IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR WRIT PETITION NO.19373/2019 (LB RES) BETWEEN JAI BHAVANI PARISARA RAKSHA SEVA SAMSTHE REGD. NO.BR.UD/SOR/185/2017-18, KALLYA VILLAGE & POST, KARKALA TALUK, UDUPI DISTRICT 574 104, REP. BY ITS PRESIDENT SRI BRAMMA RISHI SRI UMAMAHESHWARA SAMIJI, AGED ABOUT 46 YEARS.
(BY SRI K CHANDRASHEKAR ACHAR, ADV.) AND 1. THE CHIEF EXECUTIVE OFFICER ZILLA PANCHAYATH, UDUPI, UDUPI TALUK AND DISTRICT – 576101.
2. THE EXECUTIVE OFFICER TALUK PANCHAYATH, KARKALA, KARKALA TALUK, UDUPI DISTRICT 574101 3. KALLYA VILLAGE PANCHAYATH KALLYA VILLAGE AND POST, KARKALA TALUK, UDUPI DISTRICT 574 104, REP. BY SECRETARY.
... PETITIONER ... RESPONDENTS (BY SRI CHANDRAKANTH ARIGA, ADV. FOR R2, SRI SANATH KUMAR SHETTY, ADV. FOR R3, V/O DT. 1/7/19, NOTICE NOT ORDERED IN R/O R1.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE DIRECTION TO THE R-1 AND 2 TO IMPLEMENT THE ORDER DT.17.11.2018 PASSED IN APPEAL NO.8/2017-18 AS PER ANNEXURE-C BY CONSIDERING THE LEGAL NOTICE DT.19.02.2019 ISSUED BY THE PETITIONER AS PER ANNEXURE-D ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioner and the learned counsel for respondent No.2. There is no representation on behalf of respondent No.3.
2. The petitioner is before this court praying for issuance of a writ of mandamus directing respondent Nos.1 and 2 to implement the order dated 17.11.2018 passed in Appeal No.8/2017-18 as per Annexure-C pursuant to the demand made by the petitioner under a legal notice dated 19.02.2019. Further direction is sought for to respondent Nos.1 and 2 to take immediate action to appoint Administrator to respondent No.3.
3. The petitioner claims to be a registered society with the object of improving environment consciousness and conducting camps to provide social justice and assist the members to develop social, economical and also carries on other religious activities in Kallya Village, Karkala Taluk, Udupi.
4. That respondent No.3-Panchayat passed a resolution, which in the opinion of the petitioner is an illegal action and a collusive one. The said resolution is with regard to shifting of the existing office building from Kallya Panchayat Sy. No.128/1A2, measuring 2 Acres 08 cents to the adjacent village of Karkala Panchayat by constructing a new building. As there was an opposition from some of the villagers the resolution was not put to effect. That the petitioner in the interregnum preferred an appeal invoking the provisions of Section 269(1) of Karnataka Panchayat Raj Act, 1993 (for short ‘the Act) before respondent No.2. The respondent No.2 proceeded to allow the appeal by holding that respondent No.3- Panchayat is not entitled to unilaterally resolve to shift the panchayat office and that in terms of Section 3E, 3F and 3G and 3H of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 such a resolution could be passed only by the Gram Sabha. This court observing the peculiar nature of the order and the dispute directed respondent No.2 to file an affidavit to justify his action of entertaining the appeal under Section 269 of the Act as admittedly what was called in question in the appeal is a resolution of the Panchayath. Section 269 of the Act which reads as under:-
“Section 269. Appeals.-[(1) Any person aggrieved by any original order of the Grama Panchayat under this Act, unless appeal is provided elsewhere in this Act, may within thirty days from the date of such order appeal to the Executive Officer.] (2) The Appellate Authority may after giving an opportunity to the appellant to be heard and after such enquiry as it deems fit, decide the appeal and its decision shall be final.
(3) Any appeal under sub-section (1) pending before the Zilla Parishad shall on the date of commencement of the Karnataka Panchayat Raj Act, 1993 stand transferred to the Assistant Commissioner and such appeal shall be decided by him as if it has been filed before him.”
5. Even as per the petitioner, no order has been passed but merely a resolution and hence invocation of provisions of Section 269 of the Act is highly improbable. The maintainability of the appeal itself is questionable. Despite the same, the appeal came to be entertained and the impugned order came to be passed.
6. This court has perused the affidavit filed by the Chief Executive Officer. The affidavit does not set-out any justification for entertaining the appeal. This court would not have interfered with the orders passed in appeal but for the fact that the instant writ petition is premised on the reliefs granted by the appellate authority. Prima-facie the order by the appellate authority appears to be one without jurisdiction as no order as such is passed enabling the petitioner to prefer the appeal. That apart the petitioner has also not made out any case to demonstrate as to how it is aggrieved by the resolution. Section 269 of the Act speaks of a person aggrieved and the petitioner can by no stretch of imagination be categorized as an aggrieved person in terms of Section 269 of the Act.
Hence, writ petition which is based on the order of the appellate authority which itself appears to be without jurisdiction and in the wrongful exercise of jurisdiction, the petition cannot be entertained and is accordingly rejected. Though the petition is rejected, it is held that the order impugned is unenforceable for otherwise it would amount to upholding an erroneous order.
No costs.
Chs* CT-HR Sd/- JUDGE