Karnataka High Court
Ashok vs The State And Ors on 12 March, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC-K:2128
WP No. 207252 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
WRIT PETITION NO. 207252 OF 2017 (GM-RES)
BETWEEN:
ASHOK S/O RAMANNA KANDASAR,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/: JAMANLAL,
TQ & DIST: VIJAYAPURA-586101
...PETITIONER
(BY SRI SANJAY KULKARNI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF LOCAL BOARD,
Digitally signed by VIDHANASOUDHA, BENGALURU-560001.
SHILPA R
TENIHALLI
Location: High 2. KARNATAKA STATE COMMISSION
Court Of Karnataka FOR SCHEDULED CASTE & SCHEDULED TRIBES
NO.14/3, 2ND FLOOR, C.F.C BUILDING,
NRUPATUNGA ROAD, BENGALURU-1,
BY ITS PRESIDENT-560001.
3. THE CHIEF EXECUTIVE OFFICER,
ZILLA PANCHAYAT, VIJAYAPURA-586101.
4. THE DEPUTY DIRECTOR
SOCIAL WELFARE DEPARTMENT,
VIJAYAPURA DISTRICT-586101.
5. PANCHAYAT DEVELOPMENT OFFICER
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NC: 2024:KHC-K:2128
WP No. 207252 of 2017
GRAM PANCHAYAT JUMANAL, JUMANAL,
DIST: VIJAYAPURA-586101.
6. CHIEF EXECUTIVE OFFICER
TALUKA PANCHAYAT, VIJAYAPURA-586101.
7. DR. BABASAHEB AMBEDKAR
YOUTH ASSOCIATION,
JUMANAL, DIST: VIJAYAPURA-586101.
BY ITS PRESIDENT
...RESPONDENTS
(BY SRI. VEERANAGOUDA MALIPATIL HCGP,
FOR R1, R2 AND R4;
SRI. S.S.HIREMATH, ADVOCATE FOR
SMT. RATNA N. SHIVAYOGIMATH, ADVOCATE
FOR R3, R5 AND R6; R7 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE
WRIT, ORDER OR DIRECTION QUASHING THE ORDER DATED-
02.08.2017 PASSED BY THE 2ND RESPONDENT IN ENQUIRY
NO.304/2016 PRODUCED AT ANNEXURE-F.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioner Sri Sanjay Kulkarni, learned High Court Government Pleader Sri Veeranagouda Malipatil for respondent Nos.1, 2 and 4 and learned counsel Sri S.S.Hiremath for learned counsel Smt.Ratna N. Shivayogimath for respondent Nos.3, 5 and
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2. The writ petition is filed with the following prayers:
"i) Issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing the order dated 02.08.2017 passed by the 2nd respondent in enquiry No.304/2016 produced at Annexure-F in the interest of justice and equity.
ii) Grant such other relief as deemed fit in the circumstances of the case and in the interest of justice and equity."
3. The grievance of the petitioner is that the 7th respondent has applied for a suitable site for construction of Ambedkar Bhavan. They approached the 2nd respondent in this regard. The 2nd respondent has entertained the request of the 7th respondent and passed an order vide Annexure-F on 02.08.2017, directing the Chief Executive Officer, Zilla Panchayat, Vijayapur, the Deputy Director, Social Welfare Department, Vijayapur and the Panchayat Development Officer, Gram Panchayat, Jumanal to allot a site measuring 75'x50.5' in property -4- NC: 2024:KHC-K:2128 WP No. 207252 of 2017 bearing No.774 of Jumanal village. Being aggrieved by the same, the writ petitioner is before this Court.
4. The learned counsel for the petitioner reiterating the grounds urged in the writ petition contended that the 2nd respondent had no authority for issuing any direction to the aforesaid authorities and without holding an enquiry and without notifying the present petitioner, the 2nd respondent directed the authorities to allot a site measuring 75'x50.5' in Jumanal village in property bearing No.774, which encompasses the land of the petitioner.
5. He also contended that without verifying the extent of land available in property bearing No.774 of Jumanal village, the direction issued by the 2nd respondent has affected the rights of the petitioner and therefore, sought for setting aside the said order by allowing the writ petition.
6. Per contra, the learned High Court Government Pleader for respondent Nos.1, 2 and 4 contended that -5- NC: 2024:KHC-K:2128 WP No. 207252 of 2017 under Articles 338 and 338A of the Constitution of India, the National Commission for Schedule Castes and Schedule Tribes has been established, which has got statutory backing and therefore, the Commission is entitled to enquire into the matters as is contemplated under Articles 338 and 338A of the Constitution of India and take suitable recommendations. Based on request made by the 7th respondent, National Commission has passed the order at Annexure-F, which is justifiable in nature and therefore, sought for dismissal of the writ petition.
7. The learned counsel for respondent Nos.3, 5 and 6 submitted that the Zilla Panchayat, Vijayapur would obey the orders passed by this Court.
8. Having heard the parties in detail, this Court has meticulously perused the materials on record.
9. On such perusal of the materials on record, it is crystal clear that the 2nd respondent has been established as per Articles 338 and 338A of the Constitution of India. -6-
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10. In order to appreciate the rival contentions of the parties, it is just and necessary for this Court to cull out Articles 338 and 338A of the Constitution of India, which reads as under:
"338. National Commission for Scheduled Castes (1) There shall be a Commission for the Scheduled Castes to be known as the National Commission for the Scheduled Castes.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may by rule determine.
(3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal.
(4) The Commission shall have the power to regulate its own procedure.
(5) It shall be the duty of the Commission--
(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes ;
(c) to participate and advise on the planning process of socio-economic development of the Scheduled Castes and to evaluate the progress of their development under the Union and any State;
(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
(e) to make in such reports recommendations as to the measures that should be taken by the Union or -7- NC: 2024:KHC-K:2128 WP No. 207252 of 2017 any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes; and
(f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by the rule specify.
(6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations.
(7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations.
(8) The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely:--
(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;
(b) requiring the discovery and production of any documents;
(c) receiving evidence on affidavits;
(d) requisitioning any public or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses and documents;
(f) any other matter which the President may by rule determine.
(9) The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Castes .
(10)In this article, references to the Scheduled Castes shall be construed as including references to such -8- NC: 2024:KHC-K:2128 WP No. 207252 of 2017 other backward classes as the President may, on receipt of the report of a Commission appointed under clause (1) of article 340 by order specify and also to the Anglo-
Indian community.
338A. National Commission for Scheduled Tribes.
(1) There shall be a Commission for the Scheduled Tribes to be known as the National Commission for the Scheduled Tribes.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may by rule determine.
(3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal.
(4) The Commission shall have the power to regulate its own procedure.
(5) It shall be the duty of the Commission-
(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes;
(c) to participate and advise on the planning process of socioeconomic development of the Scheduled Tribes and to evaluate the progress of their development under the Union and any State;
(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
(e) to make in such reports recommendation as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Tribes; and -9- NC: 2024:KHC-K:2128 WP No. 207252 of 2017
(f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Tribes as the President may, subject to the provisions of any law made by Parliament, by rule specify.
(6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any such recommendations.
(7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations.
(8) The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses and documents;
(f) any other matter which the President may, by rule, determine.
(9) The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Tribes."
11. On careful perusal of the aforesaid provisions, no doubt, the 2nd respondent has got the powers as referred
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NC: 2024:KHC-K:2128 WP No. 207252 of 2017 to supra for summoning the persons, enquiring into the matters etc. However, the said power would not confer any jurisdiction on the 2nd respondent in issuing directions to the Zilla Panchayat or the Government Authorities. At the most, the 2nd respondent may make a recommendation.
12. In the case on hand, under Annexure-F, the directions have been issued to the aforesaid authorities as referred to supra for allotment of property bearing No.774 of Jumanal village.
13. The petitioner being the adjacent owner contends that he is affected by the said order, inasmuch, no place is available measuring 75'x50.5' in property bearing No.774 of Jumanal village belonging to the Government and in the guise of the order at Annexure-F, the Taluka Panchayat Officers are trying to interfere with the property of the writ petitioner and hence the petitioner sought for quashing the order at Annexure-F.
14. Having carefully perused the material on record, it is crystal clear that without passing the order at Annexure-F, the petitioner is not notified in the first place.
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15. Secondly, the 2nd respondent has not taken into consideration as to what is the exact area of land that is available in property bearing No.774 of Jumanal village. Based on the order, the Taluka Panchayat Officers are trying to interfere with the land bearing No.774.
16. As such, Annexure-F needs to be considered as only a recommendation to the Zilla Panchayat, Vijayapur and Taluka Panchayat, Jumanal and it cannot be treated as an order of the 2nd respondent, as 2nd respondent has no power to issue any directions for allotment.
17. Accordingly, the following order is passed:
ORDER
a) The writ petition is allowed in part.
b) Annexure-F is to be construed by the Zilla Panchayat and Talukak Panchayat and Gram Panchayat Officers of Vijayapur as only a recommendation and if any space is available belonging to the Government, the recommendation may suitably considered and suitable place may be allotted to the 7th respondent either in property
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NC: 2024:KHC-K:2128 WP No. 207252 of 2017 bearing No.774 or any other place suitable to the 7th respondent.
Sd/-
JUDGE SRT CT-SI List No.: 1 Sl No.: 56