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IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 20TH DAY OF FEBRUARY, 2015

BEFORE

THE HON'BLE MR.JUSTICE RAM MOHAN REDDY

WRIT PETITION NO. 14279/2006 (LB-RES)

BETWEEN: L. RAMDEV S/O LATE M LATCHMAIAH AGED ABOUT 62 YEARS, 19/24, 1ST MAIN ROAD, JAYAMAHAL EXTENSION, BANGALORE - 46.

... PETITIONER

(By Sri. M.V VEDACHALA, ADV.,) AND

1. THE COMMISSIONER, BANGALORE MAHANAGARA PALIKE BANGALORE.

2. JOINT COMMISSIONER (EAST)

BANGALORE MAHANAGARA PALIKE MAYO HALL, RESIDENCY ROAD, BANGALORE.

3. ASSISTANT REVENUE OFFICER

BANGALORE MAHANAGARA PALIKE, BHARATHINAGAR, BANGALORE.

4. R. VIJAYAKUMAR S/O RANGANATHA CHETTIAR,

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AGED ABOUT 35 YERAS, NO.7, VANNAVAR STREET, PARANGIVELU VILLAGE, CHIDAMBARAM COLONY, T.N.

5. M.R MUNIYAN

367, MLETHERU RAJAJINAGARA, KILINJALMEDU-TAL RERU PO., KARAIKAL 609 605, PONDICHERRY STATE.

6. THE STATE OF KARNATAKA, DEPARTMENT OF REVENUE, REP. BY ITS SECRETARY, VIDHANA SOUDHA, BANGALORE.

7. SMT. JAYAMMA, D/O. LATE P. ANJANNAPPA, AGED ABOUT 70 YEARS, R/A KAISOPPINA BEEDI, RAMANAGARAM TOWN, BANGALORE RURAL DISTRICT, REP. BY GPA HOLDER, MOHAMMED NAVEEDULLA S/O LATE H.M. ATAULLA, AGED 36 YEARS, NO.39, FF2, NASCO SUNRAYS APARTMENTS, HAINES ROAD, CLEVELAND TOWN, BANGALORE - 560 005.

... RESPONDENTS

(By Sri. S.N. PRASHANTH CHANDRA, ADV., FOR R1 TO R3; SRI. M. SIVAPPA, SR. ADV., FOR SRI. S.B. TOTAD, ADV., FOR R4; SRI. M. RAVISON, ADV., FOR R5; SRI. E.R. DIWAKAR, AGA FOR R6; SRI. MANIKAPPA PATIL, ADV., FOR R7) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF CONSTITUTION OF INDIA PRAYING TO SET-ASIDE THE ORDER DT. 27.9.2006 VIDE ANNX-P. DIRECT THE R1 TO R3 TO

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CONTINUE THE NAME OF THE PETITIONERS IN KHATHA IN RESPECT OF THE SCHEDULE PROPERTY & ETC.,

THIS WRIT PETITION COMING ON FOR FURTHER HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

Petitioner has assailed the order dated

27.09.2006, Annexure-P, of the 2nd respondent-Joint

Commissioner (East), Bangalore Mahanagara Palike

(“BMP” for short) exercising review jurisdiction under

Section 114A of the Karnataka Municipal Corporation

Act, 1976, (‘Act’ for short), at the instance of

respondents-4 and 5, substituting the name of the

petitioner to that of 4th Respondent, in the Fiscal

Register of the BMP in respect of immovable property

bearing Municipal No.1, and 1/1, Muniswamappa

Garden, Dobhi Ghat Road, Ulsoor.

2. Respondents-4 and 5, entered caveat and

opposed the petition by filing statement of objections,

interalia, alleging that in fact petitioner has no right,

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title and interest in the immovable property in question.

Respondent No.7 though not a party to the proceeding

before the 2nd respondent, in the review petition,

nevertheless, was impleaded as party respondent No.7.

3. Petitioner claimed to be owner in possession

of land in old Sy. No. 88 new Sy. No: 102, measuring 36

guntas and old Sy No. 89 new Sy No: 103 measuring 1

Acre 12 guntas; Respondent 4 claimed title to land

measuring 32 guntas in old Sy No. 85 new Sy No. 102

and 1 Acre 4 guntas in old Sy No. 86 new Sy. No. 103;

Respondent 7 claimed land measuring 1 Acre 32 guntas

in Sy. No. 104 of Ulsoor village, Kasba hobli, Bangalore

North Taluk.

4. Petition was also opposed by respondents-1

to 3 BMP, interalia, seeking to sustain the order

impugned Annexure-P as well-merited, fully justified

and not calling for interference, while, asserting that

there was a factual dispute over identity and location of

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the immovable property belonging to the petitioner as

well as respondent No.4.

5. Having heard the learned counsel for the

parties, regard being had to the conflicting claims of the

parties, by order dated: 18.12.2007, BMP was directed

to place material before Court which was considered by

it, over location and identity of the properties in

question. The Hon’ble Chief Justice by order dated

11.12.2007, specially ordered that, the petition be heard

by this Court. On 17.4.2008, learned standing Counsel

for BMP sought time to refer to all relevant materials

relating to khatha transfer and identity of the property.

After protracted dates of hearing, one

Dr.S.Subramanya, Commissioner of BMP on 25.7.2008

filed an affidavit of even date stating that action against

concerned officials would be taken for not having made

available the records relating to khatha transfer in

question. On 21.7.2009, learned counsel for BMP

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submitted that the record leading to recording

petitioner’s name in its Fiscal Register, was untraceable

and efforts would be made to secure and produce it,

while file enclosing some records when placed were

directed to be kept in safe custody. In the wake of non-

availability of record, on 6.2.2009, the following order

was passed:

“Having heard the parties for considerable

time and issued directions to the Bangalore

Mahanagara Palike to furnish the record

relating to the change of katha in the name

of Latchmaiah and over the identity of the

property in question, Sri. Ashok Haranahalli,

learned counsel for the Bangalore

Mahanagara Palike files an affidavit dated

5-2-2009 of one Puttaswamy, Additional

Commissioner (East), stating that the said

file is about 20 years old and despite efforts,

is not traceable in the office of the Palike. If

that is so, all that can be said about this

Palike is that it is neither responsible nor

accountable to the citizens of the Bangalore

City if as the custodian of relevant records, it

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is unable to produce the records relating to

transfer of katha made some 20 years ago,

which speaks volumes about the business

that is transacted at the hands of the officers

of the Palike. Less said the better. As to

who is to be held responsible is a matter

which certainly needs to be decided and is

presently postponed till the next date of

hearing.

The claim of the petitioner is that his

grandfather purchased lands in Sy.Nos.88

and 89 of Ulsoor, way back in the year 1901

and 1902 and that, it is the very same land

that is identified by the petitioner to be

presently located adjacent to the Ulsoor

tank. It was in this background of facts that

this Court had directed the Corporation to

furnish papers relating to the person who

identified this land when the katha was first

made out in the name of Latchmaiah. In the

absence of such a record, Sri. Vedachala,

learned counsel for the petitioner submits

that the records possibly could be available

with the office of the City Survey, Bangalore

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in view of the earlier litigation in the form of

Revision Petition No.18/2002-03 said to be

pending before the Joint Director of Land

Records, Bangalore.

In these circumstances, I think it

appropriate to direct the petitioner to

implead the State of Karnataka by its

Revenue Department as party-Respondent

No.6. Petitioner to amend the cause-title,

serve copies of the Writ petition along with

annexures on the learned Government

Advocate, who is directed to take notice and

to secure the records from the Joint Director

or from any other authority in respect of the

lands in Sy.Nos.88 and 89 of Ulsoor Village.

Further hearing of I.A.No.II/2007 for

impleading, is deferred till the next date of

hearing. List after five weeks.”

On 31.3.2009, the following order was passed:

“The Assistant Director of Land

Records, City Survey-II present before Court

is identified by the learned Government

Advocate. The claim of the petitioner is that

his grandfather purchased land in Sy.Nos.88

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and 89 of Ulsoor during the years 1901 and

1902 and that the land in question as

identified by the petitioner is the very same

land which was assigned Sy.Nos. 88 and 89.

According to the petitioner, on a resurvey,

the Survey Department has reassigned new

Nos. 102 and 103. After having heard the

learned counsel for the parties and perused

the pleadings, there was reasonable cause to

suspect the very identification of the

aforesaid lands. In other words, as to

whether they are within the area

encompassed by the Ulsoor Tank or outside

the said tank. An answer to this question is

very essential for enabling the Bangalore

City Corporation to address itself over issue

of katha for the said lands. This

necessitated since the Bangalore City

Corporation was unable to place material

before this Court over the issue of katha for

the first time, in order to appreciate as to

whether the land was identified when such a

katha was made out in the name of

Latchmaiah. It is in this view of the matter

that this Court, by order dated 6-2-2009

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directed impleading the State of Karnataka,

Revenue Department as party- Respondent

No.6.

The officers who are present before

Court are directed to hold an enquiry, secure

records and answer the query raised by this

Court and file a report. List on 27-05-2009.

6. Thereafterwards on 21.6.2009, the Assistant

Director of Land Records was directed to file a better

report within two weeks.

7. The 7th respondent was directed to come on

record by order dated 2.12.2009, whence, I.A.2/2007

was allowed.

8. It appears that on 06.08.2010, at the request

of learned counsel for the parties, the ADLR-City

Survey-2, was directed to hold a comprehensive survey

over the lands reassigned Sy.Nos.102 and 103 whether

were old Sy.No.88 & 89 respectively and old Survey

Nos.85 & 86 as well as land Sy.No.104. Parties filed

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their respective memo of instructions enclosing copies of

their documents to the ADLR who is said to have held

an enquiry and filed a report into the Registry on

15.06.2011, The report of ADLR was opposed by filing

statement of objections of the 4th respondent on

19.12.2011. Thereafterwards, the petition was

adjourned at the request of parties who desired to settle

the matter out of Court and report settlement. On

31.5.2012, the following order was passed :

“Learned Counsel for R7 submits that

the Commissioner’s report discloses that the

property subject matter of conveyance in

favour of the 7th respondent is said to have

fallen within Sy.No.104 of Muniswamappa

garden. If that is so, then it is for the 7th

respondent to seek necessary khatha for

that property from the BMP, since the

petitioner and 4th respondent have staked a

claim to property in old Sy. Nos. 88 and 89,

New Nos. 102 and 103 of Muniswamappa

garden in respect of which the Commissioner

is said to have reported their non-existence.

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Learned Counsel for BMP submits that

if an application is filed by the 7th

respondent for khatha, it would consider the

same in accordance with law and pass

orders thereon at the earliest.

As I am required to head the Circuit

Bench in Dharwad, list this matter in 3rd

week of July 2012.

9. On 31.5.2012, learned counsel for the

parties submitted that the parties have arrived at the

terms of settlement and would be placed before the

Court, if granted time. Petition was adjourned on

several dates of hearing for reporting settlement. At the

instance of learned counsel for BMP, on 9.6.2014, the

following order was passed:

“Learned Counsel for BBMP submits

that the claim of the petitioner over the

property in Sy.Nos.88 and 89 (New Nos.102

and 103) bearing CTS Nos.85 and 86, while

the contesting respondent in whose name

the khatha is changed claims Sy.Nos.85, 86

(New Nos.102, 103) and CTS Nos.85 and 86.

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According to the learned Counsel, there is

considerable dispute over the location as

well as the claim of title to the property.

Learned Counsel suggests that if the

Government is directed to place on record

the survey map of Ulsoor including

Kensington road disclosing CTS numbers,

then the location would be certain over

enquiry by the city survey in respect of

Sy.Nos.85 and 86. Learned Government

Advocate is directed to secure the records

and placed on record the certified copy of the

said map. List on 23.06.2014.”

10. Learned counsel for the parties were unable

to report settlement, hence, on 28.7.2014, when the

petition was heard, the following order was passed:

“Sri. Vedachala, learned Counsel for

the petitioner, submits that in the genealogy

one Muniswamappa @ Jayappa, died leaving

behind Lakshmaiah, whose children seven in

number are Ramdev, Jaidev, Shailendra,

Suresh Babu, Raikala, Yashoda and Sujaya.

Muniswamappa is said to have purchased

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36 guntas of land in Sy. No.88 and 16 gunts

of land in Sy. No.89 under registered sale

deed dated 30.7.1901, with common

boundaries,

East by : Kodikatte Someswara Inam West by : Kere katte North by : Kambali Reararama South by : Bhaskar Ali

Under the sale deed dated 2.10.1901,

Muniswamappa is said to have purchased

20 guntas of land in Sy. No.89, bounded on

the:

East by : Anjaneya Inamthi land West by : Kere katte North by : Kere katte South by : Muniswamppa’s land

By yet another registered sale deed

dated 14.1.1902, Muniswamappa is said to

have purchased 2 guntas of land in Sy.

No.89, bounded on the:

East by : Someswara Inamthi land West by : Kere katte North by : Kere katte South by : Muniswamappa’s property

The site bearing No.105 measuring

29½ ft., x 72 ft., guntas was purchased by

M. Lakshmaiah, son of Muniswamappa

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under sale deed dated 9.8.1933 executed by

one Gangadhar, which is said to have carved

out of Sy. No.89/1, bounded on the:

East by : Plot No.4 of Ranganayakalu Naik

West by : Plot No.6 North by : Conservancy South by : Road

This property is said to have been

conveyed to one Kanamma under sale deed

dated 10.9.1933.

From out of the land purchased in Sy.

No.89, M. Lakshmaiah is said to have

conveyed area measuring 90’ x 8’ under sale

deed dated 22.8.1917 in favour of

Latchmaiah @ Pillaiah, boundaries of which

are:

East by : Land of Muniyappa West by : Road North by : Remaining portion of the land South by : Galli

Under partition deed dated 6.9.2002,

the siblings of Ramdev are said to have

partitioned the land in Sy. Nos.85 and 86

[according to learned Counsel wrongly

mentioned as survey numbers and ought to

be CTS Numbers] in Sy. Nos.102 and 103.

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The document of partition is not before

Court, much less, sketch annexed to it.

According to learned Counsel for the

petitioner, a resurvey of land in Sy. Nos.88

and 89 conducted in the year 1905 discloses

that Sy.No.88 was assigned re-survey

No.102 Annexure-B1 measuring 36 guntas

and Sy.No.89 was assigned re-survey No.103

Annexure-B2 measuring 44 guntas [1 acre 4

guntas].

The Index of land Annexures-C1 & C2

are said to make reference to Sy. Nos.103

and 102 measuring 1 acre 4 guntas and 31

guntas + 4 guntas PK [totally measuring 35

guntas], respectively, without disclosing the

year in which the entries were made in the

Index of land.

Learned Counsel points to Annexures-

E1, E2, E3 and E4 said to be the extracts

from the tax registers of the Corporation of

City of Bangalore in respect of Municipal

No.1 and Municipal No.1/1 for the years

1989 to 23.1.1996; 1997 to 2004-05

respectively. While Annexures – E1 & E2

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record the name of Muniswamappa,

Annexures-E3 & E4 disclose the name of

Ramdev.

The State Government filed memo

dated 20.6.2014 enclosing a map of the local

area No.89, Murphy Town, Bangalore City,

disclosing CTS Numbers without disclosing

the survey number or re-survey numbers.

Although learned Counsel for the

petitioner submits that CTS Nos.85 and 86

relate to the property belonging to the

petitioner, there is no material to establish

prima facie that CTS Nos.85 and 86 correlate

to re-survey Nos.103, 102 or old Survey

Nos.88 and 89.

There is also no material forthcoming

from the respondent/Municipal Corporation,

as to whether municipal Nos.1 or 1/1 has

any relation to the aforesaid survey number

or re-survey number, much less, CTS

Number. Therefore, there is identity crisis.

The revenue records relating to the

land in question since they were revenue

bearing lands cannot but be in the custody

of the Revenue Department and therefore the

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State Government is required to place that

on record. So also the City Survey Records

are in the custody of the Revenue

Department and village map which will also

have to be placed on record.

As to when the lands fell within the

jurisdiction of the Municipality since pre

1949 Bangalore City was ‘Municipality’ and

post 1949, it became ‘Corporation’ under the

Bangalore City Municipal Corporation Act,

1949 since replaced by Karnataka Municipal

Corporation Act, 1976. Therefore, it is for

the Municipal Corporation to place on record

relevant material relating to the period when

the lands in question was brought within its

jurisdiction and for the first time it is

assessed to Corporation Tax and therefore

the records relating to the same are

imperative.

The synopsis filed by learned Counsel

for the petitioner is taken on record.

Relist on 31.7.2014.”

11. Although learned counsel for the petitioner

submits that there is overwhelming material relevant to

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decide, on the fact, that petitioner is the owner of the

immovable property in question, assigned as Municipal

Nos.1 and 1/1, Muniswamappa Garden, Ulsoor, in the

wake of the claims over title to the very same property

by respondent No.4, nevertheless that submission is

unacceptable. So also, the Court would have to hazard

a finding on the location of immovable property in

question as claimed by the petitioner, vis-vis by the 4th

respondent as well as the 7th respondent, coupled with

the fact that the BMP is unable to place before the

Court the record based upon which, it identified the

location of the property in question, at the time of

recording petitioner’s name in the tax register primarily

responsible for payment of corporation tax under the

‘Act’.

12. There is force in the submission of learned

counsel for petitioner that the 2nd respondent in

exercise of jurisdiction under Section 114A of the ‘Act’

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could not have exercised a jurisdiction vested in a Civil

Court in the matter of deciding title to immovable

property as held by the Full Bench of this Court in

C.N.Nagendra Singh vs. The Special Deputy

Commissioner, Bangalore District and Others1,

recording a finding that the decision of revenue Court

has to be necessarily based upon undisputed facts and

the revenue Court cannot go into the disputed question

of relationship, status of the parties, title to the property

or genuineness or otherwise of a document or challenge

to the documents on the ground of fraud, undue

influence, misrepresentation or mistake. Even

otherwise, a perusal of Section 114A of the ‘Act’ makes

it abundantly clear that the 2nd respondent, the

authority, under the Act had no jurisdiction to dwell

into documents controverted by the parties, over title to

immovable property. All that the 2nd respondent had to

do under Section 114A, is to ascertain whether the

1 ILR 2002 KAR. 2750

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petition is made within the time limited therein, and if

there is a genuine dispute over title to the immovable

property, refer the parties to the Civil Court to have

their respective claims tried and decided in a full-

fledged adjudication. The 2nd respondent apparently

having opined that the review application was filed

within three years of the special notice recording the

petitioner’s name, however, exercised a jurisdiction not

vested in him to adjudicate the dispute over title to

immovable property. In that view of the matter, the

order impugned Annexure-P is vitiated calling for

interference.

13. Learned counsel for the petitioner submits

that the 4th respondent during the pendency of the

petition and interim order of stay, has since conveyed

the immovable property claimed by him, to be the very

same property as that of the petitioner and therefore,

has no subsisting interest.

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14. Sri M.Shivappa, learned Senior Counsel, on

instructions from the instructing counsel for

respondent No.4, submits, that there is no dispute over

conveyance of the property, nevertheless the interest of

the 4th respondent requires to be protected, to deliver a

valid title to the purchasers. At this stage, Sri

Prashanth Chandra, learned counsel for respondent-

BMP submits that the name of the 4th respondent is

continued in the Fiscal Registers only for collecting

taxes.

15. According to the learned counsel for 4th

respondent the property is alienated, therefore, no

useful purpose would be served in continuing the name

of 4th respondent in the Fiscal Register. Even otherwise

also, if name of either of the petitioner or 4th respondent

is continued in the Fiscal Register, it will lead to an

incongruous situation of unidentified immovable

property, and collecting taxes from both the parties

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which is impermissible, leading to multiplicity of

proceedings. It is needless to state that the petitioner

and 4th respondent or his successors in interest,

purchasers must approach the civil Court of competent

jurisdiction for adjudication over the right, title and

interest, as also, location of the immovable property, in

question, and it is only thereafterwards, the recovery of

taxes, after an assessment under the ‘Act’, is

permissible from the successful party. It is made clear

that BMP would have to await the decision of the Civil

Court, over the competing interests of the parties both

over title and location of the property in question.

16. In the result, petition is allowed in part. The

order impugned is quashed and BMP is directed to

delete from its Fiscal Register the names of both

petitioner and 4th respondent and await final decision of

the Civil Court. Sequentially, all other pending

applications are rejected.

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17. BMP to consider the application of the 7th

respondent for issue of khatha in respect of Sy.No.104,

in accordance with law, and in the light of the order

dated 31.05.2012 supra.

Sd/- JUDGE

Ia