RAVINDRA v. GHUGE ANDY. G. KHOBRAGADE, JJ.RESERVED ON
Legal Reasoning
WP-656-2024.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 656 OF 2024Bapurao Gopala Gaikwad Age: 60 years, Occu: Agri.,R/o. Chimbhale, Tq. Shrigonda,Dist. Ahmednagar… PETITIONER VERSUS1.The State of Maharashtra Through its Principal SecretaryRural Development/Revenue Department, Maharashtra State, Mantralaya,Mumbai – 322.The Collector, Ahmednagar, Tq. & Dist. Ahmednagar 3.The Chief Executive Officer Ahmednagar Zilla Parishad,Ahmednagar 4.The Sub-Divisional Officer Shrigonda, Dist. Ahmednagar 5.The TahsildarShrigonda, Tq. Shrigonda,Dist. Ahmednagar 6.The Block Development OfficerShrigonda, Tq. Shrigonda,Dist. Ahmednagar 1 of 10
Legal Reasoning
(( 2 ))WP-656-20247.Chimbhale GrampanchayatChimbhale, Tq. ShrigondaDist. Ahmednagar, Through itsVillage Development Officer/Sarpanch8.Bhausaheb Sampat GaikwadAge: 42 years, Occ: Agri.,R/o. Chimbhale, Tq. Shrigonda,Dist. Ahmednagar … RESPONDENTS .…Mr. S. P. Salgar, Advocate h/f Mr. Y. H. Lagad, Advocate for Petitioner Mr. R. S. Wani, AGP for Respondent Nos. 1 and 2 – State Ms Kavita Bhale, Advocate for Respondent Nos. 3 and 6 Mr. D. A. Madke, Advocate for Respondent No.8 .…CORAM: RAVINDRA V. GHUGE ANDY. G. KHOBRAGADE, JJ.RESERVED ON :18.01.2024PRONOUNCED ON : 31.01.2024JUDGMENT (Per: Y. G. Khobragade, J.) :- 1.Rule. Rule is made returnable forthwith. Heard finally byconsent of the parties. 2.By the present Writ Petition under Article 226 of theConstitution of India, the Petitioner has put forth prayer clauses (B),(C) and (D) as under:- “[B]Quash and set aside the impugned notice dated12.01.2024 issued by the respondent No.7 Grampanchayatbeing illegal, arbitrary and contrary to the evidence availableon record and for that purpose issue necessary orders. 2 of 10 (( 3 ))WP-656-2024[C]Issue writ of mandamus or any other appropriate writ,order or direction in the nature of writ of mandamus, directingthe respondent No.5 Tahsildar, Shrigonda to decide therepresentation/application dated 15.02.2022 filed by thepetitioner in respect of correction of 10R area from Gat No.56situated at village Chimbhale, Tq. Shrigonda, Dist. Ahmednagarfrom acquisition proceeding and for that purpose issuenecessary orders.[D]Pending hearing and final disposal of this writ petition,grant stay to the operation, execution and/or implementationof impugned notice dated 12.01.2024 issued by the respondentNo.7 Grampanchayat and for that purpose issue necessaryorders.”3.The learned Counsel for the Petitioner submits that, thePetitioner was the owner of Gut No. 54 admeasuring 6 H. 62 R., GutNo.55 admeasuring 6H. 3 R., and Gut No.56 admeasuring 2H. 72 R.,situated at village Chimbhale, Taluka Shrigonda, District Ahmednagar.However, in the year 1974, Respondent No.3 Zilla Parishad, acquiredthe entire land of Gut No. 55 and acquired 3 H. 43 R. from Gut No.54. The petitioner remained in possession of 3 H. 43 R. land Gut No.54. Similarly, out of Gut No.56, Respondent no 3 acquired land tothe extent of 2H. 62 R out of total 2 H. 72 R. Therefore, 10 R Landremained with the Petitioner. The Petitioner constructed a residentialhouse on the said 10 R. land, which was never acquired by the 3 of 10 (( 4 ))WP-656-2024Respondents. Therefore, on 15.02.2022, the Petitioner submitted anapplication with Respondent No.5 Tahsildar, Shrigonda praying forcorrection of 7/12 extract in respect of Gut No.56 to the extent of 10R. land and he constructed a pakka house and cattle shed thereon.4.However, in the month of September 2023, theRespondent No.8 was trying to fetch water from the percolation tank,without obtaining necessary permission of the Respondent authoritiesand tried to lay down pipeline to fetch water to his land, which issituated in Gut No.106 and 107. Therefore, the Petitioner obstructedRespondent No.8 for laying of the pipeline without permission.Thereafter, Respondent No.8 assaulted him and his son, hence, thePetitioner lodged a report, but an N. C. No.873/2021 was registeredon 29.09.2021 with Belwandi Police Station. Therefore, to takerevenge, Respondent No. 8 lodged a false complaint against him withRespondent No.5 Tahsildar on 23.05.2022 and copy of the sameforwarded to Respondent No.7 Gram Panchayat. Thereafter, on27.06.2023, Respondent No.7 issued a notice to the Petitioner, callingupon him to remove the encroachment described in the notice, withina period of seven days. 4 of 10 (( 5 ))WP-656-20245.The learned Counsel for the Petitioner further canvassedthat, the Petitioner has already filed Special Civil Suit bearing No. 266of 2023 before the learned Civil Judge Senior Division, Shrigonda andthe same is pending. During the pendency of the suit, the Petitionerserved with impugned notice dated 12.01.2024, which is illegal andbad in law hence prayed for quashing and setting aside the same. 6.Per contra, the learned Counsel appearing for therespective Respondents, commonly submitted that, the Petitionerhimself admitted about acquisition of his land Gut Nos. 54, 55 and 56for percolation tank, but the petitioner constructed pakka house andcattle shed on the Government land. Therefore, the Petitioner wasserved with a notice dated 27.06.2023 for removal of encroachmentwithin a period of seven days, however, the Petitioner submittedrepresentation to Respondent No.5 Tahsildar on 15.02.2022 andprayed for correction of 7/12 extract and regularization ofencroachment. m\Meanwhile, Respondent No.8 Bhausaheb SampatGaikwad filed Writ Petition No.13050 of 2023 before this Court andrequested for decision on his representation dated 28.02.2023. On20.10.2023, this Court passed an order thereby directed theRespondent No. 8 therein to consider the representation of the 5 of 10 (( 6 ))WP-656-2024Petitioner and to communicate the decision on the same to thePetitioner within 60 days. Thereafter, the Petitioner is served withimpugned notice dated 12.01.2024, calling upon him to remove theencroachment on the land. Hence, the impugned notice is legal. 7.It would be worthwhile to mention here that, Section 53of the Maharashtra Village Panchayat Act provides for removal ofobstructions and encroachments upon public streets and open sites.Sub-Section (2) of Section 53 empowers the Panchayat for removal ofencroachment and to remove any crop unauthorisedly cultivated ongrazing land or any other land, not being private property. For thesake of brevity, Sub-Section (2), 2A, 3, 3A, 3B of Section 53, arereproduced as under:-“(2) The panchayat shall have power to remove any such obstructionor encroachment and to remove any crop unauthorisedly cultivated ongrazing land or any other land, not being private property, and shall have thelike power to remove any unauthorised obstruction or encroachment of thelike nature in any open site not being private property, whether such site isvested in the panchayat or not, provided that if the site be vested inGovernment the permission of the Collector or any officer authorised by himin this behalf shall have been first obtained. The expense of such removal shallbe paid by the person who has caused the said obstruction or encroachmentand shall be recoverable in the same manner as an amount claimed onaccount of any tax recoverable under Chapter IX. 1[It shall be the duty of thepanchayat to remove such obstruction or encroachment immediately after it isnoticed or brought to its notice, by following the procedure mentionedabove.] 6 of 10 (( 7 ))WP-656-2024[(2A) If any panchayat fails to take action under sub-section (2) 3[**], the Collector suo motu or on an application 13. The next question iswhether adequate and efficacious remedy is provided under the Act. Theanswer is obviously ‘yes’ . As discussed earlier, there is an obligatory duty caston the Gram Panchayat and power conferred under subSection (2) of Section53 of the Act. But then the action cannot be taken without recourse to theprinciples of natural justice and without following the procedure. A clearstatutory appeal as of right is provided to the Commissioner who is supposedto conduct the appeal also taking recourse to the powers and procedure forappeals under Maharashtra Land Revenue Code. Hence, alternate efficaciousas of right remedy is clearly provided.made in this behalf, may take action as4[provided in that sub-section, and submit the report thereof to theCommissioner]. The expense of such removal shall be paid by the person whohas caused the said obstruction or encroachment or unauthorised cultivationof the crop and shall be recoverable from such person as an arrear of landrevenue.] (3) The power under 1[sub-section (2) or sub-section (2A)] may beexercised in respect of any obstruction, encroachment or 2[unathorisedcultivation of any crop] referred to therein whether or not such obstruction,encroachment or 2[unauthorised cultivation of any crop] has been madebefore or after the village is declared as such under this Act, or before or afterthe property is vested in the panchayat.3[(3A) Any person aggrieved by the exercise of the powers by thepanchayat under sub-section (2) or (3) may, within thirty days from the dateof exercise of such powers, 4[appeal to the Commissioner and theCommissioner, after making such enquiry as he thinks necessary shall passsuch orders as he deems necessary] after giving such person a reasonableopportunity of being heard.][(3B) Any order made by the Collector in exercise of powers conferredon him under sub-section (2A) or (3) shall be subject to appeal and revision inaccordance with the provisions of the Maharashtra Land Revenue Code,1966.]”8.In the case of Village Panchayat, Antora Vs. WasudeoRamchandraji Mohod and another – (2014) 5 Mah L.J. 189, theSingle Bench Judge of Bombay High Court, Nagpur Bench, hasobserved as under:- 7 of 10 (( 8 ))WP-656-2024“Subsection (2) of Section 53 provides for a power of theVillage Panchayat to remove any encroachment in any open site not being theprivate property whether such a site is vested in the panchayat or nor. Asfound by me above, there is a total failure on the part of the non-applicantseven prima facie for showing that the property is their private property. Theyhave not been able to prove it even remotely except for showing some taxreceipts and mutation made in the year 1994 in respect of Kuccha Kotha.However, whether there is an encroachment or not whether it is the privateproperty of the non-applicants; the burden would certainly be on the non-applicants to prove that the suit property is their private property and that it isnot an encroachment. That being so, in my opinion, subsection (2) of Section53 of the said Act gives a power and duty to the applicant Village Panchayat toremove the encroachment. In fact, proviso to sub section 2 of Section 53 wasadded by amending Act No.38 of 2006 to provide for compulsion on theVillage Panchayat to remove the encroachments. By the amendment, appellatepower was conferred on the Commissioner in place of ‘Standing Committee’ ofZilla Parishad for obvious reasons. It is in this background the letter dated17.2.2011 notice dated 26.4.2011 were issued to the non-applicants so alsoresolutions were passed in the Gram Sabha on 25.4.11 and 26.4.2011.Subsection (3A) above clearly shows that any person if aggrieved by theaction taken under subsection (2) of Section 53, he may within thirty daysfrom the date of exercise of such power, appeal to the Commissioner and aftermaking such enquiry, the Commissioner may pass such orders as it deemsnecessary. The notices as well as resolutions made by Gram Sabha wouldclearly “exercise of such powers” occurring in subsection (3A) of the Act.Thus, it is clear that the remedy provided by subsection (3A) is an appellateremedy against any action taken under subsection (2) of Section 53 of thesaid Act. It will be also pertinent to note that the Act does not provide for anyremedy thereafter i.e. after the exercise of the appellate power by theCommissioner and, in my opinion, the remedy of sub-sec.(2) of Section 53 isin order to check the menace of encroachment everywhere including thevillages and that is why the power is given to the Panchayat to follow theprocedure and remove the encroachment. The procedure under section 53 ofthe said Act clearly appears to be summary in nature but still there is remedyprovided by subsection (3A) of section 53. I have perused the said noticedated dated 17.2.2011 and 26.4.2011 as well as resolutions dated 25.4.2011and 26.4.2011. In my opinion, the notices and the resolutions clearly fallwithin the purview of subsection (2) of Section 53 of the said Act. It is thusclear that provisions of Section 53 (2) and (3A) are squarely attracted in theinstant case and, therefore, the jurisdiction of the Civil Court stands excluded. 8 of 10 (( 9 ))WP-656-202412.Apropos, paragraph 10(2) in the case of Dhruv Green Field Ltd. vs.Hukam Singh and others (cited supra), I thus find from the examination ofprovisions of Section 53 of the Act in terms show that the Act which must betreated as ‘special law’ as against the ‘general law’ and Sec.53 of the Act asspecial provision to deal with the matters like notices dated 17.02.211 and26.04.2011 so also resolutions of Gram Panchayat dated 25.04.2011 and26.04.2011, one must conclude the exclusion of the jurisdiction of the CivilCourt.13.The next question is whether adequate and efficacious remedy isprovided under the Act. The answer is obviously ‘yes’. As discussed earlier,there is an obligatory duty cast on the Gram Panchayat and power conferredunder sub-Section (2) of Section 53 of the Act. But then the action cannot betaken without recourse to the principles of natural justice and withoutfollowing the procedure. A clear statutory appeal as of right is provided to theCommissioner who is supposed to conduct the appeal also taking recourse tothe powers and procedure for appeals under Maharashtra Land RevenueCode. Hence, alternate efficacious as of right remedy is clearly provided.”9.In the case in hand, it prima-facie appears that, thePetitioner has already filed Special Civil Suit No. 266 of 2023 beforethe learned Civil Judge, Senior Division, Shrigonda thereby prayingfor decree of declaration that, the Notice dated 14-07-2023 issued bythe Defendant No. 1 (present Respondent No. 7 being illegal and torestrain the Respondent No.1 Village Development Officer i.e. presentRespondent No.7, from acting and implementing the said notice. ThePetitioner/plaintiff also filed Exh.5 and prayed for temporaryinjunction against the Respondents/Defendants from execution ofnotice dated 14.07.2023, but the petitioner fails to produce any orderpassed therein. 9 of 10 (( 10 ))WP-656-202410.Not only this, but the Petitioner again filed an ApplicationExh. J, Page 81, before the learned Civil Judge, Senior Division inSpecial Civil Suit No.266 of 2023 and challenged the notice dated27.06.2023, which is in the similar nature of the impugned notice.The Petitioner has a statutory efficacious remedy to challenge theimpugned notice under Section 53 of the Maharashtra VillagePanchayats Act. Therefore, considering the ratio laid down in the caseof Assistant Commissioner (CT) LTU, Kakinada and others Vs. GlaxoSmith Klene Consumer Health Care Limited – (2020) 19 SCC 681and in the case of M/s. Godrej Sara Lee Ltd. Vs. The Excise andTaxation Officer-Cum-Assessing Authority and others – 2023 SCCOnLine SC 95, as well as the petitioner has already approached beforethe Civil Court for the relief which he has prayed in the presentpetition. Under this circumstance, we do not find it fit and proper toexercise jurisdiction under Article 226 of the Constitution of India.11.In view of above discussion, we do not deem itappropriate to exercise our Writ jurisdiction. Hence, the present WritPetition is dismissed. Accordingly, Rule is discharged. [ Y. G. KHOBRAGADE, J. ] [ RAVINDRA V. GHUGE, J. ]SMS 10 of 10