Andhra HC (Pre-Telangana)
Panchayat Secretary, Gram Panchayat ... vs Maddela Manikyamma And Ors. on 22 July, 2005
Equivalent citations: 2005(6)ALD19, 2005(5)ALT413
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. Defendants 1 and 2 in O.S.No. 573 of 2002 on the file of the learned IV Additional Junior Civil Judge, Ongole, filed the Second Appeal. The 1st respondent (for short 'the respondent') filed the suit initially for the relief of injunction in respect of the suit schedule property, which, admittedly, was a road margin. Subsequently, she amended the prayer in the suit, for the one of recovery of possession invoking Section 6 of the Specific Relief Act, 1963 (for short 'the Act'). She pleaded that she is in possession and enjoyment of that suit land for about 20 years and that the appellants have high-handedly dispossessed her without following the procedure prescribed by law.
2. The appellants contested the suit. They pleaded that apart from the respondent, several others encroached into the road margin and the abutting property belonging to the Gram Panchayat, and that it was not only causing traffic congestion but also resulting in health hazards. A notice, dated 25-6-2002 was said to have been issued requiring all the encroachers, to remove their encroachments, failing which the Gram Panchayat would take steps to remove them. It is their case that while all the other encroachers have removed the encroachments and requested for providing alternative sites, the respondent offered resistance and ultimately, she was evicted on 22-7-2002, on which date the suit was filed. The appellants also raised a plea as to the maintainability of the suit inasmuch as the Gram Panchayat or the Government of A.P. were not made parties. The trial Court decreed the suit through its judgment, dated 7-4-2004. Aggrieved thereby, the appellants filed A.S.No. 86 of 2004 in the Court of the learned III Additional District and Sessions Judge (Fast Tract Court), Ongole. The appeal was dismissed on 9-12-2004. Hence, the Second Appeal.
3. Sri M.V. Suresh Kumar, learned Counsel for the appellants, submits that the suit was initially filed for the relief of perpetual injunction pleading that the respondent is in possession of the suit schedule property and unless a different cause of action was shown in the plaint, there was no basis for claiming the relief under Section 6 of the Act. He contends that admittedly the action was initiated by, and relief was claimed against, the Gram Panchayat, but it was not impleaded. Placing reliance upon Order XXVII Rule 5-A C.P.C., he contends that the Government ought to have been made a party. As a corollary to this submission, he contends that once the Government becomes a necessary party to the suit, the relief under Section 6 of the Act cannot be claimed in it. He further contends that even otherwise the appellants placed sufficient material before the trial Court to establish that the dispossession was in accordance with law and Section 6 of the Act does not get attracted to the facts of the case.
4. Sri Manmadha Rao, learned Counsel for the respondent, on the other hand, submits that there was voluminous evidence to disclose that his client was in possession of the suit schedule property for the past twenty years, and that she was dispossessed after the suit was filed; that too in violation of the order of status quo granted by the trial Court. He contends that it makes little difference whether the dispossession was on the date of filing of the suit or two days thereafter, from the point of view of grant of relief under Section 6 of the Act. Learned counsel also submits that the officials who have initiated action against the respondent were impleaded and in that view of the matter, it was not necessary to implead either the Gram Panchayat or the Government.
5. As observed earlier, the suit was initially filed for the relief of perpetual injunction by pleading that the respondent is in possession of the suit schedule property as on the date of filing of the suit. It is a matter of record that she did not claim any title in it and in fact, it is admitted that the suit schedule property is a road margin. There is some controversy as to when the respondent was dispossessed. As pointed out by the learned Counsel for the respondent, it makes little difference whether it was on 22-7-2004 as pleaded by the appellants or on 24-7-2002 as pleaded by the respondent, as long as the suit was filed within six months from the date of dispossession invoking the right under Section 6 Of the Act.
5-A. The trial Court framed the following issues:-
(1) Whether the plaintiff was dispossessed by the defendants, soon after filing of this suit? (2) Whether the plaintiff is entitled for recovery of possession of schedule property?
6. The respondent was examined as P.W.1 and she filed Exs.A-1 to A-23. On behalf of the appellants, D.W.1 was examined and they filed Exs.B-1 to B-11. The trial Court answered all the issues in favour of the respondent and decreed the suit. The lower appellate Court framed three points viz., (1) Whether the plaintiff is dispossessed contrary to due process of law?
(2) Whether the suit under Section 6 of the Specific Relief Act will lie against a Gram Panchayat?
(3) Whether the decree of possession is sustainable?
and answered them against the apellants. If the other unnecessary details or facts that gave raise to the filing of the suit by the respondent are omitted, it remains that she filed it seeking recovery of possession by invoking Section 6 of the Act. The plaintiff in such a suit is not required to establish the title. It would be sufficient if it is shown that the dispossession took place within a period of six months before filing the suit and that such dispossession was otherwise than through process of law. One important exception for grant of this summary relief is that it is not available against the Government.
7. Broadly speaking, the remedy under Section 6 of the Act can be availed only-
(a) when the dispossession took place within six months before the date of filing of the suit:
(b) the dispossession was otherwise than through procedure prescribed by law; and
(c) the agency which dispossessed the plaintiff is the one other than the Government.
This would be clear from a reading of Section 6 of the Act itself, which is as under:
"6. Suit by person dispossessed of immovable property:- (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No suit under this Section shall be brought, -
(a) after the expiry of six months from the date of dispossession, or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this Section, nor shall any review of any such order or decree be allowed. (4) Nothing in this Section shall bar any person from suing to establish his title to such property and to recover possession thereof."
8. So far as the first aspect of the matter is concerned, it can safely be said that the respondent had discharged her burden. It is not in dispute that the dispossession took place in July 2002 and in fact, be it before or after the suit was filed.
9. As regards the second aspect of the matter, it has to be examined as to whether the dispossession of the respondent was otherwise than through the procedure prescribed by law. The discussion on this aspect must stand from the fact that the suit property vested in the Gram Panchayat. Section 53 of the A.P. Panchayat Raj Act, 1994 mandates that the public roads within the limits of Gram Panchayat shall vest in it. Section 98 of that Act empowers the Gram Panchayat to remove encroachments.
"98. Removal of Encroachment:
(1) The executive authority may, by notice, require the owner or occupier of any building to remove or alter any projection, encroachment or obstruction other than a door, gate, bar or ground floor window, situated against or in front of such building and in or over any public road vested in such gram panchayat.
(2) If the owner or occupier of the building proves that any such projection, encroachment or obstruction has existed for a period sufficient under the law of limitation to give any person a prescriptive title thereto or that it was erected or made with the permission or licence of any local authority duly empowered in that behalf, and that the period, if any/for which the permission or licence is valid has not expired, the gram panchayat shall make reasonable compensation to every person who suffers damages by the removal or alteration of the same."
10. Though no specific form of notice is prescribed and no detailed procedure is laid down, the appellants have chosen to issue a general notice, dated 25-6-2002, marked as Ex.B-3, requiring all the encroachers to vacate the encroachments on or before 30-6-2002. The notice was published through tom-tom in the village. In proof of knowledge of the notice, more than 20 persons, mostly, the encroachers of the road margin have signed upon it. It is true that the signature of the respondent does not find place in Ex.B-3. However, if one examines this limited context as to whether the dispossession was otherwise than in due course of law, it emerges that the respondent was dispossessed pursuant to Ex.B-3, which, in turn, is traceable to the power of Gram Panchayat under Section 98 read with Section 53 of the Panchayat Raj Act.
11. Once it is clear that the dispossession took place in due course of law, it becomes difficult to grant any relief under Section 6 of the Act. The question as to whether the course of law invoked for dispossessing the respondent suffered from any legal or factual infirmity falls outside the scope of a summary suit filed under Section 6 of the Act. Any challenge to the form of notice or manner of service would fall in the realm of declaratory reliefs.
12. As for the third aspect of the matter, it has to be noted that the subject matter of the suit is a road margin and that the action initiated by the respondent is against the officials of the Gram Panchayat, the Mandal Revenue Officer and the District Collector. Order XXVII Rule 5-A of C.P.C. mandates that whenever any relief is claimed against the public officials, the Government should be made as a party to the suit. Order XXVII Rule 5-A C.P.C. reads as under:
"5-A. Government to be joined as a party in a suit against a public officer-Where a suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the government shall be joined as a party to the suit."
The respondent has not chosen either to implead the Gram Panchayat or the Government. The bar contained under Section 6 of the Act as to the claim of relief against the Government operates axiomatically, in cases, where the Government was a necessary party. Conversely, the suit becomes bad for nonjoinder of a necessary party. Either way, the respondent was not entitled to the relief on this account.
13. For the forgoing reasons, the Second Appeal is allowed and the decree granted by the trial Court and affirmed by the lower appellate Court is set aside.
14. The record discloses that the appellants offered to provide alternative site to the respondent and that in fact, they have accommodated the other encroachers, who had been affected along with the respondent. Hence, the appellants shall endeavour to provide alternative accommodation to the respondent. There shall be no order as to costs.