Bombay High Court
Narayan S/O. Pannalal Agrawal vs Santosh S/O. Rambhau Narwade And Others on 5 August, 2025
2025:BHC-NAG:7694
1 cra.92.24-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CIVIL REVISION APPLICATION NO. 92 OF 2024
Narayan S/o. Pannalal Agrawal,
Aged about 65 years, Occupation : Business,
R/o. N. P. Trading, Near Agriculture
Produce Marketing Committee,
Civil Lines Risod, Tahsil Risod and ... APPLICANT
District : Washim. (Ori. Def. No.3 on R.A.)
...VERSUS...
1. Santosh s/o. Rambhau Narwade,
Age 52 years, Occupation : Business,
R/o. Samartha Nagar, Near Tahsil Office,
Risod, Tahsil Risod and District : Washim. (Ori. Plaintiff on R.A.)
2. Administrator, Agriculture Produce Marketing
Committee, Civil Lines, Risod,
(Ori. Def. No.1 on R.A.)
Tahsil Risod and District : Washim.
3. Secretary, Agriculture Produce Marketing
Committee, Civil Lines, Risod, Tahsil : Risod (Ori. Def. No.2 on R.A.)
...NON-APPLICANTS
and District : Washim.
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Mr. V. B. Gawali, Advocate for Applicant.
Mr. B. T. Parwe, Advocate for Non-applicant No.1.
Mr. K. P. Mahalle, Advocate for Non-applicant No.3.
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CORAM : MRS. VRUSHALI V. JOSHI, J.
JUDGMENT RESERVED ON : 09.07.2025
JUDGMENT PRONOUNCED ON : 05.08.2025
JUDGMENT :
1. Rule. Rule is made returnable forthwith. Heard finally by
consent of learned Counsel appearing for the parties.
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2. This revision application is preferred by the
applicant/original defendant No.3, challenging the order dated
28.07.2023 passed by the learned Joint Civil Judge Junior Division,
Risod, District Washim below Exhibit-17 thereby rejecting the application
filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 for
rejection of plaint/dismissal of suit i.e. Regular Civil Suit No.26/2023.
3. The facts in brief are stated as under :-
The applicant/defendant No.3 and the non-applicant
No.1/plaintiff are lease holders of open space granted by non-applicant
Nos.2 and 3. The applicant is having lease hold right on 3 feet lane
adjacent to his constructed shop. In Regular Civil Suit No.26/2023, filed
over the dispute of measurement of dimensions of the plot involving
execution of lease deed for the purpose of calculation of years of lease to
be kept on hold which is for 51 years as of now, the applicant/defendant
No.3 filed an application on 16.03.2023 for rejection of plaint on the
ground that the jurisdiction of Civil Court is barred in view of the
provisions of Section 52B of the Maharashtra Agricultural Produce
Marketing (Development and Regulation) Act, 1963 (A.P.M.C. Act). It is
averred by the applicant/defendant No.3 that non-applicant
No.1/plaintiff claims for the dimensions of 23 x 40 feet which is equal to
920 sq.ft. however, it is 20 x 40 feet, i.e., 800 sq.ft. of the said lane as per
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the lease deed executed by non-applicant Nos.2 and 3 in favour of non-
applicant No.1/plaintiff.
The non-applicants Nos.2 and 3 conducted spot inspection
on 27.11.2021 in view of the complaint made by the applicant/defendant
No.3 post their execution of lease deed in favour of the applicant on
21.09.2020 with respect to open space having dimensions 40 x 25 feet
that comes to 1000 feet. Furthermore, the non-applicant Nos.2 and 3
have not responded to request of the applicant, an additional complaint
was made to the District Deputy Registrar, Washim for supplying the
report of measurement conducted by Engineer of Nagar Parishad, Risod.
On another complaint made by the applicant on 27.01.2023 due to non-
action of the said non-applicants, a communication was issued inviting
objections, if any, from the applicant and non-applicant No.1 towards the
possession of 3 feet lane.
4. The learned Counsel on behalf of the applicant, Mr. Gawali,
submitted that, the learned Trial Court failed to consider that there is an
appeal filed by non-applicant No.1 which is still pending before the
statutory authority. In the present case, notice has not been issued by the
non-applicant No.1 under Section 55 of the Maharashtra Agricultural
Produce Marketing (Development and Regulation) Act, 1963, before
filing a suit. It was further contended by the learned Counsel on behalf of
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the applicant that, Section 52B creates a bar to file a suit, as an alternate
and efficacious remedy is provided under the said Act. It was specifically
pleaded that, in view of the provisions of Section 32(e) of the said Act, by
giving an opportunity of hearing to the concerned, the non-applicant Nos.
2 and 3 are authorized to remove encroachment from the land of Market
Committee. They already have initiated the action for the said purposes
which cannot be questioned before the Civil Court.
5. Per contra, learned Counsel on behalf of the non-applicant
No.1 strongly opposed the arguments advanced on behalf of the
applicant. The learned Counsel for the non-applicant No.1/original
plaintiff, Mr. Parwe, submitted that Regular Civil Suit No.26/2023 falls
within the ambit of Section 38 of the Specific Relief Act. Considering the
nature of suit, the non-applicant No.1 is not barred to avail remedy
before the Civil Court. There is no express or implied bar in A.P.M.C. Act
to file suit for injunction. No any order of A.P.M.C. is challenged by the
applicant in the said suit. He further submitted that, Section 55 of the
A.P.M.C. Act is not applicable to file suit for injunction under Section 38
of the Specific Relief Act. He further contended that the complaint before
Market Committee is yet to be decided and it is pending.
6. Heard both the learned Counsel for the parties.
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7. The applicant has filed the application under Order VII Rule
11 of the Code of Civil Procedure. It is a half page application. The
objection raised by the applicant is that the Civil Court has no jurisdiction
to entertain the suit in view of the provisions of Section 52B of the
Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963
(A.P.M.C. Act). It appears from the plaint that, the plaintiff has made
party to the Agricultural Produce Marketing Committee and the suit is for
the permanent injunction. The only relief in respect of permanent
injunction is prayed by the plaintiff. The dispute is about the lane of 3 ft.
between the property of the plaintiff and the defendant No.3. The
defendant Nos.1 and 2 have taken a decision vide Resolution dated
11.02.2002 thereby resolving the right of the plaintiff over the said lane
and its possession was given to the plaintiff. Since then, the plaintiff is in
possession of the said piece of land. There is one iron staircase in the
said lane. The plaintiff is having apprehension that the defendants
dispossessed him or disturb his possession by removing his staircase from
the said lane.
8. It appears from the record that the defendant No.3 has
already filed the complaint before the defendant Nos.1 and 2, which is
pending. Still the decision is not taken by the defendant Nos.1 and 2 on
the complaint filed by the defendant No.3. Though non-applicant No.2
has heard the plaintiff and defendant No.3, since 2023 the matter is
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pending before the defendant Nos.1 and 2 for orders. Section 53B of the
A.P.M.C. Act is the proper remedy which is already availed by the
defendant No.3.
9. There is bar under Section 55 of the said Act to file suit in
absence of notice. It is not mentioned in the plaint that the prior notice is
issued to the defendant Nos.1 and 2. Therefore, the applicant has
correctly pointed out that the Civil Court has no jurisdiction to entertain
the suit against the A.P.M.C. Act.
10. The complaint is already pending for its decision before the
non-applicant Nos.2 and 3. The applicant has relied on the judgment of
this Court in the matter of Punjab National Bank, Ballarpur Vs. Shaikh
Jumman Shaikh Guljar reported in 2010(4) Mh.L.J. 133 wherein this
Court has observed about the filing of the application under Order VII
Rule 11 of the Code of Civil Procedure. Reliance is also placed on the
judgment of this Court passed by the Aurangabad Bench in the case of
Shantaram S/o. Waghu Sonawane Vs. Agricultural Produce market
Committee, Jalgaon and Ors. reported in 2011(3) All MR 313, wherein
this Court has observed in paragraph No.7 as Under :
"7. Section 52-B is a provision in the Act and it permits any
person aggrieved by a decision or order passed under any of the
provisions of A.P.M.C. Act to prefer an appeal to the Director and
to the State Government. The appeal to Director is permitted
when such decision is taken or order is passed by Marketing
Committee, its Chairman or office bearers. Appeal to State
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Government is envisaged when such decision is taken or order is
passed by Director. Section 52-B therefore is a general provision
which permits "any person" to prefer an appeal and Rule 104 is a
specific provision which appears in Chapter VI of the A.P.M.C.
Rules 1967 dealing with the officers and servants of the Market
Committee. Again it is therefore apparent that the different
forums of appeal or different avenues therefor are not
contemplated in the matter as nothing in Rule 104 militates with
section 52-B of the Act. Appeal of petitioner is styled as one
under section 52-B and Rule 104 of Rules."
In the case in hand, by Resolution the non-applicant Nos. 2
and 3 has handed over the possession of lane in favour of the plaintiff
and objection raised by the applicant/defendant is pending before the
said authority.
11. The learned Counsel for the applicant has also relied on the
judgment of the Hon'ble Apex Court in the matter of Horil Vs. Keshav
and Anr. reported in 2012 AIR SCW 1307, wherein it is observed in
paragraph No.12 as under :
"12. It is also well settled that under section 9 of the Civil
Procedure Code, the civil court has inherent jurisdiction to try all
types of civil disputes unless its jurisdiction is barred expressly or
by necessary implication, by any statutory provision and
conferred on any other tribunal or authority."
12. Considering the provisions of A.P.M.C. Act, as the complaint
is already pending before the non-applicant Nos.2 and 3 and there is a
bar to file a suit without issuance of notice as per Section 55 of the
8 cra.92.24-J.odt
A.P.M.C. Act, the interference at the hands of this Court is required.
Hence, I pass the following order :
i] The Civil Revision Application is allowed.
ii] The impugned order dated 28.07.2023 passed by the Jt.
Civil Judge Junior Division, Risod, District Washim in Regular Civil Suit
No.26/2023 is hereby quashed and set aside.
iii] As a result, the application filed by the defendant No.3 for
rejection of the plaint under Order VII Rule 11 of the C.P.C. is allowed.
Rule is made absolute in aforesaid terms. No costs.
(MRS. VRUSHALI V. JOSHI, J.)
RGurnule
Signed by: Mrs. R.M. MANDADE
Designation: PA To Honourable Judge
Date: 07/08/2025 11:47:44
