Karnataka High Court
Smt Rayappa Aralamma vs The Principal Secretary on 18 July, 2022
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
W.P.No.54606/2018 (KLR-RES)
BETWEEN:
1. SMT RAYAPPA ARALAMMA
W/O LATE A. RAYAPPA
SINCE DEAD BY LRs,
1(a) SRI.RAYAPPA SUNDER RAJ
S/O.LATE A.RAYAPPA
AGED ABOUT 71 YEARS
R/AT 53 11 254TH STREET
LITTLE NECK
NEW YORK-11362
1(b) SRI.RAYAPPA KANTHARAJ
S/O.LATE A.RAYAPPA
AGED ABOUT 68 YEARS
R/AT 141-02, 45TH AVE FLUSHING
NY-11355
1(c) SRI.RAYAPPA AROGYACHARI
S/O.LATE A.RAYAPPA
AGED ABOUT 67 YEARS
R/AT 329 HERRICKS ROAD
NEW HYDE PARK, NY-11040
1(d) SRI.RAYAPPA KASTHURI RAJ
S/O.LATE A.RAYAPPA
AGED ABOUT 63 YEARS
R/AT 9517, 243RD STREET
FLORAL PARK, NY-11001
2
1(e) SRI.RAYAPPA DEVAKUMAR
S/O.LATE A.RAYAPPA
AGED ABOUT 62 YEARS
R/AT 9517, 243RD STREET
FLORAL PARK, NY-11001
1(f) SRI.RAYAPPA RAJKUMAR
S/O.LATE A.RAYAPPA
AGED ABOUT 57 YEARS
R/AT 89-48, 199TH STREET HOLLIS
NY-11423
1(g) SRI.RAYAPPA SATISH
S/O.LATE A.RAYAPPA
AGED ABOUT 56 YEARS
R/AT 34, HOFFMAN ROAD
NEW HYDE PARK, NY-11040
PETITIONER 1(a) TO 1(g) ARE
REPRESENTED BY THEIR
GENERAL POWER OF ATTORNEY
SRI.ARUN KUMAR F.,
AGED ABOUT 49 YEARS
S/O.LATE FRANCIS LUCUS
R/AT NO.24/1, 1ST CROSS
CUBBON PET
BANGALORE-560 002
... PETITIONERS
(BY SRI D.N.MANJUNATH, ADVOCATE)
AND:
1. THE PRINCIPAL SECRETARY
GOVERNMENT OF KARNATAKA
DEPARTMENT OF SURVEY
SETTLEMENT & LAND RECORDS,
REVENUE BUILDING, K.R.CIRCLE,
BENGALURU,
KARNATAKA -560 001
3
2. DIRECTORATE
GOVERNMENT OF KARNATAKA
DEPARTMENT OF
SURVEY SETTLEMENT &
LAND RECORDS,
REVENUE BUILDING, K.R.CIRCLE,
BENGALURU
KARNATAKA -560 001
3. JOINT DIRECTOR
LAND RECORDS CITY SURVEY
AND SETTLEMENT,
BANGALORE SOUTH DIVISION,
K.R. CIRCLE,
BANGALORE 560 001
4. ASSISTANT DIRECTOR OF LAND RECORDS
DEPARTMENT OF SURVEY SETTLEMENT
AND LAND RECORDS
CITY SURVEY AND
SETTLEMENT TEAM-3,
K.R.CIRCLE,
BANGALORE 560 001
5. SURVEY OFFICER
CITY SURVEY AND SETTLEMENT TEAM-3
K.R.CIRCLE
BANGALORE 560 001
6. THE COMMISSIONER
BRUHAT BANGALORE
MAHANAGARA PALIKE
OPPOSITE TO LIC BUILDING,
NEAR TOWN HALL,
3RD FLOOR, ANNEX BUILDING 3,
HUDSON CIRCLE,
N R ROAD,
BANGALORE 560 002
4
7. ASSISTANT REVENUE OFFICER
BRUHAT BANGALORE
MAHANAGARA PALIKE
J.C. ROAD,
KEMPEGOWDA NAGAR SUB-DIVISION,
BANGALORE.
8. SPECIAL LAND ACQUISITION OFFICER
BRUHATH BANGALORE
MAHANAGARA PALIKE
N.R. SQUARE
BANGALORE 560 002.
... RESPONDENTS
(BY SRI C.N.MAHADESWARAN, ADV. FOR R1 TO R5
SRI.ARAVIND M.NEGLUR, ADV. FOR R6 TO R8)
THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE IMPUGNED CTS (B) REVISION 8/2017-18 DATED 12-04-
2018 PRODUCED AS ANNEXURE-H AS ILLEGAL, WITHOUT
JURISDICTION AND ARBITRARY WITHOUT CORRECTING THE
ERROR IN THE CITY SURVEY RECORDS NAMELY CITY SURVEY
INVESTIGATION REPORT, FIELD BOOK OF DETAIL MAPPING
CITY OF BANGALORE, PROPERTY CARD EXTRACT AS PER THE
PROVISIONS OF THE LAND REVENUE ACT BY CONDUCTING A
FRESH SURVEY OF THE PROPERTY AND ETC.
THIS PETITION, HAVING BEEN HEARD AND RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT MADE THE FOLLOWING:
5
ORDER
1. On 27.02.1959, Rayappa, the husband of the petitioner
- Aralamma, had purchased the property on Lalbagh Fort Road bearing Municipal New No.81 (Corporation No.68,69 - old No.4) under a registered Sale Deed from one T.J. Devarayalu. The boundaries of the said property as described in the Sale Deed was as follows:
"µÉqÀÆå®Ä: ¨ÉAUÀ¼ÀÆgÀÄ ¹n ¯Á¯ï¨ÁUï zÉÆqÀتÀiÁªÀ½î ¯Á¯ï¨ÁUï ¥ÉÆÃgïÖ gÉÆÃr£À°ègÀĪÀ ªÀÄĤ¹¥À¯ï, PÁ¥ÉÆðgÉõÀ£ï ªÀiÁf 7 ºÁ° 68, 69£Éà £ÀA§gÀÄUÀ¼À°è ªÀÄÄAzÉ «zsÁAiÀĪÁUÀĪÀ ¸ÀéwÛUÉ ZÀPÀÄ̧A¢:-
¥ÀƪÀðPÉÌ: ªÀÄÄAzÉ gÀ¸ÉÛAiÀiÁVzÀÄÝ ºÁ° ¥ÀæwªÁ¢UÀ¼ÁzÀ JA.PÉA¥ÀAiÀÄå£ÀªÀgÀ ¸ÀévÀÄÛ ¥À²ÑªÀÄPÉÌ: ¸ÀgÁÌj gÀ¸ÉÛ GvÀÛgÀPÉÌ: ¯Á¯ï¨ÁUï ¥ÉÆÃgïÖ gÉÆÃqÀÄ zÀQëtPÉÌ: PÉA¥ÀAiÀÄå£ÀªÀgÀzÁÝVzÀÄÝ aPÀÌ¥ÀÄlÖ¥Àà ªÀÅgÀÄ¥sï ¥ÀÄlÖ¥Àà ªÀÄvÀÄÛ PÀÄzÀÆÝ¸ï ¸ÁºÉçgÀ ªÀÄ£É F ªÀÄzsÉå ¥ÀƪÀð ¥À²ÑªÀÄ 32 1/2 CrUÀ¼ÀÄ GvÀÛgÀ zÀQët 25 CrUÀ¼ÀÄ F ªÉÄÃgÉ C¼ÀvÉ EgÀĪÀ d«ÄãÀÄ ªÀÄvÀÄÛ EzÀgÀ®Äè PÀ®Äè ¥ÁAiÀÄ ºÁQgÀĪÀÅzÀÄ ¸ÀºÀ ¸ÉÃjzÀ ¸ÀévÀÄÛ F PÀæAiÀÄPÉÌ ¸ÉÃj ¤ªÀÄä ªÀ±À¥Àr¹zÉ."
2. Pursuant to the Sale Deed, the Corporation of the City of Bangalore registered the name of Rayappa as khatedar and 6 started collecting property taxes. A copy of one such demand for payment of property tax of the year 1965-66 is produced at Annexure-C2 to evidence this fact.
3. It is stated that Rayappa and his family members had migrated to the USA and were residing therein and Rayappa died intestate on 01.02.1993, leaving behind his wife and children as his legal heirs.
4. It is stated that on the death of Rayappa, the name of his wife Aralamma was entered in the property tax register as khatedar. A copy of the khata certificate issued in the year 2016 and the khata extract of the year 2016 are produced at Annexures-C and C1 respectively to evidence this fact.
5. It is also stated that Aralamma has been paying property taxes regularly and the property tax receipts for the year 2016-2017, 2017-2018 and 2018-2019 are also produced at Annexures-C3, C4 and C5 respectively to evidence this fact. Thus, by virtue of these documents, it cannot be in dispute that the khata in respect of Municipal No.81 which was earlier standing in the name of Rayappa has been transferred in the name of his wife Aralamma, petitioner 7 herein. The khata extracts produced also indicate that the BBMP has acknowledged that the sital area owned by Aralamma, which was liable for property tax, measured 562.5 sq. ft.
6. It appears that the Government of Karnataka issued a notification under Section 4 of the Land Acquisition Act, 1894 (for short, "the Act") stating that 39 properties, notified therein, were needed for a public purpose and were required to be acquired. The purpose stated in the notification was "widening the Lalbagh Fort Road between Kempaiah Circle and H.C. Javaraiah Circle, Bangalore City". On considering the objections, a report under Section 5A of the Act was placed before the Government and the Government, being satisfied that the land was needed for the aforementioned purpose, proceeded to accept the report and issued a declaration under Section 6 of the Act on 01.12.1973. A copy of the said declaration is produced at Annexure-D. In the said declaration, item No.30 pertains to the petitioner. Item No.30 of the notification reads as follows:
8
Dist:Bangalore City: Bangalore Division No:38 Street- Lalbagh Fort Road Name if the Boundaries Area required Survey Assessment Khatedar/ number of Area in sq. Breadth in Length Anubhavad In feet Sl. Site number ar/ Tenant feet feet No. with North South East West or other description interested if any persons Name of Site No.81 the Lalbagh Owner's Private 30 Lane 10 24 240 Site Building Khatedar: Fort Road Property Lane Rayappa
7. As could be seen from the said declaration, the southern boundary is shown as the owner's property, thereby meaning that only a portion of the property owned by Rayappa measuring 10' x 24' i.e., 240 sq. ft. had been acquired for the purpose of widening the road and the owner's property still remained to the south of the notified property.
8. As stated above, Rayappa had purchased the land measuring 32.5 sq. ft. X 25 sq. ft. i.e., 812.5 sq. ft. and out of this 812.5 sq. ft., only 240 sq. ft. had been acquired. Thus, an extent of 572.5 sq. ft. remained with the owner Rayappa. This fact also stands proved by the registration of khata in respect of 562.5 sq. ft. initially in favour of Rayappa and on his death, in the name of his wife, the petitioner herein.
9
9. In this writ petition, the BBMP has also filed a memo on 15.06.2022 enclosing an endorsement dated 08.06.2022, in which, it is stated that property bearing No.81 situate at Lalbagh Fort Road belonged to Aralamma and the khata had been registered in respect of property measuring 22.5 sq. ft. X 25 sq. ft. = 562.5 sq. ft. and the property was a residential site. Thus, the fact that there exists a site measuring 562.5 sq. ft. and the khata of the said site had been registered in the name of the petitioner is basically an undisputed fact.
10. However, it appears that in the City Survey Enquiry Register maintained by the Survey Department, an extract of which is produced as Annexure F in this petition, in respect of chaltha No.153, it has been entered that it is a corporation vacant land measuring 223.3 sq. ft. and has been given the final CTS No.83. In the said Enquiry Register, it has been stated as follows:
10
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11
11. Thus, in the said City Survey Enquiry Register in respect of CTS No.83, an entry appears to have been made that an extent of 223.3 sq. ft. is a corporation vacant land and that had been made on the basis of a letter dated 11.06.1975 from the Assistant Engineer, Estates, Corporation of the City of Bangalore. It is also held by the Enquiry Officer that the said open space belonged to the Corporation of the City of Bangalore.
12. The petitioner, being aggrieved by the said entry in the City Survey Enquiry Register, preferred a revision to the Joint Director of Land Records, South Division, Bengaluru. In the revision, the petitioner requested the authorities to conduct a fresh enquiry in respect of survey of the property and to rectify the entry, by inserting her name as the owner.
13. The Joint Director of Land Records proceeded to conduct a spot inspection after serving copies to both the parties. Though the petitioner appeared, there was no appearance on behalf of the Corporation i.e., Assistant Revenue Officer, who has been arrayed as respondent No.3. 12
14. After issuance of several notices, ultimately, one Narasimhaiah appeared on behalf of the Assistant Revenue Officer and sought for time. Thereafter, a communication dated 22.02.2018 was placed before the Joint Director of Land Records. The said communication reads as follows:
"«µÀAiÀÄ: ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀzÀ J¯ï.J-43, ¯Á¯ï ¨sÁUï ªÀiÁªÀ½î ¸ÀܽÃAiÀÄPÉëÃvÀæPÉÌ ¸ÉÃjzÀ ¹nJ¸ï £ÀA.83gÀ D¹ÛAiÀÄ zÁR¯ÁwUÀ¼À£ÀÄß MzÀV¸ÀĪÀ §UÉÎ.
G¯ÉèÃR:1) JDLR.CTS(b)j«d£ï 8/17-18, ¢£ÁAPÀ: 24-10-2017.
ªÉÄîÌAqÀ «µÀAiÀÄ ºÁUÀÆ G¯ÉèÃRPÉÌ ¸ÀA§A¢ü¹zÀAxÉ ªÁqïð £ÀA.143, ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀzÀ J¯ï.J-13, ¯Á¯ï ¨sÁUï ªÀiÁªÀ½î ¸ÀܽÃAiÀÄ PÉëÃvÀæPÉÌ ¸ÉÃjzÀ ¹nJ¸ï £ÀA.83gÀ D¹ÛAiÀÄ §UÉÎ dAn ¤zÉÃð±ÀPÀgÀÄ ¨sÀÆzÁR¯ÉUÀ¼À PÀbÉÃj, £ÀUÀgÀ ªÀiÁ¥À£Á zÀQët ªÀ®AiÀÄ PÉ.Dgï.ªÀÈvÀÛ, ¨ÉAUÀ¼ÀÆgÀÄ gÀªÀgÀÄ ¢£ÁAPÀ: 04-01-2018gÀAzÀÄ C¥ÀgÁºÀß 3-00 UÀAmÉUÉ «ZÁgÀuÉUÉ PÀgÉAiÀįÁVgÀÄvÀÛzÉ.
DzÀgÉ D¹Û ªÀÄvÀÄÛ ¸ÀA¥ÀvÀÄÛ E¯ÁSÉ §ÈºÀvï ¨ÉAUÀó¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ gÀªÀjAzÀ ¢£ÁAPÀ: 04-01-2018gÀAzÀÄ «±ÉõÀ DAiÀÄÄPÀÛgÀÄ (D¹Û ªÀÄvÀÄÛ ¸ÀA¥ÀvÀÄÛ) E¯ÁSÉ gÀªÀgÀÄ «ZÁgÀuÉà ªÀ»AiÀÄAvÉ ¹nJ¸ï.£ÀA.83PÉÌThis Open Land Belongs to Corporation of the City of BangaloreF »£É߯ÉAiÀÄ°è ¸ÀzÀj D¹ÛAiÀÄÄ ¸ÀàµÀÖªÁV ¥Á°PÉAiÀÄ D¹ÛAiÀiÁVzÀÄÝ, ¨sÀÆzÁR¯ÉUÀ¼À dAn ¤zÉÃð±ÀPÀgÀÄ ¨sÀƪÀiÁ¥À£À, zÀQët ªÀ®AiÀÄgÀªÀgÀÄ £ÁåAiÀiÁ®AiÀÄPÉÌ ºÁdgÁV CUÀvÀå PÀæªÀÄ PÉÊUÉƼÀî¨ÉÃPÉAzÀÄ «±ÉõÀ DAiÀÄÄPÀÛgÀÄ D¹Û ªÀÄvÀÄÛ ¸ÀA¥ÀvÀÄÛ E¯ÁSÉ gÀªÀgÀÄ w½¹gÀĪÀ ªÉÄÃgÉUÉ ºÁUÀÆ dAn ¤zÉÃð±ÀPÀgÀÄ ¨sÀƪÀiÁ¥À£À, zÀQët ªÀ®AiÀÄ 13 PÉ.Dgï.ªÀÈvÀÛ, ¨ÉAUÀ¼ÀÆgÀÄ, EªÀgÀÄ «ZÁgÀuÉUÉ ºÁdgÁUÀ®Ä w½¹zÀÄÝ ¸ÀzÀj «ZÁgÀuÉUÉ zÁR¯ÉUÀ¼À£ÀÄß ºÁdgÀÄ ¥Àr¸À®Ä PÁ¯ÁªÀPÁ±À PÉÆÃjzÀÄÝ CzÀgÀAvÉ ¥Á°PÉAiÀÄ D¹Û «¨sÁUÀ¢AzÀ ¤ÃrgÀĪÀ zÁR¯ÉUÀ¼À£ÀÄß EzÀgÉÆA¢UÉ ®UÀwÛ¹ ¸ÀzÀj ¥Àæ±ÁßwÃvÁ ¸ÀéwÛ£À D¹ÛAiÀÄ ¨Á§ÄÛ £ÀPÉëAiÀÄ°è, ºÉ¸ÀgÀ£ÀÄß §zÀ¯Á¬Ä¸À¨ÁgÀzÉAzÀÄ F »AzÉ PÉÆÃjzÀÄÝ, ªÀÄÄAzÀĪÀgÉzÀAvÉ ¥Àæ±ÁßwÃvÁ D¹ÛAiÀÄ §UÉÎ D¹ÛUÉ ¸ÀA§A¢ü¹zÀAvÉ Corporation of the City of Bangalore Award Notice No.IAL3115/74-75, ¢£ÁAPÀ: 28-12-1976gÀ°è CPÉéöÊgï ªÀiÁrPÉÆArgÀĪÀÅzÁV ºÁUÀÆ CPÉéöÊgï ªÀiÁrPÉÆArgÀĪÀ eÁUÀPÉÌ ¥ÀjºÁgÀªÀ£ÀÄß ¤ÃrgÀĪÀÅzÁV ºÁUÀÆ ¸ÀzÀj ¸ÀévÀÛ£ÀÄß PÁ¥ÉÆðgÉõÀ£ï EAf¤AiÀÄgï gÀªÀgÀÄ ªÀ±ÀPÉÌ ¥ÀqÉAiÀĨÉÃPÉAzÀÄ ¸ÀzÀj CªÁqïð £ÉÆÃnøï£À°è ¥Àæ¸ÁÛ¦¹gÀĪÀÅzÁVgÀÄvÀÛzÉ. F ¸ÀA§AzsÀ ¥Àæ¸ÁÛ¦vÀ eÁUÀzÀ §UÉÎ zÀÈrüÃPÀÈvÀ zÁR¯ÁwUÀ¼ÀÄ ºÁUÀÆ £ÀPÉëAiÀÄ£ÀÄß ¸ÀA§AzsÀ¥ÀlÖLand Acquisition Officer Corporation Of Property Of BangaloregÀªÀjAzÀ ªÀiÁ»w ¥ÀqÉzÀÄ PÁ£ÀÆ£ÀÄ C©ü¥ÁæAiÀĪÀ£ÀÄß D¹Û ªÀÄvÀÄÛ ¸ÀA¥ÀvÀÄÛ E¯ÁSÉgÀªÀgÀÄ ªÀgÀ¢ ¤ÃrzÀÄÝ F ¥Àæ±ÁßwÃvÁ D¹ÛAiÀÄ SÁvÉAiÀÄ£ÀÄß PÉ.JA.¹.PÁAiÉÄÝ 114J ¥ÀæPÁgÀ SÁvÉ gÀzÀÄÝ ¥Àr¸ÀĪÀ «µÀAiÀĪÀÅ ZÁ°ÛAiÀÄ°è EzÀÄÝ Cw dgÀÆgÁV PÀæªÀÄ PÉÊUÉƼÀî¯ÁUÀĪÀÅzÀÄ F D¹ÛAiÀÄÄ £ÀUÀgÀ ¥Á°PÉ ¸ÀévÀÄÛAiÉÄAzÀÄ zÀÈqsÀ¥Àr¹gÀĪÀÅ¢AzÀ ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀzÀ J¯ï.J.-43, ¯Á¯ï ¨sÁUï ªÀiÁªÀ½î ¸ÀܽÃAiÀÄ PÉëÃvÀæPÉÌ ¸ÉÃjzÀ ¹nJ¸ï £ÀA.83gÀ°è AiÀiÁªÀÅzÉà §zÀ¯ÁªÀuÉ ªÀiÁqÀ¨ÁgÀzÀÄ £ÀPëÉAiÀÄ°è ºÉ¸ÀgÀ£ÀÄß §zÀ¯Á¬Ä¸À¨ÁgÀzÉAzÀÄ vÀªÀÄä°è PÉÆÃgÀÄvÉÛêÉ. ªÀÄvÀzÁgÀgÀ ¥ÀnÖ ¥ÀjµÀÌgÀuÉ PÁAiÀÄðzÀ°è C¢üPÁj ¹§âA¢AiÀĪÀgÀÄ PÁAiÀÄð¤ªÀð»¸ÀÄwÛzÀÄÝ, ªÀiÁ»w ¥ÀæwUÀ½UÉ ¸À» ¥ÀqÉAiÀÄ®Ä «¼ÀA§ªÁVgÀÄvÀÛzÉ. DzÀÝjAzÀ ªÀÄvÉÆÛªÉÄä PÁ¯ÁªÀPÁ±ÀªÀ£ÀÄß ¤ÃqÀ¨ÉÃPÉAzÀÄ PÉÆÃjgÀÄvÉÛêÉ."14
15. As could be seen from the said communication, it was the contention of the Corporation that as per the City Survey Enquiry Register, CTS No.83 was declared to be an open land which belonged to the Corporation and it was thus clear that the property belonged to the Corporation. The Corporation further contended that an award notice dated 28.12.1976 had been issued, in which, it had been stated that the property had been acquired and compensation was being offered and the Corporation Engineer was directed to take possession of the land. It was also contended that as per the legal opinion received, the property was that of the Corporation and therefore, immediate proceedings for revocation of the khata under Section 114A of the Karnataka Municipal Corporations Act, 1976 (for short, "the KMC Act") was being initiated and as a consequence, a prayer was made not to change the entries in the revenue records.
16. Thus, as per the reply given to the Joint Director of Land Records, the Corporation, notwithstanding the fact that the khata in respect of Municipal No.81 was registered in the name of the petitioner, staked a claim that it had title over 15 the said open land on the basis of an entry made in the City Survey Enquiry Register.
17. As noticed above, an entry that the vacant space belonged to Corporation was made on the basis of a letter of the Assistant Engineer, Estates, City of Corporation of Bangalore dated 11.06.1975. Therefore, in order to ascertain the exact contents of the said letter, the BBMP was called upon to produce the said letter. However, an affidavit was filed by one Chandrakanth, Assistant Revenue Officer stating that he had searched for the said letter in the office of the Estates Division of BBMP, but the said letter could not be found. Thus, it is clear that the letter dated 11.06.1975, on the basis of which, an entry was made in favour of the Corporation, is not in the custody of the Corporation.
18. The Joint Director of Land Records, after hearing the parties, has proceeded to dismiss the revision filed by the petitioner by the impugned order. In the impugned order, the Joint Director of Land Records has noticed that the khata in respect of 562.5 sq. ft. did stand in the name of the 16 petitioner and steps were being taken to cancel the khata under Section 114A of the KMC Act.
19. The Joint Director of Land Records has also recorded a finding that on perusal of the City Survey Enquiry Register, it was clear that the Assistant Engineer, Estates, Corporation of the City of Bangalore had addressed a letter dated 11.06.1975 to the Enquiry Officer in respect of disputed land and since the disputed land was an open land, the name of the Corporation was required to be entered in the Enquiry Register in respect of this open land and the name of the Corporation had been accordingly entered.
20. The Joint Director of Land Records has also proceeded to record a finding that during the spot inspection, he had found that the land was vacant and was being used by the local residents for public purpose and therefore, in order to establish her right over the said land, the petitioner was required to approach the Civil Court especially when the Corporation was contending that it was its property.
21. Thus, the Joint Director of Land Records fundamentally confirmed the entry in the City Survey Enquiry Register only 17 on the basis that there was a letter dated 11.06.1975 issued by the Assistant Engineer, Estates, Corporation of City of Bangalore, which reportedly stated that the disputed land, being an open land, had to be construed as the Corporation's property and accordingly, the name of the Corporation has to be entered in the records. It is, therefore, clear that the name of the Corporation in the City Survey Enquiry Register was entered only on the basis that it was an open land and a letter was received from the Assistant Engineer, Estates, Corporation of City of Bangalore to that effect.
22. As stated above, since the property bearing Municipal No.81 had stood in the name of Rayappa, he was mentioned as the notified khatedar in the declaration issued for the acquisition of 240 sq. ft. of his land, for the purpose of widening of the road. Most importantly, in the said notification, it had been clearly and categorically stated that to the south of the acquired property, there remained the portion of owner's property. Thus, nearly 50 years ago, the Corporation clearly acknowledged the fact that they were acquiring only 240 sq. ft. from Rayappa and there still 18 remained a land belonging to the owner Rayappa on the southern side.
23. As stated above, since only 240 sq. ft. was acquired out of 812.5 sq. ft., it is clear that Rayappa had retained an extent of 572.5 sq. ft. The fact that Rayappa had retained the property after acquisition is also clear from the registration of khata in the name of his wife, after his death showing the extent of the property as 562.5 sq. ft. It is to be stated here that though an extent of 572.5 sq. ft. was retained by Rayappa, it appears that Corporation had registered the khata only in respect of 562.5 sq. ft. Though there is discrepancy of 10 sq. ft. in the measurement of the actual land retained by Rayappa as compared to the khata extract, the fact remains that the Corporation acknowledged that Rayappa did retain an extent of 562.5 sq. ft. in Municipal No.81.
24. The fact that the Corporation collected property taxes regularly from 1965 also establishes that the Corporation acknowledged that the property bearing Municipal No.81 did belong to Rayappa and the khata was also transferred in 19 favour of the petitioner, who had succeeded to the said property, on his death.
25. In the light of this admitted fact, it is simply inconceivable that the Corporation could have made a claim before the Joint Director of Land Records that the land in question, being an open land, would have to be treated as Corporation's property. In other words, the contention of the Corporation appears to be that as there was an open land available, the name of the Corporation was required to be entered in the survey records. This contention, on the face of it, was a contention which could never have been taken by a Corporation given the admitted fact that the Corporation had registered the khata in respect of this property in the name of Rayappa and thereafter in the name of the petitioner and was collecting property taxes for more than 50 years.
26. In response to the writ petition, the BBMP has filed its statement of objections. In the statement of objections, it is stated as follows:
4. "It is submitted that from the records of the Writ Petition, it appears that Assistant Engineer, Estate, 20 Corporation, addressed a letter dated 11.6.1975 to the Joint Director of Land Records, Bengaluru requesting to incorporate the name of the Corporation in the records.
5. It is submitted that the letter referred to above is in tune with Sections 174 and 178 of the Karnataka Municipal Corporations Act, 1976. It appears from the records of the Writ Petition that the undisputed land was open space.
Therefore, in terms of Section 174(1) (A) the Khata should stand in the name of BBMP.
6. It is submitted that Section 2 (31) defines 'Public Streets'. It is obvious from the records of the writ petition that a part of the land is being used as public street. Therefore, in terms of Section 265 of the Act, the property vests with Corporation.
7. It is submitted that BBMP has not grabbed any private property. In terms of Section 174, the BBMP is only a Trustee of the Property. Therefore, the Engineer concerned was justified in law in submitting such a letter to the Joint Director of Land Records.
8. It is made clear that the BBMP is not claiming title to the property. It is only having Khata in its name as Trustee of the property. The Khata of the BBMP in respect of the said land is subject to any order that may be passed by this Hon'ble Court.
9. It is submitted that Sec.27 of the Limitation Act applies to the case of the Petitioner. The property was abandoned by the Petitioner for a long time. The BBMP however, is not 21 claiming perfection of title to property by way of adverse possession. These respondents are only submitting that the claim of the petitioner has extinguished by afflux of time."
27. As could be seen from the said statement of objections, the Corporation seeks to reiterate the contention that it had taken before the Survey Authority and seeks to justify the entry in the Enquiry Register solely on the basis of a letter of the Assistant Engineer, Estates, Corporation of City of Bangalore dated 11.06.1975, which admittedly is not in its custody and further seeks to contend that the said entry is legal and valid by virtue of Sections 174 and 178 of the KMC Act.
28. Section 174 of the KMC Act reads as follows.
"174. Corporation property. - (1) All property of the nature herein specified, and not being specially reserved by Government, shall be vested in and belong to the corporation and shall, together with all other property or whatsoever nature or kind not being specially reserved by Government, which may become vested in the corporation, be under its direction, management and control and shall be held and applied by it as trustee, subject to the provisions and for the purposes of this Act, that is to say,-22
(a) all public parks, playgrounds, and open spaces reserved for ventilation;
(b) all public lamps, lamp posts and apparatus connected therewith or appertaining thereto;
(c) all gates, markets, slaughter houses, manure and refuse depots and public buildings of every description.
(2) The corporation may accept trusts relating exclusively to the furtherance of purposes to which the corporation funds may be applied."
29. As could be seen from Section 174 of the KMC Act, all public parks, playgrounds and open spaces reserved for ventilation stand vested in the Corporation and would be under its direction, management and control and especially held and applied by it as a Trustee. It is thus clear that it is only public parks, playgrounds and open spaces which are reserved for ventilation which would stand vested with the Corporation. The use of the expression "open spaces which are reserved for ventilation" clearly signifies it is only that specific open place, which is exclusively reserved for ventilation, such as parks, playgrounds, open fields which are vested in the Corporation. The expression "open spaces" used in Section 174 cannot be divorced from the remaining part of the phrase "reserved for ventilation" which would lead to an 23 interpretation that every open space would vest with the Corporation. Such an interpretation, if accepted, would lead to absurd results. This would basically mean that every part of a plot on which there is no construction can be construed as an open space and would become the property of the Corporation. Such a contention being raised by an entity such as the BBMP is clearly misconceived and designed to usurp private property of a citizen.
30. It is to be borne in mind that a residential site, in respect of which khata has been registered, in the name of a private citizen and in respect of which, tax is being collected by the Corporation, can never, by any stretch of imagination, be construed as open space reserved for ventilation. This stand of the Corporation, if accepted, would basically mean that every open land available in the City of Bengaluru would stand vested in the Corporation and the Corporation would be its Trustee and the property would be under its direction, management and control.
31. It is to be stated that this stand taken by the Corporation is not only strange but also shocking. The 24 Corporation, being a local self-government, cannot contend that every open land in the City stands vested in it, when it is actually collecting tax on that very open land from a citizen on the premise that the person owns the property and has thus become liable to pay tax as per the provisions of the KMC Act. This stand taken by the BBMP virtually amounts to appropriating the land of a citizen merely because it is lying vacant. The Corporation on this completely misconceived notion has successfully staked a claim and got its name entered in the City Survey Enquiry Register declaring that the open land which belonged to the petitioner was actually its property.
32. Obviously, the glaring dichotomy in collecting taxes from a citizen in respect of the property on the one hand and on the other hand, claiming that very property as its own is not even considered by the Corporation while filing its statement of objections.
33. It is to be stated here that under Section 112 of the KMC Act, the occupier of the land is liable to pay tax. The Corporation by registering the khata in respect of the land in 25 the name of the petitioner and thereafter collecting tax from the petitioner is basically admitting that the petitioner is the 'occupier' of the said land as contemplated under Section 112 of the KMC Act. However, despite this legal position, the Corporation contends that the land, being an open space and vacant, vests with it. In my view, there cannot be a more unethical stand than this taken by the Corporation.
34. It is further shocking to notice that the Corporation has taken up the contention that Section 27 of the Limitation Act applies to the case of the petitioner as the property had been abandoned by the petitioner for a very long time. As stated above, since the Corporation had been collecting taxes right from 1965 over the property of the petitioner, it is beyond comprehension as to how such a defence can be taken by the Corporation. The objections filed by the Corporation basically indicate that the Corporation can stake a claim over any property in the City of Bengaluru, if it is vacant and if it is not utilized by its owner. This stand deserves to be deprecated in the strongest possible terms.
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35. As noticed above, the basis for the claim of the Corporation over the land belonged to the petitioner, which had been assessed to tax by the BBMP, is a letter of Assistant Engineer, Estates, Corporation of City of Bangalore, dated 11.06.1975 and this letter is admittedly not available with the Corporation. Since there is absolutely no basis for entering the name of the Corporation in the City Survey Enquiry Register, except this letter, which was not available with the Corporation, the entire defence taken by the Corporation before the Joint Director of Land Records and also before this Court deserves to be rejected in its entirety.
36. It may however be relevant to state here that the learned Additional Government Advocate furnished the records of the Joint Director of Land Records. The records produced by the learned Additional Government Advocate indicate that a notice of enquiry had been issued by the Enquiry Officer of City Survey to the City of Corporation, Bengaluru, on 09.07.1974 stating that survey of building site properties described in the notice had been provisionally conducted pursuant to the general notice issued under Rule 84(1) of the Karnataka Land Revenue Rules, and it was 27 proposed to confirm the boundaries as per the detail survey map and also record the details of rights, title, easements and any other rights including conditions of holdings, if any, in respect of the said property, and therefore, the Corporation was requested to be present at the spot either personally or through an agent to furnish such information and to produce such documents as may be needed in that behalf. It was stated in the said notice that if there was no appearance to confirm the boundaries, recording of required details of land will be proceeded with in the absence of the Corporation.
37. It appears that in the notice which was relatable to P.T.Sheet No.467, Chalta No.153, the survey authorities, in respect of the column pertaining to the name of the owner as found in the C.I.T.B. or Corporation records or as ascertained locally, it was entered as Corporation vacant land. Thus, the survey authorities were of the view that the property was corporation vacant property and was proposed to confirm the boundaries mentioned in the notice.
38. In response, a communication dated 11.06.1975 was issued by Sri K.Narayana Reddy, the Assistant Engineer 28 Estates, Corporation of City of Bangalore, which reads as follows:
"To The Enquiry Officer, Party No.XII, City Survey Office, Corporation Building, Bangalore.
Sir, The property pertaining to Chalta No.153 and of the P.T.Sheet No.467 is the property of the Corporation as it is a open land and a road marking existing in the D.No.37. The same may kindly be incorporated in the name of the Corporation and oblige sir.
Thanking you, Yours faithfully, Sd/-
(K.Narayana Reddy) Asst. Engineer Estates, Corporation of the City of Bangalore."
39. It appears that on the basis of this letter, the entry in the Enquiry register was confirmed to the effect that owner of the property in question was "Corporation vacant land". It 29 could thus be gathered that in the confirmation proceedings conducted by the Enquiry Officer, notice was never issued to Rayappa. The Assistant Engineer Estates, who addressed a letter to the Enquiry Officer, merely asserted that the property in question belonged to the Corporation without noticing the fact that the Corporation in its property register had registered Rayappa as the owner of the property in question. Fundamentally, this overlooking of the registration of khatha in favour of Rayappa by the Assistant Engineer Estates of the Corporation resulted in an entry in the Enquiry Register that the property belonged to Corporation, which was patently incorrect.
40. The records produced by the learned Additional Government Advocate also contains the communication dated 22.02.2018 addressed to the Joint Director of Land Records by the Assistant Revenue Officer. Along with the said communication, an award notice dated 28.12.1976 and a preliminary notice are also produced. In the preliminary notice, it is stated as follows:
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"Acquisition of a portion of property No.81, Lalbagh Fort Road, for widening of road (details of the measurements are furnished in the enclosed notification)."
41. A copy of the gazette notification is also produced. This preliminary notice clearly indicates that the Corporation was acquiring only a portion of the property bearing No.81 for widening of the road, thereby meaning that Rayappa still retained the remaining portion of the property that he had purchased.
42. Since it is not in dispute that only 240 sq. ft., out of a total extent of 812.5 sq. ft., was acquired and the remaining property was assessed to tax and the petitioner has also been registered as khatedar, the Joint Director of Land Records could not have permitted the name of the Corporation being continued in the City Survey Enquiry Register. I am, therefore, of the view that the impugned order is liable to be quashed and it is accordingly quashed.
43. The Joint Director of Land Records shall ensure that the entry in respect of CTS No.83 is made out in the name of the petitioner forthwith.
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44. In my view, since the Corporation has made a brazen attempt to appropriate the property of a citizen who was not residing here and has virtually attempted to usurp a private citizen's land with the most untenable and unethical defence, I deem it proper to direct the Corporation to pay a sum of `2,00,000/- (Rupees Two Lakh Only) as costs. The Corporation shall pay the said amount within a period of four weeks from today to the petitioner. It is also made clear that it is open for the Corporation to conduct an enquiry and recover the amount from the Officers/Officials who are responsible for raising such a defence before the Joint Director of Land Records.
Writ Petition is accordingly allowed.
Sd/-
JUDGE PKS