Gujarat High Court
Ahmedabad Municipal Corporation vs Mohanlal Matambhai & on 24 January, 2013
Author: C.L.Soni
Bench: C.L. Soni
AHMEDABAD MUNICIPAL CORPORATION....Appellant(s)V/SMOHANLAL MATAMBHAI C/SA/141/1996 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL NO. 141 of 1996 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE C.L. SONI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ AHMEDABAD MUNICIPAL CORPORATION....Appellant(s) Versus MOHANLAL MATAMBHAI & 1....Respondent(s) ================================================================ Appearance: MR DEEP D VYAS, ADVOCATE for the Appellant(s) No. 1 MR VIJAY H PATEL, ADVOCATE for the Respondent(s) No. 1 MRS JYOTSNA K PATEL, ADVOCATE for the Respondent(s) No. 1 NOTICE SERVED for the Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE C.L. SONI Date : 24/01/2013 ORAL JUDGMENT
1. This Appeal under Section 100 of the Code of Civil Procedure is filed by the original defendant No. 1-Sarkhej Group Gram Panchayat. However, pending the Appeal, because of the alteration in the limits of City of Ahmedabad by virtue of notification dated 20th July 2006 issued by the State of Gujarat, the area of Sarkhej Nagar Panchayat-original opponent came to be included in the city of Ahmedabad, the Ahmedabad Municipal Corporation is substituted as appellant in place of Sarkhej Nagar Panchayat.
2. The respondent No.1 -original plaintiff has filed Civil Suit No. 21/1984 for permanent injunction restraining the appellant-defendant No. 1 and defendant No. 2-District Development Officer from demolishing the suit premises. It is the case of the plaintiff in the suit that the plaintiff is residing in his house on the bank of Shakari Talav and is paying house tax, water tax, sanitary tax, light tax etc. It is the case of the plaintiff that the defendants are trying to demolish his house without due process of law and therefore, the suit is required to be filed seeking aforesaid relief.
3. The suit was resisted by defendant No. 1 by filing written statement at Exh. 28 stating that the suit was not maintainable in absence of statutory notice under the Panchayats Act; that the plaintiff has tresspassed upon the suit land admeasuring 10 X10 and constructed a small room. It is further stated that the defendant has tried to serve a notice upon the plaintiff but the plaintiff refused to accept the same and the plaintiff is therefore, not entitled to any relief to restrain the defendant from taking any further action. The defendant No. 2 also filed written statement at Exh. 22 and has taken similar contentions. It was specific contention taken by defendant No. 2 that the suit was not maintainable for want of notice under Section 320 of the Panchayat Act. It is also further stated that the plaintiff has put up illegal construction over the panchayat land and even if some tax was recovered from the plaintiff, that would not give the plaintiff any right over the panchayat land. It is also stated by defendant No. 2 that the panchayat is authorised under Section 94 of the Act to get illegal construction and unauthorised encroachment removed from panchayat land.
4. On the basis of the pleadings the learned Trial judge framed issues at Exh. 36 and answered each of the issues as stated below :
(1)Whether the suit of the plaintiff is maintainable in absence of statutory notice under section320(2) of the Gujarat Panchayat Act ?
Whether the plaintiff proves that he is lawful owner and occupier of the suit property ?
Whether the defendants proves that the plaintiff has no cause of action to file a present suit against them ?
Whether the plaintiff proves that before making super structure he obtained permission of the defendant No. 1 Gram Panchayat ?
Whether the plaintiff is entitled to get relief as prayed for ?
What order and decree ?
5. On appreciation of evidence, the trial court came to the conclusion that the plaintiff has failed to prove that he was either the owner of the land in question or legally entitled to put up construction thereon. The trial court also came to the conclusion that the plaintiff has refused to accept the notice of the defendants and that the plaintiff has not served any statutory notice under the Panchayats Act before filing the suit. The trial court thus held that not only the plaintiff is not entitled to continue the occupation of the suit land but even his suit is not maintainable. The suit of the plaintiff was thus dismissed by judgment and decree dated 7th October 1988.
6. The plaintiff carried the matter before the First Appellate Court by filing Regular Civil Appeal No. 2/1989. Learned Appellate Judge came to the conclusion that defendant No.1 Panchayat was required to give notice under section 193(A) of the Panchayat Act before taking any action against the plaintiff for removal of the enroachment made by the plaintiff. Learned Appellate Judge found that no notice under Section 193(A) of the Panchayat Act was served to the plaintiff and therefore the plaintiff could be said to have succeeded in proving that the defendants have got no right to demolish his structure without due process of law. Learned Appellate Judge also came to the conclusion that no notice under section 320 of the Gujarat Panchayat Act was required to be issued by the plaintiff before filing the suit as the plaintiff was to protect his possession by filing the suit. On such reasoning and conclusion arrived at by learned Appellate Judge, ultimately, the appeal of the plaintiff was allowed by judgment and decree dated 21st June 1986 and his suit was decreed and defendants were restrained from removing the structure from suit land without observing due process of law under section 193(A) of the Gujarat Panchayats Act. It is this judgment and decree of the First Appellate Court which is under challenge before this Court in this Appeal.
7. This Appeal was admitted by order dated 30th October 1986 on the following substantial questions of law :
(1)Whether on the facts and in the circumstances of the case, the First Appellate Court has substantially erred in law in holding that provision of Section 193(A) of the Gujarat Panchayats Act, 1961 would be applicable to the facts of the present case and not Section 94 of the said Act ?
Whether on the facts and in the circumstances of the case the First Appellate Court has substantially erred in law in holding that, suit without serving notice, as contemplated by Section 320 of the Gujarat Panchayat Act, 1961 is maintainable ?
8. I have heard learned advocates for the parties. Learned advocate Mr. Vyas appearing for the appellant submitted that the plaintiff had remained unsuccessful in proving that he was legally holding the suit land and his construction on the suit land was with a permission of the Panchayat.
9. Mr. Vyas submitted that the finding of the trial court that the plaintiff is not the owner of the land and he is illegally occupying the suit land and has put up unauthorised construction on the suit land is not disturbed by the First Appellate Court. Mr. Vyas submitted that the First Appellate Court has seriously erred in coming to the conclusion that the notice under section 193(A) of the Panchayat Act, 1961 was required to be served for the purpose of removing unauthorised construction put up by the plaintiff. Mr. Vyas submitted that the notice given by defendant No.1 Panchayat under section 94 was for the purpose of removing unauthorised construction put by the plaintiff and therefore defendant No. 1 was justified in not issuing any notice under section 193(A) of the Panchayat Act. Mr. Vyas learned advocate has literally taken the Court through the provisions of Section 193(A) as well as the provisions of Section 94 of the Panchayats Act to point out as to under what circumstances two different kinds of notices are required to be issued. Mr. Vyas pointed out that notice under Section 193(A) would be required to be issued only when any order is required to be passed against any person to remove him from unauthorised occupation of the premises of the panchayat .
He pointed out that if any unauthorised construction or obstruction or encroachment from panchayat land is to be removed, the panchayat is required to resort to provisions of Section 94. Mr. Vyas submitted that in the present case the notice was given for the purpose of removal of unauthoried construction and encroachment from the panchayat land and therefore panchayat was justified in issuing notice under section 94 of the Panchayat Act. Mr. Vyas further submitted that learned Appellate Judge has also committed serious error in coming to the conclusion that no statutory notice under section 320 was required to be served upon the defendants before filing the suit against them. He submitted that the provisions of Section 94 clearly stipulates that the person who is served with the notice under section 94 of the Panchayat Act serves upon the panchayat a statutory notice under Section 320 of the Panchayat Act then in that case the panchayat would be under obligation to wait till the expiry of the period of the said notice for taking action under section 94 of the Panchayat Act. Mr. Vyas further submitted that Section 320 provides that if the suit is to be filed for any action including the purported action of the panchayat, notice is required to be served to the panchayat by the person filing the suit. He submitted that service of notice by the panchayat under section 94 of the Panchayats Act was purported action on the part of the panchayat to remove unauthorised construction and encroachment from the panchayat land and therefore, the plaintiff was mandatorily required to serve statutory notice under section 320 of the Panchayats Act to the defendants before filing the suit. Mr. Vyas thus urged to allow the appeal on the substantial questions of law framed by this Court.
10. In reply, learned advocate Ms Jyotsna Patel appearing for the respondent submitted that the plaintiff was having long possession of the suit land and was therefore required to be served with notice only under section 193 (A) of the Panchayat Act before taking any action against the plaintiff for removal of so called unauthorised construction put up by the plaintiff on the suit land. Ms. Patel, learned advocate submitted that notice under section 94 of the Panchayat Act is for taking summary action against the trespassers and not against the persons like the plaintiff who has established his right to occupy the suit land and who has put up the construction of his room on the suit land. Ms. Patel learned advocate submitted that the Appellate Court has therefore, rightly held that in the facts of the case the plaintiff was required to be served with notice under section 193(A) of the Panchayat Act which the defendants have not served, and therefore, it was not open to the defendants to take any action for removing the so called unauthorised construction from the suit land. Ms. Patel learned advocate submitted that the plaintiff was also not required to serve any statutory notice under section 320 of the Panchayat Act because the plaintiff was required to seek urgent protection from the Civil Court and therefore, even if no such notice was served under section 320 by the plaintiff, the suit of the plaintiff could not be held to be not maintainable. Ms. Patel further submitted that if the defendant No.1 panchayat was not authorised to take action under section 94 of the Panchayat Act and the action under section 193(A) of the Panchayat Act is required to be followed as rightly held by First Appellate Court, then it is not at all necessary to serve any notice under section 320 of the Panchayat Act to the defendants before filing the suit. Ms. Patel submitted that the suit was only for seeking permanent injunction restraining the defendants from demolishing the structure of room put up by the plaintiff on the suit land without following due process of law and for filing the said suit no notice under Section 320 was required to be served by the plaintiff to the defendants. Ms. Patel learned advocate thus urged to dismiss the appeal by holding that the panchayat was required to take action under section 193(A) of the Panchayat Act and also by holding that no notice under section 320 of the Panchayat Act was required to be served to the defendants before filing the suit.
11. Having heard learned advocates for the parties and having perused the judgment and decree passed by the Courts below with the record and proceedings of the case, it appears that the plaintiff prayed for restraint order of permanent nature against the defendants for not removing the super structure put up by him on the suit land without observing due process of law. The Courts below have found on appreciation of evidence that the plaintiff is not the owner of the suit land and the plaintiff has also not proved that the construction put up by the plaintiff on the suit land was with permission of the panchayat. The plaintiff is thus in unathorised occupation of the panchayat land and has put up super structure on the panchayat land illegally and unauthorisedly.
12. It appears that after the plaintiff came to know about the action initiated by the panchayat for removal of his illegal construction, the plaintiff filed the suit on the ground that his construction cannot be removed without due process of law. It has come in evidence that the panchayat issued notice under section 94 of the Gujarat Panchayat Act, 1961 dated 27th December 1983 to the plaintiff for the purpose of removal of illegal and unauthorised construction of 10 X10 square yard put up on southern side of revenue survey No. 3 of the panchayat land. It is clearly stated in the said notice that the plaintiff has made illegal and unauthorised encroachment and construction on the suit land which should be removed within the period of three days and the plaintiff should stop using the panchayat land failing which the panchayat will be required to remove the encroachment and unauthorised construction at the cost of the plaintiff.
13. At this stage the provisions of Sections 94 and 193(A) of the Gujarat Panchayat Act, 1961 are required to be referred and they are reproduced as under
Section 94: Obstruction and encroachments upon public streets and open sites Whoever, within the limits of the gram or nagar as the case may be -
(a) builds or sets up any wall, or any fence, rail post, stall verandah, platform, plinth, step or structure or thing or any other encroachment, or instruction, or
(b) deposits, or causes to be placed or deposited, any box, bale, package or merchandise, or any other thing or © without written permission given to the owner or occupier of a building by a panchayat, puts up, so as to project from an upper storey hereof any verandah, balcony, room or other structure or thing, in or over any public street or place, or in or upon any open drain, gutter, lever or aqueduct in such street or place, or contravenes any conditions subject to which any permission as aforesaid is given or the provisions of any bye-law made in relation to any such projections or cultivates or makes any unauthorised use of any grazing land, not being private property, shall an conviction, be punished with fine, which may extend to fifty rupees, and with further fine which may extend to five rupees for each day on which such obstruction, deposit projection, cultivation or unauthorised use continues after the date of first conviction for such offence.
(2) The Panchayat may remove any such obstruction or encroachment and remove any crop unauthorisedly cultivates, on grazing land or any other land not being private property, and may remove any unauthorised obstruction or encroachment of the like nature in any open site not being private property, whether such site is vested in the panchayat or not :
Provided that if the site be vested in the State Government, the per mission of the Collector or any officer authorised by him in this behalf, shall have first been obtained the expense of such removal shall be paid by the person who has caused the said obstruction or encroachment and shall be recoverable in the same manner in as an amount claimed on account of any tax recoverable under Chapter IX Provided further that when before the removal of any such encroachment or projection a notice for bringing action in that behalf has been given under sub-section 12) of section 320, no action for the removal of encroachment or projection shall be taken until the expiry of the period of such notice and a further of seven days.
(2A) Nothing in sub-section (2) shall prevent the panchayat from permitting any construction referred to in clause (a) or clause(c) of subsection(1) to stand on such terms and conditions as may be prescribed.
The power under sub-section (2) may be exercised in respect of any obstruction, encroachment or projection referred to therein whether or not such obstruction, encroachment or projection has been made before or after the gram or nagar is declared as such under the Act or before or after the property is vested in the panchayat Whoever not being duly authorised in that behalf removes earth, sand or other material from or makes any encroachment in or upon any open site which is not private property, shall, on conviction be punished with fine which may extend to fifty rupees, arid in the case of an encroachment, with further fine which may extend to five rupees for every day on which the encroachment continues after the date of first conviction.
Nothing contained in this section shall prevent the panchayat from allowing any temporary occupation of, or erection in, any public street on occasions of festivals and ceremonies, of the piling of fuel in by-lanes and sites for not more than seven days, and in such manner as not to inconvenience the public or any individual or from allowing any temporary erection on, or putting projection over, or temporary occupation of , any such public street or place, for any other purpose in accordance with the bye-laws made under this Act.
If the panchayat finds it difficult to remove any obstruction or encroachment or any crop unauthorisedly cultivatged or grazing land as referred to in sub-section (2), the taluka panchayat or such officer of the taluka panchayat as the taluka panchayat may authorise in this behalf shall exercise the powers under sub-section (2) and take action to remove the obstruction, encroachment or as the case may be, the crop.
The taluka panchayat may, take action referred to in sub-section (6) suo motu or whenever it is reported to it that though the panchayat was moved to take action under sub-section (2) it has not taken any action for these months;
Provided that before taking action suo motu it shall direct the panchayat to take action and if the panchayat fails, to do so within a specified time, the taluka panchayat may thereafter take action.
SECTION 193A Power to evict certain persons from panchayats premises (1) if a panchayat is satisfied -
(a) that the person authorized to occupy any premises belonging to it (hereinafter referred to as the panchayat premises ) as a tenant or otherwise has
(i) not paid rent lawfully due from him in respect of such premises for a period of more than two months, or
(ii) sub-let, without the permission of the panchayat, the whole or anhy part of such premises, or
(iii) acted in contravention of any of the terms express or implied under which he is authorised to occupy such premises, or
(b) that any person is in unauthorized occupation of any panchayat premises, the panchayat may, notwithstanding anything contained in any law for the time being in force, by notice served (i)by post or (ii)by affixing a copy of it on the other door or some other conspicuous part of such premises, or (iii) in such other manner as may be prescribed, order that person as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within one month of the date of service of the notice.
Before an order under sub-section (1) is made against any person the panchayat shall inform the person by notice in writing of the grounds on which the proposed order is to be made and give him a reasonable opportunity of tendering an explanation and producing evidence, if any, and to show cause, why such order should not be made, within a period to be specified in such notice. If such person makes an application to the panchayat for extension of the period specified in the notice the panchayat may grant the same on such terms as to panchayat and recovery of the amount claimed in the notice as it deems fit. Any written statement put in by such persons and documents produced in pursuance of such notice shall be filed with the record of the case and such persons shall be entitled to appear before the panchayat by advocate, attorney or pleader. Such notice in writing shall be served in the manner provided for service of notice under sub-section (1).
If any person refuses or fails to comply with an order made under sub-section (1) the officer authorised by the panchayat in this behalf may evict that person from, and take possession of, the premises and may for that purpose use such force as may be necessary.
If a person who has been ordered to vacate any premises on the grounds mentioned in sub-clause(i) or (iii) of caluse (a) of sub-section (1) within one month of the date of service of the notice or such longer time as the panchayat may allow, pays to the panchayat the rent in areas or carried out or otherwise complies with the terms contravened by him to the satisfaction of the panchayat, the Panchayat shall, in lieu of evicting such person under sub-section(3) cancel its order made under sub-section(1) and thereupon such person shall hold the premises on the same terms on which he held them immediately before such notice was served on him.
Explanation :- For the purpose of this section and section 193B, the expression unauthorised occupation , in relation to any person authorized to occupy any panchayat premises, includes the continuance in occupation by him or by any person claiming through or under him of the premised after the authority under which he was allowed to occupy the premises has been duly determined.
Section 94 clearly provides for removal of encroachment, obstruction or unauthorised construction on the panchayat land; whereas Section 193(A) provides for removal of a person holding panchayat land unauthorisedly. Section 193(A) provides that before an order under sub section (1) is made against any person the panchayat shall inform the person by notice in writing on the ground on which the proposed order is to be made and give him reasonable opportunity of tendering explanation and producing evidence, if any, and show cause why such order should not be made. In the facts of the present case it clearly appears that the plaintiff has unauthorisedly encroached upon the panchayat land and has put up illegal and unauthorised construction on the panchayat land. In my view, if the encroachment and unauthorised construction put up under panchayat land is to be removed, the panchayat is justified in taking action under section 94 of the Panchayat Act and it is not necssary for the panchayat to resort to provisions of section 193(A) of the Panchayat Act. Learned Appellate Judge therefore, has committed serious error in holding that panchayat was required to follow procedure under section 193(A) of the Panchayat Act before demolishing the structure put up by the plaintiff on the panchayat land.
14. As regards the maintainability of the suit at the instance of the plaintiff without serving statutory notice under section 320 of the Panchayat Act is concerned, it is required to be noted that by proviso (2) of Section 94 it is provided that on the receipt of the notice under section 94 of the Panchayat Act if the person reciving said notice serves upon the panchayat notice under section 320 then the panchayat is required to hold its hands till the expiry of the period of such notice, meaning thereby, if there is no notice under section 320 by the person making unauthorised and illegal construction on the panchayat land before filing the suit, the panchayat can immediately take action of demolishing such unauthorised construction. From the provisions of Section 94 as also language of section 320 it clearly appears that if the panchayat initiates any action, the person who wants to challenge such action is required to serve statutory notice under section 320 of the Panchayat Act before filing the suit against the panchayat. Such action of the panchayat could be even the purported action of the panchayat for demolition of unauthorised and illegal construction on the panchayat land. Issuance of the notice by the panchayat under section 94 could be said to be a purported action of the panchayat for demolishing the unauthorised construction put up on panchayat land and against such purported action of the panchayat, the notice under section 320 before filing the suit against the panchayat was very much required to be served by person filing the suit. Learned Appellate Judge has not properly addressed the issue of requirement of service of notice to the panchayat before filing the suit against it. Learned Appellate Judge has observed that since, the plaintiff required immediate protection notice under section 320 was not necessary before filing the suit. However, learned Appellate Judge has failed to consider that for taking action under section 94 even the Panchayat is required to wait if the person against whom such action is to be taken serves notice to the panchayat under section 320 of the Panchayat Act. Therefore by service of notice, such person automatically gets protection. Therefore even if the plaintiff wanted immediate protection it was very much required of the plaintiff to serve notice under section 320 of the Panchayat Act. Such requirement could not have been dispensed with on the ground that the plaintiff required immediate protection. The suit of the plaintiff was therefore, not maintainable in absence of service of notice under section 320 of the Panchayat Act. The substantial questions of law are thus answered accordingly. The Appeal is therefore, required to be allowed.
15. In the result, Appeal is allowed. Judgment and decree passed by the First Appellate Court is hereby quashed and set aside and the judgment and decree passed by the trial court is restored.
(C.L.SONI, J.) mary Page 25 of 25