Karnataka High Court
Bushra Educational Trust (Regd) vs The Panchayath Devalopment Officer on 29 September, 2020
Author: R Devdas
Bench: R Devdas
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON' BLE MR.JUSTICE R DEVDAS
WRIT PETITION NO.10802 OF 2012 (LB-RES)
BETWEEN
BUSHRA EDUCATIONAL TRUST, (REGD.),
KAVU,
MADNUR VILLAGE P.O.
KAVU, PUTTUR,
D.K. DISTRICT - 574 223.
REPRESENTED BY ITS
CHAIRMAN SRI ABDUL AZEEZ.
S/O ABDUL REHMAN
AGED ABOUT 48 YEARS.
... PETITIONER
(BY SRI. B. S. SACHIN, ADVOCATE
A/W SRI. SUYOG HERALE, ADVOCATE)
AND
1. THE PANCHAYATH DEVELOPMENT OFFICER,
GRAMA PANCHAYATH,
ARIYADKA, PUTTUR TALUK,
D.K. DISTRICT.
2. THE PRESIDENT,
GRAMA PANCHAYATH,
ARIYADKA, PUTTUR TALUK,
D.K. DISTRICT.
... RESPONDENTS
(BY SRI. KESHAVA BHAT, ADVOCATE FOR R-1 AND R-2)
-2-
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER DATED 29.10.2011 PASSED BY THE
RESPONDENTS AND ALSO THE RESOLUTION DATED
29.02.2012 AND ORDER DATED 08.03.2012 PASSED BY THE
RESPONDENTS VIDE ANNEXURES-A, B & C AND ALL
FURTHER PROCEEDINGS, PURSUANT THERETO AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
R.DEVDAS J., (ORAL):
The petitioner-Educational Trust is said to have been running a minority educational institution at Kavu, Madnur village, Puttur Taluk for several years. The petitioner-trust applied for license for construction of the Community hall/ auditorium within the land bearing Sy.No.100/2A(p2), where it was already running the educational institution. On receiving the application, the respondent-Grama Panchayath collected license fee of Rs.1,238/-. Thereafter, the petitioner trust wanted to put up four laboratories on -3- top of the community hall for the purpose of the students. In that regard, an application dated 22.03.2011 was made by the petitioner-trust to the respondent-Grama Panchayath. By a communication dated 15.05.2011, the Secretary of the Grama Panchayath called upon the petitioner to produce certain documents. It is submitted that whatever documents the petitioner had in its possession was given along with a clarification letter. The respondent-
Grama Panchayath once again issued a communication dated 01.08.2011, informing the petitioner that in the next General Body Meeting, a decision will be taken by the Grama Panchayath. However, by a communication dated 29.10.2011, the petitioner was informed that the earlier licence dated 16.12.2009, which was issued by the Grama Panchayath was not in accordance with law, since no resolution was passed by the Grama Panchayath, while the license was issued only at the instance of the Adhyaksha of the Grama Panchayath. -4-
2. This writ petition was filed on 3rd April, 2012 with a prayer to quash the impugned communication dated 29.10.2011, resolution dated 29.02.2012 and order dated 08.03.2012. A declaration is also sought that in terms of Section 64 of the Karnataka Gram Swaraj and Panchayath Raj Act, 1993, (hereinafter referred to as 'the Act', for short) there shall be a deemed licence in favour of the petitioner-trust towards construction of the four laboratories.
3. Sri.Suyog Herale learned counsel appearing for the petitioner submits that the inaction on the part of the Grama Panchayath authorities in not considering the applications within a stipulated time as provided under Section 64(2) of the Act, i.e., 60 days from the date of receipt of the application or when Grama Panchayath fails to communicate its decision to the applicant, such permission shall be deemed to have been given and the petitioner may proceed to execute the work.
-5-
4. Per contra, learned counsel for the respondent- Grama Panchayath submits that there cannot be a deemed licence in the present case because the communications were made to the petitioner-trust. The petitioner-trust was called upon to furnish certain documents and clarify certain issues. Even otherwise, it is pointed from the memorandum of writ petition that as on the date of the writ petition, the petitioner-trust had not put up construction of four laboratories and it was stated that the petitioner institution intends to complete the proposed construction activities before the commencement of next academic year 2012-13. It is therefore submitted that after seeking a declaration at the hands of this Court, if the petitioner-trust has proceeded to put up a construction, nothing remains to be determined in this writ petition.
5. Heard the learned counsels for the petitioner as well as the respondent and perused the petition papers. -6-
6. As could be seen from sub-Section (2) of Section 64 of the Act, the question of deemed permission would arise only when the Grama Panchayath after considering the application determines whether such permission could be given or not and it fails to communicate its decision to the petitioner within a period of 60 days from the date of receipt of the application. On going through the communication made by the respondent-Grama Panchayath, it could be seen that many of the informations sought are with respect to the earlier construction. If the earlier building licence to construct the community hall/auditorium was given by the Adhyaksha of the Grama Panchayath, it does not give a right to the Grama Panchayath to call upon the petitioner-trust to explain why the earlier licence was void. While considering the application for the future constructions of laboratories, the Grama Panchayath was required to seek information with respect to the proposed construction and not the construction that -7- was already made on the basis of the licence which was granted by the Grama Panchayath earlier. There is nothing that the petitioner-trust could do if an explanation was sought with respect to the earlier building licence. However, there is one aspect which was required for consideration of the subsequent application for issuance of building licence for construction of laboratories. That information was regarding the structural stability of the community hall/auditorium on which the four laboratories were proposed to be put up. This information was germane for the consideration of the application for building licence. Nothing is placed on record to show that the petitioner-trust furnished such an information to the respondent-Grama Panchayath.
7. Nevertheless, during the course of the proceedings, it was informed that the petitioner-trust has gone ahead in putting up the laboratories on the Community hall/ auditorium. No interim order or -8- direction seems to have given by this Court in this writ petition. Since, the construction is already put up, this Court is of the considered opinion that the Grama Panchayath could only be directed to find out as to whether the construction of laboratories is in accordance with law/bye-laws. If the construction of laboratories is in accordance with law/bye-laws, the Grama Panchayath may proceed to assess the building and collect the property tax. If there is violation of the bye-laws, due action can be taken against the petitioner-trust for setting right the violation.
8. With these observations, the writ petition is disposed of.
Sd/-
JUDGE DL