RANGAMMA Vs. SUGURE GROPPANCHAYAT

JUDGEMENT

(1.) The petitioner is aggrieve 1 by the order of the Asst. Commissioner 2nd respondent herein, dt 31.3.1980 by which he allowed the appeal filed by the 4th respondent herein under S 53 (4) of the Karnataka Village yats and Local Boards Act (hereinater referred to as 'the Act') and directed that the construction measuring 27 feet East-West and 9 feet NorthSouth with Mangalore tiled roofing portion in front of the hous. and stone slabs erected in front 7 fee North South and 9 feet East We should be demolished, being a new construction erected by the petitioner L.Bds. Act, 1959, S. 23 (4)-Order contrary to the undertaking given by her in the proceedings pending before him in appeal filed by the 4th respondent. The petitioner, on the passing of the above order, filed a revision petition before the Divisional Commissioner. The Divisional Commissioner though unlike the Assintant Commissioner nas passed a lengthy order, has neverthless sustained the order of the Assistant Commissioner, concurriag with the findings recorded by him and dismissing the revision petition. Aggreived by the same, the petitioner has preferred this WP under Art. 226 of the Constitution inter-alia contending that the orders of the Assistant Commissioner and the Divisional Commissioner are erroneous in law and made without jurisdiction and vindictive in nature unsupported by the facts available on record.

(2.) The 1st respondent is Sugure Group Panchayat represented by its Secretary which originally granted the licence to the petitioner to construct on the property she had purchased.

(3.) It is necessary to set out the facts leading to this Writ Petition in greater detail. Petitioner applied to the 1st respondent Panchayat for licence to construct a building under S. 53 (1) of the Act in the land she had purchased from the previous owner and obtained the same Soon thereafter, when she began to construct or was about to start the construction, respondent_4 presented an appeal before the 2nd respondent Asst. Commissioner, under sub-sec. (4) of S. 53 of the Act. The 4th respondent is no more than a resident in the area comprised in the Village Panchayat. His main ground of attack against the grant of licence to the petitioner was that the licence had been granted for construction on land which did not belong to the petitioner. On notic the petitioner filed her objections Her objections stated that she had purchased the land on which a house already, stood, part of which she had demolished and obtained licence from the Panchayat for re-construction in place of the demolished consruction and in the remaining vacant space. She also stated that the 4th respondent appellant could not be, stated to be aggrieved by the grant of licence to her She further stated that some of the villagers led by one Patel Siddegowada had obstructed her in the construction and in that behalf she had filed a suit for injunction restraining the defendants in the suit from interfering with her peaceful possession and enjoy non of her property, namely, the remain ing old building and the vacant spaee on which she wanted a new construction, in the Court of the Munsiff, Chitradurga. That suit was numbered as OS. No. 1179 and was actually pending when the Assistant Commissioner came to pass the impugned order and is stated to be pending now also. In that suit temporary injunction restraining the defendants there-in appears to have been given in favour of the petitioner and that has become finel though the final judgment in that suit has not yet been passed It was in that circumstance, that petitioner through her Counsel filed a memo before the Assisstant Commissioner stating that she will not construct the house on the vacant site but will reconstruct 20 fee North-South and 24 feet East-West. It also indicated the such cons ruction would come to ten ankanas from North to South from the nor hern side of the existing building. She also undertook to demolish the building if it was proved that the construction was on the land encroached upon, belonging to the Village Panchayat and exceeded the measuiement indicated by her in the memo. That memo was recorded by the Assistant Commissioner (2nd respondent) and he permitted her to proceed with the construction at per the memo. After such construction was effected, the 4th repondent filed a complaint before the Assistant Commissioner on 13.8.1979 stating that the petitioner had violated the conditions of the undertaking given by her to the second respondent (Assistant Commissioner) and therefore, the building should be demolished. It was on that complaint, on 24.8.1979, the Assistant Commissioner made a spot inspection, the record of which is to be found in the records produced by the learned Government Pleader. It is also part of the impugned order of the 2nd respondent. It is useful to state here that the petitioner was not notified to be present at the spot inspection as evidenced by the mahazar of the spot inspection found in the records. She was not a party to the mahazar. Nor is there anything else in the records which shows that the 2nd respondent (Assistant Commissioner) had notified to the petitioner his intention to visit the spot. It is thereafter that the impugned order was passed after issuing a show cause notice to the petitioner. The petitioner has shown cause slating that she has not violated any of the conditions of the undertaking given by her That explanation is to be found in the records. Despite her explanation, the 2nd respondent Assistant Commissioner proceeded to pass the impugned order. A persual of the order clearly indicates that he was moved more by anger by what he considered a breach of the undertaking given to him than the merit of the appeal, if there was any merit at all. While in the preamble he has indicated that there has been construction put up with a plinth area of 27 feet X 19 fee and enclosure by stone slabs of the area comprised in 7 feet North-South by 9 feet East-West, there is no discussion of the grounds urged by the 4th respondent in support of his appeal. Nor is there a finding recorded that whatever the construction that has been put up by the petitioner is on the land that belonged to the Village Panchayat or the Government. The operative portion of the order is as follows: