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2000 DIGILAW 685 (KAR)

Vokkaleri Grama Panchayath v. State of Karnataka

2000-10-10

V.GOPALA GOWDA

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ORDER V. Gopala Gowda, J.—Vokkaleri Grama Panchayath is the Petitioner before this Court seeking for issuance of a writ of mandamus directing the third Respondent to hand-over eight shops built in the Santhemaidana of Vokkaleri Village, Kolar Taluk, Kolar District and urging various facts and legal contentions. 2. Learned Counsel for the Petitioner Sri Srinivasaiah has placed strong reliance upon the notification dated 27.12.1961 issued by the State Government in exercise of its powers under Sub-section (1) of Section 48 of the erstwhile Mysore Village Panchayaths and Local Boards Act, 1959, the common lands of the Vokkaleri Village including Santhemaidana has been vested with the Petitioner-Grama Panchayath in pursuant to the said notification. The Petitioner has been in possession and enjoyment of the same ever since from the date of issuance of the notice and further the Learned Counsel for the Petitioner has placed strong reliance upon the Division Bench judgment of this Court in Writ Appeal No. 4913 of 1998, decided on 4.12.1998. Wherein this Court at paragraph 4 has clearly held that the common lands which are vested with the erstwhile Village Panchayath of Vokkaleri has been in possession and enjoyment of the land and the notification has not been superseded by the State Government either under the provisions of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 or under the provisions of the Karnataka Panchayat Raj Act, 1993 (hereinafter called as 'the Act of 1983' and 'the Act of 1993' respectively). Therefore, in view of the Repeal and Savings Clause under 1983 Act, Second Proviso, the notification at Annexure 'C' has been continued and further placed reliance upon the order passed by the Division Bench in the Review Petition bearing C.P. No. 44 of 1999 decided on 26.2.1999, wherein this Court after considering the submission made by the Learned Additional Government Advocate under Sections 210 and 212 of the Act of 1993. This Court upheld the earlier order passed in the writ appeal referred to above. This Court upheld the earlier order passed in the writ appeal referred to above. In view of the judgment of this Court the property in question is a Santhemaidana, which is a common land as per the notification at Annexure 'C' and further placed reliance under Section 58 of the Act of 1993, to show that the Petitioner shall perform the functions as specified in Schedule I. Schedule I of the said Act at Item No. XXX establishment and control of sandies is one of the functions enumerated under Schedule I under Section 58 of the said Act by the Petitioner-Grama Panchayat. Therefore, the Petitioner-Grama Panchayath had handed over the property in question to the third Respondent for the purpose of construction of commercial shops with a view to increase its revenue for development of the constituent villages of the Petitioner-Grama Panchayath. Learned Counsel on behalf of the Grama Panchayat has also placed reliance upon Annexure 'J' the similar properties have been vested with the Grama Panchayats of the Kolar Taluk, the third Respondent has constructed the commercial shops and delivered possession of the same in favour of the Grama Panchayaths in the Taluk constituted under the provisions of the Act of 1993. 3. The Learned Counsel for the Petitioner submits that in pursuant to Annexure 'A'-letter, addressed to the third Respondent to show that the property in question was handed over to the third Respondent to enable it for construction of the shops in pursuant to the resolution of the Planning, Finance Accounts Standing Committee of the third Respondent, wherein it has reserved the amount of Rs. 3 lakhs in the resolution dated 14.11.1996 at item Sl. No. 6 in respect of the Petitioner-Grama Panchayat for construction of commercial shops which was earned by the Grama Panchayath after selling the Vokkaleri Farm Forest in public auction and utilisation of the said fund for the purpose of construction of the shops on the Santhemaidana, the property which belongs to the Petitioner-Grama Panchayath. The third Respondent contrary to the resolution at Annexure 'Q' even though the shops were constructed upon the property in question they have not delivered the possession of the constructed shops to the Grama Panchayat for its use and enjoyment and to earn the revenue for the development of the constituent villages of the Grama Panchayath. Therefore, the third Respondent has failed to discharge its statutory duties. Therefore, the third Respondent has failed to discharge its statutory duties. Hence, the Petitioner filed this petition seeking for issuance of a writ of mandamus to the third Respondent to hand over the possession of the constructed shops upon the property of the Petitioner-Grama Panchayat. 4. Learned Additional Government Advocate has sought to justify the action of the third Respondent in not redelivering the possession of the constructed shops in favour of the Petitioner, contending that the property belongs to it in pursuant to Section 210 of the Act 1993. Therefore, he would submits that this Court cannot issue a writ of mandamus to the third Respondent for handing over the possession of the constructed shops. Further Learned Additional Government Advocate submits that the dispute is between the Petitioner and the third Respondent in respect of the property in question, the same shall be adjudicated by the Deputy Commissioner under the provisions of Section 217 of the Act, 1993 and therefore he would submits that this Court need not grant the relief as it has got an alternative remedy as stated supra. Further it is submitted that the Santhemaidana property is not a common land which is not been included in the notification at Annexure 'C' upon which much reliance is placed by the Learned Counsel for the Petitioner. Therefore, the Learned Additional Government Advocate prays for dismissal of the writ petition. 5. After hearing the Learned Counsel for the parties perused the petition averments and the documents produced by the parties and also the pleadings. Annexure 'C' notification was issued by the State Government in exercise of its powers under Section 48(1) of the Repeal Act of 1959. The said notification has been saved in pursuant to the Second Proviso of Section 317 of Act of 1983. It is not the case of the third Respondent that either under the provisions of the Act of 1983 or Act of 1993, the notification at Annexure 'C' has been superseded and the property in question which was vested with the Grama Panchayath has been divested and again the notification was issued as required either under the provisions of the 1983 Act or Act of 1993 was issued by the State Government for vesting of the same property with the third Respondent. In this view of the matter, this Court has to accept the contention of the learned Counsel for the Petitioner that property in question belongs to the Petitioner as it is a common land as stated in the Notification at Annexure 'C'. Under Section 58 read with Schedule I the statutory duty function is conferred upon the Vokkaleri Panchayath at Item No. XXX of the Schedule referred to supra, which is one of the functions of the Petitioner-Grama Panchayath for controlling and running the sandies in the Grama Panchayath area. In this view of the matter, the submission of the Learned Counsel for the Petitioner is well founded and the same must be accepted. The contention of the Learned Additional Government Advocate is that the Santhemaidana land is not a common land as the same is not specially mentioned in the notification at Annexure-C cannot be accepted, as the contention is not tenable in law and therefore the same cannot be accepted by this Court having regard to the fact that it is a land which is required to be used by the community at large of the Petitioners-Grama Panchayat. Therefore, the land in question is a common land, for the reason that broad interpretation to the common land as specified in the notification shall be given keeping in view the functions conferred upon the Petitioner-Grama Panchayat under Section 58 read with Schedule I of the Act 1993 at Item No. XXX. In this view of the matter, the submission made by the Learned Counsel appearing on behalf of the Petitioner is well founded and the same must be accepted and the contention urged on behalf of the third Respondent by the Learned Additional Government Advocate is not tenable in law, hence the same is liable to be rejected. 6. Having regard to the fact that it has recorded a finding that the property in question is vested with the Petitioner-Grama Panchayath in pursuant to the notification at Annexure-C and the third Respondent has not produced any documents to show that the property is vested with the Grama Panchayath has been divested in exercise of its power either in the Act of 1983 or 1993. In this view of the matter, even though the notification was issued by Act No. 27 of 1959, the said notification has been issued by the Government has been saved in pursuant to the second proviso to Section 317 of Act No. 1983. In this view of the matter, the contention urged on behalf of the Respondents that the property in question is vested with the Taluka Panchayat is wholly untenable in law and therefore the said contention is liable to be rejected. 7. As could be seen from Annexure 'A', it is an undisputed fact that the Petitioner-Grama Panchayat has passed resolution to hand over its property to the third Respondent for the purpose of construction of commercial shops for augmentation of its revenue for the development of constituent villages of the Petitioner-Grama Panchayat. The third Respondent represented by its Standing Committee referred to above has passed the resolution at Annexure 'O' earmarking a sum of Rs. 3,00,000/- for the purpose of construction of the commercial shops, upon the Petitioners property out of the funds which it has received from the sale proceeds of the Vokkaleri Farm Forest. The funds received by the third Respondent, from the sale proceeds of the farm forest of Vokkaleri Village and the said committee of the Taluka Panchayat referred to supra has rightly passed the resolution for utilisation of the said amount for the construction of the commercial shops upon the property of the Petitioner-Grama Panchayat. In this view of the matter, the third Respondent is also a local self Government, which is required to control the functioning of the Grama Panchayaths in that Taluk, has taken untenable stand contending that the property in question belongs to it and thereby it has not implemented its own decision and given effect to the provisions of the Act, 1993 in not redelivering the possession of the built shops in favour of the Petitioner. Therefore, the third Respondent has failed to discharge its statutory duties in not re-delivering the constructed commercial shops to see that its own resolutions passed by it are honoured and implemented by it and to see that the Petitioner- Grama Panchayat can effectively discharge its functions as enumerated under Schedule I of the Act. Therefore, the third Respondent has failed to discharge its statutory duties in not re-delivering the constructed commercial shops to see that its own resolutions passed by it are honoured and implemented by it and to see that the Petitioner- Grama Panchayat can effectively discharge its functions as enumerated under Schedule I of the Act. It should have handed over the constructed shops to the Petitioner-Grama Panchayat, it has taken untenable contentions contending that the property in question belongs to it and therefore it need not hand over constructed shops. Therefore, in my considered view, for the reasons stated supra it is proper and appropriate for this Court for issuance of a writ of mandamus to the third Respondent as prayed in this petition. Hence, I pass the following order: Writ Petition is allowed. Rule made absolute. A writ of mandamus is given to the third Respondent to deliver the possession of constructed commercial shops upon the Santhemaidana property which is within the control of the Petitioner-Grama Panchayat, within two weeks from today. Thereafter, the Grama Panchayat shall auction the same and grant the licence rights of the same in favour of the eligible persons, who will be the highest bidders in the public auction.