1 D.B. CIVIL WRIT PETITION NO. 4902/2006 (Mahendra Kumar Vs. State of Raj. and Ors.) 1.5.2007 HON'BLE MR JUSTICE RAJESH BALIA HON'BLE MR JUSTICE BHANWAROO KHAN Mr. PR Mehta, for the petitioner. Mr. LR Upadhyaya, Deputy Govt. Advocate. Having heard learned counsel for the parties, we are of the opinion that the petitioner is entitled to relief without examining the issue of validity of Section 109 of the Panchayati Raj Act, 1994. The petitioner has filed a civil suit in February,1998 against the respondents alleging inter alia that the suit land is a part of pre- existing public way on which the plaintiff as a member of public had right to pass and repass on every inch of it. The public way could not have been transferred by the respondent Gram Panchayat by way of sale or otherwise to the respondent No.2. The suit was filed for seeking permanent injunction against respondent No.1 for restraining him from constructing on or reducing any part of lane by any method. The application under Section 80(2) CPC was also moved for dispensing with the notice 2 under Section 80 by assuming that the provisions of Section 80 CPC apply to suit against the Gram Panchayat. The suit was entertained and interim relief was granted against the respondent No.1. More than 7 years after filing of the suit, an application was moved by Gram Panchayat praying inter alia that the plaint be rejected under Order 7 Rule 11 CPC as the suit is not maintainable in terms of Section 109 of the Act of 1994, which does not have a provision analogous to sub-section (2) of Section 80. The petitioner objected thereto by stating that he has filed the suit for protection of his right which vests in him independent of any of the act of Panchayati Raj Institution and which has been primarily adversely affected by acts of respondent-defendant No.1. The action of the Gram Panchayat is under challenge independently. The action of raising constructions to enclose the street have all been attributed to the respondent-defendant No.1 and injunction operates against him. To maintain suit against him no notice under Section 80 CPC or Section 109 of the Act of 1994 was required. Every suit was to be dismissed qua Gram Panchayat. Suit against 3 defendant No.1 is still maintainable to seek injunction against obstructions of public way. However, the application moved by the Panchayat was allowed by order dated 19.7.2006. It may be noticed here that this plea was not taken by the Panchayat as no written statement has been filed. On the aforesaid premises, the plaintiff also raised an objection about waiver of the notice. We are of the opinion that so far as the plaintiff-petitioner is concerned, if the land in question is proved to be a part of public street, it is well settled that the there is no jurisdiction of Panchayat to transfer that land and any action of the Panchayat in transferring the part of the public land would have been void ab initio and could well be ignored. It is also apparent that the trial court has found prima facie the land in question to be a part of public land while issuing temporary injunction in favour of the petitioner and if the petitioner fails to prove the land in question as part of the public land, he otherwise does not get any relief. For challenging nonest or an order which is void ab initio, which could be ignored without challenging independently on proof of certain facts, the filing of suit itself is not necessary and issues can be raised as a ground of attack or defence either way. At any rate, transfer of 4 land could have been at best challenged separately and could even now be challenged. That being not so, the petitioner while maintaining the suit against the defendant No.1 could have impleaded Gram Panchayat after serving a notice under Sec. 109 on the expiry of its period and could have maintained the suit independent of it. We also find from the issue raised in the suit that the trial court was alive to this question and so also the Gram Panchayat. Issue No.3 is whether Gram Panchayat is a necessary party. This issue has been raised by the Gram Panchayat in its written statement. Rest of the issues relate to the substance of dispute, the limitation about the nature of land in question being of public street and whether the construction raised by the defendant No.1 affects the right of the plaintiff and whether the land in question is not a public street and is in possession of the defendant No.1 as owner. In the aforesaid circumstances, the trial court ought to have decided the issue about the nature of land irrespective of the transaction entered by the Gram Panchayat of transferring the land in question to the respondent No.2. 5 With these observations, the writ petition is allowed. The impugned order is set- aside subject to above observation. (BHANWAROO KHAN),J. (RAJESH BALIA),J. /rm