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2015 DIGILAW 1849 (HP)

RANVIR SINGH v. GRAM PANCHAYAT AND GRAM SABHA

2015-12-10

TARLOK SINGH CHAUHAN

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JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure is preferred by the appellant/defendant against the concurrent findings of fact recorded by the learned Courts below whereby the suit of the plaintiffs/respondents for declaration and injunction came to be allowed. 2. The brief facts of the case are that the respondent-Gram Panchayat through respondents No. 2 and 3 filed a suit for declaration to the effect that it was owner in possession of the land measuring 0-00-63 sq.mtrs. comprised in Khewat No. 91, Khatauni No. 240, Khasra No. 861/1, 862, 863 and 864 as entered in Nakal Misal Hakiat Bandobast Jadid Saini for the year 1989-90 situated in Village Hathlon, Tehsil Bangana, District Una, Himachal Pradesh and the entry in the revenue records in favour of the appellant and proforma respondents herein was against law and ineffective qua the right, title and interest of the plaintiff. It was further averred that the Well was situated over the suit land which was in a dilapidated condition and when the respondent tried to repair the same, the appellant started to interfere, compelling the plaintiffs to institute the instant suit. 3. The suit was resisted and contested by the appellant by filing written statement wherein preliminary objections regarding maintainability, locus-standi, estoppel and plaintiff/respondent having no cause of action were taken. Further it was averred that the suit was hit by the provisions of Section 11 CPC as the findings of the Tehsildar (Settlement) dated 26.12.1992 in case No.337 of 1992 had attained finality wherein it was held that the Well was constructed by the appellant being 'gair marusi tenant' and, therefore, the plaintiffs were not entitled to repair and maintain the said Well as it was in the possession of the appellant since the time immemorial in the capacity of 'gair marusi'. On such defence, the appellant prayed for dismissal of the suit. 4. On the pleadings of the parties, following issues were framed by the learned trial Court on 3.9.1999: 1. Whether the plaintiff is owner in possession of the suit land and the entries in favour of the defendant in possession are wrong, illegal, null and void? OPP 2. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed? OPP 3. Whether the plaintiff has no locus standi to file this suit? OPD. 4. Whether the plaintiff is owner in possession of the suit land and the entries in favour of the defendant in possession are wrong, illegal, null and void? OPP 2. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed? OPP 3. Whether the plaintiff has no locus standi to file this suit? OPD. 4. Whether the suit is not maintainable? OPD 5. Whether the suit is barred U/S 11 of CPC? OPD 6. Whether the plaintiff is estopped to file the present suit by his act and conduct? OPD 7. Whether the plaintiff has no cause of action? OPD 8. Relief. 5. The learned trial Court after recording and evaluating the evidence decreed the suit by holding the plaintiff to be the owner in possession of the suit land and the entry in the name of the appellant/defendants recording them in possession of the property as being wrong and illegal. The learned trial Court also passed a decree for injunction restraining the defendants/appellant from interfering in the repair and maintenance of the suit land and Well in question. Aggrieved by the judgment and decree passed by the learned trial Court, the defendant/appellant filed an appeal before the learned District Judge, Una, who vide judgment and decree dated 21.4.2003 dismissed the same. 6. Aggrieved by the judgment and decree dated 21.4.2003 passed by the learned lower Appellate Court, the appellant/defendant has come in second appeal before this Court. 7. On 19.7.2004, this Court admitted the appeal on the following substantial question of law: "Whether the Courts below have wrongly interpreted the legal position when they held that respondents No. 2 and 3 were competent to institute the suit on behalf of Gram Panchayat/Gram Sabha i.e. respondent No. 1.? I have heard learned counsel for the parties and have gone through the records carefully. 8. It is vehemently argued by Mr. Rahul Mahajan, learned counsel for the appellant that respondents No. 2 and 3 were not the resident of the Gram Panchayat and this fact stands duly proved in the statements of PW-1 and PW-2 and therefore could not have instituted the suit on behalf of the Gram Panchayat/Gram Sabha. He further argued that the suit is not in consonance with Rule 111 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997, which reads thus: "111. He further argued that the suit is not in consonance with Rule 111 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997, which reads thus: "111. Suit on behalf of Panchayats (section 119).- (1) No suit shall be brought on behalf of the Panchayat except as a last report, when other means of obtaining relief have failed. Explanation: -"Suit" means a suit by or against or affecting Panchayat or an officer of Panchayat in his official capacity, or which is brought or defended by such officer at the expense of Panchayat and includes an appeal, an application for revision, review or execution of decree and any civil or judicial proceeding in which the Panchayat or an officer of the Panchayat in his official capacity is a party or has any interest. (2) The proposed defendant shall be given ample opportunity of stating his view of the case and of coming to some agreement for the settlement of the claim of the Panchayats out of Court. (3) No person having a just claim against the Panchayat should be compelled to report to litigation to enforce the same. (4) Communications made to the opposite party on the subject matter in respect of which it is possible that a suit may ensue shall be handed "without prejudice" and if made orally, shall be stated to be made "without prejudice." (5) No suit on behalf of the Panchayat shall be instituted without the previous sanction of the District Panchayat Officer in case of Gram Panchayat or the Deputy Commissioner in case of Panchayat Samiti or the Director of Panchayati Raj in case of Zila Parishad. While according the sanction, the District Panchayat Officer or the Deputy Commissioner or the Director of Panchayati Raj, as the case may be, shall study the pros and cons of the suit in question and examine the following facts which shall be submitted by the concerned Panchayat:- (a) the circumstances which in his opinion render the institution of the suit necessary, and precisely when or where these occurred ; (b) the subject of the claim and relief sought ; (c) the steps which have been taken to obtain satisfaction of the claim without bringing a suit ; (d the pleas or objections, if any, which have been taken or raised by the proposed defendant against the claim ; (e) the evidence, both oral and documentary, which is believed to be obtainable and which is proposed to be adduced in support of the claim ; (f) whether the documents, if any, referred to clause(e) are registered or not ; (g) whether or not the circumstances of the person against whom the suit is proposed to be instituted are such as to render it likely that the execution of any decree that may be given against him, will be obtained ; (h) the evidence, both oral and documentary, which, so far as is known, the defendant will be able and is likely to adduce in his defence ; (i) whether the documents, if any, referred to in clause(h) are registered or not. (j) any other facts which the reporting Panchayat considers material, for example, whether there are any special reasons for the institution of the suit, apart from the amount actually claimed; whether other similar claims will hinge upon its decision ; and (k) the amount required for stamp and other expenses is available or not. (6) Copies of all available documents referred to in the report or the documents in original shall accompany the case submitted by the respective Panchayats." However, the moot question is as to whether it is the Rule of 1997 or the H.P.Gram Panchayat Rules, 1971 which would be applicable. 9. It is evident from the record that the suit came to be instituted on 20.11.1997, whereas the Himachal Pradesh Panchayati Raj (General) Rules, have come into force five days later on 25.11.1997 vide notification No. PCH.HA (3)1/94-19181-362 and are therefore not applicable. 9. It is evident from the record that the suit came to be instituted on 20.11.1997, whereas the Himachal Pradesh Panchayati Raj (General) Rules, have come into force five days later on 25.11.1997 vide notification No. PCH.HA (3)1/94-19181-362 and are therefore not applicable. Once this is the position, then the appellant cannot take any advantage of the amended Rules 1997 to canvass that the procedure as envisaged under these Rules had not been followed. 10. When confronted with this position, learned counsel for the appellant was at a loss to explain as to how the authorisation by the Gram Panchayat in favour of respondents No. 2 and 3 is bad in law. Admittedly, the respondents No. 2 and 3 have succeeded in safeguarding the interest of the Gram Panchayat and if that be so, the appellant has no locus standi whatsoever to question the authorisation made in their favour. 11. That apart, the Gram Panchayat is a 'juristic' person and is therefore required to institute proceedings on its behalf through a 'natural person'. There is no provision in the Himachal Pradesh Panchayati Raj Act, 1968 or the Rules framed thereunder, which may prohibit or bar the Gram Panchayat from authorising any natural person including a non-resident of the Gram Panchayat to institute a suit on its behalf. The substantial question of law is answered against the appellant. 12. Having said so, consequently, there is no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their costs.