Karnataka High Court
Smt. Mamatha vs The Executive Officer on 12 November, 2021
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.54819/2015 (LB - RES)
BETWEEN
SMT. MAMATHA,
W/O CHENNAPPAGOWDA,
AGED ABOUT 32 YEARS,
R/AT DOOR NO.1-298(A)
KIDENAR HOUSE,
ANANTHADY VILLAGE,
BANTWAL TALUK,
D.K.DISTRICT - 574 253.
... PETITIONER
[BY SRI.PRASANNA V.R., ADVOCATE
(VIDEO CONFERENCING)]
AND
1. THE EXECUTIVE OFFICER,
TALUK PANCHAYATH BANTWAL,
D.K.DISTRICT - 574 219.
2. ANANTHADY GRAMA PANCHAYATH,
REPRESENTED BY ITS PDO,
BANTWAL TALUK,
D.K.DISTRICT - 574 219.
3. SRI.THIMMAPPA POOJARY,
S/O LATE LINGAPPA POOJARY,
AGE MAJOR,
R/AT KIDENAR HOUSE,
2
ANANTHADY VILLAGE,
BANTWAL TALUK
D.K.DISTRICT - 574 253.
... RESPONDENTS
[BY SMT.BHAVYA H., ADVOCATE FOR
SRI.T.MOHANDAS SHETTY, ADVOCATE FOR R1
(PHYSICAL HEARING);
R2 IS SERVED;
SRI.G.R.RAVISHANKAR SHASTRY, ADVOCATE FOR R3
(PHYSICAL HEARING)]
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 27.5.2015 PASSED BY THE R-1 VIDE ANNEXURE -
A; GRANT AN INTERIM ORDER TO STAY THE OPERATION OF THE
ORDER DATED 27.5.2015 PASSED BY THE R-1 VIDE ANNEXURE -
A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner is before this Court calling in question the order passed by respondent No.1 - the Executive Officer of Taluk Panchayat dated 27.05.2015 in exercise of its power under Section 269 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (hereinafter referred to as 'the said Act' for short). 3
2. Heard Sri. Prasanna V.R., learned counsel appearing for the petitioner, Smt. Bhavya H., learned counsel for Sri. T. Mohandas Shetty appearing for respondent No.1, Sri. G.R. Ravishankar, learned counsel appearing for respondent No.3 and have perused the material on record.
3. Brief facts leading to the filing of the present writ petition, as borne out from the pleadings, are as follows:
The petitioner claims to be in possession of portion of a land measuring 60 cents in Sy.No.56/1 of Ananthady Village Bantwal Taluk, Dakshina Kannada and also admits that she is in unauthorized occupation of the said land, has been cultivating the same by raising coconut trees and other fruit bearing trees and also has a dwelling house in the said area. The total measurement of Sy.No.56/1 is about 10 acres and 60 cents and out of which, 60 cents is what the petitioner is holding, admittedly unauthorized.
4. The petitioner constructs a dwelling house in the said survey number and seeks allotment of a door number to the said 4 house by filing an application on 06.08.2012. The said application is placed before the Gram Panchayat. The Gram Panchayat resolves to issue a public notice calling for objections for issuance of door number on 03.09.2012. Since no objection was received the Gram Panchayat resolves to issue the door number for the house that the petitioner has constructed and accordingly, door number 1-298-A was issued in favour of the petitioner and tax was being collected from time to time. This is called in question by respondent No.3 before respondent No.1 - the Executive Officer of the Taluk Panchayath invoking Section 269 of the said Act. Respondent No.1 - the Executive Officer of the Taluk Panchayat by his order dated 27.05.2015 sets aside the order of the Gram Panchayath directing allotment of a door number in favour of the petitioner. It is this order that is called in the subject petition.
5. Learned counsel appearing for the petitioner submits that the appeal before respondent No.1 - the Executive Officer of the Taluk Panchayath was not maintainable since the appeal is 5 available under Section 237 of the said Act. The resolution of the Gram Pachayath could not have been challenged before respondent No.1 - the Executive Officer of the Taluk Panchayat invoking Section 269 of the said Act and would further submit that his application seeking regularization of such unauthorized occupation of Government land is pending consideration at the hands of the Government. The removal of door number will dispossess the petitioner.
6. On the other hand learned counsel appearing for respondent No.2 - the Gram Panchayat and respondent No.3 - complainant in unison would submit that petitioner was directed not to put up any construction and notwithstanding the said direction, the petitioner has put up such construction and the door number allotted by the Gram Panchayat was on the face of it, illegal. Therefore, exercising the power under Section 269 of the said Act, respondent No.1 - the Executive Officer of the Taluk Panchayat has rightly annulled the resolution of the Gram Panchayath.
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7. I have given my anxious consideration to the contentions of respective learned counsel.
8. Insofar as the contention of the learned counsel appearing for the petitioner with regard to non-maintainability of the appeal before respondent No.1 - the Executive Officer of the Taluk Panchayat is concerned, Section 269 of the said Act reads as follows:
"269. Appeals.- [[(1) Any person aggrieved by any original order of the Grama Panchayat under this Act, unless appeal is provided elsewhere in this Act, may within thirty days from the date of such order appeal to 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 7 Assistant Commissioner and such appeal shall be decided by him as if it has been filed before him."
Any person aggrieved by any original order passed by the Gram Panchayat unless appeal is provided elsewhere in the said Act, may prefer an appeal.
9. The contention of the learned counsel appearing for the petitioner is that since an appeal remedy is provided under section 237 of the said Act, an appeal under Section 269 of the said Act would not be maintainable, is unacceptable. Section 237(1) of the said Act reads as follows:
"237. Power of suspending execution of unlawful orders or resolution.- (1) If in the opinion of the [Adhyaksha of Taluk Panchayat], the execution of any order or resolution of a Grama Panchayat or any order of any authority or officer of the Grama Panchayat or the doing of anything which is about to be done, or is being done, by or on behalf of a Grama Panchayat [other than law full resolutions and decisions taken by the authorities specified in Sections 64, 70, 113 and 269 of this 8 Act] 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."
Power of suspending an execution of an unlawful order or resolutions of the panchayat is what Section 237 of the said Act gives to the hands of the Adhyaksha for the Taluk Panchayat.
10. The person aggrieved by any resolution of a Gram Panchayat is necessarily to invoke the power under Section 269 of the said Act of filing an appeal against the resolutions of the Gram Panchayat. Therefore, the resolution of the Gram Panchayat, which resolved to allot a door number against the petitioner, was rightly filed before respondent No.1 - the Executive Officer of the Taluk Panchayat invoking Section 269 of the said Act.
11. The State to ward off this obfuscation has also amended Section 237 of the said Act by way of insertion, inserting the words 'other than lawful resolutions' under Section 9 269 of the said Act, on 31.03.2020. Therefore, as on today, the position of law is clear by this insertion, even otherwise, if an person is aggrieved by the resolution of the Gram Panchayat, the remedy is to file an appeal under Section 269 of the said Act and not 237of the said Act. Therefore, the said submission is negatived.
12. The other submission of the learned counsel that the door number ought to have been retained and not quashed, would result in his dispossession from the house that she is dwelling is concerned, the order impugned clearly narrates that petitioner was intimated not once but twice not to put up any construction in the Government land, notwithstanding this, the petitioner did continue with the construction and set up a dwelling house in the said land that she is holding. The land that the petitioner holds is admittedly a Government land and as admitted by the petitioner in the petition itself is an unauthorized occupant and has applied for regularization of the said unauthorized occupation in terms of her application dated 10 10.07.2014. Therefore, no fault can be found with the order passed by respondent No.1 - the Executive Officer of the Taluk Panchayat directing removal of allotment of the door number given to the petitioner. However, the said removal will remain subject to the orders being passed on the application submitted by the petitioner for regularization of her construction.
With the aforesaid observations, while declining to interfere with the impugned order, the writ petition stands disposed.
Sd/-
JUDGE SJK