SMT. KAMALAMMA W/O RUDRAPPA vs. THE PANCHAYATH DEVELOPMENT OFICER

: 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 7TH DAY OF JANUARY, 2016 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA W.P. NO.114544/2015 & 114650/2015 (GM-RES) BETWEEN 1. SMT. KAMALAMMA W/O RUDRAGOUDA AGED ABOUT : 40 YEARS OCC:HOUSE WIFE R/O: 3RD WARD, NO.64 HALEKOTE VILLAGE TQ:SIRAGUPPA DIST:BELLARY-583121 2. SMT. H KANYAKUMARI W/O LATE NILAKANTAGOUDA AGE: 64 YEARS, OCC:NIL R/O:3RD WARD, NO.64 HALEKOTE VILLAGE TQ:SIRAGUPPA DIST:BELLARY-583121 ... PETITIONERS (BY SRI GODE NAGARAJA, ADVOCATE) AND 1. THE PANCHAYATH DEVELOPMENT OFFICER NO.64 HALEKOTE VILLAGE-583121

: 2 : SIRAGUPPA TALUK DIST:BELLARY 2. THE PRESIDENT GRAM PANCHAYATH OFFICE NO.64, HALEKOTE VILLAGE-583121 SIRAGUPPA TALUK DIST:BELLARY ... RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO: (A) QUASH THE IMPUGNED RESOLUTION DATED:29.08.2015, PASSED BY RESPONDENTS VIDE ANNEXURE-N AND ENDORSEMENT DATED: 01.09.2015 ISSUED BY RESPONDENTS VIDE ANNEXURE-P; AND (B) TO DIRECT THE RESPONDENTS TO CONSIDER THE REPRESENTATION MADE BY THE PETITIONERS DATED:25.03.2015, VIDE ANNEXURES- L AND M. THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The petitioners filed these writ petitions praying to quash the impugned resolution dated 29.08.2015 passed by respondents vide Annexure-N and

: 3 : endorsement dated 01.09.2015 issued by respondents vide Annexure-P in the writ petitions and sought for writ in the nature of Mandamus directing the respondents to consider the representation made by the petitioners dated 25.03.2015 for renewal of the license. 2. According to the petitioners, the 2nd petitioner is the absolute owner and possessor of the open site along with the Shed bearing Door No.84/646 measuring 75 feet x 42 feet, at No.64, Halekote Village, Siruguppa Taluk, Ballari District and she got right over the suit schedule property through her deceased husband and Khata stands in her name. The 2nd petitioner obtained license on 26.07.1993 from the 1st respondent in the name of 1st petitioner to install chilly pounding power machine and they are running the same. Subsequently, at the instance of the neighbouring owners, the Gram Panchayat P.D.O. has issued the notice to the petitioners calling upon them to explain with regard the

: 4 : nuisance is being caused to the neighbouring owners and in response to the same the petitioners replied suitably. Thereafter, the 1st respondent has renewed the license up to 31.03.2015. The petitioners further contended that they have also obtained license to run Flourmill and both flourmill and dry chilly grinder machine are installed in the shed. It is contention of the petitioners that the dry chilly grinder machine would cause less sound than that of the chilly pounding machine. They are operating chilly pounding machine since 1993 and the flourmill since 2012 without any disturbance to the villagers and to the neighbouring owners and they have invested huge amount for installation of these machines by their lifetime savings amount. 3. It is further contended by the petitioners that the neighbours just to harass and to gain illegal monitory benefit, were trying to disturb and interfere the peaceful

: 5 : possession and enjoyment of the petitioners property. Therefore, they were constrained to file OS No.20/2013 before the Civil Judge and JMFC Siruguppa for permanent injunction and also filed an application for temporary injunction. 4. After hearing both the parties, the trial Court granted injunction in favour of the petitioners. Neighbours also filed OS No.161/2014 against these petitioners for injunction from running chilly pounding machine. The trial Court rejected the injunction in favour of the neighbouring owners. In spite of the orders passed by the Civil Court and in spite of renewing license of for running both flourmill and dry chilly grinder machine, now the 2nd respondent passed a resolution rejecting the renewal of the license for the year 2015-2016. Accordingly, the respondents issued an endorsement dated 01.09.2015 which are subject

: 6 : matter in these present writ petitions. Therefore, the petitioners are before this Court for the relief sought for. 5. I have heard the learned counsel for the petitioners. 6. Sri Gode Nagaraj, learned counsel for the petitioners strenuously contended that the resolution and endorsement issued by the respondents are arbitrary and contrary to the law. Before passing the resolution, the respondents have not given opportunity to the petitioners to be forthwith their case. Therefore, the impugned order passed by the respondents are in utter violation of the principal of natural justice and he further contended that the petitioners have not violated any terms and conditions of the license issued by the respondents. Therefore, he sought to allow the petitions.

: 7 : 7. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the petitioners and also perused the entire material on record. 8. It is an undisputed fact that the license was issued in favour of the petitioners to run both flourmill and dry chilly grinder machine. On the basis of complaint made by the neighbouring owners the Gram Panchayat has passed the impugned resolution dated 29.08.2015 rejecting the renewal for the year 2015-16 and also issued an endorsement to the petitioners intimating the same on 01.09.2015. 9. Any resolution passed by the Gram Panchayat is appealable before the Executive Officer of Taluka Panchyath, under the provisions of 269 of the Karnataka Panchayat Raj Act, which reads as under:

: 8 : “269. Appeals.- [(1) Any person aggrieved by any original order of the Grama Panchayat under this Act, unless appeal is provided elserwhere in this Act, may within thirty days from the date of such order appeal to the Executive Officer] (2) The Appellate Authority may after giving an opportunity to the appellant to be heard and after such enquiry as it deems fit, decide the appeal and its decision shall be final. (3) Any appeal under sub- section (1) pending before the Zilla Parishad shall on the date of commencement of the Karnataka Panchayat Raj Act, 1993 stand transferred to the Assistant Commissioner and such appeal shall be decided by him as if it has been filed before him.”

: 9 : 10. A plain reading of the said provision makes it clear that the petitioners have got alternate remedy and this Court cannot decide the issue involved in the present case in view of the provisions of Karnataka Panchayat Raj Act, 1993 as stated supra. 11. The Hon’ble Supreme Court while considering alternate remedy in the case of UNITED BANK OF INDIA VS. SATYAWATI TONDON AND OTHERS reported in (2010) 8 Page 110, it is specifically held that:- “Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by

: 10 : Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statue”. 12. The Hon’ble Supreme Court also observed that:- “it is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies”. 13. The Hon’ble Apex Court in the latest dictum in the case of COMMISSIONER OF INCOME TAX AND OTHERS versus CHHABIL DASS AGARWAL reported in (2014) 1

: 11 : Supreme Court Cases 603 while considering alternative remedy has held as under: “When a statutory forum is created by law for redressal of grievances, writ petition should not be entertained ignoring said statutory dispensation. 11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non- entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate

: 12 : efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. 12. The Constitution Benches of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission, Sangram Singh v. Election Tribunal, Union of India v. T.R. Varma, State of U.P. v. Mohd, Nooh and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court, the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in

: 13 : extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted.” 14. In view of the provisions of Section 269 of Karnataka Panchayat Raj Act and in view of the law declared by the Hon’ble Supreme Court stated supra this Court is of the considered opinion that it is not a fit case to entertain these writ petitions on merits. Therefore, the writ petitions filed by the petitioners are liable to be dismissed on the ground that the petitioners shall avail the alternative remedy of appeal as contemplated. In view of the aforesaid reasons, the writ petitions are dismissed. However, it is open for the petitioners to avail alternative remedy as contemplated in accordance with

: 14 : law, within 30 days from the date of receipt of a copy of this order. Sd/- JUDGE Sbs*