w.p.no.40781/2012 c/w. w.p.nos.35729/2010, 37813/2010...

1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 22ND DAY OF APRIL, 2013

BEFORE

THE HON’BLE MR. JUSTICE A.S. BOPANNA

W.P.NO.40781/2012 C/w. W.P.NOS.35729/2010, 37813/2010 &

35864/2010 (LB-BMP)

IN W.P.NO.40781/2012

BETWEEN

NIRMALA NAGARAJ, AGED ABOUT 70 YEARS, W/O. S.NAGARAJ, NO.504/33, 50 FT. ROAD, 1ST BLOCK, 3RD MAIN ROAD, BSK I STAGE,

BANGALORE-560 050. ... PETITIONER

(BY SRI.PUTTIGE.R.RAMESH & LAKSHMI HOLLA, ADVS.) AND

1. BRUHAT BANGALORE

MAHANAGARA PALIKE BY ITS COMMISSIONER, N.R.SQUARE, BANGALORE-560 002.

2. THE ASST. REVENUE OFFICER,

BRUHATH BANGALORE MAHANAGARA PALIKE,

2

RAJAJESHWARI NAGAR DIVSION, RAJARAJESHWARI NAGAR, BANGALORE-560 098.

3. M.R.KANTHARAJ, AGED ABOUT 34 YEARS, S/O.SRI.M.R.RAJANNA, PATTANAGERE VILLAGE, RAJARAJESHWARI NAGAR, BANGALORE-560 098.

4. CHANNAKESHAVA,

AGED ABOUT 53 YEARS, S/O.LATE SRI.LAKANNA, NO.92, 4TH MAIN ROAD, 7TH CROSS, CHAMARAJPET,

BANGALORE-560 018 ... RESPONDENTS

(BY SRI.B.V.MURALIDHAR, ADV. FOR R1 & 2 SRI.B.M.SHYAM PRASAD, ADV. FOR R3 SRI.C.M.NAGABHUSHAN, ADV. FOR R4)

THIS WRIT PETITION IS FILED UNDER ARTICLE

226 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE KATHA CERTIFICATE DATED 3.2.2012 ISSUED BY THE 2ND RESPONDENT VIDE ANNEXURE-U AND QUASH THE BUILDING LICENSE BEARING NO.93118

DATED 19.3.2012 ISSUED BY THE 2ND RESPONDENT VIDE ANNEXURE-V.

IN W.P. NO.35729/2010

BETWEEN

MR.M.R.KANTHA RAJ, S/O.M.R.RAJANNA, AGED ABOUT 31 YEARS,

3

RESIDENTS OF MADALU VILLAGE, KANAKATTE HOBLI, ARASIKERE TALUK, HASSAN DISTRICT

AND REPRESENTED BY HIS POWER OF ATTORNEY, MR. J. VIJAYAKUMAR, S/O.S.JAYANNA, AGED ABOUT 35 YEARS, RESIDENT OF PREMISES IN

NO 17, PATTANAGERE VILLAGE, RAJARAJESWARINAGAR, BANGALORE-98.

... PETITIONER

(BY SRI. B.M.SHYAM PRASAD & ASSTS., ADV.)

AND 1. THE BRUHAT BANGALORE

MAHANAGARA PALIKE, OFFICE OF THE BRAHUT BANGALORE

MAHANAGAR PALIKE, HUDSON CIRCLE, BANGALORE, REPRESENTED BY ITS COMMISSIONER.

2. THE JOINT COMMISSIONER, BRAHUT BANGALORE MAHANAGARA PALIKE RAJARAJESHWARI NAGARA DIVISION, RAJARAJESWARI NAGARA,

BANGALORE. 3. THE ASSISTANT REVENUE OFFICER,

BRAHUT BANGALORE

4

MAHANAGARA PHALIKE, RAJARAJESHWARI NAGARA DIVISION, RAJARAJESWARI NAGARA, BANGALORE.

4. THE VISHWABARATHI HOUSE

BUILDING CO-OPERATIVE SOCIETY, WITH ITS OFFICE AT NO.35, RATNA VILAS ROAD, BASAVANAGUDI, BANGALORE,

REPRESENTED BY ITS SECRETARY, MR.VADIRAJAN.

5. MR.M.S.SRINIVAS, S/O.M.N.SESHADRI, AGED ABOUT 57 YEARS,

R/O. 203, MAHAVEER FLORA APARTMENT, BANDEMATHA, KENGERI UPANAGARA, BANGALORE-560 060. 6. MRS.USHA MADAN MOHAN,

AGED ABOUT 60 YEARS, W/O.SRI.MADAN MOHAN, NO.404, 3RD FLOOR, OXFORD MANOR, 19/15, RUSTUM BAGH MAIN ROAD, BANGALORE-560 027.

... RESPONDENTS

(BY SRI.K.N.PUTTEGOWDA, ADV. FOR R1-R3 SRI.Y.A.SUDHAKAR BABU, ADV. FOR R4 SRI.S.M.HEGDE KADAVE, ADV. FOR R5)

THIS WRIT PETITION IS FILED UNDER ARTICLES

226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO

QUASH THE ORDER DTD NOVEMBER 4TH 2010 IN

ANNEX-L ISSUED BY THE R1 IN SO FAR S IT RELATES

5

TO THE PETITIONER’S LAND MEASURING 42,471

SQ.FEET, PRESENT B.B.M.P.NO.1038/240/3/240/7

SITUATED AT HALAGEVADERAHALLI, BBMP,

RAJARAJESHWARI NAGAR W.NO.100, BANGALORE

PRESENT SY.NO.240/7 OF HALAGEVADERAHALLI

VILLAGE, KENGARI HOBLI, BANGALORE (THE

SCHEDULE PROPERTY).

IN W.P.NO.37813/2010

BETWEEN SRI.NAVEEN KUMAR, S/O.NAGENDRA SWAMY,

AGED ABOUT 38 YEARS, RESIDING AT NO.6/A, 9TH G MAIN ROAD, PIPELINE, VIJAYANAGAR, BANGALORE 560 040.

... PETITIONER

(BY SRI.H.T.JAGANNATHA & SRI. SRINIVASAREDDY, ADVS.) AND

1. BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE, BANGALORE - 560 002, REPRESENTED BY ITS COMMISSIONER.

2. THE JOINT COMMISSIONER,

BRUHAT BANGLAORE MAHANAGARA PALIKE, RAJARAJESHWARINAGAR DIVISION,

6

RAJARAJESWARINAGAR, BANGALORE.

3. THE ASSISTANT REVENUE OFFICER,

BRUHAT BANGLAORE MAHANAGARA PALIKE, RAJARAJESHWARINAGAR DIVISION, RAJARAJESWARINAGAR, BANGALORE.

4. THE VISHWABHARATHI HOUSE BUILDING CO-OPEATIVE SOCIETY LTD, HAVING ITS OFFICE AT NO.35 RATHNA VILAS ROAD, BASAVANAGUDI, BANGALORE 560 004,

BY ITS SECRETARY, MR.VADIRAJAN.

5. N.UDAYASHANKAR NARAYANA BHAT, S/O.LATE KRISHNA BHAT, AGED ABOUT 54 YEARS,

R/AT PARYAYA NETHRAKERE, NO.402, 7TH CROSS, SREE BALAJI KRUPA LAYOUT, RAMAKRISHNA HEGDE NAGAR, BANGALORE-560 077.

6. P.L.MURALIDHARA, S/O.PV.LAKSHMINARAYANA RAO, AGED ABOUT 47 YEARS, R/O. NO.168, 3RD CROSS, GIRINAGAR 1ST PHASE, BANGALORE-560 085.

7. B.N.VASUDEVA MURTHY, S/O.B.N.NARASIMHAIAH, AGED ABOUT 65 YEARS,

7

R/O.NO.1280, 8TH ‘C’ CROSS, 1(F) MAIN 2ND PHASE, GIRI NAGAR, BANGALORE-85.

8. M.R.RAGHAVENDRA, S/O.M.RAMAMURTHY, AGED ABOUT 64 YEARS, R/O.NO.452, SACHIDANANDA NAGAR,

VISHWABHARATHI HOUSE BUILDING COMPLEX, RAJARAJESHWARI NAGAR, BANGALORE.

... RESPONDENTS

(BY SRI.ASHWIN S.HALADY, ADV. FOR R1-R3 SRI.B.L.SANJEEV, ADV. FOR R4 SRI.M.HEGDE KADAVE, ADV. FOR R5-R8)



QUASH THE ORDER DATED 4.11.2010 VIDE

ANNEXURE-N OF THE RESPONDENT NO.1 IN RESPECT

OF SY.NO.240/1 SITUATED AT HALAGEVADERAHALLI

VILLAGE, BBMP, RAJARAJESHWARINAGAR, W.NO.160,

BANGALORE.

IN W.P.NO.35864/2010

BETWEEN MR.B.CHANNAPPA, S/O.K.C.BASAPPA,

AGED ABOUT 48 YEARS,

8

RESIDENT OF KENCHANAPURA VILLAGE, THYAMAGONDLU HOBLI, NELAMANGALA TALUK,

BANGALORE RURAL DISTRICT. ... PETITIONER

(BY SRI.B.M.SHYAM PRASAD & ASSTS.) AND

1. THE BRUHATH BANGALORE

MAHANAGARA PALIKE, OFFICE OF THE BRUHATH BANGALORE MAHANAGARA PHALIKE, HUDSON CIRCLE,

BANGALOREM REPRESENTED BY ITS COMMISSIONER.

2. THE JOINT COMMISSIONER, BRUHATH BANGALORE

MAHANAGARA PHALIKE, RAJARAJESWARI NAGARA DIVISION, RAJARAJESWARI NAGARA, BANGALORE.

3. THE ASSISTANT REVENUE OFFICER,

BRUHATH BANGALORE MAHANAGARA PHALIKE, RAJARAJESWARI NAGARA SUB DIVISION, RAJARAJESWARI NAGARA, BANGALORE.

4. THE VISHWABARATHI HOUSE BUILDING

CO-OPERATIVE SOCIETY, WITH ITS OFFICE AT NO.35,

9

RATNA VILAS ROAD, BASAVANAGUDI, BANGALORE, REPRESENTED BY ITS SECRETARY, MR.VADIRAJ.

5. Y.NAGABHUSHANAM, S/O.SRINIVASULU NAIDU, AGED ABOUT 43 YEARS, R/O. NO.111, YALLAPPA GARDEN, BANAGIRI NAGAR,

BSK 3RD STAGE, BANGALORE-560 085. 6. DATTATRAYA ANANTA HEGDE, S/O.ANANTA HEGDE, AGED ABOUT 76 YEARS,

R/O.NO.58, “SRINIDHI”, SRH COLONY, R.C.NAGAR, BELGAUM-560 006. REPRESENTED BY HIS PA HOLDER: SRI.ANANTA MURTHY B.H.,

S/O.RAMAKANTH HEGDE, AGED ABOUT 36 YEARS, R/O.NO.4027, 2ND FLOOR, 7TH CROSS, 7TH BLOCK, JAYANAGAR, BANGALORE.

7. FAKKIRADDI R. RAYARADDI, S/O.R.F.RAYARADDI, AGED ABOUT 47 YEARS, 8. NIVEDITA F.RAYARADDI,

W/O.FAKKIRADDI R.RAYARADDI, AGED ABOUT 42 YEARS,

10

BOTH ARE RESIDING AT NO.1432, 2ND CROSS, CHANDRA LAYOUT, BANGALORE-40,

REPRESENTED BY HER GPA HOLDER AND HER HUSBAND FAKKIRADDI R.RAYARADDI. 9. PADMAVATHI S.REDDY, W/O.G.M.SRINIVASA REDDY,

AGED ABOUT 53 YEARS, R/O.NO.72, 1ST MAIN, MICRO LAYOUT, BTM 2ND STAGE, BANGALORE-76.

10. SMT.RANGAMANI, W/O.C.NANJUNDE GOWDA, AGED ABOUT 50 YEARS, R/O.NO.21/8/1, 5TH CROSS, CHOWDESHWARI NILAYA, BYATARAYANAPURA,

MYSORE ROAD, BANGALORE-26. 11. S.G.HARISH, S/O.K.R.SHRIKANTHIAH, R/O.NO.1003, 1ST MAIN,

VIJAYANAGAR, BANGALORE-40. 12. B.CHETAN, S/O.M.D.UPENDRA, AGED ABOUT 42 YEARS,

R/AT: NO.38, 15TH CROSS, 4TH PHASE, J.P.NAGAR, BANGALORE-78.

11

13. SMT.SHANATALA M.S, W/O.SRI.G.TEJASWI, AGED ABOUT 38 YEARS, R/AT: NO. 245, 2ND MAIN ROAD,

7TH BLOCK, JAYANAGARA, BANGALORE-82 RESPONDENTS NO.12 & 13 ARE REPRESENTD BY THEIR G.P.A. HOLDER,

SRI.MARIGOWDA, AGED ABOUT 45 YEARS, R/AT: NO.38, 15TH CROSS, 4TH PHASE, J.P.NAGAR, BANGALORE-78

... RESPONDENTS

(BY SRI.K.N.PUTTE GOWDA, ADV. FOR R1-3 SRI.Y.A.SUDHAKAR BABU, ADV. FOR R4 SRI.S.M.HEGDE KADAVE, ADV. FOR R5-R13)



QUASH THE ORDER DATED NOVEMBER 4TH 2010

VIDE ANNEXURE-K, ISSUED BY THE 1ST

RESPONDENT IN SO FAR AS IT RELATES TO THE

PETITIONER'S LAND MEASURING 42,471 SQ.FEET,

PRESENT B.B.M.P. NO.1037/240/3, 240/4, SITUATED

AT HALAGEVADERAHALLI, BBMP, RAJARAJESHWARI

NAGAR, WARD NO.160, BANGALORE (PREVIOUSLY

SY.NO.240/4 (EARLIER 240/3) OF

HALAGEVADERAHALLI VILLAGE, KENGARI HOBLI,

BANGALORE (THE SCHEDULE PROPERTY).

12

THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:

O R D E R The impleading applications are filed by the

persons who are the plaintiffs in the suits, the details of

which would be referred herein below. Hence, the said

persons are certainly proper and necessary parties to the

instant petitions. Hence, the applications in

IA.No.1/2013 and Misc.W.No. 2280/2011 are allowed.

Cause title be amended accordingly.

2. The petitioner in W.P.No.40781/2012 is

seeking that the khatha dated 03.02.2012 which is

impugned in the petition be quashed. The petitioner has

also assailed the building license granted in respect of the

property which is the subject matter of the petition.

3. In W.P.Nos.35729/2010, 37813/2010 and

35864/2010, the petitioners have assailed the

communication addressed by the Commissioner, all

13

dated 04.11.2010 directing the Joint Commissioner to

accept betterment charges and issue khatha in respect of

the persons claiming ownership rights in respect of the

sites said to be formed in Sy. Nos.212, 213, 216, 231,

231/1, 231/2, 234, 235, 236, 237/1, 237/2, 238, 240,

241 and 242 of Halagevaderahalli, wherein the said

persons are claiming right in respect of the sites said to

have been allotted to them by the respondent No.4-

Vishwabarathi Housing Building Co-operative Society.

The petitioners therein claim that they are the original

land owners of the property, wherein the said society is

stated to have allotted the sites without any authority. It

is in that regard, the direction to enter khatha is being

assailed by the said land owners.

4. Though several contentions with regard to the

right, title and interest to the property has been urged in

all these petitions, it is to be noticed at the outset, the

issue in the instant petitions relate only with regard to

the khatha entries which have been granted in favour of

14

the site purchasers or in respect of the land owners who

claim that they are still the owners of the properties.

Hence, all aspects of the matter need not be gone in these

petitions as disputed questions of fact in any event

cannot be decided in a writ petition.

5. In that light, if the issue in

W.P.No.40781/2012 to the limited aspect is taken into

consideration, though the petitioner therein is aggrieved

by the khatha being granted in favour of the respondent

No.3 initially and thereafter being transferred in favour of

the respondent No.4, the issue relating to ownership

right in respect of the property is pending in

O.S.No.7514/2010 before the Civil Court. Hence, the

right to the property in any event would be decided by

the Civil Court in the said civil proceedings. Insofar as

the lands which pertain to the petitions in

W.P.Nos.35729/2010, 37813/2010 and 35864/2010, the

respective petitioners therein are also impleaded as the

respective defendants to the said suit as well as the other

15

suits which are pending before the Court and where

dismissed it is to attain finality. The statement is

extracted here below:

Sl. No

Case Nos. (O.S. Nos.)

Plaintiff Defendant Relief sought

Stage

1. 26700/2010 Nagamani

Halageri

Kantharaju

& Another

Permanent

injunction

IA for T.I is

dismissed

2. 7514/2010 Nirmala Nagaraj

Kantharaj & Another

Declaration Pending

3. 8280/2010 Kanthi Hegade Kantharaj Permanent injunction

IA for T.I is dismissed

4. 8627/2010 Ushar.R. Shankar

Kantharaj Permanent injunction

IA for T.I is dismissed

5. 30/2011 L.Mohan Kantharaj Permanent injunction

Suit is dismissed

6. 1626/2011 Suneetha.G.C. Kantharaj Permanent

injunction

Pending

7. 1438/2011 Maya Nayak Kantharaj Permanent injunction

Pending

8. 2365/2011 Usha Madan

Mohan

Kantharaj Permanent

injunction

Pending

9. 1439/2011 Lakshmi Rao Kantharaj Permanent injunction

Pending

10. 7904/2011 Usha Madan

Mohan

Channakes

hava & Others

Declaration

& possession

IA for T.I is

dismissed

11. 8625/2011 Chandrakala Kantharaj Permanent injunction

Pending

12. 8626/2011 Parvathi Bai Kantharaj Permanent injunction

Pending

16

13. 4442/2012 M.S.Srinivasa Kantharaj & Another

Declaration & permanent injunction

Suit for declaration and IA for T.I is

dismissed

14. 4605/2012 Harsha Hegade Kantharaju & Another


Suit for declaration and IA for T.I is

dismissed

15. 4607/2012 Rashmi Hegade Kantharaju & Another


Suit for declaration and I.A. for T.I is

dismissed

16. 4882/2012 Harsha Hegade Kantharaju & Another

Permanent injunction

I.A. for T.I is dismissed

17. 6654/2011 Prathiba Kantharaju Declaration & injunction

Pending

18. 1885/2011 Reena Hegade Kantharaju Suit for adverse possession

Status quo and suit for adverse

possession is dismissed

19. 26200/2012 Venkatesh Murthy

Kantharaju & Another

Declaration I.A. for T.I. is

dismissed

20. 8127/2012 Kanthi Hegde & others

BBMP & Others

Mandatory injunction

Suit is dismissed

21. 1459/2013 Kanthi Hegde &

others

BBMP &

Others

Mandatory

injunction

Pending

22. 536/2013 Kanthi Hegde & others

BBMP & Others

Declaration Pending

23. 788/2013 Kanthi Hegde &

others

BBMP &

Others

Declaration Pending

17

24. 6192/2012 N.R.Chaya Kantharaju & Another


Suit is dismissed

25. 3525/2010 Nakkeeran Chennappa Permanent injunction

Pending

26. 7617/2010 Chethan & Another

Chennappa Permanent injunction

Pending

27. 7231/2010 Dattreya Anantha Hegde & Others

Chennappa & Another


Pending

28. 6988/2009 N.Narayana Bhat

Naveen Kumar & Others


Status quo

29. 3893/2010 Vasudevamurthy & Another

Naveen Kumar


Pending

30. 1991/2010 Muralidara Naveen Kumar


Pending

6. The said statement would indicate that the

suits filed by the plaintiffs therein claiming to be the

owners of the sites claiming right under the society is

either for bare injunction or for declaration and in some

cases for mandatory injunction as also for adverse

possession. In any event, incidentally, the right, title and

interest to the property would have to be decided in all

the said suits. Therefore, the right to have the khatha

18

entered in the name of the plaintiffs therein or the

defendants who are seeking to resist the same would

depend on the title to be considered in the suits based on

the evidence. For the purpose of grant of khatha, such

right in any event cannot be decided in these petitions,

where there are several disputed questions of fact, which

can only be urged before the Civil Court.

7. Having arrived at the said conclusion, it

would also be necessary to indicate the extent to which

the khatha entries which are presently existing could be

taken into consideration by the Civil Court while deciding

the rights and the manner in which such entries would

be retained. As already noticed, the original owners of the

property as land owners who still claim right over the

property are now opposing the direction issued by the

Commissioner to the Joint Commissioner for making

khatha in the name of the site purchasers. Similarly, one

of the site purchaser Smt.Nirmala Nagaraj in her petition

has assailed the grant of khatha in favour of the persons

19

who have been claiming right under the so called original

owners. Therefore, at this juncture if certain khatha

entries have been made by the BBMP in respect of the

lands which are the subject matter of all the suits which

have been noticed above, the Civil Court shall not take

into consideration the khatha entry existing in the name

of either of the parties to the suits for the purpose of

deciding the right in respect of the property. The Civil

Court dehors the existing khatha entries shall proceed to

consider the other evidence that would be brought on

record to establish title to the property and based on

such right, the decision would be rendered by the Civil

Court. On the suits being disposed of by the Civil Court

and depending on the same attaining finality, the parties

concerned would be entitled to re-approach the BBMP

authorities seeking change of khatha entries if it is found

necessary at that stage.

8. Further, during the course of the instant

proceedings, the learned counsel for the parties have also

20

pointed out that in the pending suits, the interim orders

have been granted only in certain of the suits and not in

all the suits. However, since such interim orders relate

only to the nature of enjoyment of the property, this

Court would not express any opinion in that regard.

9. It is further made clear that if at present the

khatha entries are standing in the name of either of the

parties to the instant proceedings and if the other party

desires that their interest be protected in view of the

pendency of the suit, it would be open for the concerned

parties in the suit to make an application to the BBMP to

indicate the relevant suit number in the khatha register

which would be entertained by the BBMP and on making

entry of the suit numbers, the same shall also be

indicated as and when the khatha extracts in respect of

the property is issued so as to protect third party interest

who may purchase the property under litigation and as

to protect the interest of the parties to the suit.

21

10. In view of the above, keeping in view the fact

that the impugned communication in

W.P.Nos.35729/2010, 37813/2010 and 3586/2010 had

been stayed and presently it has been clarified that the

Civil Court would decide upon the rights of the

authorities without reference to the khatha entries even if

such entries have been made pursuant to the same, it is

needless to mention at this juncture, the communication

shall not be acted upon any further. Similarly, in respect

of W.P.No.40781/2012, khatha entry existing as on today

will remain subject to result of the suit. It is further

clarified that if acting upon the impugned communication

or any other action of the BBMP, the petitioners or any of

the parties who are relevant to the present proceedings

have paid betterment/improvement charges or such

other khatha charges to the BBMP, the same would

remain subject to result of the above stated suits and

thereafter depending on the right of the parties, either the

22

amount would be adjusted towards the dues or would be

refunded as the case may be.

11. Liberty is also reserved to the parties to make

appropriate application to seek for clubbing of the suits

and early disposal which would be considered by the

Court below in accordance with law.

12. In terms of the above, these petitions stand

disposed of.

Sd/- JUDGE

ST*

w.p.no.40781/2012 c/w. w.p.nos.35729/2010, 37813/2010...

Documents