IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 29TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL Nos.6847-6850 OF 2017 and WRIT APPEAL Nos.2817-2818 OF 2018 (LB-RES) BETWEEN:
1. S S OMKESH SON OF SRIKANTAPPA GOWDA AGED ABOUT 48 YEARS RESIDENT OF MILINA SAMPALLI MILINA SAMPALLI POST MARUTIPURA HOSANAGAR TALUK - 577412 SHIVAMOGGA DISTRICT.
2. M G TARAKESHWARA SON OF BHADRE GOWDA AGED ABOUT 42 YEARS RESIDEST OF MANJANE GRAMA HOSANAGAR TALUK - 577412 SHIVAMOGGA DISTRICT.
3. CHIDAMBARA H B SON OF DHARMAPPA AGED ABOUT 38 YEARS RESIDENT OF HUVINAKONE MANJANE GRAMA Page No.1 is retyped and replaced vide Court order dated 15.06.2019.
HOSANAGAR TALUK - 577412 SHIVAMOGGA DISTRICT.
4. MANJUNATH SON OF S C UMESH AGED ABOUT 52 YEARS PUTTANNA NAGARA (KAGEHALLA) ARALIHALLI POST BHADRAVATI TALUK - 577233 SHIVMAOGGA DISTRICT.
... APPELLANTS (BY SRI. PRUTHVI WODEYAR, ADVOCATE) AND:
1. THE STATE OF KARNATAKA DEPARTMENT OF PANCHAYATH RAJ M S BUILDING BENGALURU - 01 REPRESENTED BY ITS SECRETARY.
2. THE PRESIDENT ZILLA PANCHAYATH SHIVAMOGGA – 577101.
3. THE CHIEF EXECUTIVE OFFICER HOSANAGARA TALUK PANCHAYATH HOSANAGARA - 577418 SHIVAMOGGA DISTRICT.
4. THE GRAMA PANCHAYATH MARUTIPURA, HOSANAGARA TALUK - 577418 SHIVAMOGGA DISTRICT REPRESENTED BY ITS SECRETARY.
5. CHIEF PLANNING OFFICER ZILLA PANCHAYATH SHIVAMOGGA – 577101.
6. CHIEF EXECUTIVE OFFICER ZILLA PANCHAYATH SHIVAMOGGA – 577101.
... RESPONDENTS (BY SRI.S S MAHENDRA, AGA FOR RESPONDENT No.1) THESE APPEALS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE APPEALS BY SETTING ASIDE THE ORDER DATED 08/11/2017 PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NOS.10082-86/2017 AND WRIT PETITION NO.10088/2017 AND ALLOW THE WRIT PETITION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 08.11.2017 passed by the learned Single Judge in W.P.Nos.10082-86 of 2017 and W.P.No.10088 of 2017, by which the petitions were disposed off, with an observation that it is for the petitioners to avail appropriate remedy before the appropriate forum in higher hierarchy, the writ petitioners are in appeals.
2. The petitioners being members of the 4th respondent-Grama Panchayath filed writ petitions praying to quash the order dated 27.02.2017 passed by respondent No.3/Chief Executive Officer, Taluka Panchyath Hosadurga, by which, the petitioners were directed to pay a sum of Rs.50,000/- each, within seven days from the date of the order. It is stated that the 5th respondent-Zilla Panchayath released grant for construction of commercial godown to the 4th respondent Panchayath. The 4th respondent-Grama Panchayath estimated the value of godown to be constructed at Rs.3,00,000/- and the Grama Panchayath was to commence the work of construction after obtaining necessary permission. After completion of the work of commercial godown under SGSY scheme, the 4th respondent handed over the same to Vishwa Jyothi and Annapoorna Society. At that stage, it is stated that one B.Veerabhadrappa filed complaint before the Lokayukta against the petitioners alleging that the petitioners have not utilized the fund released under the SGSY scheme for the purpose, for which, it was released. It was alleged that the petitioners have utilized the fund for constructing the temple instead of commercial godown. The Lokayukta directed the 4th respondent to conduct enquiry. In turn, the 4th respondent issued notices to the petitioners. The petitioners replied to the notices denying the allegations and stated that they have not misappropriated the amount granted under SGSY scheme. The 5th respondent on holding the enquiry held that the petitioners have not misappropriated the fund and the petitioners have constructed the commercial godown, but the SGSY groups are not carrying on the business in the said building and being used as temple. The 3rd respondent issued notice dated 01.04.2016 to the petitioners directing them to pay a sum of Rs.50,000/- each, failing which to initiate action for recovery. Being aggrieved by the said order, the petitioners approached this Court in W.P.No.26531-533 of 2016 and this Court, by order dated 30.11.2016 disposed off the writ petitions remanding the same to the 3rd respondent for fresh consideration. The 3rd respondent after hearing the parties, by order dated 27.02.2012 ordered for recovery of Rs.50,000/- each, from the petitioners. Aggrieved by the said order, the instant writ petitions are filed. The learned Single Judge was of the view that it is for the petitioners to seek appropriate remedy before the appropriate forum under the Panchayathraj Act and disposed off the writ petitions. Against the order of the learned Single Judge, the petitioners are before this Court in these appeals.
3. Heard the learned counsel for the appellants and learned counsel for the respondents. Perused the appeal papers.
4. The learned counsel for the appellants would submit that the learned Single Judge committed an error in disposing off the writ petitions with an observation to avail such remedy available under the Karnataka Gram Swaraj and Panchayath Raj Act, 1993 (hereinafter referred to as ‘the Panchayath Raj Act’ for short) . It is further submitted that the learned Single Judge failed to take into consideration the observations made by this Court on an earlier occasion. It is submitted that the order passed by the 3rd respondent is wholly illegal and as such, the learned Single Judge ought to have set aside the order passed by the 3rd respondent. It is stated that the petitioners constructed the commercial godown under SGSY Scheme and handed over the same to the SGSY group. Hence, prayed for allowing the writ appeals.
5. Per contra, learned counsel appearing for the respondents argued in support of the order of the learned Single Judge and prayed for dismissal of the appeals.
6. The learned Single Judge disposed off the writ petitions with liberty to the petitioners to avail such remedy available under the Panchayath Raj Act. On going through the appeal papers and from the submissions of the learned counsels for the parties, we find no error or perversity in the order passed by the learned Single Judge. The 5th respondent released grant in favour of 4th respondent-Panchyath for construction of commercial godown. The Grama Panchayath was to construct the commercial godown for the benefit of SGSY groups. The commercial godown was constructed by the 4th respondent. But the same is not being put to use for the purpose for which it was constructed. The respondent- authorities based on the available materials have come to the conclusion that a temple is being run in the commercial godown constructed by the 4th respondent. The same is disputed by the petitioners. Whether the commercial godown is constructed, whether it is being put to use for the purpose, for which, it was constructed or whether the same is used as temple are all facts, which cannot be gone into in these writ petitions under Article 226 of the Constitution of India. The impugned order would indicate that the construction made by the 4th respondent is not being used for the purpose for which it was constructed.
On spot inspection, it was noted that the same is utilized as temple. As stated above, it involves disputed questions of fact, as such, the learned Single Judge, was of the opinion that the petitioners have to avail the remedy available to them under the Panchayath Raj Act. As noted above, since the matter involves disputed question of facts and also whether the petitioners have utilized the funds for the purpose for which it was granted, we are also of the view that the petitioners have to avail the remedy available under the Panchayath Raj Act.
7. No ground is made out to interfere with the order passed by learned Single Judge. Accordingly the writ appeals are dismissed.
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