The Town Panchayath Chinchali Vs the Deputy Commissioner

THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER PASSED BY THIS COURT IN W.P.NO.103307 OF 2021 DATED 20/06/2022 AND DISMISS THE WRIT PETITION BY ALLOWING THE PRESENT APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.

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IN W.A. NO.100528 OF 2022:

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BETWEEN:

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THE TOWN PANCHAYAT CHINCHALI REP. BY ITS CHIEF OFFICER, R/AT CHINCHALI, TQ. RAIBAG, DIST. BELAGAVI-591317.

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…APPELLANT

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(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)

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AND:

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THE DEPUTY COMMISSIONER, BELAGAVI DIST. BELAGAVI-590001.

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THE TAHASILDAR, RAIBAG TALUK. RAIBAG, DIST. BELAGAVI-591102.

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SRI GUNADHAR S/O. APPASAHEB SAGARE, AGED ABOUT 76 YEARS, OCC. BUSINESS AND AGRICULTURE, R/AT CHINCHALI, TQ. RAIBAG, DIST. BELAGAVI-591102.

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…RESPONDENTS

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(BY SRI. GIRISH HIREGOUDAR GOVERNMENT ADV. FOR R1 & R2) (SRI. SANJAY S.KATAGERI, ADVOCATE FOR R3)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER PASSED BY THIS COURT IN W.P. NO.103709 OF 2021 DATED 20.06.2022 AND DISMISS THE WRIT PETITION BY ALLOWING THE PRESENT APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.

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IN W.A. NO.100529 OF 2022: BETWEEN:

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THE TOWN PANCHAYAT CHINCHALI REP. BY ITS CHIEF OFFICER R/AT CHINCHALI, TQ. RAIBAG, DIST. BELAGAVI-591317.

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…APPELLANT

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(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)

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AND:

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THE DEPUTY COMMISSIONER, BELAGAVI, DIST. BELAGAVI-590001.

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THE TAHASILDAR, RAIBAG, TALUK. RAIBAG, DIST. BELAGAVI-591102.

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SRI. JITENDRA S/O. SHIVAJI SOUNDALAGE, AGED ABOUT 29 YEARS, OCC. BUSINESS, R/AT CHINCHALI, TQ. RAIBAG, DIST. BELAGAVI-591317.

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SRI. ANKUSH S/O. LIMBAJI JADHAV, AGED ABOUT MAJOR YEARS, OCC. AGRICULTURE, R/AT CHINCHALI, TQ. RAIBAG, DIST. BELAGAVI-591317.

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THE INSPECTOR OF EXCISE, RAIBAG DIVISION RAIBAG, DIST. BELAGAVI-591317.

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…RESPONDENTS

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(BY SRI. GIRISH HIREGOUDAR, GOVT. ADV. FOR R1, R2 & R5; SRI. RAMACHANDRA MALI, ADV. FOR C/R3; NOTICE TO R4 IS SERVED)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER PASSED BY THIS COURT IN W.P. NO.103054 OF 2021 DATED 20.06.2022 AND DISMISS THE WRIT PETITION BY ALLOWING THE PRESENT APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.

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THESE WRIT APPEALS, COMING ON FOR PRELIMINARY HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE S G PANDIT AND

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THE HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE S.G. PANDIT)

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These batch of writ appeals filed under Section 4 of the Karnataka High Court Act, 1961 are directed against common order dated 20.6.2022 passed by the learned Single Judge in WP Nos.103054/2021 c/w 103307/2021 & 103709/2021, whereunder the impugned order dated 31.08.2021 passed by 1^st respondent-Deputy Commissioner challenged in WP No.103054/2021 & WP No.103307/2021; order passed by 1^st respondent-Deputy Commissioner in Dispute bearing No. BGM.DUDC:Appeal:CR:42A/2020-21 & BGM. DUDC: Appeal: CR:42A/2020-21 & CR:42/2020-21 and further proceedings in dispute bearing No.BGM:DUDC:Appeal:CR-02/2021 challenged in WP No.103709/2021, are quashed, with a further observation that unless and until the respondent/Town Panchayat gets its title declared at the hands of the competent Civil Court, it cannot decline to assess the lands in question for tax and till then the property tax in respect of the lands in question shall be assessed and collected by the Town Panchayat.

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2. Heard the learned counsel Sri. Mrutyunjaya Tata Bangi for the appellant/Town Panchayat, learned AGA for the respondents/State and learned counsel Sri. Ramachandra A Mali, Sri. Sanjay S Katageri & Smt. Priyanka Pawar for the private respondents. Perused the writ appeal papers.

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3. The parties would be referred to as they stood before the learned Single Judge for the sake of convenience. Before the learned Single Judge, respondent No.3 in all these appeals were the petitioners and the appellant was respondent No.3.

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4. The petitioners approached the learned Single Judge questioning the order passed by the Deputy Commissioner purportedly in exercise of power under Section 306 of Karnataka Municipalities Act, 1964¹ contending that the Deputy Commissioner could not have exercised power under Section 306 of the Act of 1964 and that the power under Section 306 could be exercised under different circumstances,

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wherein in the opinion of the Deputy Commissioner, the execution of any order or resolution of a town municipal

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1 ‘Act of 1964’ for short

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council, or the doing of anything which is about to be done or is being done by or on behalf of a town municipal council, is unlawful or is causing or is likely to cause injury or annoyance to the public , or to lead to a breach of the peace, the Deputy Commissioner could exercise his power to suspend the execution or prohibit the doing of any such act. Further, learned counsel for the respondents/petitioners would contend that the dispute between the parties is settled in OS Nos.847/2015, 644/2016 and 897/2016, wherein the Chief Officer of the Appellant/Town Panchayat had given an undertaking to the effect that they will not interfere with the peaceful enjoyment of the suit schedule property and the said suit was disposed of by order dated 26.4.2018.

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5. On the contrary, learned counsel for the appellant/Town Panchayat would contend that the Deputy Commissioner is empowered to pass order under Section 306 of the Act of 1964, that if, in the opinion of the Deputy Commissioner, the order or resolution of Town Municipal Council would affect the interest of the public or protect the public property, the Deputy Commissioner could suspend the execution of such order or could prohibit the doing of any work,

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which would affect the public peace or public interest. Learned counsel would submit that the Deputy Commissioner has passed order under Section 306 of the Act of 1964 to protect the interest of the State or to protect the property of Municipality. It is submitted that it is for the petitioners to establish their title. As such, he prays for allowing the appeals.

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6. Having heard the learned counsel for the parties and on perusal of the appeal papers, the only point that would fall for consideration is, whether the impugned common order passed by the learned Single Judge requires interference?

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7. Answer to the above point would be in the “negative” for the following reasons:

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8. To answer the above question, it would be necessary to peruse Section 306 of the Act of 1964, which reads as follows:

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“ 306. Deputy Commissioner's power of suspending execution of orders, etc. of municipal councils.

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(1) If, in the opinion of the Deputy Commissioner, the execution of any order or resolution of a town municipal council, or the doing of anything which is about to be done or is being done by or on behalf of a town municipal council, is unlawful or is causing or is likely to cause injury or annoyance to the public, or to lead to a breach of the peace, he may, by

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order in writing under his signature, suspend the execution or prohibit the doing thereof.

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(2) When a Deputy Commissioner makes any order under this section, he shall forthwith forward to Government and to the [Director of Municipal Administration] and to the municipal council affected thereby a copy of the order, with a statement of the reasons for making it; and it shall be in the discretion of the Government to rescind the order, or to direct that it shall continue in force with or without modification, permanently or for such period as it thinks fit: Provided that no order of the Deputy Commissioner passed under this section shall be confirmed, revised or modified by the Government without giving the municipal council, a reasonable opportunity of showing cause against the said order. ”

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9. A perusal of the above provision makes it abundantly clear that if, in the opinion of the Deputy Commissioner, the execution of any order or resolution of a Town Municipal Council, or the doing of anything which is about to be done or is being done by or on behalf of a Town Municipal Council, is unlawful or is causing or is likely to cause injury or annoyance to the public, or to lead to a breach of peace, the Deputy Commissioner could suspend or prohibit the doing of any such act. Thereafter, the Deputy Commissioner shall forthwith forward to the government the order passed by him and to the Municipal Council; and the Government in its

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discretion could rescind the order, or to direct that it shall continue in force with or without modification, permanently or for such period as it thinks fit.

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10. In the instant case, the dispute relates to the property in question and such dispute is settled in OS Nos.847/2015, 644/2016 as well as in OS No.897/2016, wherein it is seen from the records that the Chief Officer of the Municipality has given an undertaking to the effect that they will not interfere with the peaceful enjoyment of the suit schedule property.

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11. At the instance of respondent No.4 in WP No.103054/2021, the appellant/Town Panchayat passed a resolution dated 13.07.2016 declaring that the lands in question are the properties belonging to the Town Panchayat and to remove the names of the petitioners or their predecessors from the revenue records. In the peculiar facts of the present case, the Deputy Commissioner could not have exercised the power under Section 306 of the Act of 1964. The learned Single Judge at paragraph-5 of the impugned order has rightly observed as under:

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“5. Having heard the learned counsels and on perusing the petition papers, this Court finds that the powers conferred under Section 306 of the Act on the Deputy Commissioner could be invoke in the matter of execution of an order or resolution of the Municipal Council or the doing of anything which is about to be done or is being done by or on behalf of a Municipal Councils, is unlawful or is causing or is likely to cause injury or annoyance to the public, or would lead to a breach of peace. If the Deputy Commissioner is of the opinion that such an order or resolution of the Municipal Council would result in any of those exigencies, then he could suspend the execution or prohibit the doing of any such act in consequence to the order of resolution. Therefore, as rightly submitted by the learned counsel for the petitioner, this provisions could not have been invoked by the Deputy Commissioner, either on his own motion or at the instance of respondent No.4 herein, to remove the names of the petitioners or their predecessors from the records of the Municipality, in respect of the lands in question. This position has been reiterated in both the cases that were sited by the learned counsel for petitioner. In fact, in the case of Ishwara Gouda (Supra), Hon’ble Division Bench noticed that such an order was passed by the Deputy Commissioner invoking Section 306, at the request/ application of the respondent Town Panchayat. Therefore, the orders passed by the Deputy Commissioner invoking the powers conferred under Section 306 was held to be wholly misconceived. ”

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12. Further, the learned Single Judge is also justified in observing that unless and until the respondent/Town Panchayat gets its title declared at the hands of the competent Civil Court, it cannot decline to assess the lands in question for tax and till then the property tax in respect of the lands in question shall be assessed and collected by the Town Panchayat.

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13. For the aforementioned reasons, we do not find any error or illegality in the impugned common order passed by the learned Single Judge. There is no merit in the above appeals. Accordingly, the above writ appeals are dismissed .

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Pending applications, if any, are disposed of as not surviving for consideration.

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Sd/(S G PANDIT) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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JTR CT: UMD List No.: 1 Sl No.: 2

The Town Panchayath Chinchali v. the Deputy Commissioner

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The Town Panchayath Chinchali v. the Deputy Commissioner

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