WRIT PETITION NO. 4644 OF 2019

5th December 2019

Petitioner Counsel: Mr. P. D. Dalvi Ms. Kalpesh U. Patil
Respondent Counsel: Mr. Chandrakant Popat Yadav
Act Name: Maharashtra Village Panchayat Act, 1958 Constitution of India, 1950 Civil Procedure code, 1908

Section :
Section 55 Maharashtra Village Panchayat Act, 1958

JUDGEMENT

1. Rule. Rule made returnable forthwith. With the consent of the Counsels for the parties, heard fnally.

2. This petition under Article 227 of the Constitution of India takes exception to an order dated 27th March, 2019 passed by the learned District Judge, Karad, in Miscellaneous Civil Application No.3/19, whereby the appeal came to be dismissed and the order passed by the learned 4th Jt. Civil Judge, Jr. Division, Karad, dated 31st December, 2018, on an application for injunction (Exhibit-5), in Regular Civil Suit No.414 of 2018, whereunder the application for temporary injunction preferred by the petitioner/plaintiff was rejected, came to be confrmed.

3. The background facts leading to this petition are as under:
(a) The petitioner/plaintiff is a society registered under the Maharshtra Co-operative Societies Act, 1961. The village panchayat Kasarshirambe, of which defendant no.1 is the Sarpanch and defendant no.2 is the Gramsevak, had let out the open land bearing City Survey No.9, Property No.871 admeasuring 24 X 18 sq. ft. (hereinafter referred to as, ‘the suit land’) to the plaintiff, under an agreement, executed on 28th January, 2000 for the period of 99 years and for an annual rent of Rs.600/-. The plaintiff constructed a structure admeasuring 18 X 24 sq. ft. thereon, by incurring expenses to the tune of Rs.4,50,000/-. The plaintiff did comply with all the terms of the lease agreement and paid the rent to the village panchayat Kasarshirambe, regularly.
(b) In the year 2007, there was a regime change. Defendant no.1 came to be elected as the Sarpanch of the village panchayat. The new body, which came to power, represents the political opponents of the offce bearers of the plaintiff. The defendants made known their intent to forcibly evict the plaintiff. A notice dated 24th August, 2018, raising false contentions, was thus issued calling upon the plaintiff to hand over the vacant possession of the suit land on the pretext that a water tank of three lakh liter capacity was to be erected at the suit land. As the term of the lease had not expired and the defendants threatened to forcibly dispossess the plaintiff, without following due process of law, the plaintiff instituted the suit for injunction. In the said suit, the plaintiff fled an application for temporary injunction under the provisions of Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 (“the Code”).
(c) The defendant nos.1 and 2 resisted the application. The substance of the resistance put-forth by defendant nos.1 and 2 was that the alleged lease agreement dated 28th January, 2000, was fraudulently got executed from the then sarpanch of the village panchayat, who had no authority, under law, to lease out the suit land. In law, even the village panchayat was not empowered to lease out the suit land without obtaining the prior permission of the Chief Executive Offcer, Zilla Parishad. The suit land was required for construction of water storage tank as the old water tank was found structurally unsuitable for its intended use. Hence, the panchayat had passed a resolution to construct a new water storage tank.
(d) The learned Civil Judge, after consideration of the averments in the application, reply thereto, material on record and submission across the bar, was persuaded to reject the application holding, inter alia, that there was no averment to the effect that the suit land was leased out to the plaintiff after obtaining the requisite permission under Section 55 of the Maharashtra Village Panchayat Act, 1958 (“the Act of 1958”). Even otherwise, there was a clause in the agreement dated 28th January, 2000 to the effect that the plaintiff would hand over the vacant possession of the suit land whenever the village panchayat required the same for its purposes. I was further observed that the suit land was required for the public purpose of constructing the water tank under National Drinking Water Scheme. Thus, the plaintiff was not entitled to injunction, as sought.
(e) On appeal, the District Court concurred with the fndings recorded by the learned Civil Judge. It was noticed that sans the prior permission, which was mandatory under Section 55 of the Act of 1958, the plaintiff had failed to make out a prima facie case for grant of injunction. Moreover, the action of the village panchayat cannot be said to be mala fde as the notice issued to the plaintiff to hand over the vacant possession of the suit land was backed by a resolution passed by the village panchayat.

4. Being aggrieved by and dissatisfed with the rejection of the application for injunction, the petitioner – plaintiff has invoked the writ jurisdiction of this Court.

5. Heard Mr. Dalvi, the learned Counsel for the petitioner and Mr. Yadav, the learned Counsel for respondent nos.1 and 2. With the assistance of the learned Counsels for the parties, I have perused the material on record, especially, the agreement dated 28th January, 2000 and the documents evidencing the initiation of the proposal for construction of a new overhead water tank.

6. Mr. Dalvi would urge that the trial court as well as the appellate court have not appreciated the real challenge to the threatened action. It is indisputable that the petitioner has been in lawful possession of the suit land. The petitioner, therefore, cannot be evicted from the suit land without following due process of law. The trial court as well as appellate court have fallen into an error in recording a fnding that the passing of resolution and issuance of notice by the panchayat constitutes observance of due process of law for seeking the possession of the demised premises. The question as to whether the lease agreement has been validly executed is a matter for adjudication. At this stage, the plaintiff cannot be evicted from the suit land during the currency of the lease period. There are other premises over which the water tank can be conveniently constructed. However, in order to wreak vengeance, on account of political affliations, defendant nos.1 and 2 are bent on evicting the plaintiff from the suit premises, which would cause irreparable loss to the plaintiff. Hence, the impugned order deserves to be interfered with, urged the learned Counsel for the petitioner.

7. As against this, the learned Counsel for respondent nos.1 and 2 stoutly submitted that no fault can be found with the impugned orders. The manner in which the petitioner claimed to have been inducted into the suit land, on the strength of the agreement dated 28th January, 2000, itself speaks in volumes. Firstly, the said agreement has been executed by the then sarpanch as if it was the personal property of the sarpanch. Secondly, the village offcer or Gramsevak has neither executed the said agreement nor was it on behalf of the village panchayat. Thirdly, there is an egregious interpolation in the agreement as the period of lease, which was initially shown to be of 11 months has been overwritten to last for 99 years. In view of the previsions contained in Section 55 of the Village Panchayat Act, 1958, there can be no lease of the village panchayat property for the period exceeding three years without the permission of the Chief Executive Offcer of the Zilla Parishad. Thus, the Courts were fully justifed in rejecting the prayer of temporary injunction.

8. To begin with, the limited and discretionary nature of the writ jurisdiction needs to be kept in view. The courts below have recorded a concurrent fnding that the petitioner has failed to make out prima facie case; neither the balance of convenience lies in favour of the petitoner nor the petitioner would suffer any irreparable loss in the event of rejection of the prayer for temporary injunction. This Court, in exercise of extraordinary jurisdiction, is not expected to re-appreciate the factual aspects and substitute its own fnding. This Court would be justifed in refusing to interfere with the impugned orders unless they are perverse or patently erroneous.

9. At the outset, it is necessary to note the provisions contained in Section 55 of the Village Panchayat Act, 1958. It reads as under:
“Section 55: Competency of Panchyat to lease, sell or transfer property: Every Panchayat shall be competent to lease, sell or otherwise transfer movable or immovable property which may become [vested in (otherwise than under the provisions of sub-section (1) of Section (51)] or be acquired by it and to contract and do all other things necessary for the purposes of this Act:
Provided that no lease of immovable property other than property referred to in sub-section (1) of Section 56 for a term exceeding three years and no sale or other transfer of any such property shall be valid unless such lease, sale or other transfer has been made with the previous sanction of the [Chief Executive Offcer].”

10. A plain reading of the aforesaid provision indicates that the panchayat is empowered to deal with the property vested in or acquired by it. However, the proviso puts an embargo on the power of the panchayat to lease out the property for a period exceeding three years or alienating the property in any other manner, without previous sanction of the Chief Executive Offcer. Evidently, the village panchayat has no unbridled power to deal with property vested in the panchayat in the manner it chooses. Under the scheme of the Act, the panchayat is free to lease out the property for a period not exceeding three years. The statutory restraint on the power to execute the lease for a longer period, like one at hand, for 99 years, which partakes the character of a lease in perpetuity, has a purpose. The offcers/offcials of the State hold the public property in trust. The power to deal with, allot or dispose of the public property is required to be exercised in larger public interest and for public good.

11. The practical utility of the legislative wisdom in putting fetters on the power of the panchayat to dispose of the property is furnished by the facts of the case at hand. The criticism advanced on behalf of respondent nos.1 and 2 about the manner of execution of the agreement in question, dated 28th January, 2000, cannot be said to be unfounded. Firstly, the agreement has been executed by the then sarpanch of the village panchayat. It neither refers to any resolution passed by the village panchayat nor it seems to have been executed by the village offcer or Gramsevak in the ordinary course of offcial business. What exacerbates the situation is the fact that the term of the lease of 11 months is scored out and substituted by the term “99 years”. The agreement to lease, even if taken at par, thus falls foul of the proviso to Section 55 of the Act of 1958. In the circumstances, the very induction of the plaintiff in the suit land is not free from infrmities.

12. The Courts below were also justifed in adverting to the other vital aspect of the matter, namely, the suit land is required for the public purpose. Respondent nos.1 and 2 had placed material on record to indicate that a new water tank was decided to be constructed as the old one had developed cracks and was declared to be unsuitable for storage of the water. The structural report dated 21st September, 2016 indicates that the old tank was unsuitable for its intended use. It was further noticed that the village panchayat had passed a resolution to erect a new water tank at the suit land and the provision of funds was also made for the same. In the aforesaid backdrop, there is hardly any material to demonstrate that the action of respondent nos.1 and 2 was actuated by a design to settle political scores and thus mala fde.

13. In this view of the matter, an inference becomes inescapable that the trial court had exercised the discretion not to grant the injunctive relief by applying the correct principles. The appellate court was also justifed in not interfering with the exercise of the said discretion by the trial court. Resultantly, this Court does not fnd any reason to interfere with the impugned orders in exercise of the extraordinary jurisdiction.

14. Hence, the following order.
The writ petition stands dismissed. No costs.
Ad-interim order stands vacated.
Rule stands discharged.
At this stage, the learned Counsel for the petitioner, seeks extension of ad-interim relief.
For the reasons assigned in this judgment, the prayer for continuation of ad-interim relief does not deserve to be countenanced. Hence, the oral application for continuation of ad-interim relief stands rejected.

Decision : Petition dismissed.