Bombay High Court
The Gram Panchayat Zadashi ... vs Sunil Gulabrao Chalakh And 6 Ors on 21 December, 2017
Bench: A.S. Chandurkar
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
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
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
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?
(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
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
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
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
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
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/
