Himachal Pradesh High Court
Tilak Raj Son Of Sh. Amar Nath vs Gram Panchayat Barsar ... on 3 June, 2015
Author: P.S. Rana
Bench: P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Civil Revision No. 24 of 2014
Order Reserved on 21st May 2015
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Date of Order 3rd June, 2015
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Tilak Raj son of Sh. Amar Nath ....Revisionist
Versus
Gram Panchayat Barsar ....Non-Revisionist
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Coram
The Hon'ble Mr. Justice P.S. Rana, J.
Whether approved for reporting?1 Yes.
__________________________________________________________ For the Revisionist: Mr. B.S. Chauhan, Advocate For the Non-Revisionist: Mr. Sunny Dhatwalia, Advocate.
P.S. Rana, Judge.
Order:- Present revision is filed against the order dated 21.2.2014 passed by learned Civil Judge (Junior Division) Barsar in CMA No. 58 of 2014 titled Tilak Raj vs. Gram Panchayat Barsar filed under Section 80(2) of Code of Civil Procedure for permission to institute the suit without issuance of notice under Section 80 CPC to Gram Panchayat Barsar.
1Whether Reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 18:19:07 :::HCHP 22. Brief facts of the case as pleaded are that revisionist Tilak Raj filed application under Section 80(2) CPC pleaded therein that revisionist is co-owner in .
possession of Abadi deh land along with other co-sharers and is owner in possession along with his brother over a portion of land mentioned as ABCD in Annexure 'A' situated in immovable land comprised in Khata No. 981 min, Khatauni No. 1033 min, Khasra No. 1798 land measuring 0-17-06 hectares as per copy of Nakal Khatauni Bandobast Jadid Sani for the year 2009-10 situated in Tikka Barsar Tappa Panjgran Tehsil Barsar District Hamirpur H.P. It is pleaded that Gram Panchayat Barsar Tappa Panjgran Tehsil Barsar District Hamirpur H.P. is stranger to the suit land and Gram Panchayat Barsar started construction of road for vehicles with cement and concrete over the point ABCD as shown in Annexure A which is courtyard of the revisionist and his brother Baghirath. It is pleaded that Gram Panchayat Barsar has accumulated the construction material nearby the suit land and Gram Panchayat is adamant to construct the short road through the suit land which is in possession of revisionist. It is pleaded that if permission is not granted ::: Downloaded on - 15/04/2017 18:19:07 :::HCHP 3 under Section 80(2) CPC to institute the suit then non-
revisionist would carve out the road over suit land and in that eventuality revisionist would suffer irreparable loss .
and injury and same would amount to denial of justice. It is pleaded that matter is urgent in nature and prayer for acceptance of application filed under Section 80(2) CPC sought.
3. Per contra reply filed on behalf of Gram Panchayat Barsar through its Pardhan pleaded therein that application under Section 80(2) CPC is not maintainable and further pleaded that revisionist is estopped from filing application under Section 80(2) CPC by his own act and conduct. It is pleaded that matter is subjudice before Deputy Commissioner Hamirpur District Hamirpur H.P. It is pleaded that revisionist is not owner nor in possession over the suit land mentioned in site plan ABCD. It is further pleaded that in fact over the land mentioned in site plan as ABCD there exists a road which leads to Jaure Amb from point 'A' and Rajput Basti from point 'B'. It is pleaded that revisionist intentionally and willfully trying to block the public road. It is pleaded that non-revisionist i.e. G.P. Barsar is maintaining the said road ::: Downloaded on - 15/04/2017 18:19:07 :::HCHP 4 since the time immemorial and had invested an amount to the tune of ` 7,50,000/- (Rupees seven lacs fifty thousand only) since 2009-2010 till up to date. It is pleaded that .
revisionist intentionally and willfully trying to block the passage in front of his room and non-revisionist i.e local Gram Panchayat had also passed the resolution on dated 11.12.2012 and sent the same to Naib Tehsildar (Settlement) and as per report of Naib Tehisildar (Settlement) revisionist in connivance with his wife Sushma is trying to encroach upon the road. It is pleaded that on dated 16.5.2013 the complaint was sent to Sub Divisional Magistrate Barsar and another complaint was also filed by general public against the revisionist to Deputy Commissioner Hamirpur and inquiry was conducted by Inquiry Officer and as per inquiry report submitted by Inquiry Officer revisionist had blocked the passage in front of his room. It is pleaded that revisionist is causing great inconvenience to the Panchayat as well as to the general public at large. It is pleaded that in fact the Gram Panchayat is repairing the road for the benefit of general public at large. It is pleaded that revisionist intends to create inconvenience to the general public and ::: Downloaded on - 15/04/2017 18:19:07 :::HCHP 5 further pleaded that there exists three metre wide road in front of the room of revisionist. It is pleaded that revisionist has filed the application with malafide intention .
just to harass the Gram Panchayat and general public at large. Prayer for dismissal of application filed under Section 80(2) CPC sought.
4. Court heard learned Advocate appearing on behalf of the revisionist and learned Advocate appearing on behalf of the non-revisionist and also perused the record carefully.
5. Following points arise for determination in this revision petition:-
1. Whether revision petition filed by revisionist under Section 115 of CPC is liable to be accepted as mentioned in memorandum of grounds of revision petition?
2. Final Order.
Findings on Point No.1
6. Submission of learned Advocate appearing on behalf of revisionist that portion ABCD is used by revisionist as his courtyard and same is in exclusive possession of revisionist and revisionist has no other courtyard except the present courtyard situated in Abadi ::: Downloaded on - 15/04/2017 18:19:07 :::HCHP 6 Deh land and on this ground revision petition filed by revisionist be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. Court has .
carefully perused site plan ABCD placed on record. In site plan road has already been shown in existence in portion ABCD. Even there is prima facie evidence on record that resolution was passed by Gram Panchayat Barsar on dated 15.8.2013 and there is recital in resolution that revisionist is creating obstruction upon the public road.
Even in report of Naib Tehsildar (Settlement) placed on record it is specifically mentioned that road is in existence in suit land and there is also recital in report of Naib Tehsildar (Settlement) placed on record that road is in existence since long time. There is also prima facie evidence on record that Panchayat had already spent an amount of ` 7,50,000/- (Rupees seven lacs fifty thousand only) upon the road since 2009 till date. It is prima facie evidence on record that suit land is situated in Abadi Deh.
It is also proved on record that no partition of Abadi Deh land took place till date. It is well settled law that Abadi Deh land is in ownership of all residents of village who used to pay the land revenue. It is also proved on record ::: Downloaded on - 15/04/2017 18:19:07 :::HCHP 7 that suit land i.e. Abadi Deh is joint between the owners. It is also well settled law that no co-owner can claim exclusive right in joint property till the joint property is not .
partitioned in accordance with law. It is proved on record that in Abadi Deh land interest of general public is involved. It is prima facie proved on record that Panchayat is repairing the road for the benefit of general public. It is well settled law that when there is conflict between the interest of individual and interest of general public then interest of general public always prevails. It is well concept of law that necessitas publica major estquam privata. (Public interest is greater than private interest.) In present case public exchequer to the tune of `7.50 lacs (Rupees seven lacs fifty thousand only) is involved and suit property is public property, owned by residents of village jointly and welfare of all villagers is also material in present case. Even as per Section 193 of Himachal Pradesh Panchayati Raj Act 1994 no suit against any Panchayat would lie unless a notice under Section 80 of Code of Civil Procedure 1908 duly served.
7. Court is of the opinion that in present petition interest of general public is involved. Court is of the ::: Downloaded on - 15/04/2017 18:19:07 :::HCHP 8 opinion that at this stage case of urgent and immediate relief is not proved by revisionist. It is held that there is no illegality and irregularity in the order of learned trial .
Court. It is further held that learned trial Court had not failed to exercise the jurisdiction so vested under law. It is also held that learned trial Court had not exercised the jurisdiction not vested in it by law. It is further held that learned trial Court has passed the order in accordance with law. In view of this, point No. 1 is answered in negative against the revisionist.
Point No.2 (Final Order)
8. In view of my findings on point No.1 revision petition is dismissed. Order of learned trial Court is affirmed. Observations made in this order will not effect the merits of case in any manner and will strictly confine for the disposal of revision petition filed under Section 115 of CPC. All pending application(s) if any also disposed of.
File of learned trial Court be sent back along with certified copy of this order forthwith. No order as to costs. Civil Revision is disposed of.
(P.S.Rana),
June 03,2015(ms) Judge.
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