Rajasthan High Court - Jaipur
Raghunath And Ors vs Mangi Lal And Ors on 26 October, 2012
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH ORDER S.B. CIVIL WRIT PETITION NO.5002/2012 S.B. CIVIL MISC. STAY APPLICATION NO.4144/2012 (Raghunath & Ors. Vs. Mangi Lal & Ors.) Date of Order : 26.10.2012 HON'BLE MR. JUSTICE ALOK SHARMA Mr. Bipin Gupta, for the petitioners. Mr. Arvind Gupta, for respondent Nos.1 & 2. BY THE COURT
This petition has been filed challenging the order dated 18.02.2012, passed by the Additional District Judge, Ramganjmandi, District Kota, upholding the order dated 11.01.2012, passed by the Gram Nyayalaya, Khairabad, District Kota, directing that the petitioners' purported encroachment over a right of way be removed.
2. Counsel for the petitioners has submitted that the jurisdiction of the Gram Nyayalaya is to be limited by the terms of Section 11 read with Section 13 of the Gram Nyayalayas Act, 2008 (hereinafter 'the Act of 2008'). Counsel submits that Section 13 of the Act of 2008 provides that Gram Nyayalaya shall have jurisdiction to try all suits or proceedings of a civil nature falling under the classes of disputes specified in Part I of the Second Schedule to the Act of 2008. It is submitted that Part I of the Second Schedule to the Act of 2008 defines the civil disputes in respect of which the Gram Nyayalaya would have jurisdiction. It is submitted that such disputes are confined to three kind of disputes; (a) Right to purchase of property; (b) Use of common pasture; (c) Regulation and timing of taking water from irrigation channel. Counsel submits that the said schedule has yet not been amended to include the dispute with regard to a right of way. The submission of the counsel therefore is that consequently the plaint laid by the respondent Nos.1 & 2 as plaintiffs before the Gram Nyayalaya, Khairabad, District Kota with regard to the petitioners' purported encroachment qua the right of way was not maintainable and the Gram Nyayalaya, Khairabad, District Kota had no jurisdiction to entertain such a plaint, more so in spite of the specific objection with regard to the jurisdiction laid by the petitioners as defendants in the suit in their written statement. Counsel submits that in this view of the matter, the impugned orders dated 18.02.2012 and 11.01.2012 passed by the courts below be quashed and set aside.
3. Counsel for the respondent Nos.1 & 2, plaintiff before the Gram Nyayalaya would submit that the dispute of right of way would be covered within the phrase use of common pasture. Counsel submits that the petitioners are the rank trespassers over a public way and this Court in the exercise of its jurisdiction under Article 226 of the Constitution of India should not come to the rescue of the encroacher, even if the Court were to find that the Gram Nyayalaya had no jurisdiction. It is submitted that the petitioners have not agitated that they have any right over khasra No.152, village Dharupura, Tehsil Ramganjmandi over which the disputed way exists and are as per the finding of courts below rank trespassers.
4. Heard the counsel for the petitioners as also the respondent Nos.1 & 2 and perused the writ petition.
5. The issue in this writ petition is not so much the merits of the matter, but with regard to the jurisdiction of the Gram Nyayalaya under the Act of 2008. The Gram Nyayalayas are the creation of a specific Act. They do not have any plenary jurisdiction but limited jurisdiction as special Tribunal which is to be strictly construed. So construed on a reading of Section 13 of the Act of 2008 with part I of the Second Schedule of the Act of 2008, the inescapable conclusion is that the Gram Nyayalaya has jurisdiction only in respect of civil disputes relating to right to purchase of property, use of common pasture or regulation and timing of taking water from irrigation channel. Subsequent amendments to the First Schedule by the State Government in the exercise of its power under Section 14(3) of the Act of 2008 are also of no avail to the respondent Nos.1 & 2 as under the said amendments, the disputes as to right of way / public road have not been conferred on the Gram Nyayalayas. I do not find any substance in the findings of the courts below that the expression use of common pasture would confer jurisdiction to the Gram Nyayalaya to adjudicate the dispute with regard to public roads / right of way. It is not that the respondent Nos.1 & 2 aggrieved of an alleged encroachment over public way / right of way would have no remedy. Such a remedy obtains to the respondents inter alia under Section 251 of the Rajasthan Tenancy Act, 1955 (hereinafter 'the Act of 1955'). Laws have to be implemented in accordance with the procedure prescribed and jurisdiction conferred not de hors it. In my considered opinion, the Gram Nyayalaya, Khairabad, District Kota did not have jurisdiction under the Act of 2008 to entertain or address a plaint wherein the cause of action related to an alleged encroachment of a public way / right of way.
6. Consequently, without addressing the merits of the matter with regard to the question as to whether the petitioners have encroached over khasra No.152, village Dharupura, Tehsil Ramganjmandi, I would allow this petition on the ground that the Gram Nyayalaya had no jurisdiction to entertain and address a plaint where the cause of action was stated to lie an alleged encroachment of a public road / right of way.
7. Consequently, the writ petition is allowed and the orders dated 18.02.2012 and 11.01.2012 passed by the courts below are quashed and set aside. Stay application needs no address in view of the writ petition being allowed.
8. It is however made clear that in the event the respondent Nos.1 & 2 were to take their remedy inter alia under Section 251 of the Act of 1955 before the competent authority, the competent authority shall address the application filed by the respondent Nos.1 & 2 within a period of six weeks of its filing.
(ALOK SHARMA), J MS/-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Manoj Solanki, Jr. P.A.