Is it mandatory to issue the notice as per S 180(2) of the Gram Panchayat Act in the suit for a permanent injunction?

 The only question in the instant revision is whether a notice under section 180 of the Bombay Village Panchayats Act. 1958 (for short, "the Act") was necessary to be given before filing the suit for permanent injunction.

The defendants i.e. the Gram Panchayat and its Sarpanch raised a preliminary objection that in the absence of a notice under section 180 of the Act the instant suit was not maintainable. The said objection was tried as a preliminary issue by the learned trial Court which rejected the same by its impugned order. Being aggrieved, the defendants have preferred the instant revision in this Court.

A careful perusal of section 180(2) of the Act would show that the notice to the Gram Panchayat or any of its member, officer, servant or agent is necessary when anything is done or is purported to have done by or under the Act. The question, therefore, is whether the said provision is applicable to only past actions or whether it is applicable to the future actions also as in the case of a suit for permanent injunction.The relief claimed in the instant case is of permanent injunction in regard to future actions which are apprehended by the plaintiff.

5. The view is supported as held in the Bombay case cited supra by the provision relating to the contents of the notice in section 180(2) itself viz. that the notice shall state the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the person who intends to bring the action, which would show that the action contemplated therein is about damages for past wrongful actions.

6. Be that as it may, it is clear from the phraseology "anything done or purporting to have done" used in section 180(2) of the Act that the action contemplated is an action which has taken place unlike the expression "purporting to be done" used in section 80 Civil Procedure Code which is indicative of future actions also. There is, therefore, no merit in the contention raised on behalf of the applicants that the notice under section 180(2) of the Act was necessary.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

C.R.A. No. 47 of 1986

Decided On: 04.03.1986

Appellants: Gram Panchayat, Kuhi and another
Vs.
Respondent: Vijaykumar Radheshyam Bhalotiya

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Whether it is mandatory to issue notice U/S 180 of Bombay village panchayat Act in suit for permanent injunction?

 The defendants i.e. the Gram Panchayat and its Sarpanch raised a preliminary objection that in the absence of a notice under section 180 of the Act the instant suit was not maintainable. The said objection was tried as a preliminary issue by the learned trial Court which rejected the same by its impugned order. Being aggrieved, the defendants have preferred the instant revision in this Court.

A careful perusal of section 180(2) of the Act would show that the notice to the Gram Panchayat or any of its member, officer, servant or agent is necessary when anything is done or is purported to have done by or under the Act. The question, therefore, is whether the said provision is applicable to only past actions or whether it is applicable to the future actions also as in the case of a suit for permanent injunction. The learned counsel for the defendants has relied upon the following decisions in support of his contention : Union of India vs. Baijnath (AIR 1971 Cal. 57); Bhagchand vs. Secy., of State (MANU/PR/0026/1927 : AIR 1927 PC 176); Vithoha Babaji vs. Sholapur Municipality (MANU/MH/0048/1946 : AIR 1947 Bom 241); and Wasant Shripai Deshpande vs. G. M. Khandekar (MANU/NA/0004/1947 : AIR 1949 Nag 25). All the above cases are upon the language used in section 80 of the Code of Civil Procedure, 1908 where the expression used and construed is "Purporting to be done". Apart from that in all these cases the action taken viz. the notice given or the orders issued were challenged and as a consequential relief permanent injunction was claimed. The above cases are, therefore, distinguishable and are not applicable in the facts of the instant case where no action as such is challenged.

4. The relief claimed in the instant case is of permanent injunction in regard to future actions which are apprehended by the plaintiff. In this regard the decision relied upon on behalf of the plaintiff is a decision of this Court in the case of The Municipality of Parola vs. Laxmandas and another (1900) 2 B.L.R. 857. This case has arisen out of the provisions relating to notice under the District Municipal Act, 1873, in which the language used is in material particulars analogous to the language used in section 180(2) of the Act. The facts in the case showed that the future action was challenged which was held to be not within the relevant provisions of the said Act relating to notice. The decision in the said case is aptly applicable to the facts of this case. The Full Bench of the Madras High Court has also taken a similar view in the case of Govinda Pillai vs. Taluk Board Kumbakonam (1909 MLR 333) in which the Court was concerned with the provisions relating to notice under the Local Boards Act. It is, therefore, clear that the provision relating to notice under section 180(2) of the Act is not applicable to the future actions.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

C.R.A. No. 47 of 1986

Decided On: 04.03.1986

 Gram Panchayat, Kuhi and another
Vs.

Vijaykumar Radheshyam Bhalotiya

Hon'ble Judges/Coram:
H.W. Dhabe, J.

Citation;1986 Mh.L.J. 618 Bom

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When jurisdiction of civil court is barred in respect of removal of encroachment in Gram panchayat area?

Sub-section (2) of Section 53 provides for a power of the Village Panchayat to remove any encroachment in any open site not being the private property whether such a site is vested in the panchayat or nor. As found by me above, there is a total failure on the part of the non-applicants even prima facie for showing that the property is their private property. They have not been able to prove it even remotely except for showing some tax receipts and mutation made in the year 1994 in respect of Kuccha Kotha. However, whether there is an encroachment or not whether it is the private property 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 is not an encroachment. That being so, in my opinion, sub-section (2) of Section 53 of the said Act gives a power and duty to the applicant Village Panchayat to remove the encroachment. In fact, proviso to subsection 2 of Section 53 was added by amending Act No. 38 of 2006 to provide for compulsion on the Village Panchayat to remove the encroachments. By the amendment, appellate power was conferred on the Commissioner in place of 'Standing Committee' of Zilla Parishad for obvious reasons. It is in this background the letter dated 17.2.2011 notice dated 26.4.20911 were issued to the non-applicants so also resolutions were passed in the Gram Sabha on 25.4.11 and 26.4.2011. Sub-section (3-A) above clearly shows that any person if aggrieved by the action taken under sub-section (2) of Section 53, he maywithin thirty days from the date of exercise of such power, appeal to the Commissioner and after making such enquiry, the Commissioner may pass such orders as it deems necessary. The notices as well as resolutions made by Gram Sabha would clearly "exercise of such powers" occurring in sub-section (3A) of the Act. Thus, it is clear that the remedy provided by sub-section (3-A) is an appellate remedy against any action taken under sub-section (2) of Section 53 of the said Act. It will be also pertinent to note that the Act does not provide for any remedy thereafter i.e. after the exercise of the appellate power by the Commissioner and, in my opinion, the remedy of sub-sec. (2) of Section 53 is in order to check the menace of encroachment everywhere including the villages and that is why the power is given to the Panchayat to follow the procedure and remove the encroachment. The procedure under section 53 of the said Act clearly appears to be summary in nature but still there is remedy provided by sub-section (3A) of section 53. I have perused the said notice dated dated 17.2.2011 and 26.4.2011 as well as resolutions dated 25.4.2011 and 26.4.2011. In my opinion, the notices and the resolutions clearly fall within the purview of sub-section (2) of Section 53 of the said Act. It is thus clear that provisions of Section 53(2) and (3A) are squarely attracted in the instant case and, therefore, the jurisdiction of the Civil Court stands excluded.

Equivalent Citation : 2014 (5)MhLj 189

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revision Application No. 57/2012

Decided On: 16.06.2014

 Village Panchayat
Vs.
Wasudeo Ramchandraji Mohod

Coram:A.B. Chaudhari, J.

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Distinction between Notice U/S 80 of CPC and S 180 of village panchayat Act?

Be that as it may, it is clear from the phraseology "anything done or purporting to have done" used in section 180(2) of the Act that the action contemplated is an action which has taken place unlike the expression "purporting to be done" used in section 80 Civil Procedure Code which is indicative of future actions also. There is, therefore, no merit in the contention raised on behalf of the applicants that the notice under section 180(2) of the Act was necessary.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

C.R.A. No. 47 of 1986

Decided On: 04.03.1986

Appellants: Gram Panchayat, Kuhi and another
Vs.
Respondent: Vijaykumar Radheshyam Bhalotiya

Hon'ble Judges/Coram:
H.W. Dhabe, J.

Citation;1986 Mh.L.J. 618 Bom

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