SA251.04.odt 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.251 OF 2004
APPELLANT: Gram Panchayat, Zadashi, Tahsil -
Seloo, District - Wardha Through its
Secretary.
-VERSUS-
RESPONDENTS: 1. Sunil Gulabrao Chalakh,
2. Nathu Pandurang Thakre,
3. Vijay Anandrao Talvekar,
4. Suresh Mahadeorao Khobe,
5. Awadhut Shankarrao Chandekar,
6. Umesh Shankarrao Shelke,
7. Gajanan Narayanrao Nartam,
All residents of Zadshi, Tahsil - Seloo,
District - Wardha.
Shri S. R. Renu, Advocate with Shri Rohit Joshi, Advocate for the
appellant.
Smt. A. R. Khare, Advocate for the respondents.
CORAM: A.S. CHANDURKAR, J.
DATED: DECEMBER 21, 2017.
ORAL JUDGMENT :
1. This appeal under Section 100 of the Code of Civil Procedure, 1908 has been filed by the defendant no.7 which ::: Uploaded on - 27/12/2017 ::: Downloaded on - 28/12/2017 01:09:05 ::: SA251.04.odt 2/9 is aggrieved by the judgment of the first appellate Court directing all defendants to pay an amount of Rs.20,000/- jointly to the plaintiff on account of the action taken by it for demolishing the cattle shed of the respondent no.1 - original plaintiff.
2. The facts in brief are that it is the case of the plaintiff that he is the owner of plot Nos.2 and 3 having purchased the same vide sale deed dated 2-2-1988. When this property was purchased, the area of the field was shown as 80 feet x 40 feet though the area purchased was 100 feet x 40 feet. A correction deed was accordingly executed and hence the plaintiff was in possession of area admeasuring 100 feet x 40 feet. There was a cattle shed on the western side of plot no.3 which was being used by the plaintiff. The defendant no.1 was the Sarpanch of the Gram Panchayat while the defendant nos.2 to 5 were its members. The defendant no.6 was the owner of plot No.4 while the defendant no.7 was the Gram Panchayat. According to the plaintiff, on account of the Gram Panchayat elections in March, 1994, there was political rivalry between the plaintiff and the defendant nos.1 to 6. Notice dated 22-6-1994 was ::: Uploaded on - 27/12/2017 ::: Downloaded on - 28/12/2017 01:09:05 ::: SA251.04.odt 3/9 issued to the plaintiff's father that there was encroachment to the extent of 20 feet on the road in plot no.3. According to the plaintiff, there was no such road in existence. The plaintiff replied to the aforesaid notice and showed the copy of his sale deed to the defendant no.1. However, the defendant no.1 gave another notice and thereafter on 21-7- 1994 directed the plaintiff to remove the encroachment. As per said notice time of seven days was granted but prior to said period on 24-7-1994, the defendants demolished the cattle shed. On that basis, a loss of Rs.1,500/- was caused to the plaintiff. After issuing a legl notice, suit was filed for a declaration that the plaintiff was the owner of 4000 sq. ft. land and there was no road through plot nos.2 & 3. Amount of Rs.20,000/- was also claimed as damages.
3. The defendant nos.1 to 5 and 7 opposed the suit and justified the act of removing the cattle shed. It was pleaded that there was a 20 feet wide road between the plot nos.3 and 4 that was being used by public and the cattle shed was causing inconvenience to them. It was further pleaded that the notice dated 4-8-1994 issued by the plaintiff to the defendant no.7 was not as per provisions of Section 180 of ::: Uploaded on - 27/12/2017 ::: Downloaded on - 28/12/2017 01:09:05 ::: SA251.04.odt 4/9 the Maharashtra Village Panchayats Act, 1959 (for short, the said Act).
4. After the parties led evidence, the trial Court did not accept the case of the plaintiff and dismissed the suit. The first appellate Court, however, recorded a finding that the defendants could not prove the existence of a road between plot nos.3 and 4 and therefore, there was no justification for demolishing the cattle shed. On that basis the suit was partly decreed and damages of Rs.20,000/- came to be awarded in favour of the plaintiff. Being aggrieved the defendant no.7 has filed the present appeal.
5. While admitting the appeal the following substantial questions of law were framed:
(1) Whether the suit is maintainable against Gram Panchayat under Section 180(2) of Bombay Village Panchayat Act, 1958, without waiting for three months from the date of notice?
1.
(2) Whether the act of the Gram Panchayat purportedly done in course of official business nevertheless illegal ab initio, suit being filed without notice under section 180 of Bombay Village Panchayat Act would render suit not maintainable?
6. Shri S. R. Renu, learned Counsel for the appellant ::: Uploaded on - 27/12/2017 ::: Downloaded on - 28/12/2017 01:09:05 ::: SA251.04.odt 5/9 submitted that the notice dated 4-8-1994 did not comply with the requirements of Section 180 of the said Act. The suit filed against the Gram Panchayat was, therefore, not maintainable. No decree could have been passed against the Gram Panchayat directing it to make payment of Rs.20,000/-. It was submitted that action of removing the cattle shed was taken after giving due notice and on failure of the plaintiff to remove the same, the structure was removed by the defendants. It was submitted that after issuance of notice under Section 180(2) of the said Act the proceedings could have been initiated only after expiry of three months. However, the suit came to be filed on 8-8-1994 before expiry of the period of three months from issuance of that notice. It was therefore submitted that the decree passed against the defendant no.7 deserves to be set aside. The learned Counsel placed reliance on the judgment in Urban Improvement Trust, Jodhpur vs. Gokul Narain and another AIR 1996 SC 1819.
7. Smt. A. R. Khare, learned Counsel for the respondent no.1 - plaintiff supported the impugned judgment. It was submitted that the appellate Court had found that there was no public road in existence between plot ::: Uploaded on - 27/12/2017 ::: Downloaded on - 28/12/2017 01:09:05 ::: SA251.04.odt 6/9 Nos.3 and 4. The place where the cattle shed was situated was therefore not public property and it belonged to the plaintiff. No action under Section 53 of the said Act could be taken against the plaintiffs' property as it was clear that there was no road situated between plot nos.3 and 4. The action taken by the defendants was not in good faith and therefore it was not necessary to issue any notice under Section 180 of the said Act. It was also submitted that this question with regard to validity of notice under Section 180 of the said Act was not raised before the trial Court or the first appellate Court.
8. I have heard the learned Counsel for the parties at length and I have perused the evidence on record. The first appellate Court has recorded a finding that there was no public road in existence between plot nos.3 and 4 as was sought to be contended by the defendants. Though witness No.7 had stated that he was willing produce relevant documents in relation to the road, the same were not filed. It is on this basis and after considering the evidence on record that a finding has been recorded that there was no public road in existence between plot nos.3 and 4. Section 53 of the ::: Uploaded on - 27/12/2017 ::: Downloaded on - 28/12/2017 01:09:05 ::: SA251.04.odt 7/9 said Act permits removal of obstructions and encroachment on any public street or place that vests with the Gram Panchayat. Any unauthorized obstruction or encroachment that is not on private property but on any open site can also be removed. Considering the evidence on record, I find that the appellate Court was justified in recording the finding that there was no road in existence between the plot nos.3 and 4 where the cattle shed was situated. Action was however taken by the defendants under the assumption that the cattle shed was on the public road.
9. On 21-7-1994 (Exhibit-60) the Gram Panchayat gave a notice to the plaintiff to remove the encroachment within a period of seven days. However, prior to expiry of period of seven days, the cattle shed came to be removed on 24-7-1994. On this basis, the plaintiff on 4-8-1994 (Exhibit-
61) issued a notice to the Gram Panchayat claiming damages of Rs.20,000/-. I find that the action taken by the Gram Panchayat on 24-7-1994 is prior to period of seven days that were granted to the plaintiff by this notice dated 21-7-1994.
10. Section 180 of the said Act requires issuance of notice for bringing any action against the Gram Panchayat or ::: Uploaded on - 27/12/2017 ::: Downloaded on - 28/12/2017 01:09:05 ::: SA251.04.odt 8/9 its members, officers or servants in respect of anything done in good faith under the said Act. Such action can be brought after expiry of period of three months after giving of notice in writing. Considering the finding that there was no public road between plot nos.3 and 4, notice dated 21-7-1994 issued by the Gram Panchayat being executed within two days and prior to the period mentioned therein, it cannot be said that said act was done in good faith and under the provisions of the said Act. Thus, it was not incumbent upon the plaintiff to have issued notice under Section 180 of the said Act before initiating action. Even otherwise the trial Court did not frame any issue with regard to requirement of such notice nor was the point urged before the first appellate Court. The evidence on record led by the defendants does not indicate that their action of removing the cattle shed was done in good faith and that action could not be justified on the basis of any document any material. In the light of said evidence, the decision relied upon by the learned Counsel for the appellant cannot assist the case of the defendant no.7.
11. Accordingly, the substantial questions of law as framed are answered by holding that the suit was ::: Uploaded on - 27/12/2017 ::: Downloaded on - 28/12/2017 01:09:05 ::: SA251.04.odt 9/9 maintainable against the Gram Panchayat without waiting for three months from the date of notice and the act of the Gram Panchayat of removing the cattle shed was not purportedly done in good faith under the provisions of the said Act. The suit was therefore maintainable without issuing such notice. It was rightly decreed by the first appellate Court. None of the other defendants have challenged said decree.
In view of aforesaid, the judgment of the appellate Court stands confirmed. The second appeal is therefore dismissed with no order as to costs. It would be open for the Gram Panchayat to proportionately recover the decreetal amount from defendant Nos.1 to 6 and its Secretary shall take necessary steps in that regard.
JUDGE /MULEY/ ::: Uploaded on - 27/12/2017 ::: Downloaded on - 28/12/2017 01:09:05 :::