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Group Village Panchayat of Neralakere Vs. the Divisional Commissioner, Banglore and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 2751 of 1970
Judge
Reported inAIR1972Kant36; AIR1972Mys36; (1971)2MysLJ359
ActsMysore Village Panchayats and Local Boards Act, 1959 - Sections 46, 46(1), 49, 49(1) and 49(2)
AppellantGroup Village Panchayat of Neralakere
RespondentThe Divisional Commissioner, Banglore and ors.
Appellant AdvocateA.B. Mariappa, Adv.
Respondent AdvocateS.G. Doddakale Gowda, High Court Govt. Pleader for Govt. Adv. and ;N.V. Ramachandra Rao, Adv.
Disposition Petition dismissed
Excerpt:
.....the assessee has increased its income. instead of repairing the old stereo system, the assessee has installed the dolby stereo system. this has not benefited the assessee in any way with regard to its total income since there is no change in the seating capacity of the theatre or increase in the tariff rate of the ticket. it is a revenue expenditure and not a capital expenditure. - the notification vesting the property in the panchayat is clearly one issued under section 46(1) and section 49 (1) of the act. section 49 (1) of the act clearly enables the government to impose conditions and restrictions as it may think fit while vesting such control and management of properties in a panchayat. for all these grounds we are clearly of the opinion that it would not be necessary at all to.....venkataswami, j. 1. the petitioner is group village panchayat constituted under the mysore village panchayats and local boards act. 1959. hereinafter referred to as the 'act'. the said panchayat has sought for quashing of a notification issued by the divisional commissioner. bangalore division. bangalore in lnd (c) sr 19/68/69 dated 13-4-1968. by the said notification, a communal land (gomal) s. no. 26 within the limits of the jurisdiction of the petitioner panchayat was sought to be resumed for the purpose of disposal of the same for cultivation purposes. 2. by the notification issued in the purported exercise of power conferred by sections 46 (1) and 49 (1) of the act, by the government of mysore, the said land along with certain other items specified therein was vested in the.....
Judgment:

Venkataswami, J.

1. The Petitioner is Group Village Panchayat constituted under the Mysore Village Panchayats and Local Boards Act. 1959. hereinafter referred to as the 'Act'. The said panchayat has sought for quashing of a notification issued by the Divisional Commissioner. Bangalore Division. Bangalore in LND (C) SR 19/68/69 dated 13-4-1968. By the said Notification, a communal land (gomal) S. No. 26 within the limits of the jurisdiction of the petitioner panchayat was sought to be resumed for the purpose of disposal of the same for cultivation purposes.

2. By the Notification issued in the purported exercise of power conferred by Sections 46 (1) and 49 (1) of the Act, by the Government of Mysore, the said land along with certain other items specified therein was vested in the petitioner panchayat. The relevant Notification is No. DRL 30 VAD 61. dated 27-12-1961-The portion relevant in the said notification reads thus:--

'.... 1. Open sites in the Gaothana area; The alienation of these lands for any purpose shall be made only with the permission of the competent revenue authority.

2. Common Lands: Common lands assigned for public purposes such as grazing including gomal. play grounds, gundu thope, burial grounds and village forests, subject to the condition that they are not alienated or used for any purpose without sanction of Government. In case grazing lands in a particular village are found to be in excess of the requirements of the village, such excess land shall be disbursed by competent revenue authority for cultivation purposes.

3. Public, roads and streets in the village panchayat areas other than those belonging to the Public Works Department.

4. Wells serving a single Panchayat.

5. Fishing rights in wells.

6. Trees standing in lands transferred to Panchayats.

7. Stone and lime quarries.'

3. Sri A. B. Mariappa. the learned counsel appearing on behalf of the petitioner, contends that inasmuch as the land in question, S. No. 26. has vested in the Panchayat, it was not open for the Divisional Commissioner, who. it is not disputed, has been delegated the power to resume under Section 49 of the Act, was not competent to resume the same without affording an opportunity to the petitioner to show cause against such resumption. In other words, his submission is that the Divisional Commissioner should have conformed to the principles of natural justice, before issuing the impugned Notification.

4. Section 46 of the Act confers power on the Government to issue a Notification, providing for transfer to any Panchayat the management and maintenance of forests adjacent to the panchayat village and make over to such panchayat the management of waste lands, pasture lands or vacant lands belonging to the Government situate within the village. It also provides for the management and cultivation of common lands (including Gomal) among other matters.

5. Section 49 (1) enables the Government to issue a Notification subject to such conditions and restrictions as it may think fit to impose, whereby open sites vacant lands or public Roads, streets, wells, river beds, tanks and trees or any other property in the village could be vested in the Panchayat. There is a second sub-section in Section 49. which reads as follows :--

'It shall be competent to the Government by Notification to resume any property placed under the control of a Panchayat under Sub-section (1) on such terms as the Government may determine'.

6. It is plain from the above subsection that in respect of whatever property that has been placed under the control of a panchayat under Sub-section (1), it was competent for the Government to make an order resuming the same by the issue of an appropriate Notification. It is not in dispute that the impugned Notification has been issued in the exercise of this power.

7. We shall now turn to the contention urged on behalf of the petitioner, as outlined, earlier. The Notification vesting the property in the Panchayat is clearly one issued under Section 46(1) and Section 49 (1) of the Act. It is also clear from the aforesaid Notification extracted earlier, that it was never the intention of the Government to vest the property absolutely. The Notification is explicit and sets out that only the management and control of the said lands have been vested in the Panchayat. Section 49 (1) of the Act clearly enables the Government to impose conditions and restrictions as it may think fit while vesting such control and management of properties in a Panchayat. Such being the position it is not correct to contend as sought to be done by Sri Mariappa that the properties had vested in the Panchayat. absolutely.

8. The right of resumption reserved for the Government is expressly reserved under Sub-section (2) of Section 49 of the Act. Whether the same has been specified in the Notification vesting the properties or not. the statutory provision enacted in Section 49 (2) of the Act has made provision for it. In short, any such vesting of property in the Panchayat is always subject to the right of resumption enacted in Section 49 (2) of the Act. It also seems to us that such right of resumption is implicit in the very notification providing for the vesting of the property in a Panchayat. The Panchayat, therefore, gets only such rights as are specified and conferred subject to the reservation of the right of resumption of such properties by the Government without any or further reference to the Panchayat. The contention that the Panchayat should have been heard before issuing the impugned Notification relating to resumption, in our opinion, is wholly unsustainable. The Legislature, while enacting Section 49 (2) has not in any manner provided for any such hearing. Further, as earlier observed reading the relevant statutory provisions and the Notification issued under Sections 46 (1) and 49 (1) of the Act. it cannot be postulated with certainty that the Panchayat had acquired a right in the property so vested in them, absolutely. For all these grounds we are clearly of the opinion that it would not be necessary at all to hear the Panchayat before making any Order for resumption under Section 49 (2) of the Act. The contention urged on behalf of the petitioner, therefore, must fail.

9. In the result, the petition fails and is dismissed, but without costs.


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