An Injunction suit by Gramapanchayat for injunction prior to Grama Pnachayat rules 2011,against the defendant is maintainable as prior to it there is no machinery to remove encroachments - and simple bare injunction is maintainable as it is public road as no one can squat on public road - no rights recognized =
1) Whether, a suit by the Gram Panchayat for a prohibitory injunction
restraining the defendant from causing obstructions to the passage, is
maintainable?
2) When the admitted case of the plaintiff is, that, the defendant encroached
upon the plaintiff's property, whether a suit for injunction is maintainable?
=
1. Basing on the oral, documentary evidence and other material available
on record, the trial court granted perpetual injunction directing the defendant
not to keep wood logs on either side of the road.
2. But, when once a citizen claims a right to
squat on the road either by raising temporary structure or either by raising
temporary structure or permanent structure for business or residence, the law
does not recognise such right - a simple injunction suit is maintainable
Jurisdiction of Civil courts :-
The Panchayat Property Rules came into force with effect from 21.7.2011
and were published in A.P. Gazette, RS to Part VII (Ext.), dated 22.7.2011. No
material is placed before this court that any Rules or provisions similar to
Panchayat Property Rules were in force prior to 21.7.2011. There is no
stipulation in Section 98 of the Act that the jurisdiction of civil court is
ousted for eviction of encroachers of Gram Panchayat property.
Section 98 of A.P. Panchayat Raj Act, 1994 (the Act) and Rule 4 of the A.P.
Gram Panchayats (Protection of Property) Rules, 2011 (the Panchayat Property
Rules), strenuously submitted that the jurisdiction of civil court is ousted in
respect of encroachment of Gram Panchayat property.
A perusal of Section 98 of
the Act in conjunction with Rule 4 of the Panchayat Property Rules clearly
manifests the procedure to be followed by the Gram Panchayat for eviction of
encroachers of its property.
Section 98 of the Act prescribes that encroacher of a Gram Panchayat
property be removed after giving due notice and by paying necessary compensation
if required by law. Section 53 of the Act postulates that all public roads,
sewers, drains, culverts etc., in any village vest in the Gram Panchayats and it
empowers them to remove the encroachments by following the procedure prescribed
by the Panchayat Property Rules made thereunder.
Prior to 2011, the Act is silent with regard to the machinery provided for eviction of
encroachers from Gram Panchayat property. The civil court is entitled to
entertain all types of suits unless the jurisdiction of civil court is ousted by
any special enactment which provides effective machinery for adjudication.
Prior to these Rules there is no alternative and efficacious machinery for
removal of encroachments of Gram Panchayat properties except to approach civil
court for redressal. The suit was filed in the year 1996 nearly 15 years prior
to the Panchayat Property Rules came into force. Therefore, these Rules are not
applicable to the facts of the case on hand. Hence, I am unable to countenance
the contention of the defendant that the suit is not maintainable on the ground
of lack of jurisdiction of the civil court.
Gramapanchayat roads :-
In Karanam Manjunath v District Collector, Kurnool1, 2010 (4) ALD 476
"... ... The law of the streets is well-settled. The road is primarily meant
for citizens to pass and re-pass and use for conveyance....The right to carry on
business, trade or profession being a fundamental right under Article 19(1)(g)
of the Constitution of India any total prohibition of carrying on business on
the road is unconstitutional.
However, no citizen can claim absolute right to
squat on the road either for the purpose of business or for the purpose of
residence.
Roads are not meant for building houses and residential huts. Roads
are basically meant for citizens for passing and re-passing. As long as the
citizens' activity in relation to road does not offend or affect the rights of
other citizens, in that the use of the road does not obstruct the other
citizens, no objection can be taken.
But, when once a citizen claims a right to
squat on the road either by raising temporary structure or either by raising
temporary structure or permanent structure for business or residence, the law
does not recognise such right ... ..."
Further, in para -5 it was also observed as follows.
" ... ... The roads are meant for passing and re-passing by the users and they
are not meant for squatters to carry on business. Sections 98 and 99 of Andhra
Pradesh Panchayat Raj Act, 1994 (the Act, for brevity) empower, nay, cast a duty
on the Gram Panchayat to remove all the encroachments and keep the roads vested
in Gram Panchayat under Section 53 of the Act free from encroachments. ... ..."
The principle enunciated in the above case squarely applies to the case on
hand.
It is the duty of the Gram Panchayat not to allow anybody to keep
something on the road which is causing obstruction to the vehicular movement and
pedestrians. In the instant case, the defendant without any manner of right
whatsoever has been keeping the logs on either side of the Gram Panchayat road
and in front of the post office and thereby causing much inconvenience to the
public at large. Public interest is the paramount consideration in this type of
cases.
The trial court has assigned cogent and valid reasons to its findings.
The first appellate court fully endorsed the findings recorded by the trial
court.
I see no reason much less valid reasons to interfere with the well
considered findings of the courts below.
There is no question of law much less
substantial question of law in this appeal, which warrants interference of this
court.
HONOURABLE SRI JUSTICE T.SUNIL CHOWDARY
SECOND APPEAL No.66 of 2005
22-11-2013
Katta Venkata Raja Subrahmanyam, S/o.Sitharamayya...
Appellant/Respondent/Defendant
Gram Panchayat, Yellamanchini, represented by itS Executive Officer...
Respondent/Appellant/Plaintiff
Counsel for the Appellant: Sri K.V.Subrahmanya Narasu
Counsel for the respondent: None appeared.
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1. 2010 (4) ALD 476
THE HON'BLE SRI JUSTICE T.SUNIL CHOWDARY
SECOND APPEAL No.66 of 2005
November 22, 2013
JUDGMENT:
This appeal is preferred by the defendant challenging the decree and
judgment dated 14.7.2004 in A.S.No.27 of 2001 on the file of Senior Civil Judge
Court, Yellamanchini, confirming in appeal the decree and judgment dated
30.7.2001 in O.S.No.55 of 1996 on the file of Principal Junior Civil Judge
Court, Yellamanchili. The parties are hereinafter referred to as they arrayed
in the suit.
The case of the plaintiff in nutshell is as follows. The plaintiff Gram
Panchayat is in existence since long time. Narasannapeta Ward is centrally
located busy area of plaintiff Gram Panchayat, adjacent to NH-5 road. The
defendant has been carrying on business in timber and other house construction
material In Narasannapeta Ward. The defendant is also running electric saw
mill. The business premises of the defendant is located at a tri-junction of
Gram Panchayat road near Nagendra residential colony just opposite to main post
office building. NH-5 road running across the Yellamanchili town is very nearer
to the defendant's premises intervened by RTC bus stand. As can be seen from
the plaint sketch, there is a Gram Panchayat road running from Gandhinagar area
to NH-5 road, which is quite adjacent to the timber depot premises of the
defendant. The public road is in existence even before inception of plaintiff
Gram Panchayat and that road exclusively belongs to it. Recently, the plaintiff
Gram Panchayat constructed new culvert at the tri-junction near defendant's
timber depot. The width of the Gram Panchayat road at the defendant's timber
depot is 49'. In the recent days, in utter disregard of public safety and
convenience, the defendant started to stock huge and heavy timber logs, beams
etc., on either side of the panahcyat road outside its entrance gate. It is
causing obstruction and annoyance to the neighbouring residents and the public
using the Gram Panchayat road. The plaintiff has received number of complaints
against the defendant. The Executive Officer of the Gram Panchayat issued a
notice to the defendant directing him not to obstruct the Gram Panchayat road.
The defendant got issued reply notice. The area of the road obstructed by the
defendant extends to a length of 59' and the width of 49' road. Hence the suit
is filed for perpetual injunction.
The defendant filed written statement inter alia contending that the
residents or the public of the locality never made any representation to the
plaintiff. Neither the Executive Officer nor the President of the Gram
Panchayat visited the locality at any time. The officials of the Gram Panchayat
never requested the defendant and his men not to cause any obstruction to the
public. The defendant is keeping timber in Government poramboke situated in
survey Nos.53-3 and 378-8. The parents of the defendant and the defendant have
been paying B-memo charges for the Government for using the Government
poramboke. The building in which the timber depot is situated belongs to his
mother. The defendant is using the Government poramboke for keeping his logs
whenever necessary. The space between the post office building and the timber
depot of the defendant is the end portion of the way via the western bund of
"Kommayya" tank from NH-5. There are thorny bushes and huts on either side of
the tank bund. The plaintiff never made any repairs to the said space and the
way via tank bund, and is allowing the same to get deteriorated from year to
year. It is this omission on the part of the plaintiff is causing inconvenience
to the public, but not the acts of the defendant as alleged in the plaint. The
defendant has given a suitable reply dated 01.2.1996 to the notice issued by the
plaintiff. Again the plaintiff gave a notice dated 10.6.1996 asking the
defendant to remove the logs on the road. The suit is filed at the instance of
the Sapranch of the plaintiff Gram Panchayat suspecting that the defendant
worked against her in the recent elections. Therefore, the suit is liable to be
dismissed.
The trial court has framed only one issue. In the trial court, on behalf
of the plaintiff, P.Ws.1 to 4 were examined and Exs.A1 to A18 were marked. On
behalf of the defendant, D.Ws.1 to 4 were examined and Exs.B1 to B10 were
marked. Basing on the oral, documentary evidence and other material available
on record, the trial court granted perpetual injunction directing the defendant
not to keep wood logs on either side of the road. Being aggrieved by the decree
and judgment of the trial court, the defendant filed A.S.No.27 of 2001 and the
same was dismissed on 14.7.2004 confirming the decree and judgment of the trial
court. Hence, this second appeal.
This appeal was admitted on 27.4.2005 basing on the following substantial
questions of law.
1) Whether, a suit by the Gram Panchayat for a prohibitory injunction
restraining the defendant from causing obstructions to the passage, is
maintainable?
2) When the admitted case of the plaintiff is, that, the defendant encroached
upon the plaintiff's property, whether a suit for injunction is maintainable?
Heard the learned counsel for appellant/defendant. None appeared for
respondent/plaintiff.
As seen from the testimony of P.Ws.1 and 2, who are the present and former
Executive Officers of the plaintiff Gram Panchayat, the defendant's saw mill is
situated in tri-junction of Narasannapeta Ward of plaintiff Gram Panchayat. As
per the oral testimony of P.Ws.1 to 4 and D.Ws.1 to 4, the defendant's saw mill
is situated opposite to old post office, adjacent to NH-5. The oral testimony
of witnesses examined on both sides clearly reveals that the road situated in
front of defendant's timber depot is busy area, and "Kommayya" tank is situated
near the timber depot of the defendant.
As per the oral testimony of P.Ws.1 to 4 the defendant has been keeping
wood cut and uncut wood logs on either side of the road. In the cross-
examination, D.W.1 categorically deposed that he is keeping wood logs on both
sides of the road temporarily and shift them into the saw mill in course of
time. In the cross-examination, D.Ws.2 and 3 in unequivocal terms deposed that
the defendant used to keep their timber on both sides of the road. In the
cross-examination D.W.1 categorically admitted that on the north-west corner of
the saw mill, there is a four road junction and culvert. His saw mill is
situated on the west of the road leads to Gandhinagar from NH-5. He further
admitted that the water tank is under construction near the saw mill. P.W.4 is
a Postmaster, who categorically deposed that the defendant is keeping wood logs
in front of the post office and thereby causing much inconvenience to the
public. The oral testimony of P.Ws.2 to 4 clearly reveals that the defendant is
causing obstruction for free passage of the vehicles and pedestrians on the Gram
Panchayat road.
A perusal of Exs.A11 to A18 clearly reveals that the road on which the
defendant is keeping wood logs is vested in the plaintiff panchayat. Learned
counsel for the appellant/ defendant submitted that there is a discrepancy with
regard to the nature of the road and hence the court cannot place reliance on
it. Whether it is a metal road or tar road, is not of much significance as the
road vests in plaintiff Gram Panchayat.
The contention of the defendant is that he has been keeping his logs on
Government poramboke by paying B-memo charges. Exs.B1 to B7 are B-memo tax
receipts dated 05.3.1996, 15.3.1988, 05.12.1989, 29.12.1992, 30.1.1993,
20.1.1994 and 25.2.1995 respectively. Exs.B1, B6 and B7 receipts are in the
name of mother of the defendant and Exs.B2 to B5 receipts are in the name of the
father of the defendant. A perusal of the above receipts clearly reveals that
no payment was made by the defendant, after 25.2.1995. Even as per Exs.B1 to
B7, the defendant is entitled to keep the logs in survey Nos.53-3 and 378-8.
Payment of B-memo charges would not entitle the defendant to keep the logs on
either side of the road, which is vested in the Gram Panchayat. A perusal of
Ex.A9 clearly reveals that the Executive Officer of plaintiff Gram Panchayat
addressed a letter dated 12.2.1996 to the Mandal Revenue Officer, Yellamanchili
(MRO) requesting him to cancel the B-memo if any issued in favour of the
defendant. The MRO issued reply (Ex.A10) stating that they are not collecting
B-memo charges from the defendant's saw mill in view of the objections raised
for using road margins. In Ex.A10, the MRO clearly mentioned that the defendant
has been keeping the logs on either side of the road as well within the compound
of the post office. The oral testimony of P.W.4 is fully supported by the
recitals of Ex.A10. Basing on the oral and documentary evidence available on
record, I have no hesitation to hold that the defendant has been keeping the
logs on either side of the Gram Panchayat road and in front of post office and
thereby causing much inconvenience to the pedestrians and vehicular traffic.
The learned counsel for the appellant/defendant while drawing my attention
to Section 98 of A.P. Panchayat Raj Act, 1994 (the Act) and Rule 4 of the A.P.
Gram Panchayats (Protection of Property) Rules, 2011 (the Panchayat Property
Rules), strenuously submitted that the jurisdiction of civil court is ousted in
respect of encroachment of Gram Panchayat property.
A perusal of Section 98 of
the Act in conjunction with Rule 4 of the Panchayat Property Rules clearly
manifests the procedure to be followed by the Gram Panchayat for eviction of
encroachers of its property.
Section 98 of the Act prescribes that encroacher of a Gram Panchayat
property be removed after giving due notice and by paying necessary compensation
if required by law. Section 53 of the Act postulates that all public roads,
sewers, drains, culverts etc., in any village vest in the Gram Panchayats and it
empowers them to remove the encroachments by following the procedure prescribed
by the Panchayat Property Rules made thereunder.
A perusal of Exs.A1, A2, A3,
B8, B9 and B10 clearly reveals that notices were exchanged between the parties.
This clearly indicates that the plaintiff Gram Panchayat has given a reasonable
opportunity to the defendant to remove logs kept on the Gram Panchayat road
prior to filing of the suit. By doing so, plaintiff Gram Panchayat followed the
procedure contemplated under Section 98 of the Act.
The Panchayat Property Rules came into force with effect from 21.7.2011
and were published in A.P. Gazette, RS to Part VII (Ext.), dated 22.7.2011. No
material is placed before this court that any Rules or provisions similar to
Panchayat Property Rules were in force prior to 21.7.2011. There is no
stipulation in Section 98 of the Act that the jurisdiction of civil court is
ousted for eviction of encroachers of Gram Panchayat property.
Prior to 2011,
the Act is silent with regard to the machinery provided for eviction of
encroachers from Gram Panchayat property. The civil court is entitled to
entertain all types of suits unless the jurisdiction of civil court is ousted by
any special enactment which provides effective machinery for adjudication.
Prior to these Rules there is no alternative and efficacious machinery for
removal of encroachments of Gram Panchayat properties except to approach civil
court for redressal. The suit was filed in the year 1996 nearly 15 years prior
to the Panchayat Property Rules came into force. Therefore, these Rules are not
applicable to the facts of the case on hand. Hence, I am unable to countenance
the contention of the defendant that the suit is not maintainable on the ground
of lack of jurisdiction of the civil court.
In Karanam Manjunath v District Collector, Kurnool1,
a learned Single
Judge of this court while dealing with the rights of the citizens by occupying
road margins and carrying petty businesses, after referring entire case law on
the subject in para 4 of its judgment, it was observed as follows.
"... ... The law of the streets is well-settled. The road is primarily meant
for citizens to pass and re-pass and use for conveyance....The right to carry on
business, trade or profession being a fundamental right under Article 19(1)(g)
of the Constitution of India any total prohibition of carrying on business on
the road is unconstitutional. However, no citizen can claim absolute right to
squat on the road either for the purpose of business or for the purpose of
residence. Roads are not meant for building houses and residential huts. Roads
are basically meant for citizens for passing and re-passing. As long as the
citizens' activity in relation to road does not offend or affect the rights of
other citizens, in that the use of the road does not obstruct the other
citizens, no objection can be taken. But, when once a citizen claims a right to
squat on the road either by raising temporary structure or either by raising
temporary structure or permanent structure for business or residence, the law
does not recognise such right ... ..."
Further, in para -5 it was also observed as follows.
" ... ... The roads are meant for passing and re-passing by the users and they
are not meant for squatters to carry on business. Sections 98 and 99 of Andhra
Pradesh Panchayat Raj Act, 1994 (the Act, for brevity) empower, nay, cast a duty
on the Gram Panchayat to remove all the encroachments and keep the roads vested
in Gram Panchayat under Section 53 of the Act free from encroachments. ... ..."
The principle enunciated in the above case squarely applies to the case on
hand.
It is the duty of the Gram Panchayat not to allow anybody to keep
something on the road which is causing obstruction to the vehicular movement and
pedestrians. In the instant case, the defendant without any manner of right
whatsoever has been keeping the logs on either side of the Gram Panchayat road
and in front of the post office and thereby causing much inconvenience to the
public at large. Public interest is the paramount consideration in this type of
cases.
The trial court has assigned cogent and valid reasons to its findings.
The first appellate court fully endorsed the findings recorded by the trial
court. I see no reason much less valid reasons to interfere with the well
considered findings of the courts below. There is no question of law much less
substantial question of law in this appeal, which warrants interference of this
court.
The second appeal is, therefore, dismissed. No costs.
The miscellaneous petitions, if any, pending in this appeal shall stand
closed.
__________________________
T.SUNIL CHOWDARY, J)
22-11-2013
1) Whether, a suit by the Gram Panchayat for a prohibitory injunction
restraining the defendant from causing obstructions to the passage, is
maintainable?
2) When the admitted case of the plaintiff is, that, the defendant encroached
upon the plaintiff's property, whether a suit for injunction is maintainable?
=
1. Basing on the oral, documentary evidence and other material available
on record, the trial court granted perpetual injunction directing the defendant
not to keep wood logs on either side of the road.
2. But, when once a citizen claims a right to
squat on the road either by raising temporary structure or either by raising
temporary structure or permanent structure for business or residence, the law
does not recognise such right - a simple injunction suit is maintainable
The Panchayat Property Rules came into force with effect from 21.7.2011
and were published in A.P. Gazette, RS to Part VII (Ext.), dated 22.7.2011. No
material is placed before this court that any Rules or provisions similar to
Panchayat Property Rules were in force prior to 21.7.2011. There is no
stipulation in Section 98 of the Act that the jurisdiction of civil court is
ousted for eviction of encroachers of Gram Panchayat property.
Section 98 of A.P. Panchayat Raj Act, 1994 (the Act) and Rule 4 of the A.P.
Gram Panchayats (Protection of Property) Rules, 2011 (the Panchayat Property
Rules), strenuously submitted that the jurisdiction of civil court is ousted in
respect of encroachment of Gram Panchayat property.
A perusal of Section 98 of
the Act in conjunction with Rule 4 of the Panchayat Property Rules clearly
manifests the procedure to be followed by the Gram Panchayat for eviction of
encroachers of its property.
Section 98 of the Act prescribes that encroacher of a Gram Panchayat
property be removed after giving due notice and by paying necessary compensation
if required by law. Section 53 of the Act postulates that all public roads,
sewers, drains, culverts etc., in any village vest in the Gram Panchayats and it
empowers them to remove the encroachments by following the procedure prescribed
by the Panchayat Property Rules made thereunder.
Prior to 2011, the Act is silent with regard to the machinery provided for eviction of
encroachers from Gram Panchayat property. The civil court is entitled to
entertain all types of suits unless the jurisdiction of civil court is ousted by
any special enactment which provides effective machinery for adjudication.
Prior to these Rules there is no alternative and efficacious machinery for
removal of encroachments of Gram Panchayat properties except to approach civil
court for redressal. The suit was filed in the year 1996 nearly 15 years prior
to the Panchayat Property Rules came into force. Therefore, these Rules are not
applicable to the facts of the case on hand. Hence, I am unable to countenance
the contention of the defendant that the suit is not maintainable on the ground
of lack of jurisdiction of the civil court.
Gramapanchayat roads :-
In Karanam Manjunath v District Collector, Kurnool1, 2010 (4) ALD 476
"... ... The law of the streets is well-settled. The road is primarily meant
for citizens to pass and re-pass and use for conveyance....The right to carry on
business, trade or profession being a fundamental right under Article 19(1)(g)
of the Constitution of India any total prohibition of carrying on business on
the road is unconstitutional.
However, no citizen can claim absolute right to
squat on the road either for the purpose of business or for the purpose of
residence.
Roads are not meant for building houses and residential huts. Roads
are basically meant for citizens for passing and re-passing. As long as the
citizens' activity in relation to road does not offend or affect the rights of
other citizens, in that the use of the road does not obstruct the other
citizens, no objection can be taken.
But, when once a citizen claims a right to
squat on the road either by raising temporary structure or either by raising
temporary structure or permanent structure for business or residence, the law
does not recognise such right ... ..."
Further, in para -5 it was also observed as follows.
" ... ... The roads are meant for passing and re-passing by the users and they
are not meant for squatters to carry on business. Sections 98 and 99 of Andhra
Pradesh Panchayat Raj Act, 1994 (the Act, for brevity) empower, nay, cast a duty
on the Gram Panchayat to remove all the encroachments and keep the roads vested
in Gram Panchayat under Section 53 of the Act free from encroachments. ... ..."
The principle enunciated in the above case squarely applies to the case on
hand.
It is the duty of the Gram Panchayat not to allow anybody to keep
something on the road which is causing obstruction to the vehicular movement and
pedestrians. In the instant case, the defendant without any manner of right
whatsoever has been keeping the logs on either side of the Gram Panchayat road
and in front of the post office and thereby causing much inconvenience to the
public at large. Public interest is the paramount consideration in this type of
cases.
The trial court has assigned cogent and valid reasons to its findings.
The first appellate court fully endorsed the findings recorded by the trial
court.
I see no reason much less valid reasons to interfere with the well
considered findings of the courts below.
There is no question of law much less
substantial question of law in this appeal, which warrants interference of this
court.
HONOURABLE SRI JUSTICE T.SUNIL CHOWDARY
SECOND APPEAL No.66 of 2005
22-11-2013
Katta Venkata Raja Subrahmanyam, S/o.Sitharamayya...
Appellant/Respondent/Defendant
Gram Panchayat, Yellamanchini, represented by itS Executive Officer...
Respondent/Appellant/Plaintiff
Counsel for the Appellant: Sri K.V.Subrahmanya Narasu
Counsel for the respondent: None appeared.
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1. 2010 (4) ALD 476
THE HON'BLE SRI JUSTICE T.SUNIL CHOWDARY
SECOND APPEAL No.66 of 2005
November 22, 2013
JUDGMENT:
This appeal is preferred by the defendant challenging the decree and
judgment dated 14.7.2004 in A.S.No.27 of 2001 on the file of Senior Civil Judge
Court, Yellamanchini, confirming in appeal the decree and judgment dated
30.7.2001 in O.S.No.55 of 1996 on the file of Principal Junior Civil Judge
Court, Yellamanchili. The parties are hereinafter referred to as they arrayed
in the suit.
The case of the plaintiff in nutshell is as follows. The plaintiff Gram
Panchayat is in existence since long time. Narasannapeta Ward is centrally
located busy area of plaintiff Gram Panchayat, adjacent to NH-5 road. The
defendant has been carrying on business in timber and other house construction
material In Narasannapeta Ward. The defendant is also running electric saw
mill. The business premises of the defendant is located at a tri-junction of
Gram Panchayat road near Nagendra residential colony just opposite to main post
office building. NH-5 road running across the Yellamanchili town is very nearer
to the defendant's premises intervened by RTC bus stand. As can be seen from
the plaint sketch, there is a Gram Panchayat road running from Gandhinagar area
to NH-5 road, which is quite adjacent to the timber depot premises of the
defendant. The public road is in existence even before inception of plaintiff
Gram Panchayat and that road exclusively belongs to it. Recently, the plaintiff
Gram Panchayat constructed new culvert at the tri-junction near defendant's
timber depot. The width of the Gram Panchayat road at the defendant's timber
depot is 49'. In the recent days, in utter disregard of public safety and
convenience, the defendant started to stock huge and heavy timber logs, beams
etc., on either side of the panahcyat road outside its entrance gate. It is
causing obstruction and annoyance to the neighbouring residents and the public
using the Gram Panchayat road. The plaintiff has received number of complaints
against the defendant. The Executive Officer of the Gram Panchayat issued a
notice to the defendant directing him not to obstruct the Gram Panchayat road.
The defendant got issued reply notice. The area of the road obstructed by the
defendant extends to a length of 59' and the width of 49' road. Hence the suit
is filed for perpetual injunction.
The defendant filed written statement inter alia contending that the
residents or the public of the locality never made any representation to the
plaintiff. Neither the Executive Officer nor the President of the Gram
Panchayat visited the locality at any time. The officials of the Gram Panchayat
never requested the defendant and his men not to cause any obstruction to the
public. The defendant is keeping timber in Government poramboke situated in
survey Nos.53-3 and 378-8. The parents of the defendant and the defendant have
been paying B-memo charges for the Government for using the Government
poramboke. The building in which the timber depot is situated belongs to his
mother. The defendant is using the Government poramboke for keeping his logs
whenever necessary. The space between the post office building and the timber
depot of the defendant is the end portion of the way via the western bund of
"Kommayya" tank from NH-5. There are thorny bushes and huts on either side of
the tank bund. The plaintiff never made any repairs to the said space and the
way via tank bund, and is allowing the same to get deteriorated from year to
year. It is this omission on the part of the plaintiff is causing inconvenience
to the public, but not the acts of the defendant as alleged in the plaint. The
defendant has given a suitable reply dated 01.2.1996 to the notice issued by the
plaintiff. Again the plaintiff gave a notice dated 10.6.1996 asking the
defendant to remove the logs on the road. The suit is filed at the instance of
the Sapranch of the plaintiff Gram Panchayat suspecting that the defendant
worked against her in the recent elections. Therefore, the suit is liable to be
dismissed.
The trial court has framed only one issue. In the trial court, on behalf
of the plaintiff, P.Ws.1 to 4 were examined and Exs.A1 to A18 were marked. On
behalf of the defendant, D.Ws.1 to 4 were examined and Exs.B1 to B10 were
marked. Basing on the oral, documentary evidence and other material available
on record, the trial court granted perpetual injunction directing the defendant
not to keep wood logs on either side of the road. Being aggrieved by the decree
and judgment of the trial court, the defendant filed A.S.No.27 of 2001 and the
same was dismissed on 14.7.2004 confirming the decree and judgment of the trial
court. Hence, this second appeal.
This appeal was admitted on 27.4.2005 basing on the following substantial
questions of law.
1) Whether, a suit by the Gram Panchayat for a prohibitory injunction
restraining the defendant from causing obstructions to the passage, is
maintainable?
2) When the admitted case of the plaintiff is, that, the defendant encroached
upon the plaintiff's property, whether a suit for injunction is maintainable?
Heard the learned counsel for appellant/defendant. None appeared for
respondent/plaintiff.
As seen from the testimony of P.Ws.1 and 2, who are the present and former
Executive Officers of the plaintiff Gram Panchayat, the defendant's saw mill is
situated in tri-junction of Narasannapeta Ward of plaintiff Gram Panchayat. As
per the oral testimony of P.Ws.1 to 4 and D.Ws.1 to 4, the defendant's saw mill
is situated opposite to old post office, adjacent to NH-5. The oral testimony
of witnesses examined on both sides clearly reveals that the road situated in
front of defendant's timber depot is busy area, and "Kommayya" tank is situated
near the timber depot of the defendant.
As per the oral testimony of P.Ws.1 to 4 the defendant has been keeping
wood cut and uncut wood logs on either side of the road. In the cross-
examination, D.W.1 categorically deposed that he is keeping wood logs on both
sides of the road temporarily and shift them into the saw mill in course of
time. In the cross-examination, D.Ws.2 and 3 in unequivocal terms deposed that
the defendant used to keep their timber on both sides of the road. In the
cross-examination D.W.1 categorically admitted that on the north-west corner of
the saw mill, there is a four road junction and culvert. His saw mill is
situated on the west of the road leads to Gandhinagar from NH-5. He further
admitted that the water tank is under construction near the saw mill. P.W.4 is
a Postmaster, who categorically deposed that the defendant is keeping wood logs
in front of the post office and thereby causing much inconvenience to the
public. The oral testimony of P.Ws.2 to 4 clearly reveals that the defendant is
causing obstruction for free passage of the vehicles and pedestrians on the Gram
Panchayat road.
A perusal of Exs.A11 to A18 clearly reveals that the road on which the
defendant is keeping wood logs is vested in the plaintiff panchayat. Learned
counsel for the appellant/ defendant submitted that there is a discrepancy with
regard to the nature of the road and hence the court cannot place reliance on
it. Whether it is a metal road or tar road, is not of much significance as the
road vests in plaintiff Gram Panchayat.
The contention of the defendant is that he has been keeping his logs on
Government poramboke by paying B-memo charges. Exs.B1 to B7 are B-memo tax
receipts dated 05.3.1996, 15.3.1988, 05.12.1989, 29.12.1992, 30.1.1993,
20.1.1994 and 25.2.1995 respectively. Exs.B1, B6 and B7 receipts are in the
name of mother of the defendant and Exs.B2 to B5 receipts are in the name of the
father of the defendant. A perusal of the above receipts clearly reveals that
no payment was made by the defendant, after 25.2.1995. Even as per Exs.B1 to
B7, the defendant is entitled to keep the logs in survey Nos.53-3 and 378-8.
Payment of B-memo charges would not entitle the defendant to keep the logs on
either side of the road, which is vested in the Gram Panchayat. A perusal of
Ex.A9 clearly reveals that the Executive Officer of plaintiff Gram Panchayat
addressed a letter dated 12.2.1996 to the Mandal Revenue Officer, Yellamanchili
(MRO) requesting him to cancel the B-memo if any issued in favour of the
defendant. The MRO issued reply (Ex.A10) stating that they are not collecting
B-memo charges from the defendant's saw mill in view of the objections raised
for using road margins. In Ex.A10, the MRO clearly mentioned that the defendant
has been keeping the logs on either side of the road as well within the compound
of the post office. The oral testimony of P.W.4 is fully supported by the
recitals of Ex.A10. Basing on the oral and documentary evidence available on
record, I have no hesitation to hold that the defendant has been keeping the
logs on either side of the Gram Panchayat road and in front of post office and
thereby causing much inconvenience to the pedestrians and vehicular traffic.
The learned counsel for the appellant/defendant while drawing my attention
to Section 98 of A.P. Panchayat Raj Act, 1994 (the Act) and Rule 4 of the A.P.
Gram Panchayats (Protection of Property) Rules, 2011 (the Panchayat Property
Rules), strenuously submitted that the jurisdiction of civil court is ousted in
respect of encroachment of Gram Panchayat property.
A perusal of Section 98 of
the Act in conjunction with Rule 4 of the Panchayat Property Rules clearly
manifests the procedure to be followed by the Gram Panchayat for eviction of
encroachers of its property.
Section 98 of the Act prescribes that encroacher of a Gram Panchayat
property be removed after giving due notice and by paying necessary compensation
if required by law. Section 53 of the Act postulates that all public roads,
sewers, drains, culverts etc., in any village vest in the Gram Panchayats and it
empowers them to remove the encroachments by following the procedure prescribed
by the Panchayat Property Rules made thereunder.
A perusal of Exs.A1, A2, A3,
B8, B9 and B10 clearly reveals that notices were exchanged between the parties.
This clearly indicates that the plaintiff Gram Panchayat has given a reasonable
opportunity to the defendant to remove logs kept on the Gram Panchayat road
prior to filing of the suit. By doing so, plaintiff Gram Panchayat followed the
procedure contemplated under Section 98 of the Act.
The Panchayat Property Rules came into force with effect from 21.7.2011
and were published in A.P. Gazette, RS to Part VII (Ext.), dated 22.7.2011. No
material is placed before this court that any Rules or provisions similar to
Panchayat Property Rules were in force prior to 21.7.2011. There is no
stipulation in Section 98 of the Act that the jurisdiction of civil court is
ousted for eviction of encroachers of Gram Panchayat property.
Prior to 2011,
the Act is silent with regard to the machinery provided for eviction of
encroachers from Gram Panchayat property. The civil court is entitled to
entertain all types of suits unless the jurisdiction of civil court is ousted by
any special enactment which provides effective machinery for adjudication.
Prior to these Rules there is no alternative and efficacious machinery for
removal of encroachments of Gram Panchayat properties except to approach civil
court for redressal. The suit was filed in the year 1996 nearly 15 years prior
to the Panchayat Property Rules came into force. Therefore, these Rules are not
applicable to the facts of the case on hand. Hence, I am unable to countenance
the contention of the defendant that the suit is not maintainable on the ground
of lack of jurisdiction of the civil court.
In Karanam Manjunath v District Collector, Kurnool1,
a learned Single
Judge of this court while dealing with the rights of the citizens by occupying
road margins and carrying petty businesses, after referring entire case law on
the subject in para 4 of its judgment, it was observed as follows.
"... ... The law of the streets is well-settled. The road is primarily meant
for citizens to pass and re-pass and use for conveyance....The right to carry on
business, trade or profession being a fundamental right under Article 19(1)(g)
of the Constitution of India any total prohibition of carrying on business on
the road is unconstitutional. However, no citizen can claim absolute right to
squat on the road either for the purpose of business or for the purpose of
residence. Roads are not meant for building houses and residential huts. Roads
are basically meant for citizens for passing and re-passing. As long as the
citizens' activity in relation to road does not offend or affect the rights of
other citizens, in that the use of the road does not obstruct the other
citizens, no objection can be taken. But, when once a citizen claims a right to
squat on the road either by raising temporary structure or either by raising
temporary structure or permanent structure for business or residence, the law
does not recognise such right ... ..."
Further, in para -5 it was also observed as follows.
" ... ... The roads are meant for passing and re-passing by the users and they
are not meant for squatters to carry on business. Sections 98 and 99 of Andhra
Pradesh Panchayat Raj Act, 1994 (the Act, for brevity) empower, nay, cast a duty
on the Gram Panchayat to remove all the encroachments and keep the roads vested
in Gram Panchayat under Section 53 of the Act free from encroachments. ... ..."
The principle enunciated in the above case squarely applies to the case on
hand.
It is the duty of the Gram Panchayat not to allow anybody to keep
something on the road which is causing obstruction to the vehicular movement and
pedestrians. In the instant case, the defendant without any manner of right
whatsoever has been keeping the logs on either side of the Gram Panchayat road
and in front of the post office and thereby causing much inconvenience to the
public at large. Public interest is the paramount consideration in this type of
cases.
The trial court has assigned cogent and valid reasons to its findings.
The first appellate court fully endorsed the findings recorded by the trial
court. I see no reason much less valid reasons to interfere with the well
considered findings of the courts below. There is no question of law much less
substantial question of law in this appeal, which warrants interference of this
court.
The second appeal is, therefore, dismissed. No costs.
The miscellaneous petitions, if any, pending in this appeal shall stand
closed.
__________________________
T.SUNIL CHOWDARY, J)
22-11-2013
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.