A Gram Panchayat's power to remove encroachment under section 53(2) of the Bombay Village Panchayats Act, 1958 must be exercised within the time limit prescribed by section 53(2-A) and the relevant rules.

JUDGMENT - B. N. DESHMUKH, J.:---This second appeal is filed by the original plaintiff who has filed a suit against the Gram panchayat for declaration of ownership and also for injunction regarding the house bearing No. 117 of village Sawargaon.

2. The learned trial Judge dismissed the suit of the plaintiff on several grounds namely that the plaintiff has failed to establish his title. So also the suit is bad for want of notice to the Gram panchayat as per section 180 of the Bombay Village Panchayats Act, 1958. The trial Court found that even though the house belongs to the plaintiff, the portion of Baithak constitutes an encroachment made by the plaintiff.

3. The plaintiff went in appeal before the District Court at Nanded. The learned District Judge, Nanded, who heard the appeal, confirmed the findings recovered by the trial Court and dismissed the appeal.

4. The learned Counsel Shri Vaishnav, appearing for the appellant, tried to challenge the concurrent finding of facts regarding the encroachment. I do not find any reason to interfere with the finding of facts recorded by both the Courts below. But the contention of the learned Counsel Shri Vaishnav regarding grant of injunction in the present case will have to be accepted. He contends that the claim of injunction by the plaintiff in the present case was based not merely on title but was also based on the illegal notice issued by the village panchayat for removal of encroachment. Both the courts have proceeded on the footing in the matter of claim of injunction by the plaintiff that the said claim is based on title only. The courts have not at all considered the claim of injunction on the ground of illegal issuance of notice for removal of encroachment. I have gone through the judgments of both the Courts and I find that the claim of the plaintiff for injunction is not considered in the light of the provisions of the Bombay Village panchayats Act at all.

5. It is admitted position as found by both the courts that the plaintiff has carried on construction on the encroached portion. For the removal of encroachment, the village panchayat has issued notice under section 51 of the Bombay Village Panchayat Act on 28-5-1976 (Exhibit 28). The plaintiff has filed a suit thereafter contending inter-alia that the notice of village panchayat is wrong and, therefore, claimed injunction restraining village panchayat the from causing any loss, damage to the house property of the plaintiff which includes the encroached portion also.

6. On perusal of provisions of section 53 sub-sections (2) (2-A) of the Bombay Village Panchayats Act, 1958, the challenge of the plaintiff to the notice of the village panchayat for removal of obstruction seems to be justified.

7. Sub-section (2) of section 53 of the Bombay Village Panchayats Act empowers the panchayat to remove obstruction or encroachment but the power to remove obstruction or encroachment is to be exercised in the manner prescribed by sub-section (2-A)

Sub-section 2-A provides that if any panchayat fails to take action under sub section (2) within such time as may be prescribed, the Collector, Suo motu or on an application made in this behalf, may take action as provided in that sub-section.

8. The time limit as provided under sub-section (2-A) is prescribed by the rules known as the Bombay Village Panchayats (Period for Removal of Obstruction and Encroachment) Rules, 1971, sub-rule (3) of these rules provide that the time limit for the purpose of sub-section (2-A) of section 53 is six months from the date on which the obstruction, encroachment or unauthorised cultivation of the crop :---

(a) is first noticed by.

(b) is brought to the notice of a Panchayat

9. In view of the provisions of section 2-A and the said rules, the gram panchayat is empowered to remove obstruction within a period of six months from the date when the encroachment is noticed for the first time by the panchayat. In the present case it is not in dispute that the encroachm

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