Karnataka High Court
Chikkatayamma vs Adhyaksha on 5 September, 2019
Author: H T Narendra Prasad
Bench: H. T. Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
WRIT PETITION NO.31429 OF 2019 (LB-RES)
BETWEEN:
Chikkatayamma
W/o late Javeregowda,
Aged about 75 years,
R/at Haniyambadi Village,
Kothathi Hobli,
Mandya District. ... Petitioner
(By Sri. Veeresha .K, Advocate for
Sri. H.B. Chandrashekar, Advocate)
AND:
1. Adhyaksha
Zilla Panchayath,
Mandya,
Mandya District - 571 401.
2. Adhyaksha
Taluk Panchayath,
Mandya Taluk - 571 401.
3. Panchayath Development Officer
Santhekasalagere Grama Panchayath,
Santhekasalagere,
Kothati Hobli,
Mandya Taluk - 571 478.
2
4. The Secretary
Santhekasalagere Grama Panchayath,
Santhekasalagere,
Kothati Hobli,
Mandya Taluk - 571 478.
5. H.J. Mahesh
S/o late Javeregowda,
Major,
6. Vidya
W/o H.J. Mahesh,
Major,
Respondent Nos.5 and 6 are R/at
Haniyambadi Village,
Kothathi Hobli,
Mandya Taluk,
Mandya District - 571 478. ... Respondents
(By Sri. B.J. Somayaji, Advocate for R3 & R4;
Sri. M.S. Manjanna, Advocate for R5 & R6;
R1 & R2 served)
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India, praying to quash the order by
respondent No.1 in appeal No.29/2017 dated 01.07.2019
vide Annexure-A and consequently dismiss the appeal and
etc.,
This Writ Petition coming on for Orders this day, the
Court made the following:
ORDER
This writ petition is directed against the order dated 01.07.2019 passed by respondent No.1 vide Annexure-A. 3
2. The case of the petitioner is that she is a joint khatha holder in respect of property bearing Site No.28, measuring 41 x 56 Sq. Ft situated at Haniyambadi Village, Kothathi Hobli, Mandya Taluk, Mandya District. The Village Panchayath, by resolution dated 12.03.2013 vide Annexure-B has directed to enter the name of respondent No.5 in the katha. Being aggrieved by the same, petitioner has filed an appeal before the Adhyaksha of Taluk Panchayath under Section 237 (2) of the Karnataka Panchayat Raj Act, 1993 (hereinafter referred to as 'the Act' for short). By order dated 11.12.2017 vide Annexure-D, Adhyaksha of Taluk Panchayath allowed the appeal and directed to enter the name of petitioner along with others in the katha Register. Being aggrieved by the same, respondent Nos.5 and 6 herein have filed an appeal before the Adhyaksha of the Zilla Panchayath. The Zilla Panchayath, by order dated 01.07.2019 allowed the appeal filed by respondent Nos.5 and 6 and restored the 4 resolution passed by the Village Panchayath. Being aggrieved by the same, the petitioner is before this Court.
4. Learned counsel appearing for the petitioner submits that property in dispute is jointly owned by the petitioner and respondent Nos.5 and 6. There was no partition in respect of property in dispute. The Village Panchayath without authority of law has passed a resolution vide Annexure-B and directed to enter the name of respondent No.5 in the katha register. He further contended that the appeal filed by the petitioner before the Adhyaksha of Taluk Panchayath has been rightly considered and appeal has been allowed. The order passed by the Adhyaksha of Taluk Panchayath, which has been set aside by the Adhyaksha of the Zilla Panchayath vide Annexure-A, is contrary to the law. Hence, he sought for allowing the writ petition. 5
5. Learned counsel appearing for respondent Nos.3 and 4 submitted that against the order passed by the Village Panchayath vide Annexure-B, petitioner has remedy under Section 269 of the Act. Instead of that, petitioner had filed an appeal before the Adhyaksha of Taluk Panchayath under Section 237 (2) of the Act. The Adhyaksha of Taluk Panchayath has no power to pass such an order. He further contended that against the order passed by the Adhyaksha of Taluk Panchayath, the appeal has been filed by respondent Nos.5 and 6 before the Adhyaksha of Zilla Panchayath. The same is not maintainable and is contrary to provisions of Section 237 of the Act. Both the Adhyaksha of Taluk Panchayath and Zilla Panchayath have passed orders, which are unsustainable.
6. Heard the learned counsel for the parties.
7. Against the resolution of the Village Panchayath vide Annexure-B dated 12.03.2013, the 6 petitioner has remedy under Section 269 of the Act. Without invoking the provisions of Section 269 of the Act, petitioner has filed an appeal before the Adhyaksha of Taluk Panchayath under Section 237 (2) of the Act. The provision of Section 237 of the Act is very clear that Adhyaskha of the Taluk Panchayath or the Adhyaksha of the Zilla Panchayath can entertain any resolution of the Grama Panchayath, which is unjust, unlawful or improper or is causing or is likely to cause injury or annoyance to the public or to lead to a breach of peace, he may by order suspend the execution or prohibit the doing thereof. Thereafter, he has to forward the same to the Government. But, he cannot pass an order for cancellation of the resolution passed by the Grama Panchayath. This action of the respondents are contrary to the provisions of Section 237 of the Act.
8. In view of the above, both orders are unsustainable and contrary to the provisions of Section 7 237 of the Act are liable to be quashed. Accordingly, the writ petition is allowed. The impugned order passed by the Zilla Panchayath dated 01.07.2019 at Annexure-A and order passed by the Taluk Panchayath dated 11.12.2017 at Annexure-D are quashed reserving liberty to the petitioner to file an appeal before the Competent Authority within a period of two weeks from today. The interim order granted by this Court continues for a further period of two weeks.
Sd/-
JUDGE MBM