they were entitled to make construction which could not be allowed to be demolished by Village Panchayat and, therefore, the Civil Court was the right Court in the fact-situation. Mr. Gharote then argued that since the question of title is squarely involved, there is no other forum available in law and hence the suit is perfectly maintainable. He cited the following decisions :-

1) MANU/MH/0513/1992 : 1992 (2) Mh. L.J. 1468 : Pune Municipal Corporation vs. Mohan Assava
2) MANU/SC/0643/2002 : (2002) 6 SCC 416: Dhruv Green Field Ltd. vs. Hukam Singh and others
3) MANU/MH/0348/1981 : AIR 1981 BOMBAY 394 : Vasant Pandit vs. Bombay Municipal Corp.
4) MANU/MH/0553/1995 : 1996 (1) Mh. L.J. 673 : Girish vs. Purushottam
5) MANU/SC/0229/1964 : AIR 1965 SC 555 : The Poona City Municipal Cropn. vs. Dattatraya Deodhar.

7. For finding out whether the jurisdiction of Civil Court is barred or not, the exercise cannot be done without carefully reading the pleadings of the parties so also oral evidence adduced before the trial Judge on preliminary issues by as many as five witnesses for both the parties. The submission by Mr. Gharote that since the preliminary issues have been tried and decided against the applicant-Gram Panchayat, the suit should be allowed to be tried expeditiously does not appeal to me since it is a settled legal position that the higher court is under a duty to find out whether the jurisdiction of the Civil Court is barred or not. All the more so in the instant case, the preliminary issues were framed, tried evidence was allowed to be adduced and then decided.

CONSIDERATION:

8. Upon hearing the learned counsel for the rival parties and upon perusal of the impugned order so also pleadings, evidence, various decisions cited before me, at the outset, I find that preliminary issues were framed and decided on evidence by the learned trial Judge. The bar against the jurisdiction of Civil Court was discussed by the Apex Court time and again and, therefore, it is not necessary for me to repeat or discuss the said aspects of the matter except quoting paragraph 10 in the case of Dhruv Green Field Ltd. vs. Hukam Singh and others : MANU/SC/0643/2002 : (2002) 6 SCC 416:

10. In the light of the above discussion, the following principles may be restated:

(1) If there is express provision in any special Act barring the jurisdiction of a civil court to deal with matters specified thereunder the jurisdiction of an ordinary civil court shall stand excluded.
(2) If there is no express provision in the Act but an examination of the provisions contained therein leads to a conclusion in regard to exclusion of jurisdiction of a civil court, the court would then inquire whether any adequate and efficacious alternative remedy is provided under the Act; if the answer is in the affirmative, it can safely be concluded that the jurisdiction of the civil court is barred. If, however, no such adequate and effective alternative remedy is provided then exclusion of the jurisdiction of the civil court cannot be inferred.
(3) Even in cases where the jurisdiction of a civil court is barred expressly or impliedly, the court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complaint of is a nullity.

9. I, therefore propose to examine the present case in the light of the aforesaid principles for finding out whether the jurisdiction of Civil Court was barred or not. Though the trial Court framed three preliminary issues on Sections 52, 53 and 59 of the said Act, I think the issue about Section 53 of the said Act is the only relevant issue.

10. I have perused the plaint carefully. It is only in paragraph 4 of the plaint there is an averment that Bajrang Cooperative Society had allotted Plot No. 127 to the non-applicants/plaintiffs for construction of house and accordingly mutation entries were made in their favour. To this, the reply is that there is nothing to show that the non-applicants have been in possession since 1962 nor there was any allotment or entry of allotment either in favour of Society or the non-applicants anywhere in the Village Panchayat record but it was for the first time in the year 1994 the Kuccha Kotha was mutated in the mutation entry and nothing more which, according to the Village Panchayat, Antora is an encroachment. Thus, as to the ownership and possession of Plot No. 127 not a single document was produced either in the suit or in the oral evidence that was tendered by as many as five witnesses before the learned trial Judge. During the course of hearing before me I had specifically asked the counsel for non-applicants to show any document of allotment or any other corroborative evidence about the allotment of plot by the housing society or allotment of the land to the housing society by the government or the Collector; but the counsel replied that at least as on date there are no documents to that effect and in future they would be produced if they are made available. Even in the cross-examination, the non-applicants and the witnesses admitted that they do not have any documents to show to the above effect. The evidence of Krishnarao Ingle shows that in the year 1974 for the first time the entry was made in the mutation register in the name of the non-applicants but except his oral version, nothing is produced. But then it is settled legal position that mutation entry cannot confer any title. If really the suit plot was allotted to the non-applicants by the Cooperative society the mention thereof must be found in the Village Panchayat or the record of the Collector office or the Cooperative Department or any other corroborative piece of evidence could be found out. The assertion and evidence by the applicant-Gram Panchayat that there was neither any society nor any allotment of plot by the Government or by the Gram Panchayat nor was there any pleading in this context will consequently have to be given due importance. Perusal of the averments and the oral evidence of five witnesses thus clearly show that even as on today though three years have passed, the non-applicants have not been able to produce or prove even prima facie about their right to be on the plot particularly when the Village Panchayat has found it to be an encroachment and accordingly the Gram Sabha and the Village Panchayat resolved to remove the encroachment.

11. That apart, the prayers in the suit reads thus:

(A) Pass a decree for declaration against the defendant thereby the letter dated 17.2.2011 and notice dated 26.4.2011 and resolution in the meeting and in Gramsabha respectively dated 25.4.2011 and 26.4.2011 be declared as illegal, null, void and without jurisdiction;
(B) Pass a decree for permanent injunction against the defendant, its servants, office-bearers, agents and labourers thereby they be restrained permanently from damaging, demolishing and dismantling and construction over suit sites in any manner and further be restrained from interfering in peaceful enjoyment of the suit site by plaintiffs in any manner;
(C) Saddle the cost of the suit open defendant; And
(D) Pass any appropriate relief in the favour of plaintiff.

Perusal of the above prayers clearly show that there is no prayer by the non-applicants claiming any declaration of their title or even the possession. On the contrary, prayer clause (A) clearly shows that the actions taken by the applicant-Village Panchayat, Antora by letters dated 17.2.2011 and notice dated 26.4.2011 so also resolutions of Gram Sabha dated 25.4.2011 and 26.4.2011 are being challenged as illegal and null and void. All these actions of the Village Panchayat are certainly referable to the function, duties and powers of the Village Panchayat under the said Act which is a special Act. The remedy to put to challenge the validity or the legality of the letters/notices and Gram Sabha resolutions cannot be found before the Civil Court by a suit for declaration. The applicant-Village Panchayat is of the view that since the non-applicants have not produced a single document of their title, ownership or possession or legal right before the Gram Panchayat they are encroachers. The same is the position before the Civil Court or before this Court. The non--applicants/plaintiffs are, therefore, the encroachers over the suit land. In the above factual background, it would be convenient to quote the provisions of Section 53 of the said Act which reads thus:

53. Obstructions and encroachments upon public streets and open sites:-(1) Whoever within the limits of the village

(a) builds or sets up any wall, or any fence, rail, post, stall, verandah, platform, plinth, step or structure or thing or any other encroachment or obstruction, or
(b) deposits, or causes to be placed or deposited, any box, bale, package or merchandise or any other thing, or
(c) without written permission given to the owner or occupier of a building by a Panchayat, puts up, so as to protect from an upper storey thereof, any verandah, balcony, room or other structure or thing.
In or over any public street or place, or in or over or upon any open drains, gutter, sewer or aqueduct in such street or place, or contravenes any conditions subject to which any permission as aforesaid is given or the provisions of any bye-law made in relation to any such projections or cultivates or makes any unauthorised use of any grazing land, not being private property, shall on conviction, be punished with fine, which may extend to fifty rupees, and with further fine which may extend to five rupees for every day on which such obstruction, deposit, projection, cultivation or unauthorised use continues after the date of first conviction for such offence.
(2) The Panchayat shall have power to remove any such obstruction or encroachment and to remove any crop unauthorisedly cultivated or grazing land or any other land, not being private property, and shall have the like power to remove any unauthorised obstruction or encroachment of the like nature in any open site not being private property, whether such site is vested in the Panchayat or not, provided that if the site be vested in Government the permission of the Collector or any office authorised by him in this behalf shall have first been obtained. The expense of such removal shall be paid by the person who has caused the said obstruction or encroachment and shall be recovered in the same manner as an amount claimed on account of any tax recoverable under Chapter IX.
(It shall be the duty of the Panchayat to remove such obstruction or encroachment immediately after it is noticed or brought to its notice, by following the procedure mentioned above.)
((2-A) If any Panchayat fails to take action under sub-section (2), the Collector suo motu or on an application made in this behalf, may take action as (provided in that sub-section, and submit the report thereof to the Commissioner). The expense of such removal shall be paid by the person who has caused the said obstruction or encroachment or unauthorised cultivation of the crop and shall be recoverable from such person as an arrear of land revenue.)
(3) The power under (sub-section (2) or sub-section (2-A) may be exercised in respect of any obstruction, encroachment or (unauthorised cultivation of any crop) referred to therein whether or not such obstruction, encroachment or (unauthorized cultivation of any crop) has been made before or after the village is declared as such under this Act, or before or after the property is vested in the Panchayat.
(3-A) Any person aggrieved by the exercise of the powers of the Panchayat under sub-section (2) or (3) may, within thirty days from the date of exercise of such powers(appeal to the Commissioner and the Commissioner, after making such enquiry as he thinks necessary, shall pass such orders as he deems necessary) after giving such person a reasonable opportunity of being heard.)
(3-B) Any order made by the Collector in exercise of powers conferred on him under sub-section (2-A) or (3) shall be subject to appeal and revision in accordance with the provisions of Maharashtra Land Revenue Code, 1966 (Mah. XLI of 1960).
(4) Whoever, not being duly authorised in that behalf removes earth, sand and other material from, or makes any encroachment in or open an open site which is not private property, shall, on conviction, be punished with fine which may extend to fifty rupees, and in the case of an encroachment, with further fine, which may extend to five rupees for every day in which the encroachment continues after the date of first conviction.
(5) Nothing contained in this Section shall prevent the Panchayat, from allowing any temporary occupation of, or erection in, any public street on occasions of festivals and ceremonies or the piling of fuel in by lanes and sites for not more than seven days, and in such manner as not to inconvenience the public or any individual or from allowing any temporary erection on, or putting projection over, or temporary occupation of, any such public street or place for any other purpose in accordance with the bye laws made under this Act.

12. Apropos, paragraph 10(2) in the case of Dhruv Green Field Ltd. vs. Hukam Singh and others (cited supra), I thus find from the examination of provisions of Section 53 of the Act in terms show that the Act which must be treated as 'special law' as against the 'general law' and Sec. 53 of the Act as special provision to deal with the matters like notices dated 17.02.211 and 26.04.2011 so also resolutions of Gram Panchayat dated 25.04.2011 and 26.04.2011, one must conclude the exclusion of the jurisdiction of the Civil Court.

13. The next question is whether adequate and efficacious remedy is provided under the Act. The answer is obviously 'yes'. As discussed earlier, there is an obligatory duty cast on the Gram Panchayat and power conferred under sub-Section (2) of Section 53 of the Act. But then the action cannot be taken without recourse to the principles of natural justice and without following the procedure. A clear statutory appeal as of right is provided to the Commissioner who is supposed to conduct the appeal also taking recourse to the powers and procedure for appeals under Maharashtra Land Revenue Code. Hence, alternate efficacious as of right remedy is clearly provided.

14. That apart, Section 41(h) of the Specific Relief Act 1963, which raises a bar, reads thus:

41 : Injunction when refused-An injunction cannot be granted-

(a)...
(b)...
(c)...
(d)...
(e)...
(f)...
(g)...
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
(i)...
(j)...

It has been held that the purpose of this clause (h) is to prevent multiplicity of proceedings. The prayer for injunction in prayer cause (b) of the suit is therefore clearly barred by virtue of Section 41(h) of the Specific Relief Act, 1963.

To sum up, it will have to be held that the suit in question as framed is clearly barred and the jurisdiction of the Civil Court being barred, the suit will have to be dismissed.

Hence, the following order :-

ORDER
i) Civil Revision Application No. 57/2012 is allowed with costs.
ii) The jurisdiction of the Civil Court to entertain the R.C.S. No. 2/2011 is barred.
iii) R.C.S. No. 2/2011 is dismissed and consequently order of status quo is vacated.
iv) Rule made absolute in the aforesaid terms.

JUDGE

After pronouncement of the judgment, Mr. A.G. Gharote, learned counsel for the non-applicants/respondents prays for continuance of the interim order. Prayer is accepted.

Status quo to continue for another four weeks.

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Wednesday, 20 July 2016

When jurisdiction of civil court is barred in respect of removal of encroachment in Gram panchayat area?

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