Allowed

Gram Panchayat Dugoli v. Gen. Public of Village Dugoli and Ors.

Rajasthan HC14 Dec 2023CR/231/2010

Case brief

AI extract

What is this about?

The High Court allowed the civil revision petition, quashing the trial court's order rejecting the petitioner's application under Order 7 Rule 11 CPC. The Court held that the suit was barred due to non-service of the mandatory notice under Section 109 of the Rajasthan Panchayati Raj Act, 1994.

What did the court decide?

The order dated 01.10.2010 is quashed and set aside, and the application under Order 7 Rule 11 of the CPC is allowed.

Gram Panchayat Dugoli Vs Gen. Public of… — Pension and Retirement Benefits | Rajasthan HC (2023)

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[2023:RJ-JD:43622]

[CR-231/2010]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Revision Petition No. 231/2010

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Gram Panchayat Dugoli through Sarpanch, Resident of Dugoli, Tehsil Jayal, District Nagaur.

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----Petitioner

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Versus

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Gen. Public Of Village Dugoli through:

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Ramdev S/o Ramdhan, aged 32 years.

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Harman Ram S/o Shri Lichman Ram, aged 40 years.

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Pancha Ram S/o Shri Rugha Ram, aged 50 years.

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Ram Kumar S/o Shri Bhiya Ram, aged 50 years.

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Prahlad Ram S/o Shri Bhera Ram, aged 60 years.

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Kadar Ali S/o Shri Samsudin, aged 37 years.

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All resident of Dugoli, Tehsil Jayal, in their own capacity and in the capacity of representative of General Public of Village Dugoli, Tehsil Jayal, District Nagaur.

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----Respondents

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For Petitioner(s) : Mr. I.R. Choudhary For Respondent(s) :

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HON'BLE MR. JUSTICE MADAN GOPAL VYAS Judgment

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Date of Judgment 14/12/2023

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The present revision petition has been preferred by the petitioner Gram Panchayat, Dugoli against the order dated 01.10.2010 passed by the learned Civil Judge (Junior Division), Jayal in Civil Original Suit No. 15/2010, whereby the learned trial Court rejected the petitioner’s application under Order 7 Rule 11 of the CPC.

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Learned counsel for the petitioner submits that as per the provisions of Section 109 of Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as the Act of 1994), it is mandatory to

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serve statutory notice upon the Gram Panchayat before instituting any suit or other civil proceeding and therefore, in absence of any such notice, the suit itself is barred by law, however, the learned trial Court while rejecting the application under Order 7 Rule 11 of the CPC has failed to consider this aspect of the matter. It is also submitted that the construction was being raised by the Gram Panchayat in discharge of its official duties and the same was in accordance with law after obtaining necessary sanctions from the competent authorities.

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In support of his contentions, learned counsel appearing for the petitioner has relied upon the judgment of this Court delivered in the case of Mewa Ram versus State of Rajasthan & Ors reported in 1998 DNJ (Raj.) 221.

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Despite service, nobody appeared on behalf of the respondents.

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Heard the learned counsel for the petitioner and perused the impugned order and the provisions of Section 109 of the Act of 1994 which reads as under:

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" 109. Suits etc., against Panchayat, Panchayat Samiti and Zila Parishad.—

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(1) No suit or other civil proceedings against a Panchayati Raj Institution or against any member, officer or servant thereof or against any persons acting under the direction of a Panchayati Raj Institution or any member, officer or servant thereof for anything done or purporting to be done under this Act in its or his official capacity—

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(a) shall be instituted until the expiration of two months, after notice in writing, stating the cause of action the name and place of abode of the intending plaintiff and the nature of the relief which he claims, has been delivered or left at its office or, in the case of a member, officer, servant or person as aforesaid,

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delivered to him or left at the office or at his usual place of abode, and the plaint shall in each such case contain a statement that such notice has been so delivered or left, or

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(b) shall be instituted, unless it is a suit for the recovery of immovable property or for a declaration of title thereto, otherwise than within six months after transfer next the accrual of the alleged cause of action.

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(2) The notice referred to in Sub-Section (1) when it is intended for a Panchayat, Panchayat Samiti or a Zila Parishad, shall be addressed to the Sarpanch, Vikas Adhikari or the Chief Executive Officer respectively.”

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6. In case of Mewa Ram (supra), this Court has specifically held in para Nos. 18 and 19, which reads as under:

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"18. Admittedly, there was no notice and hence so far as the objection regarding absence of a notice, as envisaged by Sec. 109 above, in its absence, no suit could be instituted by the person aggrieved by notice of a Gram Panchayat issued directing removal of encroachment from a public place/way. Even if there is any assertion of title, a mere assertion as such cannot bar the Gram Panchayat from proceeding u/s. 50 of the Panchayati Raj Act and, on notice directing removal of encroachment and so its jurisdiction in the matter is no taken away (vide 1959 RLW 24 and 1957 RLW 136).

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Resultantly, for the present, suffice it to observe that there was absence of notice u/s. 109 of the Panchayati Raj Act, and it also barred institution of the suit by the plaintiff-non-petitioner. It does not necessitate the consideration as to whether in view of provisions of Sec. 80(2) of the Code, the aforesaid provisions of Sec. 109 of the Panchayati Raj Act, could be over-ridden by obtaining leave of the Court."

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From a perusal of impugned order, it is clear that there is complete non-compliance of mandatory provisions of Section 109 of the Act of 1994 and the learned trial Court has failed to consider this aspect of the matter while deciding application under Order 7 Rule 11 of the CPC.

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In view of the above, the present revision petition is allowed. The order dated 01.10.2010 is quashed and set aside. The application under Order 7 Rule 11 of the CPC is hereby allowed.

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(MADAN GOPAL VYAS),J

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2-Dinesh/-

Gram Panchayat Dugoli v. Gen. Public of Village Dugoli and Ors.

Case brief

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Gram Panchayat Dugoli v. Gen. Public of Village Dugoli and Ors.

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