Karnataka High Court
Sri.P.Thimmegowda vs The Chief Executive Officer on 13 February, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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WP No. 11824 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 11824 OF 2018 (LB-RES)
BETWEEN:
SRI.P.THIMMEGOWDA
DEAD BY HIS LRS.
1. SRI KRISHNEGOWDA
S/O LATE P.M. THIMMEGOWDA
AGED ABOUT 63 YEARS
2. SRI P.T. KESHAVEGOWDA
S/O LATE P.M. THIMMEGOWDA
AGED ABOUT 59 YEARS
3. SMT. JANAKAMMA
D/O LATE P.M. THIMMEGOWDA
AGED ABOUT 56 YEARS
4. SMT. SHESHAMMA
D/O LATE P.M.THIMMEGOWDA
AGED ABOUT 54 YEARS
Digitally signed
by
MARIGANGAIAH 5. SMT. BINDAMMA
PREMAKUMARI W/O LATE P.M. THIMMEGOWDA
Location: High
Court of AGED ABOUT 83 YEARS
Karnataka
ALL ARE R/OF PEMMANAHALLI VILLAGE,
DODDABEMATHI POST
MALLIPATNA HOBLI,
ARKALGUD TALUK,
HASSAN DISTRICT,
...PETITIONERS
(BY SRI JAYAKARA SHETTY H, ADV.)
AND:
1. THE CHIEF EXECUTIVE OFFICER
ZILLA PANCHAYATH,
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WP No. 11824 of 2018
HASSAN,
HASSAN DISTRICT.
2. THE EXECUTIVE OFFICER
TALUK PANCHAYATH,
ARKALGUD, ARKALGUD TALUK,
HASSAN DISTRICT.
3. THE PANCHAYATH DEVELOPMENT OFFICER
DODDABEMMATHI PANCHAYATH,
ARKALGUD, ARKALGUD TALUK,
HASSAN DISTRICT-573702.
...RESPONDENTS
(BY SRI.J.N.NAVEEN, ADV. FOR R1 TO R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
RECORDS FROM R-1 AND 2 WHICH ULTIMATELY RESULTED IN
PASSING THE IMPUGNED ENDORSEMENT DATED 22.09.2015 AT
ANNEX-A ISSUED AND RESOLUTION DATED 12.8.2015 AT ANNEX-B
PASSED BY R-3 AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel Sri.Jayakara Shetty.H., for petitioners, learned counsel Sri.J.N.Naveen for Sri.A.Nagarajappa, learned counsel for respondent Nos.1 to 3. Perused the writ petition papers.
2. Learned counsel for the petitioners would submit that the petitioners are before this Court questioning the endorsement dated 22.09.2015 -3- WP No. 11824 of 2018 (Annexure-A) and resolution dated 12.08.2015 (Annexure-B) of the third respondent-Panchayath wherein the Panchayath resolved not to effect correction to the Khatha in respect of the property in question and not to make E-swathu Khatha. Learned counsel for the petitioners would submit that the petitioners were before the second respondent-Executive Officer, Taluk Panchayath under Section 269 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (for short 1993 Act) praying for a direction to the third respondent-Panchayath to effect Khatha in respect of property bearing No.12 of Pemmanahalli Village, Mallipattana Hobli of Arakalagud Taluk. Learned counsel would submit that second respondent-Executive Officer after detailed enquiry and on hearing the Pancyahath Development Officer of the third respondent and on obtaining survey report, passed order on 30.06.2015 directing the third respondent to effect Khatha in respect of property in question in the name of the petitioners for the measurements stated in the appellate order. Learned counsel for the petitioners would -4- WP No. 11824 of 2018 submit that contrary to the directions issued by the second respondent-Executive Officer, the Panchayath passed resolution not to effect E-swathu Khatha in respect of the property and also resolved not to carry out the correction with regard to measurement of the property in question as directed by the second respondent-Executive Officer. Learned counsel for the petitioners would submit that once having suffered the order at the hands of second respondent, the third respondent-Panchayath could not have passed resolution contrary to the appellate order. Learned counsel would also submit that when the appellate order passed at Annexure-D dated 30.06.2015 had become final and binding on the parties, the third respondent-Panchayath contrary to the same could not have passed resolution which would amount to disobeying the appellate order. Thus, he prays for a direction to the third respondent-Panchayath to implement the appellate Order dated 30.06.2015 by setting aside the resolution passed by the Panchayath dated 12.08.2015. -5- WP No. 11824 of 2018
3. Per contra, learned counsel Sri.J.N.Naveen, for Sri.A.Nagarajappa, learned counsel for respondent Nos.1 to 3 would submit that since the villagers filed objections to issue E-swathu Khatha in favour of petitioners and to make correction to the measurement of the property, the third respondent-Panchayath passed impugned resolution.
4. Having heard the learned counsel appearing for the parties and on perusal of the writ petition papers, I am of the view that Annexure-A, Endorsement dated 22.09.2015 and Annexure-B, resolution dated 12.08.2015 not to issue E-swathu Khatha and not to correct the measurement of the property bearing No.12 of Pemmanahalli Grama Panchayath are contrary to appellate order of the second respondent at Annexure-D dated 30.06.2015. The petitioners, for the inaction of the third respondent-Panchayath were before the second respondent- Executive Officer under Section 269 of 1993 Act and the second respondent in exercise of its appellate power under Section 269 of 1993 Act, passed the following Order: -6- WP No. 11824 of 2018
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¸À.£ÀA.27gÀ ªÉÄîä£À«zÁgÀgÀ d«ÄãÀÄ, G:- ªÀÄjÃUËqÀgÀ ªÀÄUÀ gÁªÉÄÃUËqÀgÀ ªÀÄ£É, zÀ:- ºÀ£ÀĪÉÄÃUËqÀgÀ ªÀÄUÀ ZÀ£ÉßÃUËqÀgÀ ªÀÄ£É JAzÀÄ ªÉÄîä£À«zÁgÀgÀ ºÉ¸Àj£À°è £ÀªÀÄÆzÀÄ ªÀiÁqÀĪÀAvÉ gɸÁàAqÉAljUÉ ¤zÉÃð²¹zÉ." A reading of the above order makes it clear that second respondent directed third respondent-Panchayath to register Khatha in the name of the petitioner in respect of property bearing No.12 and the measurement stated therein. The direction issued by second respondent under Section 269 of 1993 Act is final and binding on the parties. If at all the third respondent-Panchayath was aggrieved of the appellate order at Annexure-D dated 30.06.2015 in Appeal No.G.P.05/2014-15, it was open for the third respondent to challenge the same before the appropriate -7- WP No. 11824 of 2018 forum. But, without challenging Annexure-D, appellate order, the third respondent contrary to the direction issued by second respondent could not have passed the resolution at Annexure-B dated 12.08.2015. When there is an order by Appellate Authority, the Panchayath ignoring order of the Appellate Authority, passed resolution contrary to the direction would be contrary to the object and purpose of 1993 Act.
5. Section 235 of 1993 Act provides power to the Government, Zilla Panchayat, Taluk Panchayat to provide for performance of duties in default of Grama Panchayat, Taluk Panchayat or Zilla Panchayat. Section 235 of 1993 Act reads as follows:
"235. Power of Government, Zilla Panchayat, Taluk Panchayat to provide for performance of duties in default of Grama Panchayat, Taluk Panchayat or Zilla Panchayat:- (1) When the Government in case of a Zilla Panchayat, Zilla Panchayat in case of a Taluk Panchayat and Taluk Panchayat in case of a Grama Panchayat is informed on -8- WP No. 11824 of 2018 complaint made or otherwise, that any Zilla Panchayat or Taluk Panchayat or Grama Panchayat has made default in performing any duty imposed on it, by or under this Act, or by or under any law for the time being in force and if satisfied, after due enquiry that any Zilla Panchayat, Taluk Panchayat or Grama Panchayat, has failed in the performance of such duty, it may fix a period for the performance of that duty:
Provided that no such period shall be fixed unless the Zilla Panchayat, Taluk Panchayat or Grama Panchayat concerned has been given an opportunity to show-cause why such an order shall not be made.
(2) An appeal shall lie, against the order of, -
(i) the Taluk Panchayat, to the Zilla
Panchyat; and
(ii) the Zilla Panchayat to the
Government, within thirty days from the date of such order."
The above provision makes it clear that whenever the Grama Panchayat, Taluk Panchayat or Zilla Panchayat -9- WP No. 11824 of 2018 defaults in performing any duty imposed on it by or under the Act or by or under any law for the time being in force and if satisfied after due enquiry that it had failed to perform its duty, it could fix the period for performance of that duty after providing an opportunity. In the instant case, the second respondent/Executive Officer in exercise of its appellate jurisdiction under Section 269 of 1993 Act issued certain directions by order dated 0.06.2015 (Annexure-Q). The duty is cast upon the Panchayat to give effect to the appellate order passed under Section 269 of 1993 Act.
6. In the light of the above, Annexure-A, endorsement dated 22.09.2015 and Annexure-B, resolution dated 12.08.2015 are not sustainable. Hence, the following:
ORDER
(i) Annexure-A, endorsement dated 22.09.2015 and Annexure-B, resolution dated 12.08.2015 are quashed.
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WP No. 11824 of 2018
(ii) The third respondent is directed to give effect to the appellate order dated 30.06.2015 in Appeal No.G.P.05/2014-15 passed by second respondent at Annexure-D. With the above, writ petition stands disposed of.
Sd/-
JUDGE NC CT:bms List No.: 1 Sl No.: 43