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2002 DIGILAW 161 (KAR)

PATEL PILLANNA v. STATE OF KARNATAKA

2002-02-27

N.K.JAIN, N.KUMAR

body2002
N. K. JAIN, C. J. ( 1 ) THIS writ appeal is filed against the order dated 19-6-2001 passed in w. P. No. 12216 of 2000 reviewing the order passed in W. P. No. 38408 of 1999. ( 2 ) THE grievance of the learned Counsel for the appellant is that the panchayat was not a necessary party nor the Secretary is authorised to file the writ petition and despite that the learned Single Judge reviewed his own order and restored the writ petition. ( 3 ) IN response to the notice respondent 4 appeared and filed statement of objections denying the allegations as alleged. It is stated that possession of the disputed land has been taken over. It is also stated that resolution dated 5-11-1999 which was produced with the rejoinder pertains to two lands in Sy. Nos. 132 and 133. ( 4 ) THE learned Counsel for respondent 4 submits that as the Amendment act came into force from 24-9-1984 and within two years from that date the award was passed, considering the same the learned Single judge found that there is an error apparent on the face of record and recalled the order and so no interference is required in appeal. As regards the argument that the Panchayat is not a necessary party and so also in absence of any resolution no writ is maintainable, the learned counsel for respondent 4 submitted that the appellant-petitioner has not raised this argument earlier and it cannot be considered now. On the other hand, learned Counsel for the appellant submits he has made a statement in the objection statement at para 11 but the same was not considered, therefore, it may be considered and the order of the learned single Judge is liable to be set aside. He relied on the decisions in larsen and Toubro Limited v State of Gujarat and Others1 and B. H. Inamdar v B. F. Swamy2. ( 5 ) WE have heard the learned Counsels on both sides and perused the materials placed on record and the case-laws cited. ( 6 ) THE learned Counsel has not disputed the amendment and passing of the award on 20-9-1986 which was in time. So we find no error in the order. ( 7 ) CONSIDERING the other argument, that the point though mentioned in. ( 6 ) THE learned Counsel has not disputed the amendment and passing of the award on 20-9-1986 which was in time. So we find no error in the order. ( 7 ) CONSIDERING the other argument, that the point though mentioned in. the objections but not argued or agitated before the learned Single judge cannot be taken note of and it cannot be permitted to be raised. Admittedly, in the instant case the point was not raised and the same cannot be allowed to be raised now at this stage. Even considering the argument and the contention of the respondent as the matter pertains to the Karnataka Panchayat Raj Act, 1993 (hereinafter called 'act' ). In view of the statutory powers under Section 111, the Secretary is competent to perform all the duties and exercise all powers conferred upon him under the Act or by the bye-laws. The Secretary, considering that the land was acquired for the construction of school which comes within the jurisdiction and purview of the Panchayat has filed the petition. Therefore, it cannot be said that the Panchayat is not a necessary party and so also it was not necessary to file a resolution, even though as per the rejoinder resolution was filed pertaining to two survey numbers including the land in dispute. ( 8 ) SO far as the case-laws are concerned, the case in M/s. Larsen and toubro Limited, supra, is not helpful as in that case after acquisition, invoking Section 48 of the Land Acquisition Act, the land was with drawn from acquisition. It was held that an owner need not be given any notice of the intention of the State Government to withdraw from the acquisition and the State Government is at liberty to do so. It was further held that prior notice to the affected party is not necessary when the landowner is the affected party, but it is necessary when company for whose benefit land is acquired is the affected party. So also the other case B. H. Inamdar, supra, is also not helpful as in that case no resolution is brought on record authorising to file a suit and it was held the secretary therefore had no authority to file a suit on behalf of the Society. So also the other case B. H. Inamdar, supra, is also not helpful as in that case no resolution is brought on record authorising to file a suit and it was held the secretary therefore had no authority to file a suit on behalf of the Society. As already stated, in the instant case, by virtue of statutory powers the Secretary was competent to perform all the duties and exercise all powers conferred upon him. In view of the above discussion and on consideration we find no error or illegality in the order of the learned single Judge so as to call for any interference. Accordingly, the writ appeal is dismissed. --- *** --- .