Bombay High Court
Vijay S/O Narayan Bule vs Gram Mandal, Keliveli, Thr. ... on 19 April, 2017
Bench: Z.A. Haq
Judgment 1 wp6019.16+1.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6019 OF 2016
WITH
WRIT PETITION NO. 6020 OF 2016
W.P.NO. 6019/2016.
Smt. Gangabai Babansingh Thakur,
Aged about 60 year, Occu. Agriculturist,
R/o. Keliveli, Tah. Akot, Dist. Akola.
.... PETITIONER.
// VERSUS //
1. Gram Mandal, Keliveli, through
the President, Dinkar Rambhan Gawande,
aged : 50 years, residing at Keliveli,
Taluka : Akot, District : Akola.
2. Kasabai Bhimsingh Thakur
since deceased through her legal
representative :
2(a) Basantibai Bharatsingh Thakur,
aged about 70 years, Occupation:
Household, residing at Keliveli,
Taluqa : Akot, District : Akola.
3. Kailashsingh Bhagirathsing Thakur,
aged about 50 years, Occupation :
Service, Residing at Ring Road,
Near Janorkar Mangal Karyalayas,
Kaulkhed Road, Akola.
4. Ratnabai W/o. Rajpalsingh Thakur,
aged about 50 years, Occupation :
Household, residing at Keliveli,
Taluka : Akot, District : Akola.
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5. Vijay S/o. Narayan Bule,
Aged about : 51 years, Occupation :
Cultivator, residing at Keliveli,
Taluka : Akot, District : Akola.
.... RESPONDENTS
.
___________________________________________________________________
Shri Vipul Bhise, Advocate for Petitioner.
Shri S.C.Mehadia, Advocate for Respondent Nos.1 & 2.
___________________________________________________________________
WITH
W.P.NO. 6020/2016.
Vijay S/o. Narayan Bule,
Aged about : 51 years, Occupation :
Cultivator, residing at Keliveli,
Taluka : Akot, District : Akola.
.... PETITIONER.
// VERSUS //
1. Gram Mandal, Keliveli, through
the President, Dinkar Rambhan Gawande,
aged : 50 years, residing at Keliveli,
Taluka : Akot, District : Akola.
2. Kasabai Bhimsingh Thakur
since deceased through her legal
representative :
2(a) Basantibai Bharatsingh Thakur,
aged about 70 years, Occupation:
Household, residing at Keliveli,
Taluqa : Akot, District : Akola.
3. Kailashsingh Bhagirathsing Thakur,
aged about 50 years, Occupation :
Service, Residing at Ring Road,
Near Janorkar Mangal Karyalayas,
Kaulkhed Road, Akola.
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4. Ratnabai W/o. Rajpalsingh Thakur,
aged about 50 years, Occupation :
Household, residing at Keliveli,
Talika : Akot, District : Akola.
5. Smt. Gangabai Babansingh Thakur,
Aged about 45 year, Occu. : Household,
residing at Keliveli, Taluka: Akot,
Dist. Akola.
.... RESPONDENTS
.
___________________________________________________________________
Shri R.D.Dhande, Advocate for Petitioner.
Shri S.C.Mehadia, Advocate for Respondent No.1.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : APRIL 19, 2017.
ORAL ORDER :
1. Heard learned advocates for the respective parties.
2. These two writ petitions are disposed by common judgment as
in both these petitions same judgment passed by the learned District Judge is
challenged.
3. The petitioner in Writ Petition No.6019 of 2016 along with original
Smt.Kasabai Bhimsingh Thakur (Respondent No.2 in W.P. No.6019/2016)
had filed Regular Civil Suit No.147 of 1998 against Vijay Narayan Bule (the
petitioner in Writ Petition No. 6020 of 2016) and Gram Mandal, Keliveli
(respondent No.1 in W.P. No.6019/2016) praying for decree for declaration
that the defendant No.1 in the civil suit (petitioner in W.P. No.6020/2016)
had no right, title or interest in the suit field and for directions to the
Judgment 4 wp6019.16+1.odt
defendant No.1 to handover the possession of the suit field either to the
plaintiff or to the defendant No.2-Gram Mandal, Keliveli. By the judgment
passed on 30th January, 2001, the trial Court granted decree in favour of the
plaintiffs and directed the defendant No.1 to deliver possession of the suit
field on receipt of Rs.24,000/- and interest thereon @ 6% per annum, to the
plaintiff No.2 (petitioner in W.P.No.6019/2016). This judgment and decree
was challenged by Sau. Kasabai Bhimsingh Thakur in appeal before the
District Court. Shri Vijay Narayan Bule (defendant No.1/ Petitioner in W.P.
No.6020/2016) had filed Cross Appeal under Order 41 Rule 22 of the Code
of Civil Procedure challenging the findings on issue Nos. 2, 4 and 5. By the
judgment given on 21st June, 2006 the learned Additional District Judge
dismissed the appeal and the cross-objection, however, modified the decree
and directed the plaintiff No.2 Smt. Gangabai Babansingh Thakur (petitioner
in W.P. No. 6019/2016) to repay the amount of Rs.24,000/- along with
interest thereon to the defendant No.1 and also to deliver the possession of
the suit field to the defendant No.1 and directed the defendant No.1 to
handover the possession of the suit field to the defendant No.2-Gram
Mandal. The judgment and decree passed by the District Court was
challenged by Vijay Narayan Bule (defendant No.1/ Petitioner in W.P.
No.6020/2016) before this Court in second appeal and as there was delay in
filing the second appeal an application praying for condonation of delay was
filed. By the order passed on 20 th February, 2017, the application filed by
Shri Vijay Narayan Bule praying for condonation of delay is dismissed.
Judgment 5 wp6019.16+1.odt
4. The defendant No.2-Gram Mandal has filed execution
proceedings which are registered as Regular Darkhast No.2 of 2013. In these
execution proceedings, the plaintiff No.2-Sau. Gangabai Banansingh Thakur
(petitioner in W.P. No.6019/2016) and the defendant No.1-Vijay Narayan
Bule (petitioner in W.P. No.6020/2016) filed an application under Section 47
of the Code of Civil Procedure objecting to the execution proceedings. This
application was rejected by the executing Court by the order passed on 16 th
August, 2016. This order was challenged in Misc. Civil Appeal No. 15 of
2016 filed under Order 21 Rule 103 of the Code of Civil Procedure by Vijay
Narayan Bule (petitioner in W.P. No.6020/2016) and Smt. Gangabai
Babansingh Thakur (petitioner in W.P. No. 6019/2016). This appeal is
dismissed by the impugned judgment.
The petitioners, being aggrieved by the judgment and order
passed by the District Court and the Executing Court rejecting the application
filed by them under Section 47 of the Code of Civil Procedure have filed
these two petitions.
5. The submission on behalf of the petitioners is that the judgment
passed by the District Court in Regular Civil Appeal No. 71 of 2005 (R.C.A.
No.138/2001 old) to the extent Vijay Narayan Bule is directed to hand over
the possession of the suit field to the defendant No.2-Gram Mandal, is illegal,
without jurisdiction and in ignorance of the provisions of Section 27 and
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Section 30 of the Maharashtra Gramdan Act, 1964. It is submitted that
Section 30 of the Maharashtra Gramdan Act, 1964 enables the Gram Mandal
to make application to the Collector for cancelling the lease of any lessee if
the lessee transfers his interest in the land in contravention of the provisions
of Clause (b) of sub-section 1 of Section 27 or fails to pay any dues in respect
of the land leased out to him or fails to cultivate the land for two consecutive
years, and as the powers in the above matter is conferred on the Collector,
the jurisdiction of the Civil Court is impliedly barred. It is argued that the
Maharashtra Gramdan Act, 1964 is a complete Code in itself providing for
the remedy available to the Gram Mandal, which according to Section 30 is
before Collector and then an appeal before the Commissioner, the jurisdiction
of Civil Court is barred. To support the submission, the learned advocates for
the petitioners have relied on the following judgments :
i) Judgment given in the case of The Municipal Corporation of Greater
Bombay Vs. Piagelal Pannalal Talwar, reported in AIR 1992 Bom.
283;
ii) Judgment given in the case of Dhurandhar Prasad Singh Vs. Jai
Prakash University & oth, reported in AIR 2001 SC 2552(1);
iii) Judgment given in the case of Brakewel Automotive Components
(India) Pvt. Ltd. vs. P.R. Selvam Alagappan, reported in 2017 ALL
SCR 798;
Judgment 7 wp6019.16+1.odt
6. After hearing the learned advocates for the respective parties
and examining the documents placed on the record of the petition, I am of
the view that filing of the application under Section 47 of the Code of Civil
Procedure on the grounds as stated in it is abuse of process of law.
Though, it is submitted on behalf of the petitioners that the
decree which is being sought to be executed is inexecutable and is void ab
initio and is nullity as the Civil Court had no jurisdiction to entertain and
decide the civil suit, the petitioners/ objectors have failed to establish that
the decree is nullity and void ab initio and that the jurisdiction of the Civil
Court to entertain and decide the civil suit is impliedly barred because of the
provisions of Section 27 and 30 of the Maharashtra Gramdan Act, 1964.
Moreover, the petitioner in Writ Petition No. 6019 of 2016 had herself filed
the civil suit and then accepted the decree passed by the trial Court inasmuch
as she had not filed any appeal. The petitioner in Writ Petition No. 6020 of
2016 had filed cross-objection but never raised the ground/ objection which
is now being sought to be raised.
7. In the judgment given in the case of M/s. Brakewel Automotive
Components (supra) in paragraph No.22 it is recorded as follows:
"22.Though this view has echoed time out of number in
similar pronouncements of this Court, in Dhurandhar
Prasad Singh vs. Jai Prakash University and others,
AIR 2001 SC 2552, while dwelling on the scope of
Section 47 of the Code, it was ruled that the powers of
the court thereunder are quite different and much
Judgment 8 wp6019.16+1.odt
narrower than those in appeal/ revision or review. It
was reiterated that the exercise of power under Section
47 of the Code is microscopic and lies in a very narrow
inspection hole and an executing court can allow
objection to the executabilty of the decree if it is found
that the same is void ab initio and is a nullity, apart from
the ground that it is not capable of execution under the
law, either because the same was passed in ignorance of
such provision of law or the law was promulgated
making a decree inexecutable after its passing. None of
the above eventualities as recognised in law for rendering
a decree inexecutable, exists in the case in hand. For
obvious reasons, we do not wish to burden this
adjudication by multiplying the decisions favouring the
same view."
Considering the facts of the case and the above proposition of
law, I do not find any substance in the challenges raised in these petitions. I
do not find any patent illegality or error of jurisdiction which necessitates
interference by this Court in the extraordinary jurisdiction.
8. The petitions are dismissed. In the circumstances, the parties
to bear their own costs.
JUDGE
RRaut..
