IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No.56456/2017(LB-RES) AND WRIT PETITION No.3362/2018(LB-RES) BETWEEN:
1. THAMMEGOWDA S/O LATE. BORAIAH AGED ABOUT 58 YEARS 2. SMT.S.T.RENUKA W/O DEELIP D/O THAMMEGOWDA AGED ABOUT 23 YEARS BOTH ARE R/O SHIVALLI VILLAGE DUDDA HOBLI MANDYA TALUK & DISTRICT-571401.
... PETITIONERS (BY SRI. RAJA L., ADV.) AND 1. PRESIDENT JILLA PANCHAYAT MANDYA MANDYA DISTRICT PIN-571401.
2. PRESIDENT TALUKA PANCHAYAT OFFICE MANDYA, MANDYA DISTRICT PIN-571401.
3. PANCHAYAT DEVELOPMENT OFFICER SHIVALLI GRAM PANCHAYAT SHIVALLI MANDYA TALUK AND DISTRICT PIN-571401.
4. SMT. BHAGYAMMA AGED 48 YEARS W/O LATE. SHIVARAMU SHIVALLI VILLAGE, DUDDA HOBLI MANDYA TALUK PIN-571401 ... RESPONDENTS (BY SRI.B.J. SOMAYAJI, ADV. FOR R1, SRI. MANU B.P., ADV. FOR C/R4, R2 & R3 ARE SERVED BUT UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE RESPONDENT-1 IN JPM APPEAL NO.03/2017-18 DTD:30.11.2017 VIDE ANNEXURE-K AND QUASH THE ORDER PASSED BY THE RESPONDENT-2 IN APPEAL NO.43/2016-17 DTD:28.4.2017 AT ANNEXURE-J.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioners have filed these writ petitions challenging the order dated 30.11.2017 passed by the respondent No.1 vide Annexure-K and order dated 28.4.2017 passed by respondent No.2 vide Annexure-J.
2. The case of the petitioners is that the petitioners are the owners of the property bearing Panchayath katha No.224/1A measuring 42 x 63 feet. The further case of the petitioners is that after the death of the father of the petitioner No.1, the petitioner No.1 has become the absolute owner and in possession of the property and the katha stands in the name of the petitioner No.1. The portion of the property was sold in the year 2010 in favour of Smt.Rekha under the registered sale deed dated 13.10.2010. In turn, the petitioner No.2 purchased the said property from Smt.Rekha in the year 2015. Pursuant to the said sale, the katha has been entered in the name of the petitioner No.2. Being aggrieved by the same, the respondent No.4 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 28.4.2017 vide Annexure-J allowed the appeal filed by the respondent No.4. Being aggrieved by the same, the petitioners have filed an appeal before the Zilla Panchayath under Section 237 of the Act. The respondent No.1, Zilla Panchayath by order dated 30.11.2017 vide Annexure-K dismissed the appeal. Being aggrieved by the same, the petitioners have filed these writ petitions challenging the orders passed by the respondent Nos.1 and 2.
3. The learned counsel appearing for the petitioners submits that the impugned orders passed by the respondent Nos.1 and 2 are without authority of law and are without application of mind. Against the order passed by the Grama Panchayat, the respondent No.4 has to file an appeal under Section 269 of the Act. Hence, both the impugned orders are unsustainable. Hence, he sought for allowing the writ petitions.
4. The learned counsel appearing for the Panchayat has pointed out that in the very appeal filed by the respondent No.4 before the respondent No.2, in the preamble it is mentioned that the respondent No.4 herein has filed the appeal against the resolution passed by the Grama Panchayat. But the contention of the respondent No.4 that there is no resolution passed by the Grama Panchayath is not correct and he has not disputed that the impugned order is passed without jurisdiction. Hence, he sought for disposal of the writ petitions.
5. The learned counsel appearing for the respondent No.4 submits that the property in dispute belongs to respondent No.4. The petitioners have no manner of title, right and interest over the property and they have colluded with the members of the Grama Panchayat and got the katha transferred in their names. The es No.4 had filed a memo dated 22.8.2019 along with the endorsement issued by the Officer of the Grama Panchayat and submitted that there is no such resolution passed for effecting katha in the name of the petitioners. Hence, he sought for dismissal of the petitions.
6. Heard the learned counsel appearing for the petitioners, learned counsel appearing for the respondent No.1 and learned counsel appearing for the respondent No.4. Respondent Nos.2 and 3 are served, but remained unrepresented.
7. Detailed narration of facts would not call for any reiteration. The only contention raised by the petitioners is that the impugned orders passed by the respondent Nos.1 and 2 are without jurisdiction.
8. 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. In other words, the Adhyaksha of the Taluk Panchayat or the Adhyaksha of the Zilla Panchayath has power to suspend the execution of the unlawful order or resolution, which is likely to cause injury or annoyance toe the public at large. But he has no power to set aside the order.
9. Any person aggrieved by the order of the Grama Panchayath, the remedy is to file an appeal under Section 269 of the Act. 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. In view of the above, the impugned orders are without jurisdiction and they are unsustainable.
11. Accordingly, the writ petitions are allowed. The order dated 28.4.2017 passed by the respondent No.2-Adhyaksha of the Taluk Panchayath vide Annexure-J and order dated 30.11.2017 passed by the respondent No.1, Zilla Panchayath vide Annexure-K are quashed with the following directions:
a) If there is resolution passed by the Grama Panchayat, the respondent No.4 has remedy to challenge the impugned orders under Section 269 of the Act before the competent authority. If the respondent No.4 files an appeal before the competent authority within two weeks from the date of receipt of copy of this order, the competent authority without insisting for condonation of delay, shall consider the same on merits in accordance with law.
b) If there is no such resolution as contended by the learned counsel appearing for the respondent No.4, the respondent No.4 can file an application under Rules 11 & 12 of the Karnataka Panchayat Raj (Grama Panchayats Taxes and Fees) Rules, 1964 and approach the Grama Panchayath and get the rectification of the katha. If such application is filed, the Grama Panchayath shall consider the same and pass orders in accordance with law within four weeks from the date of application to be filed by the petitioners.
Sd/- JUDGE DM