Bombay High Court
Devrao S/O Bisan Meshram vs State Of Maharashtra Thr. ... on 11 January, 2018
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No. 465 of 2016
Devrao Bisan Meshram [dead],
through his legal heirs:-
1. Smt. Meerabai widow of Devrao
Meshram,
aged about 71 years,
occupation - cultivation,
2. Harshalkumar son of Devrao
Meshram,
aged about 21 years,
occupation - student,
3. Ku. Kiran daughter of Devrao
Meshram,
aged about 27 years,
occupation - Govt. Servant,
all residents of Kannamwar
Ward No.17, Rampuri Camp
Area, Chamorshi Road,
Gadchiroli, Tq. & Distt.
Gadchiroli. ..... Appellant
Org. Plff.
::: Uploaded on - 12/01/2018 ::: Downloaded on - 13/01/2018 02:00:18 :::
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2
Versus
1. State of Maharashtra,
through the Collector,
Gadchiroli.
2. The Executive Engineer,
Irrigation Branch,
Chandrapur.
3. The Executive Engineer,
Irrigation Branch,
Gadchiroli.
4. The Assistant Engineer Grade-II,
Irrigation Branch,
Gadchiroli.
5. The Taluka Inspector,
Land Records,
Gadchiroli,
Distt. Gadchiroli. ..... Respondents
Org. Defts.
*****
Mr. Rohit Joshi, Adv., for the appellant.
Ms. M. A. Barabde, Asstt. Govt. Pleader for the respondents.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 11th January, 2018
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ORAL JUDGMENT:
01. Notice for final disposal was issued on the following
substantial question of law:-
"When the subject matter of a suit filed by the
appellant was issuance of notice dated 7-4-2010,
whether the provisions of Section 104 of the
Maharashtra Irrigation Act, would be applicable so as to
bar the jurisdiction of the Civil Court from entertaining
the same?"
02. Admit. Heard finally with consent of learned counsel for the
parties.
03. The facts, in brief, are that the plaintiff claims to have
purchased 0.04 Are land from Survey No. 153 on 4th March, 1991 by a
registered sale-deed. Pursuant to that sale-deed, mutation entries
were taken. On 7th April, 2010, a notice was issued by the defendant
no.4 calling upon the plaintiff to remove certain construction made by
him. A reply was given on 13th April, 2010 denying the contents of
that notice. It was pleaded that Survey No. 141 was the original land
which was subsequently re-numbered and measured in which no
encroachment was found. It was denied that any encroachment was
made. The plaintiff, therefore, filed a suit for declaration that the
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notice dated 7th April, 2010 was illegal and the plaintiff's possession
was not liable to be disturbed.
04. Written Statement came to be filed by the defendants
justifying notice dated 7th April,2010. It was pleaded that on the basis
of measurement carried out from 11th March, 2010 to 22nd March,
2010, it was found that the plaintiff had committed encroachment.
05. The parties led evidence before the trial Court which held
that the plaintiff was the owner of 0.04 Are land as per his sale-deed.
It further held that from the documents on record, it could not be said
that the plaintiff had committed encroachment. The notice dated 7th
April, 2010 was not legal and valid. The suit was accordingly decreed.
The first appellate Court after re-considering the matter held that by
virtue of Section 104 of the Maharashtra Irrigation Act, 1976 [for short,
"the said Act"], the trial Court had no jurisdiction to entertain the suit.
After allowing the appeal, the decree was set aside.
06. Shri Rohit Joshi, learned counsel for the appellant, submitted
that the appellate Court committed an error in holding that the
jurisdiction of the Civil Court was ousted in view of Section 104 of the
said Act. According to him, the notice dated 7th April, 2010 at Exh.66
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calling upon the plaintiff to remove the alleged encroachment was
relatable to the provisions of Sections 19 and 20 of the said Act. There
was, however, no Notification under Section 19 of the said Act
prohibiting undertaking of any construction. The powers under Section
20 of the said Act could be exercised only after publication of
Notification under Section 19 of the said Act. The provisions of Section
104 did not expressly bar a challenge to the notice issued under
Section 20 of the said Act. The appellate Court, therefore, was not
justified in holding that cognizance of the suit was barred. He
submitted that the reliance placed by the appellate Court on the
decision in Dhulabhai etc. Vs. State of Madhya Pradesh &
another [AIR 1969 SC 78] was misplaced.
07. Smt. Barabde, learned Asstt. Govt. Pleader, for the
respondents, supported the judgment. It was submitted that after
giving due notice to the plaintiff, the encroachment was sought to be
removed. The plaintiff could have challenged said notice by availing
the statutory remedy prescribed under the said Act and by not doing
so, the jurisdiction of the Civil Court was barred in the light of
provisions of Section 104 of the said Act. The appellate Court rightly
found that the suit itself was not maintainable and hence set aside the
decree passed by the trial Court.
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08. I have heard the learned counsel for the parties at length
and I have perused the impugned judgment.
09. It is to be noted that in the Written Statement filed by the
defendants, there is no plea raised with regard to the jurisdiction of the
Civil Court being ousted. The trial Court had not framed any issue in
that regard. Such ground has also not been taken in the Memo of
Appeal preferred by the original defendants. The first appellate Court,
however, has referred to provisions of Section 104 of the said Act and
has dismissed the suit on the count that the jurisdiction of the Civil
Court was ousted.
10. Perusal of the notice at Exh.66 indicates that it calls upon
the plaintiff to remove alleged encroachment caused by him. Under
Section 19 of the said Act, if there is any obstruction caused in river,
stream or to any land for which irrigation from a canal is available, the
Appropriate Authority can by issuing Notification define the limits
within which such obstruction may not be caused. After issuing such
Notification and publishing the same, notice under Section 20 of the
said Act can be issued. In the present case, it has not been brought on
record that any such Notification under Section 19 of the said Act has
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been issued. Section 104 of the said Act bars jurisdiction of the Civil
Court from considering the challenge to the order of the Canal Officer
under Sections 32, 70 or 71 of the said Act. The express bar is with
regard to aforesaid Sections only. The appellate Court by relying upon
Section 104 has held the suit to be not maintainable. This conclusion
of the appellate Court is not supported by the aforesaid statutory
provisions.
11. In so far as implied bar under Section 103 of the said Act is
concerned, if it is prima facie found that the notice dated 7th April,
2010 has been issued without there being any Notification under
Section 19 of the said Act, there would be no question of such implied
bar being attracted. Viewed from any angle, the conclusion of the
appellate Court with regard to jurisdiction of the Civil Court being
ousted is unsustainable.
12. The substantial question of law as framed is answered by
holding that cognizance by the Civil Court of the suit as filed was not
barred in view of provisions of Section 104 of the said Act. As it has
been found that the Civil Court had jurisdiction, it is necessary to direct
the appellate Court to re-consider the appeal on its own merits.
Accordingly, the judgment of the appellate Court dated 4th August,
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2016 is quashed and set aside. The proceedings are remanded to the
appellate Court for fresh consideration in accordance with law and
without being influenced by any observations made in this Order. For
said purpose, the parties shall appear before the appellate Court on
29th January, 2018. The appellate Court shall decide the appeal
expeditiously.
13. The Second Appeal is allowed in aforesaid terms with no
order as to costs.
Judge
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