Mitta Ram vs Sant Ram

K.S. Tiwana, J.—This appeal is directed against the judgment of the Additional District Judge, Sangrur, dated 1.3.1974, vide which he set aside the judgment and decree of SubJudge II Class, Malerkotla, dated 18.12.1972, dismissing the suit of the plaintiff for permanent injunction.

Sant Ram plaintiffrespondent and Mitta Singh defendantappealant are residents of village Haider Nagar, Tahsil Malerkotla. Sant Ram filed a suit against Mitta Singh for restraining him to encroach upon portions ABCD, shown in the plan attached to the plaint, which is a part of the public street, for the use of which he has a right. Mitta Singh has also constructed a platform and a bathroom shown as GHIJ in the same plan on a part of the same street. A prayer was made in the same suit for the removal of this encroachment from the public street.

The appellant in his written statement denied these portions to be parts of the public street and averred that portion GHIJ was in his possession for the past 50 years on which platform was constructed about 18 years back. He set up a plea that these places have been purchased by him from Antu son of Biru and others. It was also pleaded that the Gram Panchayat on application made before the Panchayat, after recording evidence had dismissed the application which was later on remanded by the Judicial Magistrate 1st Class, Malerkotla on 16.10.1968, for further enquiry after setting aside the order. It was urged that the plaintiff has no cause of action to file a suit and that the civil Court has no jurisdiction. The parties went to trial on the following issues :

"1. Whether this Court has jurisdiction to try the suit?

Whether the site G.H.I.J. in plan marked X is part of the public street ?

Whether the plaintiff is entitled to the injunction prayed for ?"

The learned trial SubJudge had not given any finding on issues Nos. 2 and 3 but dismissed the suit of plaintiff on issue No. 1, that is, on the point of jurisdiction. On appeal this judgment was set aside.

The objection before the Subordinate Courts and this Court is that the Punjab Gram Panchayat Act, 1952, which is a Code by itself, vide section 21, gives powers to the Panchayat to remove the obstruction. Under section 23 of the Punjab Gram Panchayat Act, 1952 (No. 4 of 1953) (hereinafter called the 1952 Act) the Panchayat is invested with powers to impose penalty if its orders about removal of obstructions etc., are not complied with. It was further urged on behalf of the appellant that section 77 of the 1952 Act gives finality to the decision of the Panchayat.

Unless a statute contains an express prohibition to bar the jurisdiction of a Civil Court it cannot be taken to operate as a bar. Section 21 of the 1952 Act is placed in Chapter III, which deals with conduct of business, duties and functions of the Gram Panchayat. Besides other functions one of the functions of the Gram Panchayat, according to section 21(1)(a)(i), is to remove the encroachment from the public street, place or drain. It is a type of the remedial measure and this section nowhere provides that no other legally constituted tribunal or Court will have any jurisdiction to try such matter, when approached by an individual for the removal of encroachment from the public streets etc. on the ground of loss or personal inconvenience. The 1952 Act contains no specific provision limiting or barring the jurisdiction of the civil Court on any matter involving the civil rights of the individuals. Section 77 of the 1952 Act is as under :

"Finality of decision. (1) Panchayat shall not be competent to cancel, revise or alter any sentence, decree or final order passed by it in any judicial proceedings, except ex parte decrees or orders; and subject to the provisions of sections 51 and 65, no sentence, decree or other order passed by a Panchayat in judicial proceedings shall be subject to appeal, or revision by any other Court or authority.

(2) Res Judicata. The provisions of sections 10 and 11 of the Code of Civil Procedure, 1908 (V of 1908), and section 403 of the Code of Criminal Procedure, 1898 (V of 1898), shall apply to all civil, revenue and criminal proceedings before a Panchayat."

Section 77 is in two parts. The first deals with the revision or cancellation of its own decision and the second deals with appeals, revisions or other orders except under sections 51 and 65 of the 1952 Act. Section 51 of 1952 Act deals with the supervision of the criminal proceedings of Panchayat by the Chief Judicial Magistrate and Section 65 of 1952 Act deals with the supervision of the civil work of the Panchayat by a District Judge. There is nothing in section 77 of the 1952 Act from which it could be inferred that it fetters or restricts the powers of the civil Courts from entertaining the suits covering disputes as in the present case, or that the Panchayat, to the exclusion of Courts has a right to remove encroachments from the public streets. The argument that the 1952 Act is a hindrance in the way of the parties to approach the Civil Courts has to be repealed as it does not contain any specific provisions to that effect. If the Panchayat is seized of the matter on the complaint of one of the parties it would not oust the jurisdiction of the civil Court. The first appellate Court was right in setting aside the judgment of the Subordinate Judge on issue No. 1 as the plenary powers of the civil Court are not curtailed or restricted by the 1952 Act.

Though this objection was not taken in the written statement, yet the learned counsel for the appellant, for the first time, before this Court raised an objection that the suit is barred by the provisions of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter called the 1961 Act). The grounds for this argument are that the street being a shamilat deh vests in the Panchayat. The matter of encroachment on a street cannot be decided by a civil Court in view of section 13 of the 1961 Act. As it was purely a question of law Mr. Achhra Singh Advocate, on behalf of the appellant was allowed to raise and argue it.

According to section 2(g)(4) of the 1961 Act, the streets form parts of Shamilat deh. Section 7 of the 1961 Act provides the procedure for the eviction of the persons in unauthorised possession of the shamilat deh. Section 7 of the 1961 Act is as under :

"(1) An Assistant Collector of the first grade having jurisdiction in the village shall on an application made to him by a Panchayat, after making such summary enquiry as he may think fit and in accordance with such procedure as may be prescribed, put the Panchayat in possession of the land or other immovable property in the shamilat deh of that village which vests or is deemed to have been vested in it under this Act and for so doing the Assistant Collector may exercise the powers of a revenue Court in relation to the execution of a decree for possession of land under the Punjab Tenancy Act, 1887.

(2) An Assistant Collector of the first grade having jurisdiction in the village may, either suo motu or on an application made to him by a Panchayat or an inhabitant of the village eject in the manner and in accordance with the procedure referred to in subsection (1), any person who is in wrongful or unauthorised possession of any land or other immovable property in the shamilat deh of that village which vests or is deemed to have been vested in the Panchayat under this Act.

(3) and (4) xx xx xx xx xx xx xx xx xx".

Section 13 of the 1961 Act, which bars the jurisdiction of the civil Court reads as under :

"No civil Court shall have any jurisdiction over any matter arising out of the operation of this Act."

Basing his arguments on these provisions of the 1961 Act the learned Counsel argued that the civil Court was barred to entertain the suit for encroachment as the street, being a part of the shamilat deh, had vested in the Panchayat. The matter came up for decision before a Division Bench of this Court in Arya Pratinidhi Sabha Punjab, Jullundur v. Lal Chand and another, 1964 P.L.R. 670, wherein it was held as under :

"That the Punjab Village Common Land (Regulation) Act which vests the land included in shamilat deh of the village in a Panchayat does not bar a suit for removal of an encroachment on a thoroughfare, merely because the thoroughfare vests in the Panchayat, if he can prove that there is hinderance or obstruction to his right to use that thoroughfare or that he has suffered some other special damage, entitling him to the relief."

A similar case again came up for decision before M.S. Gujral, J. in Sadhir Ram v. Gajju and others, 1974 P.L.J. 15. In that case also the defendant had encroached upon the street. The plaintiff brought a suit for the removal of that. Following Arya Pratinidhi Sabha''s case (supra) Gujral, J. held that if the Panchayat did not bring an action, the remedy of the individual whose rights were adversely affected were not barred in a civil Court. The above two judgments show that the consistent view of this Court is that in the matters of encroachments on the public thoroughfare which affect the rights of the user by the public, a civil Court has the authority to entertain and decide the dispute.

The learned counsel for the appellant cited a Division Bench judgment of this Court in Jaimal and others v. The Commissioner, Ambala Division and others, 1969 P.L.J. 378, wherein it was held that the civil Court has no jurisdiction to entertain a case of Panchayat lands because of the provisions of the 1961 Act. The facts of this case are distinguishable because it related to a case of the lease of agricultural land belonging to a Panchayat, where the tenant was allegedly holding over. In the case in hand, the rights of an individual to use the street or a thoroughfare are being hindered or denied. Arya Pratinidhi Sabha''s case and Sadhir Ram''s case (supra) are the direct authorities covering the case in hand.

In view of the above discussion the order under appeal is affirmed and the appeal is dismissed. The parties are left to bear their own costs.

The case is sent back to the Court of the Subordinate Judge at Malerkotla, who is to decide the case on merits on the remaining issues. The parties through their counsel have been directed to put in appearance before the Subordinate Court on 26.5.1975.