Karnataka High Court
Smt.Gangamma vs The State Of Karnataka on 17 January, 2024
Author: S Sunil Dutt Yadav
Bench: S Sunil Dutt Yadav
-1-
NC: 2024:KHC:2205
WP No. 18107 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV
WRIT PETITION NO. 18107 OF 2016 (LB-RES)
BETWEEN:
1. SMT. GANGAMMA,
W/O LATE BASAVAIAH,
AGED ABOUT 76 YEARS,
2. SHIVABASAVAIAH,
S/O LATE BASAVAIAH,
AGED ABOUT 62 YEARS,
3. MAHADEVAIAH,
S/O LATE BASAVAIAH,
AGED ABOUT 60 YEARS,
ALL ARE R/AT ALKERE VILLAGE,
KERAGOODU HOBLI, MANDYA TALUK,
MANDYA DISTRICT - 571 401.
...PETITIONERS
Digitally signed
by PRAKASH N (BY SRI. K. L. SRINIVAS, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
1. THE STATE OF KARNATAKA,
REP. BY THE SECRETARY,
DEPARTMENT OF RURAL DEVELOPMENT
& PANCHAYATH RAJ,
BENGALURU - 560 001.
2. THE PRESIDENT,
ZILLA PANCHAYATH,
MANDYA - 571 401.
-2-
NC: 2024:KHC:2205
WP No. 18107 of 2016
3. THE PRESIDENT,
TALUK PANCHAYATH,
MANDYA - 571 401.
4. ALKERE GRAMA PANCHAYATH,
ALKERE, MANDYA TALUK - 571 401.
R/BY ITS SECRETARY.
5. SMT. PARVATHAMMA,
W/O LATE BASAVIAH,
AGED ABOUT 62 YEARS,
R/OF ALKERE VILLAGE,
KERAGODU HOBLI,
MANDYA TALUK,
MANDYA DISTRICT - 571 401.
...RESPONDENTS
(BY SRI. M. Y. SREENIVASAN, ADVOCATE FOR R5;
SMT. B. P. RADHA, AGA FOR R1;
SRI. B. J. SOMAYAJI, ADVOCATE FOR R2 TO R4)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 11.01.2016 PASSED IN APPEAL NO.26/2011-12 BY THE
PRESIDENT, ZILLA PANCHAYATH, MANDYA (R-2) VIDE
ANNEXURE-M AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners have filed the present writ petition calling in question the correctness of the order at Annexure-'J' passed by the President, Taluk Panchayath in -3- NC: 2024:KHC:2205 WP No. 18107 of 2016 Appeal No.8/2010-11 as well as the order at Annexure-'M' which is an order passed in Appeal No.26/2011-12 by the President, Zilla Panchayath, Mandya.
2. The admitted facts being that respondent No.5 had initiated proceedings in Appeal No.8/2010-11 challenging the resolution of the Gram Panchayath regarding transfer of katha made in the name of the petitioners herein. The challenge of the resolution effecting katha was filed invoking Section 237 of the Karnataka Gram Swaraj and Panchayath Raj Act, 1993 (for short 'the Act') before the Adhyaksha of the Taluk Panchayath. The said appeal has been allowed and against such order at Annexure-'J', the appeal was filed by the petitioners herein before the Adhyaksha of the Zilla Panchayath and order at Annexure-'M' has been passed, whereby, the appeal filed by the petitioners herein has been dismissed. Against such order, the present petition has been filed.
3. Learned counsel Sri. B.J.Somayaji, appearing for respondent Nos.2 to 4 submits that the order at -4- NC: 2024:KHC:2205 WP No. 18107 of 2016 Annexure-'J' itself is one without jurisdiction and consequently, the order at Annexure-'J' and order passed at Annexure-'M' by the Appellate Authority is required to be set aside.
4. Learned counsel Sri. B. J. Somayaji appearing for the authority raising a preliminary jurisdictional point submits that recourse under Section 237 of the Act cannot be made as against resolution relating to katha of the property and the remedy was to approach the Appellate Authority under Section 269 of the Act. Solely on this ground, it is stated that the orders at Annexures-'J' and 'M' will have to be set aside.
5. The resolution passed effecting katha in the name of petitioners can be challenged in the regular course under Section 269 of the Act before the Executive Officer. The challenge to resolution under Section 237 of the Act would not arise as the scope of power under Section 237 of the Act is limited to circumstances where the action would cause injury or annoyance to the public, leads to -5- NC: 2024:KHC:2205 WP No. 18107 of 2016 breach of peace. The reference that proceedings initiated under Section 237 of the Act as regards 'other unlawful actions' should be read in the context of the other references which indicate an element of public prejudice under Section 237 of the Act. That would be proper manner of construing power under Section 237 of the Act as the power to suspend the resolution cannot be exercised as a matter of course in case of private disputes as the aggrieved parties in the private dispute are at liberty to invoke the substantive remedy under Section 269 of the Act. Accordingly, on the sole ground that power under Section 237 could not have been invoked to enter into private disputes between the parties as is the case herein, the orders at Annexure-'J' is liable to be set aside and if that were to be so, the consequential appeal proceedings passed in the order at Annexure-'M' would also go.
-6-
NC: 2024:KHC:2205 WP No. 18107 of 2016
6. The petitioners are reserved liberty to challenge the katha entry made in favour of petitioners in accordance with law, by invoking Section 269 of the Act.
7. Learned counsel for respondent No.5 would submit that by virtue of setting aside the order at Annexure-'J', now the respondent No.5 is to approach afresh challenging the resolution of effecting the katha in favour of the petitioners by separate proceedings and in light of the relief granted by the authority at Annexure-'J', an interim protection may be granted.
8. Taking note that the order at Annexure-'J' as well as Annexure-'M' are being set aside and noticing that respondent No.5 had obtained benefit of an order in proceedings at Annexure-'J', there would be an order of maintenance of status-quo as on date, which order would be in force till respondent No.5 seeks for appropriate redressal against the resolution effecting katha by the name of the petitioners under Section 269 of the Act. -7-
NC: 2024:KHC:2205 WP No. 18107 of 2016
9. Time spent before this Court is to be taken note of while considering the aspect of condonation of delay, in the event petitioners challenge the katha entry in the light of the matter being pending for a substantial period of time since 2016 before this Court.
With the above, the writ petition stands disposed off and all contentions are kept open.
Sd/-
JUDGE MCR