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Kemapaiah @ Chikkamota vs Adhyaksha on 24 April, 2014

Karnataka High Court Kemapaiah @ Chikkamota vs Adhyaksha on 24 April, 2014Author: A.N.Venugopala Gowda

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 24TH DAY OF APRIL, 2014 BEFORE

THE HON’BLE MR. JUSTICE A.N. VENUGOPALA GOWDA WRIT PETITION NO.5576/2014 (LB-RES) BETWEEN:

Kempaiah @ Chikkamota,

S/o. Kalammana Hucchegowda,

Aged about 75 years,

R/at Yaleyur Village, Kottathi Hobli, Mandya Taluk – 571 401.

…PETITIONER

(By Sri H.B. Chandrashekar, Adv.) AND:

1. Adhyaksha,

Zilla Panchayat, Mandya,

Mandya District – 571 401.

2. Adhyaksha,

Taluk Panchayat, Mandya,

Mandya Taluk – 571 401.

3. The Secretary,

Yeleyur Grama Panchayat,

Kottathi Hobli,

Mandya Taluk – 571 401.

4. Y.K. Shankar,

S/o. late Kadaiah,

Aged about 40 years.

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5. Thayyakka,

W/o. late Mottakempe Gowdanalingaiah, Aged about 75 years.

6. Mottappa,

S/o. Kallammana Lingaiah,

Aged about 55 years.

R6 deleted vide Court order dated 16.4.2014.

7. Ningegowda,

S/o. Kallammana Nathegowda,

Aged about 60 years.

8. Y.A. Honnegowda,

S/o. Kempaiah @ Haragiah,

Aged about 40 years.

Respondents 4 to 8 are

R/at Heleyur Village, Kothatti Hobli, Mandya Taluk – 571 401.

…RESPONDENTS

(By Sri B.J. Somayaji, Adv. for R1 & R3; Sri M. Sivappa, Adv. for R4;

R2, R5, R7 & R8 are served;

R6 deleted)

This petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the order dated 25.10.2013 passed by the 1st respondent Appeal No.67/10-11 vide Annexure-A and consequently dismiss the appeal.

This petition coming on for preliminary hearing in ‘B’ group this day, the Court made the following: 3

ORDER

Considering a representation made by the petitioner seeking change of entry in respect of property situated at Yaleyur Village, Kottathi Hobli, Mandya Taluk, respondent No.3 – Panchayat, having passed a resolution the entry was made on 20.11.2000, in the name of the petitioner. Challenge to the said resolution made by respondents 4 to 8, in Appeal No.17/10-11 before the Taluk Panchayat, Mandya Taluk, failed on account of dismissal of the appeal on 14.10.2010. Respondent No.4 having questioned the said order in Appeal No.67/10-11 before the respondent No.1 and the same having been allowed on 25.10.2013 vide Annexure-A, this writ petition was filed, to quash the order as at Annexure-A and grant the consequential reliefs.

2. Sri H.B. Chandrashekar, learned advocate, by relying upon the decision in the case of SRI K.S. NAGARAJA RAO Vs. CHICKMAGALUR ZILLA PANCHAYAT AND OTHERS, 2000 (4) KCCR 2547, contended that the Adhyaksha of the Taluk Panchayat having not interfered with the resolution of the 4

Grama Panchayat and the impugned order passed by the Taluk Panchayat being an order of dismissal of the grievance made against the resolution of the respondent No.3, the respondent No.1 could not have invoked the provisions under S.237(3) of the Karnataka Panchayat Raj Act, 1993 (for short ‘the Act’) and allowed the appeal and set aside the impugned order dated 14.10.2010 passed in Appeal No.17/10-11 by the Adhyaksha of the Taluk Panchayat, Mandya Taluk. He submitted that the impugned order being arbitrary and illegal, interference is called for.

3. Sri. B.J. Somayaji, learned advocated submitted that this case is similar to one decided on 09.04.2014 in W.P.NO.28639/2012 (SMT. NINGAMMA VS. SRI U.V. NARAYANASWAMY AND OTHERS).

4. Learned advocate appearing for respondent No.4 submitted that in the facts and circumstances of the case, the decision in the case of Sri K.S. Nagaraja Rao 5

(supra) has no application and hence, the impugned order is sustainable.

5. Perused the writ record.

6. Respondents 4 to 8 had filed case No.17/10- 11, before the respondent No.2, questioning the resolution passed on Sub.No.5/13 dated 20.11.2000. The said case upon consideration was dismissed on 14.10.2010 vide Annexure-K. Respondent No.4 filed Appeal No.67/2010- 11, under S.237(3) of the Act, before the respondent No.1, to set aside the order dated 14.10.2010 dismissing the case No.17/10-11 by the respondent No.2. The said appeal was allowed by an order as at Annexure-A and the impugned order therein was set aside and the khata of the property was ordered to be made in the name of respondent No.4.

7. In the case of Sri K.S. Nagaraja Rao, (supra), considering an application filed by the petitioner, the Grama Panchayat passed a resolution cancelling the khata of the property and reassigned khata number in his favour. 6

Aggrieved by the said order, respondent No.3 therein, filed an appeal before the Chief Executive Officer of Zilla Panchayat, invoking the provisions under S.237(1) of the Act. In view of the amendment of the said provision and substitution of Adhyaksha of the Taluk Panchayat in place of Executive Officer of the Zilla Panchayat, the case was transferred to the Adhyaksha of the Taluk Panchayat, who did not interfere with the resolution passed by the Grama Panchayat and dismissed the appeal. Dissatisfied, the respondent No.3 therein, preferred a further appeal before the Adhyaksha of Zilla Panchayat, invoking the provisions under S.237(3) of the Act, which empowers the Adhyaksha of the Zilla Panchayat to suspend the execution of any resolution or order of the Taluk Panchayat or any Authority or Officer of the said Panchayat, in case any such order is found to be unlawful, unjust or improper in law. The Adhyaksha of the Zilla Panchayat, having found merit in the grievance of the appellant before him, allowed the appeal and set aside the impugned order in the appeal passed by the Adhyaksha of the Taluk Panchayat and 7

directed necessary steps to be taken. The said order was assailed in the writ petition. After considering the rival contentions and provision under S.237 of the Act, while allowing the writ petition, it has been held as follows: “To sum up.-

(a) The Adhyaksha of Zilla Panchayats can interfere with an order or resolution of the Grama Panchayat or any officer or authority only when the Adhyaksha of the Taluk Panchayat makes a reference to him under Section 237(2) of the Act. (b) The Adhyaksha of Zilla Panchayat can interfere with an order passed by the Taluk Panchayat, or an Officer or Authority of such Panchayat which expression should include the Adhyaksha of Taluk Panchayat also only if any such order is capable of execution. An order of the Adhyaksha of the Taluk Panchayat refusing to interfere with the resolution of the Grama Panchayat not being one such order cannot be interfered with by the Adhyaksha of Zilla Panchayat.” (emphasis supplied)

8. The said decision and the order passed on 09.04.2014 allowing W.P.No.28639/2012, squarely apply to the case on hand.

In the result, following the decisions, noticed supra and for the reasons recorded therein, this writ petition is allowed and the order as at Annexure-A, impugned in this 8

petition is quashed. Consequently, Appeal No.67/10-11 on the file of the respondent No.1 is held as not maintainable and stands dismissed accordingly. However, liberty is reserved to respondent No.4 to seek appropriate relief against the resolution of the Panchayat and the order of the Adhyaksha of the Taluk Panchayat, in appropriate proceedings and in accordance with law.

No costs.

Sd/-

JUDGE

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