Karnataka High Court

Sri. N. Nataraj vs Sri. G. Sriramulu on 20 December, 2021

Bench: M.Nagaprasanna

                            1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 20TH DAY OF DECEMBER, 2021

                       BEFORE

     THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

        WRIT PETITION No.23990/2016 (LB - RES)

BETWEEN

SRI. N. NATARAJ
S/O LATE O.A.NAGARAJAIAH SHETTY
AGED ABOUT 42 YEARS
R/AT WARD NO.14,
PLD BANK ROAD
BAGEPALLI TOWN - 561 207
CHICKBALLAPUR DISTRICT               ... PETITIONER

[BY SRI. T.V. SUBRAMANYA, ADV.
    (PHYSICAL HEARING)]

AND

1.     SRI. G. SRIRAMULU
       S/O CHINNAPPA
       MAJOR
       R/AT KUMMAVARAPALLI
       GORANTLA MANDALUM
       HINDUPUR TALUK
       ANANTHPUR DISTRICT
       ANDRA PRADESH - 515 201

2.     LATE V. NARAYANASWAMY
       S/O LT. SUBBAMMA
       R/AT BAGEPALLI TOWN
       CHICKBALLAPUR DISTRICT - 561 207
       SINCE DEAD REPRESENTED BY
       HIS ONLY SURVIVAL LEGAL HEIR
                                2



     2(a) SMT. GAYATHRI
          D/O V.NARAYANASWAMY
          BAGEPALLI TOWN
          KASABA HOBLI - 561 207
          CHICKBALLAPUR DISTRICT

3.   THE CHIEF OFFICER
     TOWN MUNICIPAL COUNCIL.
     BAGEPALLI TOWN
     BAGEPALLI TALUK - 561 207
     CHICKBALLAPUR DISTRICT

4.   THE DEPUTY COMMISSIONER
     CHICKBALLAPUR DISTRICT
     CHICKBALLAPUR - 562 101
                                         ... RESPONDENTS

[BY SRI. P.H. VIRUPAKSHAIAH, ADV. FOR R1;
    SRI. K.V. ANANDA, ADV. FOR R2;
    SRI. A.C. CHETAN, ADV. FOR R3
    (PHYSICAL HEARING);
    SRI. K.R. NITYANANDA, AGA FOR R4
    (PHYSICAL HEARING)]

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DTD.28.8.2013 PASSED BY THE R-4
IN PROCEEDINGS VIDE ANNEXURE-H AND ETC.,

     THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:

                         ORDER

Both the learned counsel appearing for the

petitioner and the respondents would submit that the

issue in the writ petition i.e., with regard to whether the

Deputy Commissioner could invoke Section 306 of the

Karnataka Municipalities Act, 1964 and pass the

impugned order, stands covered by the judgment

rendered by this Court in ILR 2016 KAR. 4628, wherein

this Court has held as follows:

"Scope of Section 306 of the Act:

7. Having heard the learned Counsels for the parties at this stage, this Court is of the clear and firm opinion that the learned Deputy Commissioner has no jurisdiction to entertain any such appeal or petition for change of "katha entries" in the purported exercise of Section 306 of the Karnataka Municipalities Act, 1964.

The said provisions are reproduced below for ready reference.

                 "306.    Deputy      Commissioner's
           power    of   suspending    execution   of

orders, etc. of Municipal Councils.-

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

(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."

8. A bare perusal of the said provisions of Section 306 of the Act clearly shows that no such appeal or petition by a private party is envisaged by these provisions to be entertained by the Deputy Commissioner. The provision provides only for a suo motu exercise of the powers by the Deputy Commissioner, if he is of the opinion that the execution of any order or resolution of Town Municipal Council will be unlawful or is causing or likely to cause public injury or annoyance to the public and such execution of the order or resolution of the Municipal Council can lead to a breach of public peace. Upon such contingency, ground and material available before him, he can pass such an order in writing for suspending the execution

of the order or resolution of the Municipal Council, subject to approval of the State Government under sub-section (2) of the Act and no such order is suppose to be passed by the Deputy Commissioner without providing a reasonable opportunity of showing cause to the concerned Municipal Council.

9. The provisions of Section 306 of the Act do not cover within its scope, the dispute between the private parties at all. The Deputy Commissioner can neither act as a Civil Court nor can he entertain any such petition or appeal as was filed before him in the present case by the private respondent 4-Sri Poojappa. The question of going into the merits of contentions raised by respondent 4 does not simply arise, because the so-called appeal or petition of the private respondent 4 was itself totally incompetent and not maintainable within the four corners of Section 306 of the Act. If the respondent 4 did not have any locus standi to file any such appeal or petition before the Deputy Commissioner, the question of invoking his

jurisdiction under these provisions could not arise and therefore entertaining the said appeal of the respondent 4 and passing of the impugned order Annexures-'M' and 'N' thereon was an exercise, wholly without jurisdiction of the respondent 2-Deputy Commissioner.

10. If the basic tenets of provisions of Section 306 of the Act that there should be an actual or threatened breach of public peace on the basis of an order or resolution of the Municipal Council are absent, then completely abusing the power the Deputy Commissioner cannot entertain such a petition or appeal of a private party. It is clear that the said Deputy Commissioner has totally not applied his mind to the relevant provisions of the Act itself under which he was exercising his jurisdiction.

11. The said provisions giving extra ordinary and superior powers to the Deputy Commissioner over the elected public body like Municipal Council to suspend the order or resolution of a duly elected public body, it

does not entitle the Deputy Commissioner to enter into the realm of private disputes between the parties like between the petitioner and respondent 4 in the present case over the "katha entries" in the record of the Municipal Council. Obviously the change of "katha entries" as sought in the present case by the respondent 4 was a private dispute which could be resolved only through a properly instituted civil suit and the question of any breach of public peace could not arise by any stretch of imagination in the present case.

12. Therefore it also appears that the said Deputy Commissioner entertained an absolutely frivolous petition or appeal of the respondent 4 and passed the impugned order for extraneous reasons in the present case.

13. The provision of law giving wide and superior powers to a public servant to be exercised over the elected bodies resolutions or orders have to be exercised with great amount of circumspection and on a very firmly established grounds on the basis of

relevant material and evidence available before the said authority. The present case is just a converse situation brought before the Deputy Commissioner by a private party seeking to undo a "katha entry" in favour of the petitioner after many years and that too without bothering in the least about providing an opportunity of hearing to the affected party, namely the present petitioner, the Deputy Commissioner proceeded to pass the impugned interim orders adversely affecting the petitioner herein. This Court is therefore of the clear opinion that the learned Deputy Commissioner has grossly abused his powers under Section 306 of the Act and has passed the impugned orders on an appeal/petition which was wholly incompetent and not maintainable at all before him"

Therefore, following the judgment of the

Co-ordinate Bench of this Court supra, I pass the

following: