South India Christian Rural ... vs Executive Officer
2022 Latest Caselaw 12469 Kant

                          1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14TH DAY OF OCTOBER, 2022

                       PRESENT

             THE HON'BLE MR. ALOK ARADHE
                 ACTING CHIEF JUSTICE

                         AND

     THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

         WRIT APPEAL NO.461/2022(LB-RES)

BETWEEN:

SOUTH INDIA CHRISTIAN RURAL
DEVELOPMENT TRUST
NO.59, THONDEBHAVI
GAURIBIDANUR TALUK - 561 213
REPRESENTED BY ITS SECRETARY.      ...APPELLANT

(BY SRI RAJESWARA P.N., ADV.)

AND:

1.     EXECUTIVE OFFICER
       TALUK PANCHAYAT
       GAURIBIDANUR TALUK
       PIN - 561 208.

2.     GRAM PANCHAYAT
       THODEBHAVI
       GAURIBIDANUR TALUK
       PIN - 561 213
       RERESENTED BY ITS
       PANCHAYAT DEVELOPMENT
       OFFICER.

3.     THE GREATER BIBLE WAY
       CHURCH, BY ITS DHARMADHIKARI
                               2

     K. YESHWAT
     SINCE DECEASED BY HIS LR
     KUM. EVANGLIN K.Y
     D/O LATE K. YESHWANT
     AGED ABOUT 21 YEARS
     R/AT NO.432, 9TH CROSS
     10TH MAIN ROAD
     MARUTHI EXTENSION
     HENNUR, BENGALURU - 560 043. ...RESPONDENTS

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
SET ASIDE THE ORDER DATED 06/04/2022 IN WP
NO.49353/2012 (LB-RES) PASSED BY THE LEARNED
SINGLE JUDGE AND ETC.

     THIS APPEAL COMING ON FOR               PRELIMINARY
HEARING THIS DAY, VISHWAJITH                 SHETTY J.,
DELIVERED THE FOLLOWING:

                     JUDGMENT

This intra court appeal is filed by the unsuccessful

petitioner challenging the order dated 06.04.2022 passed

by the learned Single Judge of this Court in

W.P.No.49353/2012.

2. Heard the learned counsel appearing for the

appellant and also perused the material available on

record.

3. Facts leading to filing of this appeal briefly

stated are, the subject site bearing No.59 in survey

No.10/2 measuring 30x40 sq.ft of Tondibhavi Village,

Gowribidanur Taluk belongs to respondent No.2 - Gram

Panchayath in which the appellant had unauthorizedly

constructed a Church building. Thereafter, the President

of Gram Panchayath vide letter dated 28.07.1997

addressed to the Executive Officer Taluk Panchayath,

Gowribidanur recommended for grant of the said site in

favour of the appellant which was acted upon by the

Executive Officer of the Taluk Panchayath and the site in

question was allotted to the appellant vide letter dated

18.08.1997. It appears that the Executive Officer of the

Gram Panchayath had also allotted the very same site to

respondent No.3 herein vide allotment letter dated

22.06.1996. Both the allotments were not preceded with

any resolution passed by the local bodies.

4. Subsequently, decision was taken to delete

the name of the appellant from the property register in

respect of site in question and challenging the same, the

appellant had approached this Court in

W.P.No.49353/2012 which was dismissed by the learned

Single Judge of this Court with a direction to respondent

Nos.1, 2 and 4 to restore entry in respect of the site in

question in favour of the Gram Panchayath and also to

take action for removal of the encroacher from the public

property and report compliance to the Registrar General

of this Court within three months. Being aggrieved by the

said order, the petitioner in W.P.No.49353/2012 has filed

this intra court appeal.

5. Learned counsel for the appellant submits

that the Church has been in existence in the site in

question for the last nearly two decades and therefore,

the learned Single Judge was not justified in dismissing

the writ petition and directing the competent authorities

to take action against the appellant. He submits that the

site has been allotted to the appellant and therefore, the

appellant cannot be termed as 'encroacher'. He also

submits that, if the allotment is not made in accordance

with law, the appellant may be given an opportunity to

make necessary application to the Gram Panchayath

under Section 210 of the Karnataka Gram Swaraj and

Panchayath Raj Act, 1993 (hereinafter referred to as 'the

Act of 1993' for short) for allotment of site in question in

its favour.

6. Undisputedly, the site in question belongs to

the Gram Panchayath and the appellant has

unauthorizedly constructed a Church building in the said

site. Though the Executive Officer of the Taluk

Panchayath has allotted the site in favour of the appellant

vide a letter dated 18.08.1997, the material on record

would go to show that the said allotment is not in

compliance of the requirement of Section 210 of the Act

of 1993. In addition to the same, prior to such an

allotment there is no resolution passed by the local body

for allotment of site in question in favour of the

appellant. It is under these circumstances, the learned

Single Judge has declined to entertain the writ petition

and while dismissing the same, he has also issued

direction to the competent authority to restore the entry

in respect of the site in question in favour of the Gram

Panchayath and also to take action against the

encroacher of the public property. We do not find any

illegality or irregularity in the said order passed by the

learned Single Judge which is impugned in this appeal.

Accordingly, we decline to entertain the writ appeal and

the same is therefore, dismissed. However, it is made

clear that the order passed by this Court in this appeal or

the order passed by the learned Single Judge of this

Court in W.P.No.49353/2012 will not come in the way of

the appellant filing necessary application before the

competent authority seeking allotment of the site in

question and it is needless to state, if such an application

is filed, the competent authorities are required to

consider the same in accordance with law.

Sd/-

ACTING CHIEF JUSTICE

Sd/-

JUDGE

NMS