Karnataka High Court
12Th Heggunje Grama Panchayath vs The Deputy Commissioner on 18 January, 2018
Author: Vineet Kothari
Bench: Vineet Kothari
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 18TH DAY OF JANUARY 2018
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION No.5516 OF 2014 (LB-RES)
Between:
12th Heggunje Grama Panchayath
Mandarthi Post
Udupi Taluk & District 576 223
Rep. by its Panchayath Development Officer. ...Petitioner
(By:Mr.Ajith Anand Shetty, Advocate)
And:
1. The Deputy Commissioner
Manipala Rajathadri D.C.Bhavana
Udupi 576 104, Udupi District.
2. Udupi Taluk Panchayath
Udupi 576 104, Udupi District
Rep. by its Executive Officer.
3. The Adhyaksha
Udupi Taluk Panchayath
Udupi 576 104, Udupi District.
4. Udupi Zilla Panchayath
Manipala Rajathadri D.C.Bhavana
Udupi 576 104, Udupi District
Rep. by its Chief Executive Officer.
5. Sri Durgaparameshwari Temple
Mandarthi, Kota Hobli
Date of Order 18-01-2018 W.P.No.5516/2014
12th Heggunje Grama Panchayath Vs.
The Deputy Commissioner & Others.
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Udupi Taluk & District 576 104
Rep. by its Executive Officer. ...Respondents
(By:Mr.A.K.Vasanth, A.G.A. for R1
Mr.Ashok N. Naik, Advocate for R2 to R4
Mr.H.Jayanth Poojary, Advocate
for Mr.K.Prasad Hegde, Advocate for R5)
This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India praying to quash the order dated
29.1.2014 made in Appeal No.2/2013-14 passed by the R3
vide Annexure-G and etc.
This W.P. coming on for orders this day, the Court
made the following:-
ORDER
Mr.Ajith Anand Shetty, Advocate for Petitioner. Mr.A.K.Vasanth, A.G.A. for Respondent No.1 Mr.Ashok N. Naik, Advocate for Respondent Nos.2 to 4 Mr.H.Jayanth Poojary, Advocate for Mr.K.Prasad Hegde, Advocate for Respondent No.5.
The present Writ Petition has been filed by the petitioner - 12th Heggunje Grama Panchayath, in this Court on 31.1.2014 challenging the order dated 29.1.2014 vide Annexure-G, passed by the respondent No.3 - Adhyaksha, Udupi Taluk Panchayat, Udupi suspending the Resolutions passed by the petitioner- Grama Panchayat for securing the revenue generated out of the public auction of temporary stalls and shops Date of Order 18-01-2018 W.P.No.5516/2014 12th Heggunje Grama Panchayath Vs. The Deputy Commissioner & Others.
3/11 to be set up in the religious festival to be held in the month of February every year by the respondent No.5 - Sri Durgaparameshwari Temple.
2. The contention raised on behalf of the petitioner - Grama Panchayath is that whatever land of about 2.00 acres is available for the said purpose is of the Temple but its surrounding land beyond its titled land, does not belong to the respondent No.5 - Temple Trust and therefore the Temple Trust is entitled to the revenue generated in the public auction of temporary stalls and shops only to the limited extent of its titled land, but the revenue out of the public auction for temporary stalls on the remaining land, i.e. outside the said limits of its titled land, such excess revenue should go to the petitioner - Grama Panchayat, because the land belongs to Grama Panchayat.
3. Mr.Ajith Anand Shetty, the learned counsel for the petitioner - Grama Panchayat has submitted Date of Order 18-01-2018 W.P.No.5516/2014 12th Heggunje Grama Panchayath Vs. The Deputy Commissioner & Others.
4/11 that the Resolutions of the Gram Panchayath were passed to this effect only to ensure that such revenue from such auction is secured for the petitioner-Grama Panchayat, but the respondent No.3 - Adhyaksha, Udupi Taluk Panchayat, by his impugned order, Annexure-G dated 29.1.2014 had suspended the said Resolutions by exercise of his powers under Section 237 (1) of the Karnataka Panchayat Raj Act, 1993, which empowered the Adhyaksha of Taluk Panchayat to suspend the Resolution of the Grama Panchayat, which is unjust, unlawful or improper or is causing or is likely to cause injury or annoyance to the public leading to the breach of peace. He submitted that the impugned order was illegal and therefore, the same was challenged by the petitioner-Grama Panchayat before this Court.
4. The learned counsel for the petitioner further informed the Court that under the interim order dated 5.2.2014 granted by the Coordinate Bench of this Court Date of Order 18-01-2018 W.P.No.5516/2014 12th Heggunje Grama Panchayath Vs. The Deputy Commissioner & Others.
5/11 for the last four years, since 2014 till 2017, while the revenue out of such auctions have been given to the Temple to the extent of land belonging to them but the surplus revenue under the auction held by the Assistant Commissioner have been deposited with the Registry of this Court under the said interim order dated 5.2.2014 passed by the Coordinate Bench of this Court. He submits that the average revenue belonging to the petitioner - Grama Panchayt is in the range of `1.20 to 1.50 lakhs every year, which should be released to the petitioner Grama Panchayat.
5. The learned counsel for the respondent No.5
- Temple Trust, Mr.Jayanth Poojary, submitted that the impugned order dated 29.1.2014 passed by the Adhyaksha of Taluk Panchayat, Udupi is the interim order and the matter is pending before the concerned Zilla Panchayat, Udupi, which is seized of the matter.
Date of Order 18-01-2018 W.P.No.5516/2014 12th Heggunje Grama Panchayath Vs. The Deputy Commissioner & Others.
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6. Having heard the learned counsels for the parties, this Court is of the opinion that the Resolutions passed by the petitioner - Grama Panchayat, which was impugned by the respondent No.5 - Temple Trust before the Adhyaksha of Taluk Panchayat, Udupi, cannot be said to be unjust, unlawful or prejudicial to the interests of public in any manner. The tenor of the said Resolutions passed by the petitioner-Grama Panchayat was to secure the due revenue from such public auctions conducted by the respondent No.5 - Temple Trust, but if the shops allotted by them were beyond the limits of their title lands of the Temple and such outside lands definitely belonged to the Grama Panchayat, they were entitled to secure the revenue generated on the ground of such licence or temporary allotment of shops to various persons to Grama Panchayat itself and such Resolutions to sub-serve the revenue interest of the Grama Panchayat, could not be said to be unlawful or unjust in any manner.
Date of Order 18-01-2018 W.P.No.5516/2014 12th Heggunje Grama Panchayath Vs. The Deputy Commissioner & Others.
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7. The impugned order passed by the Adhyaksha of Taluk Panchayat, Udupi, even though interim order under Section 237 of the Act, therefore, is ex-facie and deserves to be quashed and the same is accordingly quashed. The matter pending before the Zilla Panchayat would also thus rendered infructuous and shall stand disposed of accordingly.
8. However, since the forthcoming season of the auction of such shops in the near future in the month of February is drawing close and this revenue sharing issue has to be settled for future also, appropriate orders for that purpose deserve to be passed by this Court. Accordingly, it was suggested to the learned counsels of both sides and they fairly agreed to it that the auction of such public shops or stalls from now onwards be conducted by the respondent No.5 - Temple Trust under the supervision of the concerned Assistant Commissioner of Udupi and the entire revenue Date of Order 18-01-2018 W.P.No.5516/2014 12th Heggunje Grama Panchayath Vs. The Deputy Commissioner & Others.
8/11 generated by such auction of stalls and shops in the festival held by the Temple Trust in the month of February be divided between the petitioner - Grama Panchayat and the respondent No.5 - Temple Trust depending upon the respective areas owned by them. It goes without saying that the respondent No.5 - Temple Trust would be entitled to such revenue only to the extent of land actually owned by them.
9. However, for facilitating the festival, if the shops are allotted beyond the title lands of the Temple Trust, the revenue generated by such auction to the extent of shops allotted beyond the title of land of the Temple will go to the petitioner - Grama Panchayat. For determining the said allocation of area and revenue generated by public auction, the Assistant Commissioner is directed to go only by the title of the respondent No.5 - Temple Trust and not by any past practice or convention in this regard. Further, the said Date of Order 18-01-2018 W.P.No.5516/2014 12th Heggunje Grama Panchayath Vs. The Deputy Commissioner & Others.
9/11 Authority will also decide the place and location for allotment of stalls or shops, keeping in mind the public safety, hygiene, etc., where such shops can be allotted and also keeping in mind the fact that the shops in question are on both sides of the State Highway in the said area near the said Temple, therefore, the safe distance from the centre of the Road for that purpose may be maintained and it is for the Assistant Commissioner to pass appropriate orders in this regard determining the exact location of shops to be allocated in the public auction for the aforesaid purpose. This practice can be followed annually for the said purpose.
10. The Assistant Commissioner, Udupi is therefore directed to hold such public auction after passing appropriate orders in this regard after hearing the representatives of both, the petitioner-Grama Panchayat and the respondent No.5-Temple Trust, within a period of two weeks from today, after hearing Date of Order 18-01-2018 W.P.No.5516/2014 12th Heggunje Grama Panchayath Vs. The Deputy Commissioner & Others.
10/11 both the parties in the first instance on 23.1.2018, such order shall be passed determining the place for shops, the extent of title land of the respondent No.5 - Temple Trust and the ratio of revenue sharing by both the parties on or before 31.1.2018. After such auction is conducted and revenue sharing process is completed by the Assistant Commissioner, a Report to the said effect may be furnished to this Court before end of February 2018.
11. The amount lying in deposit with the Registry of this Court under the interim order dated 5.2.2014 passed by the Coordinate Bench of this Court, with accrued interest, if the said deposit was lying in interest bearing deposit with some bank, the same may also be released in favour of the petitioner - Grama Panchayat after obtaining due acknowledgement to the same.
Date of Order 18-01-2018 W.P.No.5516/2014 12th Heggunje Grama Panchayath Vs. The Deputy Commissioner & Others.
11/11 With these observations and directions, this Writ Petition is disposed of. No order as to costs.
In view of the disposal of the Writ Petition, I.A.Nos.1/14, 2/14 and 1/18 are also disposed of.
Sd/-
JUDGE VGR