SHIRALAKOPPA MANDAL PANCHAYAT v. STATE OF KARNATAKA
1989-07-31
M.P.CHANDRAKANTARAJ
body1989
DigiLaw.ai
CHANDRAKANTHARAJ URS, J. ( 1 ) THIS matter coming up for orders on I. A. I. to vacate stay, the main petition itself is taken up for final hearing by consent of counsel for parties; arguments have been heard and the matter is disposed of by the following order. Writ petitioner is Shiralakoppa Mandal panchayat. It is aggrieved by the order dated 20-5-1989 of the 2nd respondent-Zilla Parishad, shimoga purporting to be one made in exercise of its power under Section 270 of the Karnataka zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (in short 'the Act' ). Therefore, the present writ petition seeking to quash the said order as at Annexure-C as being one without jurisdiction and contrary to the provisions of the Act. ( 2 ) THE facts leading to the petition briefly stated are as follows: third rcspondent-M/s. M. N. Pickle Industries applied to the petitioner-Mandal panchayat for grant of licence to start a pickle industry within the limits of Mandal Panchayat. That application came to be considered at the meeting held on 31-1-1989 at 4 p. m. in the office of the Mandal Panchayat as evidenced by Annexure-B to the petition which is a true copy proceedings of the Mandal Panchayat. The mandal Panchayat rejected the application for grant of licence inter alia on the ground that the proposed factory has been erected on encroached ground which belongs to the Mandal panchayat and the matter was subject matter of litigation in Court and till that was decided in the Court, question of granting licence would not arise. Against the said resolution rejecting the licence, an appeal was filed by the 3rd respondent - Pickle Industries to the Zilla Parishad. It is in that appeal the impugned order as at Annexure-C is passed suspending the resolution of the Mandal Panchayat as well as directing the mandal Panchayat to issue the licence to the 3rd respondent. It is also clear from the endorsement in the impugned order forwarding the order to the Government for further action that the deputy Secretary, Development of Zilla Parishad, Shimoga is under the impression that he has exercised his power under Section 270 (2) of the Karnataka Zilla Parishads Act. Therefore, the present writ petition by the Mandal panchayat.
It is also clear from the endorsement in the impugned order forwarding the order to the Government for further action that the deputy Secretary, Development of Zilla Parishad, Shimoga is under the impression that he has exercised his power under Section 270 (2) of the Karnataka Zilla Parishads Act. Therefore, the present writ petition by the Mandal panchayat. ( 3 ) SECTIONS 63, 64, 65, 66, 67, 68 and 69 of the Act deal with some of the duties and functions of the Mandal Panchayat in the matter of grant of permission to construct factories, grant of licence, control of hotels, prohibition of offensive or dangerous trade without licence, licensing of shops etc. Section 66 specifically provide for permission for the constructions of factories and the installation of machinery. It is as follows:"66. No person shall, without the permission of the Mandal Panchayat and except in accordance with the conditions specified in such permission, (a) construct or establish any factory, workshop or workplace in which it is produced to employ steam power, water power or other mechanical power or electrical power; or (b) instal in any premises, any machinery or manufacturing plant driven by any power as aforesaid, not being machinery or manufacturing plant exempted by rules made by the government under this Act. "section 70 explicitly provides, the permissions contemplated under Sections 66, 67 and 69, if refused, the aggrieved person may file an appeal to the Zilla Parishad, within 30 days under subsection (3) of that Section. That certain facts made out in the appeal cannot be disputed in view of Annexure-C itself which states in the preamble part that the appeal has been filed by the 3rd respondent - Pickle Industries Limited. Once a specific remedy for a specific act of commission or omission by the Mandal Panchayat to the aggrieved person, then Zilla Parishad cannot look elsewhere in the enactment to exercise power which is not called for to provide the remedy.
Once a specific remedy for a specific act of commission or omission by the Mandal Panchayat to the aggrieved person, then Zilla Parishad cannot look elsewhere in the enactment to exercise power which is not called for to provide the remedy. Section 270 of the Act is a general provision made enabling the Zilla Parishad to exercise some powers of superintendence in certain situation, if in its opinion the execution of any order or resolution of Mandal Panchayat or any order of any authority or officer of a Mandal panchayat or the doing any thing which is about to be done, or is being done, by or on behalf of a Mandal Panchayat is unjust, unlawful or improper or is causing or is likely to cause injury or annoyance to the public or to lead to a breach of the peace, it may by order suspend the execution or prohibit the doing thereof. This provision is very similar to Section 306 of the Karnataka Municipalities Act and the Section 200 of the erstwhile Village Panchayats Act which enabled specified officer to exercise similar power in public interest. Those sections have been the subject matter of numerous decision of this Court. Therefore, the scope and ambit of section 270 is not in doubt. It is a power to be exercised only when the specifically enumerated situations in sub-section (1) of Section 270 exist and not otherwise. When an appeal is preferred by an aggrieved party on refusal of licence, the only remedy is to pursue the right which is conferred on such person under sub-section (3) of section 70 of the Act. But a negative resolution cannot by such suspension, means no more than that the application for grant of licence will remain pending before the Mandal Panchayat. ( 4 ) THEREFORE, the Deputy Secretary has totally misconceived the provisions of the Act and passed the impugned order. Therefore, it is liable to be quashed. ( 5 ) ACCORDINGLY, it is quashed with a direction that the appeal pending before him may be disposed of as an appeal filed under sub-section (3) of Section 70 of the Act. ( 6 ) IN the circumstances of the case, there will be no order as to costs. Rule will accordingly issue and be made absolute. --- *** --- .