Karnataka High Court
Sri. U.V. Sridhar vs State Of Karnataka on 15 December, 2021
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 15TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.1928 OF 2015 (LB-RES)
BETWEEN
SRI U.V. SRIDHAR
S/O U.S.VENKAT RAO @ BABU RAO,
AGED 69 YEARS,
RESIDENT OF ANAVATTI VILLAGE,
SORAB TALUK,
SHIVAMOGGA DISTRICT - 577 201.
... PETITIONER
(BY SRI S.V.PRAKASH, ADVOCATE (VIDEO CONFERENCING))
AND
1. STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY,
DEPARTMENT OF PANCHAYAT RAJ,
M.S.BUILDINGS,
DR.AMBEDKAR VEEDHI,
BENGALURU - 560 001.
2. THE ZILLA PANCHAYATH
SHIVAMOGGA,
REPRESENTED BY ITS PRESIDENT,
SHIVAMOGGA CITY - 577 201.
3. THE TALUK PANCHAYATH
SORAB TALUK,
SHIVAMOGGA DISTRICT
2
REPRESENTED BY ITS
EXECUTIVE OFFICER - 577 429.
4. THE ANAVATTI GRAM PANCHAYATH
SORAB TALUK,
REPRESENTED BY ITS
PANCHAYATH DEVELOPMENT OFFICER - 577 429.
5. U.M.NAGABHUSHANA
S/O U.MALLIKARJUNAPPA,
AGED ABOUT 48 YEARS,
AGRICULTURIST,
RESIDENT OF 1ST CROSS,
NEHARU NAGAR, ANAVATTI,
SORAB TALUK,
SHIVAMOGGA DISTRICT - 577 429.
6. H.D.PRAKASH
S/O LATE SENAPATHI GOWDA,
AGED ABOUT 53 YEARS,
RESIDING OPPOSITE TO BOYS' SCHOOL,
ANAVATTI SHIRALKOPPA ROAD,
ANAVATTI, SORAB TALUK,
SHIVAMOGGA DISTRICT - 577 429.
... RESPONDENTS
(BY SMT.PRATHIMA HONNAPURA, AGA FOR R1 (PHYSICAL
HEARING)
SRI B.J.ESHWARAPPA, ADVOCATE FOR R2
R3 & R4 ARE SERVED AND UNREPRESENTED
SRI JAYAKUMAR S.PATIL, SR.COUNSEL FOR
SRI A.MOHAMMED TAHIR, ADVOCATE FOR R5 7 R6 (VIDEO
CONFERENCING))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DT.31.1.2014 PASSED BY THE R-2 DT.22.2.2014 AND THE
EVEN DATED ANOTHER ORDER VIDE ANNX-B, E, & F.
3
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 question orders dated 31-01-2014 and 22-02-2014, both passed by the 2nd respondent/President of the Zilla Panchayat, latter order having been passed reviewing the earlier order passed on 31-01-2014.
2. Heard Sri S.V.Prakash, learned counsel for the petitioner; Smt. Prathiba Honnapura, learned Additional Government Advocate for respondent No.1; Sri B.J. Eshwarappa, learned counsel for respondent No.2, Sri Jayakumar S.Patil, Senior Counsel for Sri A. Mohammed Tahir, learned counsel for respondents 5 and 6.
3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:
The petitioner claims to be the absolute owner of property in Sy.No.29 of Anavatti Village, Sorab Taluk, Shimoga District. It is the claim of the petitioner that he inherited the said property from his father late A.Venkatarao and also claims to be in possession of the said property even to this day. It is contended that the father 4 of the petitioner who was the owner of the land in Sy.Nos.5, 6, 53, 28 and 29 of Anavatii Village got the said lands converted from agriculture to non-agricultural purposes and set up a rice mill. The land in Sy.Nos.5 and 6 was sold in public auction by the Tahsildar for arrears of land revenue that was to be paid to the Government.
The land in Sy.Nos.53, 28 and 29 were not auctioned by the Government, is the claim of the petitioner. Notwithstanding there being no auction, entries of the said survey numbers were made showing that the said lands belonged to Government as the same were appropriated towards arrears of land revenue. Notwithstanding this, the petitioner claims to be in possession of the land even after the death of his father right from 1952-53.
4. It is claimed that the petitioner in order to eke out his livelihood settled in Bangalore as he found greener pastures. It is the contention of the petitioner that taking advantage of the absence of the petitioner in the Village, respondent Nos.5 and 6 got their names illegally entered as owners of land in respect of Sy.No.29. The petitioner coming to know of the illegal entries made without any orders from the competent authority, initiates 5 proceedings before the Executive Officer of the Taluk Panchayat in Appeal No.43 of 2007-08. It was against an illegal entries said to have been made by the Gram Panchayat. The Appeal was filed invoking Section 237 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 ('the Act' for short). The Executive Officer of the Taluk Panchayat heard the matter and directed deletion of illegal entries made in respect of lands in Sy.Nos.28 and 29 of Anavatti Village and directed making of entry in respect of the said survey numbers in favour one U.V.Murali, brother of the petitioner.
5. Respondent Nos.5 and 6 aggrieved by the order passed by the 3rd respondent/Executive Officer of the Taluk Panchayat filed an appeal before the President of the Zilla Panchayat raising several contentions. The President of the Zilla Panchayat by his order dated 31-01-2014, directed the parties to approach the civil Court to establish their rights, if any, in respect of the property dispute and thereafter, to approach the 4th respondent/Gram Panchayat for entry into the records based upon a decree that would be passed by the civil Court. Respondent Nos.5 and 6 filed a review before the very authority who had passed the order seeking review of the 6 order insofar as it pertained to setting aside of the order of the Executive Officer of the Taluk Panchayat who had directed making of entries in the names of the petitioner and his brother in the demand register. The President of the Zilla Panchayat entertained the said application, reviewed the order and quashed the order of the Executive Officer of the Taluk Panchayat dated 20-06-2012. It is calling in question the said two orders i.e., the initial order of the President, Zilla Panchayat directing the parties to approach the civil Court and the subsequent order, reviewing the same and quashing the order of the Executive Officer of the Taluk Panchayat, the petitioner has knocked the doors of this Court.
6. The learned counsel appearing for the petitioner would submit that the President of the Zilla Panchayat would become functus officio and could not have reviewed his order and passed an order, which is altogether different as initially, the entries made in the name of the petitioner was not set aside and the entire issue was made subject to the result of the decree that would be passed in the civil proceedings. He would submit that both the orders 7 dated 31-01-2014 and 22-02-2014, are erroneous and contrary to law.
7. On the other hand, the learned Senior Counsel Sri Jayakumar S.Patil, appearing for respondent Nos.5 and 6 would contend that the very proceedings instituted by the petitioner before the Executive Officer of the Taluk Panchayat was itself contrary to law as it was an appeal filed under Section 237 of the Act. Such an appeal before the Executive Officer was not even maintainable and any order that was passed, was without authority of law. He would further contend that the order of the President of Zilla Panchayat directing the parties to approach the civil Court without quashing the entries that were made would have resulted in no right being flown to any one, as in that light, a clarificatory / review order was passed on 22-02-2014.
8. I have given my anxious consideration to the submissions made by the learned counsel appearing of the respective parties and perused the material on record.
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9. It is the claim of the petitioner that he was in continuous possession of the subject property and went away from the village in search of greener pastures. It is the allegation that in his absence, the revenue entries were changed in the names of respondent Nos.5 and 6 insofar as it concerns Sy.No.29 of Anavatti Village. Thus, revenue entries were admittedly changed in favour of respondent Nos.5 and 6 in the year 1960-61. The petitioner claiming to have come to know of the fact of illegal entries made in respect of his property, instituted proceedings against respondent Nos.5 and 6 in the year 2007, close to 45 years after the said illegal entries were made. An appeal was filed before the Executive Officer of the Taluk Panchayat invoking Section 237 of the Act. Section 237 of the 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 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.9
(2) When the Adhyaksha of Taluk Panchayat makes an order under sub-section (1), he shall forthwith forward to the Adhyaksha of the Zilla Panchayat and the Grama Panchayat affected thereby a copy of the order with a statement of the reasons for making it, and the Adhyaksha of the Zilla Panchayat may confirm or rescind the order or direct that it shall continue to be in force with or without modification permanently or for such period as he thinks fit:
Provided that no order of the Adhyaksha of Taluk Panchayat passed under sub-section (1) shall be confirmed, revised or modified by the Adhyaksha of the Zilla Panchayat without giving the Grama Panchayat concerned a reasonable opportunity of showing cause against the proposed order.
(3) If in the opinion of the Adhyaksha of the Zilla Panchayat, the execution of any order or resolution of a Taluk Panchayat or any order of any authority or officer of the Taluk Panchayat or the doing of anything which is about to be done, or is being done, by or on behalf of a Taluk Panchayat 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.
(4) When the Adhyaksha of the Zilla Panchayat makes an order under sub-section (3), he shall forthwith forward to the Government and the Taluk Panchayat affected thereby a copy of the order with a statement of the reasons for making it, and the Government may confirm or rescind the order or direct that it shall continue to be in force with or without modification permanently or for such period as it thinks fit:10
Provided that no order of the Adhyaksha of the Zilla Panchayat passed under sub-section(3) shall be confirmed, revised or modified by the Government without giving the Taluk Panchayat concerned a reasonable opportunity of showing cause against the proposed order. 1. Substituted by Act 29 of 1997 w.e.f. 20.10.1997.
(5) If the Government is of the opinion that execution of any order or resolution of Zilla Panchayat or the doing of anything which is about to be done, or is being done by or on behalf of a Zilla Panchayat 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 the peace, it may, by an order suspend the execution or prohibit the doing thereof.
(6) When the Government makes an order under sub-section (5), it shall forthwith forward to the Zilla Panchayat affected thereby a copy of the order with a statement of reasons for making it and the Government may confirm or rescind the order or direct that it shall continue to be in force with or without modification permanently or for such period as it thinks fit:
Provided that no order under this sub-section shall be passed by the Government without giving the Zilla Panchayat concerned, a reasonable opportunity of showing cause against the said order."
Section 237 of the Act deals with power of suspending execution of unlawful orders or resolution and the power is vested with the Adhyaksha of the Taluk Panchayat. Forty five years after the 11 entries were made, the petitioner knocks the doors of the Executive Officer of the Taluk Panchayat invoking Section 237 of the Act. The Executive Officer knowing fully well that he has no power to entertain any appeal under Section 237 of the Act, entertains the appeal and passes an order setting aside the entries made in favour of respondent Nos.5 and 6 in the demand register. There was no resolution even that was called in question but the entries were made in the names of respondent Nos.5 and 6 in the year 1960-61.
Therefore, filing of an appeal and its entertainment by the Executive Officer of the Taluk Panchayat are all acts without jurisdiction and a nullity in law. The Executive Officer of the Taluk Panchayat ought not to have entertained the appeal under Section 237 of the Act.
10. This was called in question by respondent Nos.5 and 6 before the President of the Zilla Panchayat. The President of the Zilla Panchayat entertains the appeal and passes an order directing the parties to approach the civil Court as it was a dispute concerning property between the parties. After passing of this order, an application was filed for clarification in the garb of filing a 12 review petition. On 11-02-2014, hearing before the President of the Zilla Panchayat takes place with regard to the review petition. Objections were filed by the petitioner that the review was not maintainable as the President of the Zilla Panchayat had become functus officio and notwithstanding this objection, a review order was passed on 22-02-2014, doing what President had not done in the original order that is quashing the proceedings of the Executive Officer of the Taluk Panchayat dated 20-06-2012. On the face of it, the President of the Zilla Panchayat had no power to review his own order, which had concluded the proceedings and passed an altogether different order. This inherent power of review unless conferred by the statute was not exercisable by the President of the Zilla Panchayat. The Act does not confer any such power of review upon the President of the Zilla Panchayat to review his own order in the concluded proceedings. Reviewing the concluded proceedings was without authority of law.
11. The order in review amplified the illegality by entertaining the same and setting aside the order of the Executive Officer of the Taluk Panchayat. The case now raises, a stage where there are two 13 illegal orders - one passed by the Executive Officer of the Taluk Panchayat under Section 237 of the Act and the other, the order of the President, Zilla Panchayat reviewing his own order and quashing the proceedings before the Executive Officer of the Taluk Panchayat, which he had not performed while passing the original order. If the order in review is quashed by this Court on the ground that it was illegal, it would result in resurrection of the order of the Taluk Panchayat, which by itself was illegal.
12. It is a well-worn law that the Court would not pass an order which would result in resurrection of an illegal order. The order of the Executive Officer of the Taluk Panchayat was on the face of it, without jurisdiction and a nullity in law. The order in review is again an order without jurisdiction and without authority of law. The foundation to all these orders is an order, which by itself was without jurisdiction. If the petitioner was aggrieved by any order or resolution of the Gram Panchayat, he ought to have filed an appeal under Section 269 of the Act and not an appeal under Section 237 of the Act as Section 237 of the Act is the power of Adhyaksha of the Taluk Panchayat to suspend such order or 14 resolution of the Gram Panchayat, which is altogether conferred for a different circumstance and not calling in question the resolution of the Panchayat.
13. Hence, the challenge in this petition is to both the orders of the President, Zilla Panchayat - one the original order and the other is, the review order. If both the orders are quashed, it would resurrect the original order of the Executive Officer of the Taluk Panchayat, which was without jurisdiction. Reference being made to the judgment of the Apex Court in the case of GADDE VENKATESWARA RAO v. GOVERNMENT OF A.P.1, in the circumstances is apposite, the Apex Court holds as follows:
"19. The result of the discussion may be stated thus: The Primary Health Centre was not permanently located at Dharmajigudem. The representatives of the said village did not comply with the necessary conditions for such location. The Panchayat Samithi finally cancelled its earlier resolutions which they were entitled to do and passed a resolution for locating the Primary Health Centre permanently at Lingapalem. Both the orders of the Government, namely, the order dated March 7, 1962, and that dated April 18, 1963, were not legally passed: the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under 1 AIR 1966 SC 828 15 Section 72 of the Act to review an order made under Section 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village. In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order -- it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case."
In the case of BHARTIYA SEVA SAMAJ TRUST v. YOGESHBHAI AMBALA PATEL2, the Apex Court at paragraph No.14 holds as follows:
"14. It is a settled legal proposition that the court should not set aside the order which appears to be illegal, if its effect is to revive another illegal order. It is for the reason that in such an eventuality the illegality would perpetuate and it would put a premium to the undeserving party/person. (Vide Gadde Venkateswara Rao v. Govt. of A.P. [AIR 1966 SC 828] , Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar [(1999) 8 SCC 16: AIR 1999 SC 3609], Mallikarjuna Mudhagal Nagappa v. State of Karnataka [(2000) 7 SCC 238: AIR 2000 SC 2976] Chandra Singh v. State of Rajasthan [(2003) 6 SCC 545: 2003 SCC (L&S) 951 : AIR 2003 SC 2889] and State of Uttaranchal v. Ajit Singh Bhola [(2004) 6 SCC 800].)"
2
(2012) 9 SCC 310 16 In the light of the judgments of the Apex Court as afore-extracted, this Court would not issue a mandamus or quash an order that would have resurrection of an illegal order. The order of the Executive Officer of the Taluk Panchahyat, as observed hereinabove, was without jurisdiction and a nullity in law. An order of this Court cannot result in resurrection of the said order.
Therefore, the said order of the Executive Officer of the Taluk Panchayat passed under Section 237 of the Act is denuded of its value and no right can flow from such an illegal order to the petitioner. The subsequent orders that are called in question are also a nullity in law.
14. For the aforesaid reasons, I pass the following:
ORDER
(i) The writ petition is allowed and the orders dated 31.01.2014 and 22-02-2014 passed by the President of the Zilla Panchayat, Shimoga stand quashed.
(ii) Obliteration of the aforementioned orders would not come in the way of the petitioner or respondent Nos.5 and 6 in agitating their 17 rights before any competent Court of law/quasi judicial fora, if law permits. For the said purpose, all the contentions raised in the subject petition by the parties are kept open.
Sd/-
JUDGE nvj/CT:MJ