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Chikkajavaregowda v/s C.L. Lingappa & Others

    W.A.No. 5295 of 2012 & W.As.No. 3519-3524 of 2014 (LB-RES)

    Decided On, 06 August 2015

    At, High Court of Karnataka


    For the Appellant: K.L. Srinivas, Advocate. For the Respondents: R1-R7, R. Pramod, R8 & R9, B.J. Somayaji, Advocate.

Judgment Text

(Prayer: These writ appeals filed U/S 4 of the Karnataka High Court Act praying to set aside the order passed in the writ petition 18066/2012 & 22581-586/12 dated 1/8/12.)

1. These intra Court appeals are filed by the appellant (who was arrayed as respondent No.1 in the writ petitions) challenging the order dated 01.08.2012 passed in W.P.No.18066/2012 and connected matters filed by writ petitioners-respondents No.1 to 7 in these appeals, whereby the writ petitions have been allowed.

2. Facts in brief relevant for the purpose of these appeals are that the appellant is the owner of certain plot of land in the village in question on which he has his house. It is alleged that the appellant has encroached certain portion of the road and brought it within the portion of his house, regarding which a resolution is said to have been passed by the Gram Panchayat on 19.12.2011 and pursuant thereto, a notice of the same dated 19.12.2011 has been issued by the Panchayath Development Officer to the appellant requiring him to remove the sheets/constructions made in front of his house by encroaching the road or else legal action would be taken against the appellant. Challenging the said notice dated 19.12.2011, the appellant filed an appeal under Section 237(1) of the Karnataka Panchayath Raj Act, 1993 before the President of Taluk Panchayat, Mandya, which was allowed by order dated 23.04.2012 and the notice was set aside with certain directions and also to make entries of certain area of the plot as the area of the appellant and limit the extent of the road to only 15 feet. Challenging the said order, respondents No.1 to 7 herein filed writ petitions, which have been allowed by order dated 01.08.2012. Aggrieved by the same, these appeals have been filed.

3. We have heard Sri K.L. Srinivas, learned counsel for the appellant as well as Sri R. Pramod, learned counsel for the private respondents No.1 to 7/writ petitioners and Sri B.J. Somayaji, learned counsel for respondents No.8 and 9 and have perused the record.

4. The contention of learned counsel for the appellant is that the order passed in the writ petitions is a non-speaking order in as much as no facts have been given in the impugned order and it has merely been stated that such an order dated 23.04.2012 allowing the appeal could not have been passed under Section 237(1) of the Act which empowers the President of the Taluk Panchayat, Mandya, only to pass an order of suspension. It has also been contended that the order was passed without giving sufficient opportunity to the appellant as the writ petitions were sufficient opportunity to the appellant as the writ petitions were filed in June 2012 and the same were finally decided on 01.08.2012 without waiting for the appellant, who was the affected party, to put in appearance. It is thus contended that the impugned order passed by the writ Court deserves to be quashed.

5. Sri Somayaji, learned counsel for the contesting respondents No.8 and 9 has submitted that prior to the passing of the order dated 19.12.2011, several notices had been given to the appellant to which he had also respondent but still did not remove the encroachment made by him, which necessitated the passing of the order dated 19.12.2011. He, however, could not justify the issuance of the notice dated 19.12.2011 which is in fact an order requiring him to remove the construction and cannot be termed as a notice requiring the appellant to submit a reply. At this stage, Sri Somayaji, learned counsel, submitted that one further opportunity may be given to the Gram Panchayat, Mandya, to issue proper notice to the appellant to remove the construction and after receiving the response from the appellant, final orders would be passed by the Gram Panchayat.

6. In such view of the matter, without entering into the merits of the claim of the parties and to do substantial justice in the matter, we dispose of these appeals with the direction that in case any fresh notice is given to the appellant giving full particulars and extent of the encroachment alleged to have been made by the appellant, the same shall be replied to by the appellant within

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three weeks from the receipt of the same. Thereafter, on considering the reply, the Gram Panchayat may pass final orders, in accordance with law, as expeditiously as possible. 7. Considering the fact that the matter involves public interest as the question is with regard to the alleged encroachment of a road, we expect that the parties shall proceed in the matter expeditiously. All pending applications stand consigned to file.

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