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2014 DIGILAW 1419 (RAJ)

Man Mohan v. Gram Panchayat, Jasnagar

2014-07-23

SANDEEP MEHTA

body2014
JUDGMENT 1. - The instant appeal is directed against the judgment dated 3.2.2001 passed by the learned District Judge, Merta in Civil Appeal No. 11/1996 whereby the civil appeal filed by the respondent Gram Panchayat, Jasnagar was allowed and while setting aside the judgment and decree dated 29.10.1996 passed by the learned Additional Civil Judge (J.D.), Merta in Civil Suit No. 139/1996 the learned Appellate Court remanded the matter back to the Trial Court for providing an opportunity to the appellant to file written statement, to frame fresh issues and allow both the parties to lead evidence and then to decide the suit afresh. 2. None appears for the appellant. 3. Mr. Vikram Choudhary and Mr. Rajendra Choudhary, learned Counsel 'appearing for the respondents contended that the suit in question was filed against the Gram Panchayat, Jasnagar seeking relief of possession. The learned Counsel referred to Section 109 of the Rajasthan Panchayati Raj Act and urged that there is a mandatory requirement in the provision that a prior notice of clear 60 days has to be given to the Gram Panchayat before filing a suit against it. The requirement of 60 days notice can even not be over-ridden with the leave of the Court. Learned Counsel relied on the following decisions in support of this contention 1. Mewa Ram v. State of Rajasthan reported in 1998 DNJ (Raj.) 221. 2. Gram Panchayat, Gangwa v. Bankatlal reported in 2004(2) DNJ (Raj.) 723. 3. L.Rs. of Shri Kanhaya Lal v. Jabbar Singh reported in 2008(1) WLN 406 (Raj.). 4. That contended that it is the admitted case from the plaintiffs pleadings that the notice was issued to the defendant-respondent Gram Panchayat on 20.10.1992. The suit was filed on 24.10.1992 i.e. much before the expiry of mandatory period of 60 days. The respondent defendant took a specific plea in the written statement that the notice was not issued in accordance with the Rajasthan Panchayati Raj Act and thus the suit was not maintainable. Learned Counsel urged that the learned Trial Court did not even frame any issue regarding this admitted factual and legal contention raised by the defendant and mechanically proceeded to allow the suit. They thus submitted that the learned Appellate Court has rightly remanded the matter back to the learned Trial Court. 5. Learned Counsel urged that the learned Trial Court did not even frame any issue regarding this admitted factual and legal contention raised by the defendant and mechanically proceeded to allow the suit. They thus submitted that the learned Appellate Court has rightly remanded the matter back to the learned Trial Court. 5. I have considered the arguments advanced by the learned Counsel for the respondent and have gone through the impugned judgments and the record. 6. It is admitted in the plaint filed by the appellant that the legal notice was issued to the Panchayat on 20.10.1992. The notice was received by the Gram Panchayat on 22.10.1992. The suit was filed on 24.10.1992. This Court has taken a view in the judgments referred to supra that a prior notice of 60 days under Section 109 of the Rajasthan Panchayati Raj Act is a mandatory requirement before a suit can be filed against the Panchayat. Admittedly, in this case the suit was filed much before the notice period of 60 days as is evident from the facts noted above. This Court in the case of Mewa Ram Ks. State of Rajasthan (supra) held that the requirement of Section 109 of the Rajasthan Panchayati Raj Act cannot be over-ridden even with the leave of Court. The Trial Court even did not refer to the averments made in the written statement filed by the petitioner defendant and without referring to the mandatory provisions of Section 109 of the Rajasthan Panchayati Raj Act in a mechanical fashion decreed the suit. The learned Appellate Court committed no error in setting aside the grossly illegal judgment passed by the learned Trial judge. The Appellate Court's judgment does not suffer from any factual and legal shortcoming.The appeal thus being devoid of any merit is rejected. Record be sent back.No cost.Appeal dismissed. *******