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2006 DIGILAW 244 (KAR)

B. K. NINGAPPA v. B. K. VENKATESH

2006-03-03

N.K.PATIL

body2006
ORDER The petitioners, assailing the correctness of the impugned order dated 16-5-2003 on the file of the 4th respondent in Appeal No. TPA(6)5:2002-03 vide Annexure-H, have presented this writ petition. Further, petitioners sought to declare that, the order passed by 4th respondent is without jurisdiction and same is illegal. 2. The grievance of the petitioners in this writ petition is that, first petitioner and the father of the 2nd petitioner-Sri Doddaningappa have purchased two vacant house sites under open public auction made by the erstwhile Banavara Municipality on 21-6-1971 measuring 45 x 50 ft. each, as they are the highest bidders in the said auction conducted by the predecessor of the 2nd respondent. The bid amount have been paid by them on the spot and then Municipality had executed registered sale deeds in favour of the first petitioner and father of the 2nd petitioner and since the date of purchase, petitioners are in peaceful possession and enjoyment of the same. Thereafter, father of the first respondent had filed a suit in O.S. No. 141 of 1974 on the file of the Additional Munsiff Court, Arasikere for the relief of permanent injunction to an extent of property measuring 28 x 36 yards, which includes the properties purchased by the first petitioner and the father of the 2nd petitioner. The said suit was dismissed on 24-6-1983. Against the dismissal of the said suit, father of the first respondent had preferred an appeal before the Civil Judge, Arasikere, in R.A. No. 73 of 1987 and the petitioners herein are the parties to the said appeal. The said appeal has been disposed of, when father of the first respondent has restricted his claim to the extent of 40 ft. x 60 ft., vide Annexure-E. Further, it is the case of the petitioners that, first respondent herein has filed an appeal on the file of the 4th respondent, assailing the validity of the public auction held on 21-6-1971, through which these petitioners have purchased the properties, after the lapse of 32 years. x 60 ft., vide Annexure-E. Further, it is the case of the petitioners that, first respondent herein has filed an appeal on the file of the 4th respondent, assailing the validity of the public auction held on 21-6-1971, through which these petitioners have purchased the properties, after the lapse of 32 years. The said appeal filed by the first respondent was allowed by the 4th respondent, holding that the auction conducted in the year 1971 by the predecessor of the 4th respondent is not in accordance with law and it raises several doubts and without verification of the materials available on file the said auction has been conducted unilaterally and if the records for the year 1904-05 are verified, katha bearing No, 24:462 measuring 28 x 36 yards stands in the name of one Sri Kashi Venkateshaiah and he was the original kathedar and set aside the said auction proceedings and directed to register the katha in the name of the successor of the said Sri Kashi Venkateshaiah. Being aggrieved by the order passed by the 4th respondent vide Annexure-H, petitioners felt necessitated to present this writ petition. 3. I have heard the learned Counsel for the both the parties. 4. After careful perusal of the materials available on record, including the impugned order passed by the 4th respondent, vide Annexure-H, dated 16th May, 2003, it is manifest on the face of the order that, 4th respondent has committed an error, much less material irregularity in passing the said order, without conducting the proper enquiry and without affording opportunity to the petitioners. The manner in which the 4th respondent has entertained the appeal filed by the first respondent assailing the resolution passed by the predecessor of the 4th respondent putting the sites in auction after the lapse of more than 32 years is not sustainable, for the reason that, the said public auction has become final; highest bid of the first petitioner and father of the second petitioner were accepted; necessary sale deeds have been executed in their favour; their names have been entered in the records and they were put in possession of their respective properties. But this aspect of the matter is not looked into by the 4th respondent, nor there is any whisper regarding the appeal filed by the first respondent in the impugned order. But this aspect of the matter is not looked into by the 4th respondent, nor there is any whisper regarding the appeal filed by the first respondent in the impugned order. The respondent has entertained the said appeal and gone to the extent of declaring that, an extent of 28 x 36 yards stands in the name of the predecessor of the first respondent. The said reasoning is given only on the basis of the statement made by the first respondent and without calling for the records and without verifying the materials available on record. It is significant to note that, as a matter of fact, the father of the first respondent had filed original suit on the file of the Additional Munsiff Court, Arasikere in O.S. No. 141 of 1974 seeking permanent injunction to an extent of 28 x 36 yards. The said suit was dismissed and against that judgment and decree passed by the learned Additional Munsiff, Arasikere, he has filed an appeal before the Civil Judge, Arasikere in RA. No. 73 of 1987. The said appeal was allowed ill part and it was declared that the deceased father of the first respondent was in peaceful possession and enjoyment of the suit property measuring 40 ft. x 60 ft. Thereafter, first respondent has filed an appeal before the 4th respondent in No. TPA(6):5:02-03 against the proceedings of the Municipality after the lapse of 32 years. The 4th respondent has entertained the said appeal and directed the 3rd respondent herein to enter the names of legal heirs of late Sri Kashi Venkateshaiah in respect of the said property. The 4th respondent has got the power under the mandatory provisions of the Karnataka Panchayat Raj Act, 1993 and Rules, only to verify as to whether the katha registered is in accordance with law or not and he has no jurisdiction, as such, to give declaration declaring that the particular piece of land stands in the name of the predecessor of the first respondent on the basis of some wrong transaction and without verifying the records from the respondents 2 and 3. If the 4th respondent has verified the original records, he might have got some additional information regarding the dispute between the petitioners and the first respondent and his predecessors. If the 4th respondent has verified the original records, he might have got some additional information regarding the dispute between the petitioners and the first respondent and his predecessors. The manner in which 4th respondent has proceeded to consider and entertain the appeal filed by the first respondent after the lapse of more than 32 years is one without jurisdiction. Nor he has got any such power under the mandatory provisions of the Panchayat Raj Act and Rules. When the Competent Civil Court has given a declaration declaring that the father of the first respondent is entitled to an extent of 40 ft. x 60 ft. and that decree has attained finality, and by suppressing this fact, first respondent has filed an appeal against the public auction dated 21-6-1971 and 4th respondent has entertained the same without any whisper regarding the delay in redressing the grievance by the first respondent after the lapse of nearly more than 3 and half decades. The manner in which, the 4th respondent has proceeded to pass the order is one without application of mind and contrary to the mandatory provisions of the Panchayat Raj Act and Rules. Therefore, I am of the considered view that, at any stretch of imagination, the order passed by the 4th respondent is not sustainable. 5. Having regard to the facts and circumstances of the case as stated above, the writ petition filed by the petitioners is allowed. The order passed by the 4th respondent on 16-5-2003 in Appeal No. TPA(6)5:2002-03 vide Annexure-H is hereby set aside. However, it is needless to clarify that, the order passed by this Court will not come in the way of the first respondent to redress his grievance before the Competent Civil Court, if so advised.