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IN THE HIGH COURT OF ALLAHABAD
R.S. SINGH, J.
Janmjay - Appellant
Versus
State of Uttar Pradesh and Others - Respondent
Second Appeal No. 1564 of 1978
Decided On : 29-04-1980
PANCHAYAT RAJ ACT - SECTION 106 - NOTICE - NOT REQUIRED FOR SUITS AGAINST GAON SABHA FOR ACTS NOT DONE UNDER THE ACT - CONSTRUCTION OF HOUSE ON ABADI SITE - RULE 115-P, U.P. ZAMINDARI ABOLITION AND LAND REFORMS RULES - FAILURE TO CONSTRUCT HOUSE WITHIN TWO YEARS - EXTINCTION OF RIGHTS.
Fact of the Case:
Plaintiff filed a suit for permanent injunction restraining the Defendants from interfering in his possession of the Gher in suit and from re-auctioning it. The land was allotted to the Plaintiff and Defendant No. 3 by the Land Management Committee in 1962. They constructed Kothas and a boundary wall on the land. The Pradhan moved an application for re-auction of the land, and the Sub-Divisional Magistrate ordered the re-auction. The Plaintiff claimed that he had constructed a house within two years of the allotment, but the lower appellate court found that he had not.
Finding of the Court:
The court held that Section 106 of the Panchayat Raj Act, which requires a notice to be given to the Gaon Sabha two months prior to the filing of a suit against it, is not applicable to suits where the Gaon Sabha is impleaded incidentally as a Defendant because of the provisions of the U.P. Zamindari Abolition and Land Reforms Act. The court also held that the Plaintiff had failed to construct a house on the land within two years of the allotment, as required by Rule 115-P of the U.P. Zamindari Abolition and Land Reforms Rules, and therefore his rights in the land had extinguished.
Issues: Whether Section 106 of the Panchayat Raj Act applies to suits against the Gaon Sabha for acts not done under the Act.
Ratio Decidendi: Section 106 of the Panchayat Raj Act is confined only to suits instituted against the Gaon Sabha or its members or officers for acts done in their official capacity under the Act itself. In this case, the Gaon Sabha was impleaded incidentally as a Defendant because of the provisions of the U.P. Zamindari Abolition and Land Reforms Act, and the Pradhan was taking steps to re-auction the land under the provisions of that Act. Therefore, Section 106 of the Panchayat Raj Act is not applicable.
Final Decision: The appeal was dismissed.
R.S. SINGH, J.
1. This is the Plaintiff's second appeal against the decree and judgment dated 9-5-1973 of the Second Civil Judge, Meerut at Ghaziabad, reversing the decree of the trial court, by which the Plaintiff's suit was decreed.
2. The suit was filed by the Plaintiff for permanent injunction restraining the Defendant Nos. 1 and 2 from interfering in the possession of Plaintiff and Defendant No. 3 over the Gher in suit and also restraining them from fractioning the Gher in suit to any body. It was alleged in the plaint that the land in suit was allotted by Land Management Committee in favour of Plaintiff and Defendant No. 3 on 13-5-1962. The Plaintiff and the Defendant No. 3 constructed Kothas over there and a boundary wall, which fell down in rains and Plaintiff and the Defendant No. 3 are using the land in suit as their Gher. It has been alleged that the Pradhan, due to enmity, moved an application to the Court of Tehsildar on 5-10-1964 for re-auction of the disputed land. Tehsildar submitted his wrong report to S.D.M. on 2-3-1965 for re-auction of the disputed land and S.D.M. also wrongly accepted his report on 3-3-65 against the Plaintiff and Defendant No. 3 and now the Pradhan is prepared to re-auction the land in dispute, without any right. A notice u/s 80 CPC was given to U.P. State, which was served on 27-12-1966, but still Defendant Nos. 1 and 2 are not to resist from re-auctioning the disputed land. Hence the present suit.
3. The suit was contested by the Defendants on the grounds that the suit is barred by Section 80 CPC They alleged that the Plaintiff did not raise construction over the land within two years as required by law and hence the order of the Sub-Divisional Magistrate for re-auctioning the land in suit is legal. They also alleged that the suit is barred u/s 106 Panchayat Raj Act (hereinafter referred to as Act).
4. The suit was decreed by the learned Munsif for permanent injunction restraining the Defendant Nos. 1 and 2 from interfering in the possession of the Plaintiff and Defendant No. 3 over the Gher in suit and also restraining them from reauctioning the Gher in suit. The Defendants preferred an appeal against the decree and judgment of the trial court, which was allowed. The lower appellate court allowed the appeal and dismissed the Plaintiff's suit on the finding that it is not proved that the building was raised on the land within 2 years from the date of allotment and further for want of notice u/s 106 of the Act.
5. It has been contended by the learned Counsel for the Appellant that the finding of the lower appellate court that the suit is barred by Section 106 of the Act as no notice was given to the Gaon Sabha two months prior to the filing of the suit, is erroneous in law. In support of his contention he relied upon Sheo Pujan v. Gram Sabha 1964 AWR 58.
6. It has been contended by the learned' counsel for the Respondents that the Plaintiff was aggrieved by the action of the Gaon Sabha as Pradhan was going to re-auction the land in suit. Therefore, notice u/s 106 of the Act was necessary.
7. The relevant portion of Section 106 of the Act runs as follows:
* * *
8. A bare perusal of this section makes it clear that a notice u/s 106 of the Act is necessary only in a case where anything has been done in official capacity by the Gaon Sabha under this Act, meaning thereby under the Panchayat Raj Act. It is nobody's case that any action has been taken by the Gaon Sabha in this case under any of the provisions of the Panchayat Raj Act. Rather the Pradhan was taking steps to re-auction under the provisions of UP ZA and LR Act. Therefore, Section 106 of the Act is not relevant in this case at all. Gaon Sabha is a necessary party under number of sections of the UP ZA and LR Act. If a suit is filed under any of the provisions of the UP ZA and LR Act, where the Gaon Sabha is a necessary party notice u/s 106 of the Act is not necessary. In 1964 AWR 58 (supra) it has been also held as follows:
Where in
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