Writ Petition No. 9721 of 2011

12th March, 2012

Petitioner Counsel: Mr. M.B. Kolpe
Respondent Counsel: Mr. J.R. Patil

Cases Cited:
Tukaram Vs. Grampanchayat Karyalaya, 1990(1) Bom.C.R. 271 [Para 5]

JUDGMENT

JUDGMENT :- Heard.

2. Rule. Rule made returnable forthwith. By consent of the parties, petition is taken up for final disposal at admission stage.

3. Petitioner herein is challenging order passed in Misc. Civil Appeal No. 63/2011 dismissing the appeal presented by petitioner thereby confirming order passed by the trial Court below exh. 5 in Regular Civil Suit No. 23/2011 whereby application presented by petitioner herein seeking order of temporary injunction against respondent / Village Panchayat came to be rejected.

4. It is not disputed that petitioner herein has committed encroachment over the land belonging to Village Panchayat. According to petitioner, he is running business of washing center at the disputed premises since 2 1/2 years from the date of presentation of the suit. Petitioner has raised construction of temporary shed at the disputed premises. It is contended that petitioner is being dispossessed without following the procedure prescribed under the law by the Village Panchayat. It is also contended that Village Panchayat intends to allot the premises to some other influential persons who have political connections. Petitioner therefore seeks decree of perpetual injunction against defendant / respondent herein restraining him from causing interference to the possession of petitioner / plaintiff in respect of disputed property. Petitioner also tendered application at exh. 5 seeking order of temporary injunction which has been turned down by the trial Court as well as the first appellate Court.

5. It is the contention of petitioner that Village Panchayat does not have entitlement to remove encroachment beyond a period of six months from the date of notice of such encroachment. It is the contention of petitioner that he has raised temporary shed over suit premises since last more than 2/ 1/2 years and the Village Panchayat shall not have entitlement to issue notice and remove petitioner out of possession. Petitioner further contends that it is the Collector who is authorised to take action either suo motu or on application made in that behalf. Reliance is also placed on a judgment in the matter of Tukaram Vs. Grampanchayat Karyalaya reported in 1990(1) Bom.C.R. 271. In paragraph no. 11 of the judgment it has been observed by the learned Single Judge of this Court that if provisions of subsections (2) & (2A) are harmoniously construed, it will have to b presumed that the power granted to the village panchayat under subsection (2) for removal of encroachment has to be exercised within the time limit prescribed by subsection (2A) and thereafter it is for the Collector to act on an appliation or suo motu. The Gram Panchayat cannot take any action for removal of encroachment after the time limit prescribed under subsection 2A. According to the petitioner, time limit provided under Rule 3 of Bombay Village Panchayats (Period For Removal of Obstructions & Encroachment) Rules, 1971 is six months from the date on which obstruction, encroachment or unauthorised cultivation of crop is first noticed by or is brought to the notice of the Gram Panchayat. It is contended that since petitioner is in possession of the disputed premises since last more than six months, he is not entitled to be removed at the hands of Village Panchayat.

6. Mr. Patil, learned counsel for respondent has contended that subsection 2A of section 53 has undergone amendment and the words "within such time as may be prescribed" appearing in the section have been deleted. In view of the amended provisions, there is no time limit provided for the Panchayat to take action under subsection (2) and as such, it cannot now be contended that it is only for the Collector to take action suo motu or on an application tendered in that behalf. Subsection (2) of section 53 of the Act empowers the Panchayat to remove obstruction or encroachment over the property belonging to the Panchayat. Prior to amendment of sections 53(2) and (2A), it was construed that time limit provided for removal of encroachment by Panchayat shall be six months and, if panchayat fails to take action within six months, it will be only for the Collector to take suo motu action or to proceed to take action on consideration of application made to him in that behalf. Rule 3 of Bombay Village Panchayats ( Period for Removal of Obstruction & Encroachment ) Rules, 1971 prescribes thus :

3. Time-limit for removal of obstruction, encroachment or unauthorised cultivation of crop by panchayat - The time-limit shall, for the purpose of subsection (2A) of Section 53, be six months from the date on which the obstruction, encroachment or authorised cultivation of the crop is first noticed by, or is brought tot he notice of a panchayat.

Time-limit prescribed by Rule 3 is for the purpose of subsection 2A of section 53 of the Act. In view of deletion of words "within such time as may be prescribed" as appearing in subsection 2A of section 53 of the Act, the time-limit prescribed under Rule 3 of the Rules is rendered redundant. Since section 53(2A) does not itself provide for any time frame, arguments based on judgment of the learned Single Judge in Tukaram's matter are not acceptable. Apprehension expressed by petitioner that the Village Panchayat is likely to allot the land in favour of some politically influencial persons is also misplaced for the reason that the Village Panchayat has no independent right to allot the property to third person without securing prior sanction of the Chief Executive Officer of the Zilla Parishad. Petition is devoid of substance hence stands rejected. Rule stands discharged.

7. Pending civil application, if any, does not survive and stands disposed of.

Petition dismissed.