Disposed

Sri K S Palakshappa v. the Deputy Commissioner

Karnataka HC28 Nov 2022WP/11005/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka disposed of a writ petition seeking directions to repair the Dyamavva Temple Kubaturu. The Court held that the Deputy Commissioner must permit work only in conformity with the prior Division Bench order, which prohibited construction over the temple roof. The Court expunged false allegations against a respondent.

What did the court decide?

Directs Deputy Commissioner to permit work only in tune with Division Bench order; expunges allegations against respondent No.4.

Sri K S Palakshappa Vs the Deputy Commissioner — Property and Title | Karnataka HC (2022)

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WP No. 11005 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28^TH DAY OF NOVEMBER, 2022 BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 11005 OF 2022 (GM-R/C)

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BETWEEN:

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SRI. K.S. PALAKSHAPPA S/O PARASAPPA, AGED ABOUT 70 YEARS, R/AT KUBATURU POST, SORABA TALUK, SHIMOGA DISTRICT-577 429, PRESIDENT, SREE DYAMAVVA TEMPLE MANAGING COMMITTEE, KUBATUR.

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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SRI. SAMPATH KUMAR K.P. S/O SHIVANANDAIAH, AGED ABOUT 40 YEARS, R/AT KUBATURU POST, SORABA TALUK, SHIMOGA DISTRICT-577 429, SECRETARY, SREE DYAMAVVA TEMPLE MANAGING COMMITTEE, KUBATUR.

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(BY SRI. M. SHIVAPRAKASH, ADVOCATE)

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…PETITIONERS

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AND:

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THE DEPUTY COMMISSIONER SHIMOGA DISTRICT, SHIMOGA-577 429.

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WP No. 11005 of 2022

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THE TAHASILDAR SORABA TALUK, SORABA

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SHIMOGA DISTRICT-577 429.

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THE KARNATAKA NIRAVARI NIGAMA LTD., BY ITS EXECUTIVE ENGINEER, A GOVERNMENT OF KARNATAKA ENTERPRISES, DANDAVATHI RESERVOIR PROJECT DIVISION, SHIKARIPURA, SHIMOGA DISTRICT-577 427.

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SRI. K. SRIDHAR

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S/O LATE K. NARAYANACHAR, AGED ABOUT 67 YEARS, R/AT NO.352, 10TH MAIN, BSK I STAGE, II BLOCK, BANGALORE-560 050.

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…RESPONDENTS

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(BY SMT. RASHMI PATEL, HCGP FOR R1 & R2; SRI. K. SREEDHAR, PARTY-IN-PERSON - R4; SRI. K.S. BHEEMAIAH, ADVOCATE FOR R3)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN RESPECT OF THE ORDERS PASSED FROM THE OFFICE OF THE DEPUTY COMMISSIONER REGARDING DYAMAVVA TEMPLE KUBATURU,SORABA TALUK,SHIMOGA DISTRICT.

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners are before this Court seeking the following

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prayer:

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WP No. 11005 of 2022

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"1. Call for the entire records in respect of the orders passed from the Office of the Deputy Commissioner regarding "Dyamavva Temple" Kubaturu, Soraba Taluk, Shimoga District.

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2. Issue Writ of Mandamus or any directions to the Respondent Nos.1 to 3 to carry out, the repair work and to protect the Temple with the G.I. Sheets on the first Slab/Roof for the Temple without causing any damage to the religious sentimental activities of the Devotees in accordance with law.

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3. Pass such other order/s as this Hon'ble Court deems fit and proper in the circumstances of the case."

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Heard Sri. M. Shivaprakash, learned counsel appearing for the petitioners, Smt. Rashmi Patel, learned HCGP appearing for respondents No.1 and 2, Sri. K.S. Bheemaiah, learned counsel appearing for respondent No.3 and Sri. K. Sreedhar, party-in-person.

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The petitioners claim to be permanent residents of Kubaturu Village, Shimoga District and office bearers of village Kubaturu, Sree Dyamavva deity, the temple of Sree Dyamavva, which the petitioners claim to be the Grama Devathe. The issue concerns construction that is sought to be put up upon the existing temple. The Karnataka Niravari Nigama Ltd.,

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WP No. 11005 of 2022

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issues a work order for construction of 'Samudaya Bhavan' near

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the temple on 14.06.2021. When the construction activities began near the temple, respondent No.4 approaches this Court in W.P.No.12830/2021, by filing a petition in public interest. This Division Bench of this Court by its order 23.11.2021, disposed the petition by the following order:

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" In this public interest litigation, the petitioner has sought for a direction restraining the respondent from putting up first floor building over the existing Dyamavva Temple, Kubatur Village, Soraba Taluk, Shivmogga District and in this regard, to consider the petitioner's representation dated 11.06.2021.

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2. It is submitted that it is very old temple and there is water leakage problem and the Deputy Commissioner and the District Muzarai Officer, Shivamogga District has taken a decision to put up first floor building over the existing temple building in order to stop water leakage. It is submitted that if in case, any construction is permitted over the existing building of the temple, it may spoil the look of the temple and it is also submitted that no construction can be permitted over the flag pole of the temple.

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3. Learned Additional Government Advocate on the basis of the instruction submits that no first floor construction is carried over the temple and in fact, only some iron work is being done and the iron sheets are placed over the roof of the temple so that water may not leak over the roof of the temple.

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4. At this stage, learned counsel for the petitioner submits that he has annexed the opinion of the expert's report to the writ petition where it has been informed that many excellent methods are available today for waterproofing which can be done without any damage to the

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WP No. 11005 of 2022

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existing roof. It is also submitted by the petitioner that one Vagesh Patil of the same village had earlier spent more than 15 lakhs for repairing the temple and he is ready to undertake the work of waterproofing on his own expenses and he will not make any construction over the existing roof of the temple.

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5. Learned Additional Government Advocate submits that in case, the petitioner is ready to take work of waterproofing over the roof of the temple on his own expenses, his request would be considered.

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6. In view of the above, the writ petition is disposed of with an observation that the Deputy Commissioner shall not allow any construction over the roof of the temple and shall consider the request of one Sri.Vagesh Patil for repairing of the waterproof work over the temple on his own expenses and in this regard, representation is made by the petitioner at Annexure-D to the writ petition.

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The pending interlocutory applications, if any, stand disposed of."

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(emphasis supplied)

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The Division Bench observes, while disposing the petition that the Deputy Commissioner shall not allow any construction over the roof of the temple and shall consider the request of one Sri. Vagesh patil for repairing of the temple with regard to waterproofing to be done over the temple, at his own expenses, to which the representation is already been made by the petitioners, which was appended to the public interest

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WP No. 11005 of 2022

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petition. The result of the said order, is the present petition before this Court.

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The learned counsel appearing for the petitioner

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Sri. M. Shivaprakash would contend that the work order that is issued is not for any construction over the temple. It is away

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from the temple, which respondent No.4 is coming in the way. He would further submit that the construction activities will be taken only in tune with what, the Division Bench has permitted, and not anything beyond that.

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The said submission is placed on record.

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The learned High Court Government Pleader would submit that the representation is given by the petitioners to the effect that they would restrict their construction activities to what is held by the Division Bench and therefore, no permission is now accorded for any other construction as alleged.

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WP No. 11005 of 2022

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Respondent No.4, in person, would submit that he

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is before the Court in person as the petitioners have made allegations against him.

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I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the materials on record.

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The afore narrated facts are not in dispute. The photographs appended to the petition demonstrates that the temple is in a dilapidated condition. The work order issued by the Karnataka Niravari Nigama Ltd., is to the effect that the construction of 'Samudhaya Bhavan' to be near the temple, the allegation is that construction was sought to be made over and above the dilapidated temple. It is therefore, respondent No.4 approached this Court in the public interest litigation and Division Bench has passed the above said order (supra). In the light of the order of the Division Bench, whatever work order is issued should be executed in conformity with what Division Bench has ordered. The Division Bench has clearly indicated

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WP No. 11005 of 2022

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that the Deputy Commissioner shall not allow any construction

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over the roof of the temple.

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Therefore, the Deputy Commissioner is directed to permit any work to be undertaken only in terms in tune with the direction of the Division Bench, which is not to permit any construction over the roof of the temple. Insofar as the allegations made against respondent No.4 in the petition are concerned, the allegations are misplaced. In the light of the fact with the Division Bench order is not called in question by the petitioners and the said order became final. The petitioners could not have made any allegations of the kind that they have printed in the petition. Therefore, all allegations made in the petition against respondent No.4 - Sri. K. Sreedhar shall stand expunged.

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By the aforesaid observation, the petition stands disposed.

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Sd/JUDGE

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Sri K S Palakshappa v. the Deputy Commissioner

Case brief

What is this about?

What did the court decide?

Sri K S Palakshappa v. the Deputy Commissioner

Case brief

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