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IN THE HIGH COURT OF DHARWAD BENCH

DATED THIS THE 31 ST DAY OF OCTOBER, 2015

BEFORE

THE HON’BLE MR.JUSTICE S.ABDUL NAZEER

WRIT PETITION No.62629/2010 (GM-RES)

BETWEEN:

SRI GURU ADAVISH KARAPASHRIWADITH MULA SRI BALAYYA SWAMIGALAVARA GADDIGE VOLAGINAMATH, A REGISTERED PUBLIC TRUST, BY ITS TRUSTEE, SRI BRAHAMASHRI ISWARAYYA SWAMIGALU, S/O SRI VEERABHADRAYYA SWAMIGALU VALAGINAMA R/O TAVAG, TALUK:, DISTRICT:. SINCE DECEASED BY HIS LRs

1. SMT.SUMITRA W/O ISHWARAYYA, AGED ABOUT 54 YEARS,

2. SRI BALAYYA S/O ISHWARAYYA AGED ABOUT 32 YEARS,

3. SRI VEERABHADRAYYA S/O ISHWARAYYA AGED ABOUT 27 YEARS,

4. SMT.GANGAVVA W/O SHIVANAND POOJERI AGED ABOUT 29 YEARS,

5. SMT.MAHADEVI, W/O SOMAYYA HIREMATH, AGED ABOUT 26 YEARS. … PETITIONERS : 2 :

(BY SHRI P.V.GUNJAL, ADVOCATE)

AND:

1. SRI SIDDALINGAYYA SWAMI MUDUBALAYYA SWAMI TAVAGAMTH MAJOR, AGRICULTURIST, R/O TAVAG, TQ:GOKAK DIST:BELGAUM.

2. THE SECRETARY, GRAM PANCHAYAT TAVAG, TAL:GOKAK

3. EXECUTIVE OFFICER, TALUK PANCHAYAT, GOKAK.

4. THE PRESIDENT ZILLA PANCHAYAT BELGAUM. … RESPONDENTS

(BY SHRI SACHIN S.MAGADUM, ADVOCATE FOR R1, SHRI SHRIHARSH A NEELOPANT, ADV FOR R2 AND R3, SMT.GIRIJA S.HIREMATH, ADV. FOR R4)

THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF , 1950, PRAYING TO QUASH THE ANNEXURE-D, THE ORDER DATED:27/05/2002, BEARING NO.TALUK PANCHAYAT/APPEAL CR.15, PASSED BY THE 3 RD RESPONDENT HEREIN AS ALSO ANNEXURE-E, THE ORDER DATED:30/05/2003 IN ZP/ADHYAKSHA/APPEAL NO.6/2002-2003, PASSED BY THE 4 TH RESPONDENT HEREIN AS BAD IN LAW, HAVING BEEN PASSED WITHOUT ANY AUTHORITY.

THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: : 3 :

ORDER

Heard the learned counsel appearing for the parties.

2. The Tavag Grama Panchayath passed a resolution as per

Annexure-C dated 20.04.1991 bifurcating Sy.No.257 into

Sy.Nos.257A and 257B. This resolution was challenged by the 1 st respondent by filing an appeal in No.CR 15 before the Executive

Officer, Taluk Panchayat, Gokak. The appellate authority by his order at Annexure-D dated 27.05.2002 has allowed the appeal and set aside the resolution passed by the Gram Panchayath at

Annexure-C dated 20.04.1991. The petitioners have called in question the validity of the said order passed by the Executive

Officer of the Taluk Panchayat, Gokak, in this writ petition.

3. The contentions urged by Sri P.V.Gunjal, learned counsel for the petitioners is twofold: firstly, the 3 rd respondent had no jurisdiction to pass the order. According to him, the order should have been passed by the Assistant Commissioner having regard to sub Section (1) of Section 269 of the Karnataka Panchayathraj Act,

1993 (‘the Act’ for brevity). Secondly, the 1 st respondent-appellant had no locus standi to maintain the appeal. : 4 :

4. Insofar as the first contention is concerned, Section 269 of the Act has been amended by Karnataka Act No.29/1997 which has come into force with effect from 20.10.1997. Before the amendment, the Assistant Commissioner was the appellate authority.

The amended provision provides for filing of an appeal to the

Executive Officer. It is no doubt true that the resolution at

Annexure-C was passed by the Grama Panchayath before the amendment. However, the appeal was disposed of after the amendment Act No.29/1997. The Executive Officer alone was competent authority to decide the appeal after the amendment.

Therefore, there is no merit in the contention of the learned counsel for the petitioner that the Executive Officer was not competent to decide the appeal.

5. Coming to the second contention, it is the case of the 1 st respondent that in a suit O.S.No.82/1992, a compromise was entered into between the parties in respect of the lands in question and that the said lands had fallen to his share. Challenging the said compromise, a separate suit was filed in O.S.No.323/1994 on the file of the Prl. Civil Judge, (Jr.Dn.), Gokak, was filed by the : 5 : petitioner which was also dismissed. This decree was confirmed in

R.A.No.2/2005 on the file of the Prl. Civil Judge, (Sr.Dn.), Gokak.

It is also evident that the petitioner had filed a suit in

O.S.No.195/2003 against the respondents herein challenging the validity of the resolution dated 20.04.1991 amongst others. The 1 st respondent was the 1 st defendant in the suit. The said suit was dismissed on 27.11.2006. The appeal filed by the petitioner in

R.A.No.10/2007 was also dismissed by the first appellate court on

16.07.2007. Challenging the said decree, the petitioner filed an appeal in R.S.A.No.5143/2008 before this Court. This Court by order dated 22.07.2009 has dismissed the appeal by holding as under:

“ It is seen from the record that plaintiff has not sought for declaration of title in respect of the property in question. In the absence of seeking any declaration in respect of an immovable property, the Civil court cannot entertain the prayer of the plaintiff in respect of the orders relating to revenue entries passed by third defendant-Taluka Panchayath and fourth defendant-Zilla Panchayath. Again this finding of the Courts below is in accordance with law and I find no justifiable ground to interfere with the same.” : 6 :

6. In the circumstances, it cannot be said that the 1 st respondent had no locus standi to file an appeal before the Executive Officer.

7. The writ petition is devoid of merit. It is accordingly dismissed.

No costs.

Sd/- JUDGE

Jm/-