Karnataka High Court
Sri Malledevirappa vs State Of Karnataka on 2 July, 2018
Equivalent citations: 2018 (4) AKR 494, (2018) 5 KANT LJ 566
Author: B.Veerappa
Bench: B. Veerappa
R
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF JULY, 2018
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.33106/2012(LB-RES)
BETWEEN:
SRI MALLEDEVIRAPPA,
S/O LINGAPPA,
AGED ABOUT 55 YEARS,
AGRICULRIST,
R/O KYATHANABEEDU,
LAKYA HOBLI,
CHIKMAGALUR TALK AND DISTRICT.
... PETITIONER
(BY SRI S. KALYAN BASAVARAJ, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
DEPARTMENT OF RURAL DEVELOPMENT
AND PANCHAYATHRAJ,
M. S. BUILDING,
DR. AMBEDKAR VEEDHI,
BANGALORE-560001.
BY ITS PRINCIPAL SECRETARY,
2. THE TALUK PANCHAYATH,
CHIKMAGALUR TALUK, CHICKMAGALUR
REPRESENTED BY ITS
EXECUTIVE OFFICER
3. THE VILLAGE PANCHAYATH
LAKYA VILLAGE
CHIKMAGALUR TALUK & DISTRICT
BY ITS SECRETARY.
2
4. SREE SOMESHWARA JEERNODHARA
SAMITHI TRUST,
KYATHANABEEDU VILLAGE,
CHIKMAGALUR TALUK & DISTRICT,
REPRESENTED BY ITS PRESIDENT.
... RESPONDENTS
(BY SRI MUNIGANGAPPA, HCGP FOR R1;
SRI VIGNESHWARA S. SHASTRY, ADVOCATE FOR R4;
SRI BASAVARAJAIAH N., ADVOCATE FOR R2 AND R3)
...
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
RESOLUTION DATED 27.6.2012 VIDE ANNEXURE-A PASSED BY
THE R3 HEREIN AND ALSO THE APPROVAL MADE BY THE R2
DATED 16.8.12 VIDE ANNEXURE-B.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner has filed the present writ petition for issue of a writ of certiorari quashing the resolution dated 27.6.2012 as per Annexure-A passed by the 3rd respondent -Village Panchayath and also the approval made by the 2nd respondent on 16.8.2012 as per Annexure-B.
2. It is the case of the petitioner that he is the absolute owner in possession of the property bearing 3 Sy.No.20/2 of Kyathanabeedu village of Lakya Hobli, Chikmagalur Taluk, so also the property bearing Sy.No.20/3 of the same village. He filed a suit - O.S.No.144/2012 on the file of the Civil Judge, Chikmagalur for the relief of permanent injunction restraining respondent Nos. 1,2 and 3 herein and also the Zilla Panchayath, Chikmagalur in respect of the said properties. On the application made by the petitioner under the provisions of Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908, the trial Court considering the materials on record, found that a prima facie case has been made out by the petitioner and his sons and hence, granted an interim order of injunction on 2.4.2012 in the said suit in favour of the petitioner.
3. The petitioner also filed one more suit - O.S.No.214/2012 on the file of the Principal Civil Judge, Chikmagalur against one Sadashiva and Girish, who were creating problems by interfering with his right of 4 way situated in the backyard belonging to the Panchayath and for the unlawful attempts made to restrain the usage by the petitioner over a period of time. In the said suit also, two applications - I.As.1 and 2 under Order 39 Rules 1 and 2 of the Code of Civil Procedure came to be allowed as per the order dated 21.7.2012 and permanent injunction was granted. The President of the Trust - 4th respondent herein in his individual capacity filed an application for impleading in the said proceedings which came to be rejected.
4. The defendants in O.S.No.214/2012, who had suffered an order of temporary injunction and who could not succeed to corner the petitioner, somehow or the other in respect of his enjoyment of the properties in their own right and also in respect of his easementary rights, appear to have made a request to the Lakya Village Panchayath, who passed the impugned resolution and subsequently Taluk Panchayath has 5 granted approval on 16.8.2012. Therefore, the petitioner is before this Court for the relief sought for.
5. Respondent Nos. 2 and 3 have not filed any objections, but respondent No.4 has filed the objections.
6. The 4th respondent in his statement of objections has contended that the very writ petition filed by the petitioner against the resolution passed by the Grama Panchayath is not maintainable. The resolution passed by the Grama Panchayath was subsequently approved by the Taluk Panchayath and therefore, the petitioner is not entitled to any relief before this Court and Civil dispute in respect of property bearing Assessment No.233/2015 filed by the petitioner with regard to easementary right is also pending. Therefore, sought for dismissal of the writ petition.
7. I have heard the learned Counsel for the parties.
6
8. Sri V.Kalyan Basavaraj, learned Counsel for the petitioner vehemently contended that the impugned resolution dated 27.6.2012 passed by the 3rd respondent as per Annexure-A and the consequent approval letter dated 16.8.2012 made by the 2nd respondent-Taluk Panchayath as per Annexure-B is erroneous and contrary to the material on record. He would further contend that the very resolution passed by the Grama Panchayath is contrary to the provisions of Rules 3 and 5 of the Karnataka Gram Panchayath (Acquisition and Transfer of Moveable and Immoveable Properties) Rules 1996. He would also contend that the Division Bench of this Court in the case of P. Thimmanaiak and Others -vs- State of Karnataka and Others reported in 2009(4) Kar.L.J. 173 (DB) has held that the condition precedent for initiating proceedings for obtaining of prior sanction, not just post facto sanction, of Taluk Panchayat is mandatory. Subsequent resolution does not cure initial illegality and therefore under the 7 provisions of Section 209 of the Karnataka Panchayat Raj Act, 1993, prior permission from the Taluk Panchayath is mandatory. Therefore, he sought to allow the writ petition.
9. Per contra, Sri Vigneshwara S. Shastry, learned Counsel for respondent No.4 sought to justify the action on the ground that the resolution passed by the Grama Panchayath has been approved by the Taluk Panchayat subsequently and the petitioner had already filed a suit in respect of property Assessment bearing 233, 215, 233 with regard to easementary right of the same village. Therefore, the petitioner has no locus standi to challenge the resolution passed by the Grama Panchayath and approved by the Taluk Panchayath and hence, sought to dismiss the writ petition.
10. Sri Basavarajaiah. N., learned Counsel for respondent Nos. 2 and 3 and Sri Munigangappa, learned HCGP appearing for respondent No.1 submitted 8 that when there is a Rule, it is the duty of both the Grama Panchayath and Taluk Panchyath to follow the procedure as contemplated under the provisions of Rules 3 and 5 of the Karnataka Gram Panchayath (Acquisition and Transfer of Moveable and Immoveable Properties) Rules 1996 and therefore, sought to dismiss the writ petition.
11. In view of the rival contentions urged by the learned Counsel for the parties, the only point that arrises for consideration in the present writ petition is:
"Whether the Grama Panchayath can pass a resolution to transfer the property in favour of 4th respondent without prior permission from the Taluk Panchayath?"
12. I have given my anxious consideration to the arguments advanced by the learned Counsel for the 9 parties and perused the entire material on record carefully.
13. It is the specific case of the petitioner that he is the owner of the property bearing Sy.Nos. 20/2 and 20/3 of Kyathanabeedu village of Lakya Hobli, Chikmagalur Taluk. He is using the property bearing Assessment No.233.215 of the same village to reach his property and claiming his easementary right, he had filed O.S.No.214/2012 in respect of the said properties. The said suit is still pending for adjudication.
14. It is also not in dispute that the property belongs to Grama Panchayath. A portion of the said property has been transferred by way of resolution by the Grama Panchayath in favour of 5th respondent.
15. The provisions of Section 209 Chapter XV of the Karnataka Panchyath Raj Act, 1993 deals with that 10 the Grama Panchayat may acquire, hold and dispose off property, etc, which reads as under:
"Section 209. Grama Panchayath may acquire, hold and dispose off property, etc.- The power of the Grama Panchayat to acquire, hold and dispose off property both movable and immovable whether within or without the limits of the area over which it has authority, to lease, sell or otherwise transfer any movable or immovable property which may have become vested in or been acquired by it, and to do all other things necessary for the purpose of this Act, shall be subject to the rules made by the Government in this behalf:
Provided that no lease of immovable property for a term exceeding five years and no sale or other transfer of any such property shall have been made with the previous sanction of the Taluk Panchayat".11
16. The Legislature exercising the powers under the provisions of Section 209 has framed the Rules called as Karnataka Gram Panchayat (Acquisition and Transfer of Movable and Immovable Properties) Rules 1996. Rules 3 and 5 of the said Rules reads as under:
"3. ZÀgÀ ¸ÀéwÛ£À Cdð£É CxÀªÁ UÀÄwÛUÉ ªÀiÁgÁl CxÀªÁ EvÀgÀ ªÀUÁðªÀu:É - (1) UÁæªÀÄ ¥ÀAZÁ¬ÄwAiÀÄÄ ªÀiÁrzÀ LzÀÄ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼À ªÀiË®åªÀ£ÀÄß «ÄÃgÀĪÀ AiÀiÁªÀÅzÉà ZÀg¸ À ÀéwÛ£À Cdð£É CxÀªÁ UÀÄwÛUÉ ªÀiÁgÁl CxÀªÁ ªÀUÁðªÀuA É iÀÄÄ, CAxÀ Cdð£É CxÀªÁ UÀÄwÛU,É ªÀiÁgÁl CxÀªÁ EvÀgÀ ªÀUÁðªÀuÉUÉ vÁ®ÆèPÀÄ ¥ÀAZÁ¬ÄwAiÀÄ ¥ÀƪÁð£ÀĪÉÆÃzÀ£ÉAiÀÄ£ÀÄß ¥ÀqÉ¢zÀÝ ºÉÆgÀvÀÄ, ¹AzsÀĪÁUÀvPÀ ÀÌzÀÝ®è.
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(3) UÁæªÀÄ ¥ÀAZÁAiÀÄwAiÀÄÄ AiÀiÁªÀÅzÉà ZÀg¸ À ÀévÀÛ£ÀÄß Rjâ¸À®Ä CxÀªÁ vÀ£U À É ¸ÉÃjzÀ ZÀg¸ À ÀévÀÛ£ÀÄß ªÀiÁgÁl ªÀiÁqÀ®Ä ¥À¸ æ ÁÛ¦¹zÀ°è Rjâ¸À®Ä CxÀªÁ ªÀiÁgÁl ªÀiÁqÀ®Ä ¥À¸ æ ÁÛ¦¹zÀ ªÀ¸ÀÄÛU¼ À À CxÀªÁ ¸ÀgPÀ ÀÄUÀ¼À 12 «ªÀgU À ¼ À £ À ÀÄß G¯ÉèÃT¹ PÁAiÀÄðzÀ²ðAiÀÄÄ ¸À» ªÀiÁrzÀ MAzÀÄ £ÉÆÃnøÀ£ÀÄß ¸ÀAzÀ¨Ás ð£ÀĸÁgÀ GzÉÝòvÀ RjâzÁgÀ£ÀÄ CxÀªÁ ªÀiÁgÁlUÁgÀ£ÀÄ ªÉƺÀgÀÄ mÉAqÀg£ À ÀÄß ¸À°è¸® À Ä PÉÆ£À¥PÀ Àë MAzÀÄ ªÁgÀzÀ PÁ¯ÁªÀPÁ±Àª£ À ÀÄß PÉÆlÄÖ UÁæªÀÄ ¥ÀAZÁ¬ÄwAiÀÄ PÀbÃÉ jAiÀÄ ¸ÀÆZÀ£Á ¥s® À PÀzÀ ªÉÄÃ¯É ¥ÀPæ Àn¹vÀPÀÌzÀÄÝ:
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5. ¹ÜgÀ ¸ÀéwÛ£À UÀÄwÛU,É ªÀiÁgÁl CxÀªÁ EvÀgÀ ªÀUÁðªÀu:É - LzÀÄ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼À ªÀiË®åªÀ£ÀÄß «ÄÃgÀĪÀ AiÀiÁªÀÅzÉà ¹ÜgÀ ¸ÀéwÛ£À UÀÄwÛU,É ªÀiÁgÁl CxÀªÁ EvÀgÀ ªÀUÁðªÀuA É iÀÄÄ CAxÀ ªÀUÁðªÀuÉUÁV vÁ®ÆèPÀÄ ¥ÀAZÁ¬ÄwAiÀÄ ¥ÀƪÁð£ÀĪÉÆÃzÀ£A É iÀÄ£ÀÄß ¥Àqz É À ºÉÆgÀvÀÄ ¹AzsÀĪÁUÀvPÀ ÀÌzÀÝ®è. UÁæªÀÄ ¥ÀAZÁ¬ÄwAiÀÄ ¹ÜgÀ ¸ÀéwÛ£À ¥Àw æ AiÉÆAzÀÄ UÀÄwÛUÉ, ªÀiÁgÁl CxÀªÁ EvÀgÀ ªÀUÁðªÀuÉAiÀÄ ¥ÀvÀæªÀÅ F ¤AiÀĪÀÄUÀ½UÉ 13 ®UÀwÛ¸¯ À ÁVzÀÝ C£ÀĸÀÆaAiÀÄ°è UÉÆvÀÄÛ¥r À ¹zÀ AiÀiÁªÀÅzÁzÀgÉÆAzÀÄ £ÀªÀÄÆ£ÉAiÀÄ°è EgÀvPÀ ÀÌzÀÄÝ."
17. This Court considering the provisions of Section 209 of the of the Karnataka Panchayat Raj Act, 1993 in the case of P. Thimmanaiak and Others -vs- State of Karnataka reported in 2009(4) Kar.L.J. 173 (DB) at paragraphs 9, 12, 13, 13.2 and 13.3 has held as under:
"9. It is an admitted fact that Grama Panchayat proposed to dispose of the property owned by the "Grama Panchayat by issuing a public notice dated 9th November, 1998 and pursuant to the said notice, the petitioners offered their sale consideration and the same was accepted by resolution dated 11th Janurary, 1999 by the Taluk Panchayat. But the Zilla Panghayath by order dated 16th March, 1999 suspended the proposal for disposal of immovable property in favour of the petitioners by the Grarna Panchayat.14
11. The proviso to Section 209 was deleted by Amendment Act 37 of 2003 but on the date of the impugned initiation of action to dispose of the immovable property owned by the Grama Panchayat the proviso was very much in operation.
12. It is true that the learned counsel for the petitioners brought to our notice the resolution of the Taluk Panchayat dated 11th January, 1999 approving the notification issued by the Grama Panchayat dated 9th November, 1998 proposing to sell the sites owned by the Grama Panchayath but as per the proviso to Section 209 what is requires is the prior sanction of the Taluk Panchayath before initiating any action for the disposal of the property both movable and immovable and not a post approval. It is only in this regard, we are considered opinion that the very initiation of the proposal to dispose of the properties owned by the Grama 15 Panchayath is without jurisdiction as rightly held by the learned Single Judge.
13. In those circumstances where the very initiation of action to dispose of the property owned by the Grama Panchayat is without jurisdiction as the same is contrary to the proviso given to Section 209 of the Act, the learned Single Judge held that they are not entitled to claim any opportunity of being heard, of course, following the decision of the Apex Court in the case of UNION of India and Another v W.N. Chadha wherein, it is held as follows.-
"The rule of audi alteram partem is not attracted unless the impugned order is shown to have deprived a person of his liberty or his property. The rule of audi alteram partem is a rule of justice and its application is excluded where the rule will itself lead to injustice. There is exclusion of the 16 application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. This rule cannot be applied to defeat the ends of justice or to make the law 'lifeless, absurd, stultifying and self- defeating or plainly contrary to the common sense of the situation' and this rule may be jettisoned in very exceptional circumstances where compulsive necessity so demands. There are certain exceptional circumstances and situations whereunder the application of the rule of audi alteram pattern is not attracted.
13.2. Therefore, we are convinced that the petitioners are not entitled to have an opportunity of being heard before canceling the bid which is contrary to the proviso to Section 209 of the Act.
17
13.3. However, taking into
consideration the subsequent
amendment to Section 209 of the Act,' the learned Single Judge has reserved liberty to the Grama Panchayat to redo the entire process of securing necessary permission for the formation of the layout, and disposal of the sites strictly in accordance with law and the rules and if the petitioners stand to benefit, the Grama Panchayat shall accordingly adjust the amounts deposited by the petitioners in the auction in the year 1998 and if they do not stand to the benefit, the Grama Panchayat is directed to refund the monies in deposit to such of those petitioners, with interest at 12% p.a. on the said sum, without any delay."
18. In view of the aforesaid statutory prohibition, any resolution passed either to transfer or lease, prior permission has to be obtained as contemplated. Admittedly, in the present case before passing the 18 resolution, the Grama Panchayat has not obtained any prior permission. Though subsequently Taluk Panchayat has approved the same on 16.8.2012, this will not absolve the rules states supra. Therefore, the resolution passed by the Grama Panchayat and approved by the Taluk Panchayat as per Annexure-B cannot be sustained. For the reasons stated supra the point raised in the writ petition is answered in the negative holding that the Grama Panchayath cannot pass any resolution to transfer its property in favour of Respondent No.4 without prior permission from the Taluk Panchayath as contemplated under Rules 3 and 5 of the Karnataka Grama Panchayat (Acquisition and Transfer of Movable and Immovable Properties) Rules, 1996.
19. It is an admitted fact that the petitioner is claiming easementary right in respect of vacant land bearing Khatha No.233 and Assessment No. 233/215 19 measuring 28 x 30 feet belonging to Grama Panchayath which shall always be subject to the result of the original suit in O.S.No.214/2012 pending on the file of the Principal Civil Judge, Chikmagalur.
20. In view of the above, the writ petition is allowed. The impugned orders passed by respondent Nos.2 and 3 are hereby quashed and the same shall be subject result of original suit in O.S.No.214/2012 filed by the petitioner claiming easementary right in respect of the land belonging to the Grama Panchayat.
21. However, it is needless to observe that the Grama Panchayath is at liberty to follow the procedure as stated supra and proceed in accordance with law.
Ordered accordingly.
Sd/-
Judge Nsu/-