-1- IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.5551 OF 2006 NO.5551 OF 2006 NO.5551 OF 2006 WITH WITH WITH WRIT WRIT WRIT PETITION PETITION PETITION NO.5552 OF 2006 NO.5552 OF 2006 NO.5552 OF 2006 WITH WITH WITH WRIT WRIT WRIT PETITION PETITION PETITION NO.5554 OF 2006 NO.5554 OF 2006 NO.5554 OF 2006 WITH WITH WITH WRIT WRIT WRIT PETITION PETITION PETITION NO.5550 OF 2006 NO.5550 OF 2006 NO.5550 OF 2006 WITH WITH WITH WRIT WRIT WRIT PETITION PETITION PETITION NO.5555 OF 2006 NO.5555 OF 2006 NO.5555 OF 2006 Shri Sameer C. Mujawar ...Petitioner v/s Sub-Divisional Officer, Savlas, Taluka Tasgaon, District Sangli and anr. ...Respondents Mr Umesh Mankapure i/b M/s J. Shekhar and Co. for Petitioner. Mr K.S. Patil for Respondents. CORAM : D.K. DESHMUKH J. DATE : 16TH FEBRUARY 2008. -2- P.C. :- 1. By this petition, the petitioner challenges the order passed by the Appeal Court allowing the appeal and setting aside the order passed by the Trial Court granting temporary injunction in favour of the petitioner - plaintiff. The plaintiff had filed regular civil suit No.38 of 2006 in the Court of Civil Judge, Junior Division, Tasgaon, seeking an order of permanent injunction restraining the defendants, which is Village Panchayat from disturbing the shop of the plaintiff. According to the averments made in the plaint, the plaintiff is having his shop at the place for about 13 years. According to him, he has taken the land on lease from the Village Panchayat and he has paid annual rent of Rs.600/- for the year 2005-06. As per the averments in the plaint, the plaintiff’s shop was being removed because of political rivalry. The injunction application was opposed by the Village Panchayat. It was pointed out that the action for removal of the unauthorised shops of the plaintiff was being taken pursuant to the resolution passed by the Gram Sabha. It was pointed out that these unauthorised shops are situated at a prominent place in the village and because of these shops, undesirable people gather there and -3- there are incidents disturbing law and order situation. Therefore, the entire Gram Sabha passed a resolution for removal of these shops. It is also contended that no lease has been granted by the Village Panchayat to the plaintiff as alleged and that the shop of the plaintiff and other shops are unauthorised. The Trial Court granted temporary injunction in favour of the plaintiff. 2. In appeal filed by the Village Panchayat, that order has been set aside. The Appeal Court, apart from holding that there is no notice given as contemplated under section 180 of the Bombay Village Panchayat Act 1958, has found that the place where the shops are put up is public road and the shops are unauthorised and therefore, has allowed the appeal and vacated the orders of temporary injunction. The learned counsel appearing for the petitioner submitted that the Appeal Court has set aside the order of temporary injunction only because notice under section 180 of the said Act was not given. He submits, relying on a judgment of the learned Single Judge of this Court in the case of Gram Panchayat, Kuhi and anr. v/s Vijaykumar R. Bhalotiya, reported in 1986 Mh.L.J. 618, that notice under section 180 of the said Act is not necessary. The learned counsel further submits that the petitioner has produced receipt of rent issued by the Village Panchayat for the year 2005-06 which according to the learned counsel shows that the -4- shop of the petitioner is authorised. According to him, the action for removal of the shops is being taken because there was an election of Village Panchayat and the petitioner supported a group in those elections which lost the election. The learned counsel appearing for the Village Panchayat, on the other hand, points out that though the petitioner is claiming that he has been granted lease of the land by the Village Panchayat, he has not stated as to when the lease was granted, whether the Village Panchayat has passed any resolution granting lease of the land, what are the terms of the lease etc. The learned counsel submits that mere production of receipt showing payment of rent for the year 2005-06 cannot make out a case of the lease granted by the Village Panchayat to the petitioner. The learned counsel also pointed out the allegations made in paragraph 10 of the reply to the application by the Village Panchayat wherein it was alleged that illegal activities are going on around the shop of the plaintiff. It was also claimed that even the authorities of the State Transport Corporation have complained. The learned counsel also pointed out that there was also an offence committed near the shop. After having heard learned counsel for both the sides, I find that the principal and most important question that is to be considered while considering whether the petitioner is entitled to temporary injunction is -5- whether the plaintiff has made out a prima facie case. The case of the plaintiff as disclosed in the plaint is that the land belongs to Village Panchayat and that he has been granted lease of the land on annual rent of Rs.600/- but perusal of the plaint shows that there are no averments made as to when the lease was granted ? whether Village Panchayat has passed resolution granting lease of the land to the plaintiff ? what are the terms and conditions of the lease ?. In the absence of those pleadings, it cannot be said that the plaintiff has made out a prima facie case that the lease of the land has been granted by the Village Panchayat in favour of the plaintiff. A mere production of receipt showing that some amount was paid by the plaintiff to the Village Panchayat will not make out a case of grant of lease of the land by the Village Panchayat to the plaintiff. Village Panchayat being a body corporate, in the absence of resolution passed by the Village Panchayat granting lease, there can be no valid lease in favour of anybody. Thus, if one goes by averments made in the plaint, it is clear that it is impossible to say that the plaintiff has made out a prima facie case even if the averments in the plaint are taken at their face value. Perusal of the reply filed on behalf of the Village Panchayat shows that there were serious allegations about the activities that were going on around the shop. There was a police complaint, there was a complaint made by the authorities -6- of the State Transport Corporation. Perusal of the order of the learned Trial Court shows that the Trial Court totally misdirected itself in considering these aspects. Under the provisions of the Bombay Village Panchayat Act 1958, meeting of Gram Sabha is attended by the entire village and it is in the meting of Gram Sabha that a resolution was passed for removal of this shop. It prima facie shows that the villagers decided to pass a resolution for removal of those shops because of the activities that were going on around those shops. So far as the submission of the learned counsel appearing for petitioner that because of political consideration this action is being taken is concerned, those allegations cannot be taken into consideration because in the suit, no individual has been joined as a party defendant. It is necessary that the person who according to the plaintiffs was actuated by malice has to be joined as a party defendant. Without joining any individual as defendant, the plaintiff cannot allege malice. Looking at the matter from any point of view, in my opinion, it cannot be said that the plaintiff has made out a prima facie case for grant of temporary injunction. Therefore, I do not find any error in the order of the Appeal Court. All the petitions are disposed off. . Parties to act on the copy of this order duly -7- authenticated by the Sheristedar / Private Secretary of the Court. . Certified copy expedited. ( D.K. DESHMUKH J.)