IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No.9910/2014(LB-RES) BETWEEN:
MADAIAH S/O BODADAIAH AGED ABOUT 60 YEARS R/O KADU KOTTANA HALLI C.A.KERE HOBLI MADDUR TALUK MANDYA DISTRICT-571428. (BY SRI. D.S.HOSMATH, ADV. ) AND 1. THE PRESIDENT MANDYA ZILLA PANCHAYAT MANDYA DISTRICT-571401.
2. THE PRESIDENT TALUK PANCHAYATH MADDUR DISTRICT MANDYA-571428 ... PETITIONER 3. THE PANCHAYAT DEVELOPMENT OFFICER KADU KOTTANAHALLI GRAMA PANCHAYAT C.A.KERE HOBLI MADDUR TALUK MANDYA DISTRICT-571428.
4. B.MANJUNATH S/O LATE. P.BALASUNDER MAJOR 5. SMT. PRABHAVATHI W/O NATARAJU MAJOR RESPONDENT NOS.4 & 5 ARE R/O KADU KOTTANAHALLI HOBLI C.A.KERE HOBLI, MADDUR TALUK MANDYA DISTRICT-571428.
... RESPONDENTS (BY SRI. ANANDESWARA, HCGP. FOR R2 SRI.B.J.SOMAYAJI, ADV. FOR R1 & R3, SRI. VIJAY KUMAR, ADV. FPR R4 & R5.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS, QUASH THE ORDER VIDE ANNEXURE-C PASSED BY THE RESPONDENT NO.1, ZILLA PANCHAYAT IN APPEAL NO.35/2012-13 DATED 13.12.2013.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner has filed this writ petition challenging the order dated 13.12.2013 passed by the respondent No.1, Zilla Panchayath.
2. Brief facts of the case:
The petitioner is the owner of the property bearing old Genger No.275 (New Property No.4) measuring 34 feet X 50 feet situated in Kadu Kottanahalli Village. The mutation is also entered in the name of the petitioner by the Grama Panchayath. That the respondent Nos.4 and 5 are the owners and in possession of Genger No.834, Property No.558 measuring 36 feet x 54 feet. In that property, respondent Nos.4 and 5 have constructed a house. The respondent Nos.4 and 5 have filed an application before the Village Panchayath seeking for change of katha in their name. Pursuant to that, their names were entered in the Katha register in respect of Ginger No.275, Property No.4. Being aggrieved by the same, the petitioner has filed an appeal under Section 237 of the Karnataka Panchayath Raj Act, 1993 (for short “the Act”) before the Taluk Panchayath. The Adhyaksha of Taluk Panchayath by order dated 7.9.2012 allowed the appeal filed by the petitioner and directed the Village panchayath to enter the name of the petitioner in respect of property No.4. Being aggrieved by the same, the respondent Nos.4 and 5 have filed an appeal before the Zilla Panchayath under Section 237 of the Act. The respondent No.1, Zilla Panchayath by order dated 13.12.2013 has allowed the appeal. Being aggrieved by the same, the petitioner has filed this writ petition.
3. The learned counsel for the petitioner submits that the land in dispute bearing old Ginger No.275 (New Property No.4) measuring 34 feet X 50 feet belongs to the petitioner and mutation is also effected in the name of the petitioner. Without notice to the petitioner, on the request of respondent Nos.4 and 5, the respondent No.3 has changed the mutation entry in the name of the respondent Nos.4 and 5. Hence, the petitioner has filed an appeal before the Taluk Panchayath. The Adhyaksha of the Taluk Panchayath by exercising the power under Section 237 of the Act has allowed the appeal filed by the petitioner. Thereafter, the Zilla Panchayath without giving an opportunity to the petitioner has allowed the appeal filed by the respondent Nos.4 and 5. Hence, he sought for allowing the petition.
4. The learned counsel appearing for the respondent Nos.4 and 5 has submitted that the property in dispute belongs to respondent Nos.4 and 5. Considering the material documents produced by the respondent Nos.4 and 5, the Zilla Panchayath has rightly passed an order. Hence, he sought for dismissal of the petition.
5. The learned counsel appearing for the Zilla Panchayath and also the learned Government Advocate has submitted that against the order passed by the Taluk Panchayath, the aggrieved person has filed an appeal under Section 237 of the Act. The appeal filed by the petitioner before the Adhyaksha of Taluk Panchayath under Section 237 of the Act and appeal filed by the respondent Nos.4 and 5 before the Zilla Panchayath under Section 237 of the Act is not maintainable. Hence, both the orders passed at Annexures-B and c are unsustainable.
6. Heard the learned counsel appearing for the parties.
7. It is not in dispute that being aggrieved by the order passed by the respondent No.3, Village Panchayath, the petitioner has filed an appeal under Section 237 of the Act before the Taluk Panchayath. The Adhyaksha of the Taluk Panchayath has allowed the appeal filed by the petitioner. Being aggrieved by the same, the respondent Nos.4 and 5 have filed an appeal before the Zilla Panchayath under Section 237 of the Act. Respondent No.1, Zilla Panchayath has allowed the appeal filed by the respondent Nos.4 and 5.
8. Any person aggrieved by the order of the Grama Panchayath, the remedy is to file an appeal under Section 269 of the Act.
9. Section 269 of the Karnataka Panchayat Raj Act reads thus:
269. Appeals- 1) Any person aggrieved by any order of Grama Panchayat under this Act, unless appeal is provided else where in 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.”
10. Section 237 of the Act can be invoked only if in the opinion of the Adhyaksha of Taluk Panchayat, the execution of any order or resolution of the Grama Panchayath is causing or likely to cause injury or annoyance to the public, then only they can maintain an appeal under section 237 of the Act.
11. In view of the above, the order passed by the Adhyaksha of the Taluk Panchayath vide Annexure-B and order passed by the Zilla Panchayath vide Annexure-C are without jurisdiction. Hence, both the orders passed vide Annexures-B and C are quashed reserving liberty to the petitioner to challenge the order passed by the Village Panchayath before the competent authority.
12. With the above observation, the writ petition is disposed of.
Sd/- JUDGE DM