Gram Panchayat And Sarpanch, ... vs Krishna Charitable Trust Duly ...
2003 Latest Caselaw 385 Bom

JUDGMENT

1. Shri Morey learned Advocate for the appellant seeks permission to delete respondents Nos. 14 & 15. Permission granted, Shri C.J. Sawant alongwith Shri Govilkar for Respondents Nos. 1 to 13.

Rule, returnable forthwith.

Taken up for hearing with consent of the parties.

2. Special Civil Suit No. 30/2001 was initiated by the present respondent No. 1 before the Civil Judge, Senior Division, Karad, praying for declaration that the bill dated 10.10.2001 issued by the appellant to the respondent was void ab-initio. The contention of the respondent in the Suit was it being a charitable trust was not liable to pay the Gram Panchayat taxes which were tried to be recovered through the bill issued to the respondent.

3. On having been noticed the present appellant defendant in the suit through its defence raised the preliminary objection as regards the very maintainability of the suit itself. Reasons being the learned Judge had no jurisdiction and precisely in pursuance of the prayer Clause-(b) made in the plaint wherein bill was sought to be declared as un-warranted and illegal. The learned Judge of the trial court who dealt with the matter upheld the objection raised by the present appellant as regards jurisdiction of the court holding that it was not well within the competence of the learned Judge of the court to grant a declaration sought for and more so in view of the specific provisions under Sub-section (5) & (6) of Section 124 of the Bombay Village Panchayat Act. This order was passed by the learned Judge of the trial court on 28.2.2002. Having been dis-satisfied with the above said order, the present respondent-original plaintiff preferred Revision Application No. 810/2002 before this Court on which this court on 10.7.2002 issued rule and granted interim relief in terms of prayer Clause-13(b) of the Revision Application. The effect of the interim order was staying of the proceeding of Special Civil Suit No. 30/2001 till the decision of the revision application.

4. During the pendency of the above said Revision application before this court appellant-Gram Panchayat issued another bill to the respondent on 27.7.2002 for the subsequent period i.e. for the year 2001-2002. However, pertinent it is to note that the second bill did include the bill of the previous year which had prompted the respondent to move the court through Special Civil Suit No. 30/2001. Now the facts as clear from the record are that the proceedings of the Civil Suit were stayed by the High Court by passing an order in revision on 10.7.2002. This clearly means that the learned Judge was supposed to keep away in his hands from any type of proceedings in the suit till either modification of the order passed by the High Court or till the decision of the revision.

5. The respondent however, on 12.8.2002 moved an application (Exh.49) before the learned Judge of the trial court in Special Civil Suit No. 30/2001 itself and prayed for the relief that until the disposal and decision of that application, the plaintiff be protected by an ad-interim order in terms of the undertaking date 20.12.2001 and accepted by the Court on 10.1.2002 so far as regards the execution of the notice dated 27.7.2002 was concerned. In short, the present respondent sought for stay of the implementation and execution of the bill issued to the respondent by the appellant n 27.7.2002.

6. The above said application (Exhibit-49) was opposed by the present appellant. The opposition was nodoubt, on merits of the application as also on the ground that since there was a stay granted by the High Court to the proceedings in Special Civil Suit No. 30/2001, the application could not have been entertained by the learned Judge of the trial court. Appellant also through his reply pointed out that entertaining of the application and passing order there on would virtually amount to contempt of court. This court at this stage, wish not dilate on merits of the matter for the reasons that the present Appeal from Order can be disposed of as allowed on a small point as regards entertaining of the application and passing of the order by the learned Judge of the trial court on Exhibit-49. The learned Judge who dealt with the application Exhibit-49 entertained the application, heard the parties, decided the application and granted the relief asked for by the respondent through Exhibit-49. The learned Judge allowed the application directed the parties to maintain status-quo regarding the recovery of the tax from the plaintiff-charitable trust. The amount which was included in the bill notice dated 27.10.2002 and restrained Gram Panchayat from recovering the bill amount till the decision of the matter pending before the High Court in Civil Revision Application No. 810/2002.

7. It would be appropriate at this stage, to point out that the above said Civil Revision Application, in view of the amendment to the CPC was declared to be not maintainable and therefore, the revision petitioner withdrew the revision petition on 11.12.2002 and the writ petition challenging the very same order was filed i.e. Writ Petition No. 7568 of 2002. This court has intentionally referred to this fact so as to specifically shown that when application Exhibit-49 was entertained and decided by the learned Judge of the trial court i.e. on 23.8.2002 till then the revision was very much alive and order of stay passed in revision was also in operation.

8. The learned Judge of the trial court nodoubt was aware of the position and pendency of the revision with a stay order to the further proceedings in Special Civil Suit No. 30/2001. In view of these glaring facts, in the opinion of this court the learned Judge committed an error in entertaining and passing the order on Exhibit-49 thereby dabbling with the matter which was ordered to be stayed by this court in revision application No. 810 of 2002. The learned Judge of the most should have kept the application on record informing the parties that it was not open for him to have passed any order thereon and the remedy open for the parties was to move the High Court either in revision or by that time revision was disposed of as not maintainable then in the Writ petition which was pending at the instance of the present respondent himself. This court therefore, is of the clear opinion that the learned Judge of the trial court did not appreciate this factual position and appeared to have been not aware that when this court bad stayed the proceedings before the trial court, it was not open for the learned Judge of the trial court to have proceeded with that matter in any manner as he has done in the present case. In the opinion of this court therefore, the order passed by the learned Judge of the trial court at Exhibit-49 deserves to be set aside for this reason only. However, this court makes it clear that this court has intentionally refrained itself from dealing with the merits of the matter as it is yet open for the respondent to move an appropriate application before the High Court in Writ Petition seeking that very same relief which otherwise, the respondent sought for through Exhibit-49 before the learned Judge of the trial court.

9. In the circumstances, rule is made absolute in the above said terms with no order as to costs. However, taking into consideration, the facts of the case, it is directed that the appellant Gram Panchayat shall not give effect nor shall it put in operation the bill in any manner or take any steps to recover the amount for three weeks from today.

Parties to act on ordinary copy of this order duly authenticated by the P.S./Sheristedar of this court as true copy.