IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE H.T. NARENDRA PRASAD WRIT PETITION NO. 28765 OF 2009(LB-RES-PIL) BETWEEN 1. Shankareppa Sankappa Batakurki Age 60 years R/o Sureban Village Ramdurg Taluk Belguam District.
2. Churchappa Ramchanrappa Gaddennavar Aged about 64 years R/o Sureban Village Ramdurg Taluk Belgaum District.
3. Ballari Pandappa Achamatti Aged about 34 years R/o Sureban Village Ramdurg Taluk Belgaum District.
4. Fakirawwa Nagappa Waddar Aged about 48 years R/o Sureban Village Ramdurg Taluk Belgaum District.
5. Madigeppa Nagappa Waddar Aged about 34 years R/o Sureban Village Ramdurg Taluk Belgaum District. ... Petitioners (By Sri.P.Mahesha, Advocate) AND 1. The President Zilla Panchayath Belgaum District.
2. The Executive Officer Taluka Panchayath Ramdurg Taluk Belgaum District.
3. The Secretary Sureban Gram Panchayath Sureban Village Ramdurg Taluk Belgaum District.
4. Shivappa Laxmappa Amashi Aged about 31 years R/o Sureban Village Ramdurg Taluk Belgum District. ... Respondents (By Sri.Yogesh V Kotemath, Advocate for Sri. P.H. Virupakshaiah, Advocate R4: Sri. Lokesh Malavalli, Advocate for R2, R1 and R3 are served) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order passed by the respondent No.1, the President, Zilla Panchayath, Belgaum, in Appeal No.1/2009-2010 dated 21.08.2009 vide Annexure-D and etc.
This writ petition coming on for final hearing, this day, Chief Justice, made the following:
ORDER Heard learned counsel appearing for the petitioners and the learned counsel appearing for the fourth respondent. On the earlier date, after the matter was heard, as the learned counsel appearing for the second respondent was not present, the petition was adjourned till today.
2. The controversy revolves around a resolution passed by the third respondent Grama Panchayat bearing No.4/37 dated 10th December 2002. By the said resolution, on the application made by the fourth respondent, site subject matter of this petition was granted to the fourth respondent, on lease, subject to payment of annual rent as per the rules. The said order was challenged by the present petitioners by preferring an appeal to the President of Taluk Panchayat. By order dated 28th February 2009, the said appeal was allowed on the ground that the site was a public road to the site granted under the Akshaya Scheme Housing. The said order dated 28th February 2009 was challenged by the fourth respondent by preferring an appeal to the first respondent under the provisions of the Karnataka Panchayatraj Act, 1993 (for short, the said Act’). By order dated 21st August 2009, the said appeal was allowed and the resolution No.4/37 dated 10th December 2002 was upheld. The challenge in this petition is to the said order dated 21st August 2009.
3. The submission of the learned counsel appearing for the petitioners is that the site granted to the fourth respondent has a public road. The second contention raised by the learned counsel appearing for the petitioners is that in view of Section 209 of the said Act, a lease of the site could not have been granted by the Grama Panchayat to the fourth respondent without previous sanction of Taluk Panchayat. He submitted that such a previous sanction is not placed on record.
4. The learned counsel appearing for the fourth respondent invited our attention to the judgment in suit bearing O.S.No.62/1991. His submission is that in the civil suit, the contention raised by the petitioners has been rejected by the Trial Court and that the decree of the Trial Court has been affirmed by the District Court. He pointed out that in view of the decision of the Civil Court, now the argument that the site is covered by a public road is no longer open and therefore, no interference is called for.
5. We have given careful consideration to the submissions. A perusal of the resolution dated 10th December 2002, bearing No.4/37 shows that the Grama Panchayat granted site subject matter of this petition on lease basis to the fourth respondent. It is not stated in the resolution that lease was granted for a limited duration. Therefore, the Grama Panchayat granted lease of the site for a term exceeding five years. In view of proviso to Section 209 of the said Act, such lease could not have been granted without previous sanction of the Taluka Panchayat.
6. The learned counsel appearing for the fourth respondent submits that whether such previous sanction was granted or not, is within the special knowledge of the Taluk Panchayat and the Taluk panchayat is not represented before this Court.
7. On a plain reading of the proviso to Section 209, the lease under the resolution No.4/37 could not have been executed without previous sanction of the Taluk Panchayat. Whether there was a previous sanction of the Taluka Panchayat or not, is an issue which will have to be gone into. If there is no such previous sanction, then the said resolution is vitiated.
8. Therefore, it will be appropriate, if by setting aside the impugned order, the appellate authority is directed to go into the question whether such previous sanction was granted by the Taluk Panchayat. Such previous sanction is mandatory as a condition precedent for the Grama Panchayat to grant lease for a term exceeding five years.
9. As the Civil Court has dealt with the issue of public road, we are not entering into the said controversy. Accordingly, we pass the following order:
(i) The impugned order dated 21st August 2009 is hereby quashed and set aside and appeal No.1/2009-10 is remanded to the first respondent;
(ii) The appellant and the fourth respondent will appear before the first respondent on 19th August 2019 at 11.00 a.m. to enable the first respondent to fix a schedule for hearing of the appeal;
(iii) The remanded appeal shall be disposed of as expeditiously as possible and in any event, within a period of three months from the date fixed for the appearance of the parties;
(iv) The first respondent will call upon the sixth respondent in the appeal to produce the record for showing whether previous sanction as contemplated by Section 209 of the said Act was granted before the impugned resolution bearing No.4/37 was passed;
(v) We clarify that by virtue of setting aside of the impugned order, only on that ground, the possession of the fourth respondent shall not be disturbed till disposal of the remanded appeal.
(vi) Petition is partly allowed in the above terms. No order as to costs.
Sd/- CHIEF JUSTICE Sd/- JUDGE Cm/-