Gram Panchayat Noshera vs Dilawar Khan and Others

Jaswant Singh, J.—By filing the present petition under Article 227 of the Constitution, Defendant No. 1-Petitioner has prayed for setting

aside the impugned order dated 12.2.2011 (P.1) passed by the learned Additional Civil Judge (Sr. Division), Nuh whereby the application under

Order 39 Rules 1 and 2 CPC of the Plaintiff-Respondent No. 1 was allowed; and also the order dated 23.2.2011 (P.2) passed by the learned

Additional District Judge, Nuh dismissing the appeal filed by the Petitioner as well as Defendant-Respondent No. 5.

Brief facts of the case are that Dilawar Singh-Plaintiff/Respondent No. 1 filed a suit for permanent injunction against the Petitioner and

Defendants-Respondent Nos. 2 to 5. Along with the suit, an application under Order 39 Rules 1 and 2 CPC read with Section 151 CPC was also

filed and upon notice the application was opposed by Defendant-Respondent No. 5. After hearing both the sides, learned trial Court allowed the

same vide the impugned order dated 12.2.2011 (P.1). Aggrieved against the injunction order dated 12.2.2011, two separate appeals i.e one Civil

Appeal No. 25/11 was filed by the Gram Panchayat-present Petitioner and C.M.A No. 431/2010 was filed by Azam-Respondent No. 5, which

came up for hearing before the learned Additional District Judge, Nuh but both the appeals were dismissed vide the common impugned judgment

dated 23.2.2011, hence the present revision petition.

Heard learned Counsel for the Petitioner and gone through the case file.

Learned Counsel for the Petitioner submits that the Gram Panchayat had leased out the pond in favour of Defendant-Respondent No. 5 for a

period of three years from 6.10.2010 to 5.10.2010 for a sum of Rs. 1,10,000/- and the Plaintiff-Respondent No. 1 is having no concern with the

pond in question and in fact it is the Ex-Sarpanch/Defendant-Respondent No. 2, who had connived with the Plaintiff-Respondent No. 1 and issued

a forged receipt in the name of Plaintiff by causing a wrongful loss to the Gram Panchayat and in this regard, an inquiry was conducted by the

SDM, Nuh wherein Defendant-Respondent No. 2 was found guilty and he was suspended from the post of Sarpanch of Gram Panchayat

Noshera. Therefore, the alleged auction/lease deed dated 9.1.2010 in favour of the Plaintiff-Respondent No. 1 for the period of 3 years from

9.1.2010 to 8.1.2013 is illegal, null and void and both the Courts below have wrongly granted injunction in favour of the Plaintiff-Respondent No.

Hence, the impugned orders are not sustainable and liable to be set aside.

A perusal of the impugned orders passed by the Courts below reveals that the original file pertaining to the auction of pond in question was

minutely examined by both the Courts and, which came to the conclusion that initially the pond was auctioned and leased out in favour of Plaintiff-

Respondent No. 1 being the highest bidder for a period of three years from 9.1.2010 to 8.1.2013 for a sum of Rs. 52,500/- out of which an

amount of Rs. 17500/- was deposited on 9.1.2010 vide receipt No. 29 dated 9.1.2010. It further transpires that the resolution regarding auction

was approved by Defendant-Respondent Nos. 3 & 4 also and the balance amount was to be deposited later on in the account of the Gram

Panchayat. It further transpires that the inquiry against the Ex-Sarpanch was held by ADC but the allegations regarding auctioning of the pond in

question is not the subject matter of said inquiry. There is no dispute that the auction was held by inviting the bids and total eight candidates

participated and the Plaintiff-Respondent No. 1 was the highest bidder, therefore, his bid was accepted and signed by the Sarpanch along with

other Panches and in this way, the auction was held after following the due procedure.

Keeping in view the facts and circumstances discussed hereinabove, this Court is in fully agreement with the conclusion arrived at by both the

Courts below that prima facie case in favour of the Plaintiff-Respondent No. 1 is made out and balance of convenience also lies in his favour and

he has spent an amount of Rs. 1,24,000/- by purchasing the material and there is another receipt for an amount of Rs. 52900/- on the file of

auction and, therefore, he shall suffer an irreparable loss and injury in case injunction is not granted in his favour. Merely that an inquiry was held

against the Ex-Sarpanch and the subsequent Sarpanch has re-auctioned the pond in favour of Defendant-Respondent No. 5 would not be a

ground to interfere into the discretion exercised by both the Courts below warranting any interference under Article 227 of the Constitution.

Dismissed.