Karnataka High Court
Smt Pushpa Jain vs Bangalore Mahanagara Palike on 30 October, 2018
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 30TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
WRIT PETITION NO.7385 OF 2007 (LB-BMP)
BETWEEN:
1. SMT. PUSHPA JAIN
WIFE OF PRAKASH JAIN,
AGED ABOUT 40 YEARS.
2. SRI PRAKASH JAIN
SON OF BABULAL JAIN,
AGED ABOUT 44 YEARS.
BOTH ARE RESIDING AT
NO.106, II FLOOR, 3RD CROSS,
GANDHINAGAR,
BENGALURU-560 009.
... PETITIONERS
(BY SRI S.K.V.CHALAPATHY, ADVOCATE)
AND:
1. BANGALORE MAHANAGARA PALIKE
NARASIMHARAJA SQUARE,
BENGALURU-560 001,
REPRESENTED BY ITS COMMISSIONER.
{*2. THE DEPUTY COMMISSIONER,
BENGALURU URBAN DISTRICT,
BENGALURU.}
Page Nos.1 and 2 are retyped and replaced vide Court order
dated 07.01.2019.
2
2. THE REGIONAL COMMISSIONER, AMENDED VIDE
II FLOOR, BMTC BUILDING, COURT ORDER
K. H. ROAD, SHANTHINAGAR, DATED 5-12-2008
BENGALURU.
3. THE GOVERNMENT OF KARNATAKA,
DEPARTMENT OF LAW
M. S. BUILDING, BENGALURU-1,
REPRESENTED BY ITS SECRETARY.
4. S. N. BALASUBRAMANYAM
SON OF LATE M. SHAMANNA, AMENDED VIDE
AGED ABOUT 46 YEARS, COURT ORDER
NO.1, AGHA GARDEN, DATED 5-2-2009
FOOD GODOWN ROAD,
A.T. HALLI LAYOUT, SHANTHINAGAR,
BENGALURU- 560 027.
... RESPONDENTS
(BY SRI S. N. PRASHANTH CHANDRA, ADV. FOR R-1,
SRI A. S. PONNANNA, ADDITIONAL ADVOCATE GENERAL A/W
SMT. B. P. RADHA, AGA, FOR R-2 & R-3,
SRI ABHINAY P. PATIL, ADVOCATE FOR R-4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DECLARE THAT SECTION 178-A OF THE KARNATAKA MUNICIPAL
CORPORATION ACT, 1976 IS ARBITRARY, VIOLATIVE OF
ARTICLE 14 OF THE CONSTITUTION OF INDIA AND HENCE,
ULTRAVIRES THE CONSTITUTION OF INDIA AND QUASH THE
PETITION DATED 26.12.2005, PENDING BEFORE "THE
REGIONAL COMMISSIONER, BENGALURU DIVISION IN
NO.MUN/RP/PETITION NO.1/07-08" UNDER SECTION 178-A OF
THE KARNATAKA MUNICIPAL CORPORATION ACT, 1976 AND
PRODUCED AS ANNEXURE-F DATED 26.12.2005 AND ETC.
*****
THIS WRIT PETITION COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
3
ORDER
The case of the petitioners is that the 1st petitioner is the wife of the 2nd petitioner and is the sole and absolute owner, and is in lawful possession and enjoyment of the portion of the residential premises bearing No.3 (old No.54/3 (before that No.54) Pudupucherry Street, Shanthi Nagar, 4th Cross, Bengaluru as described in the Schedule- A. That she purchased a portion of the said premises from one Mr.Faizal Ahmed under a registered sale deed dated 6-2-1995 and another portion of the same premises from Smt. Jahan Ara Atulla, A.Mohammed Jawadulla, A.Mohammed Fawadulla, A.Mohammed Naveedulla and A.Mohammed Masoodulla. Petitioner No.2 is the sole and absolute owner in lawful possession of the remaining portion of residential premises bearing No.3 (old No.54/3 before that No.54) Pudupucherry Street, Shanthi Nagar, 4th Cross, Bengaluru as described in the Schedule-B. The 4 "Khata" said to have been issued by the Revenue Department of the Corporation certifying that since the "Khata" of A & B schedule properties have been entered in the name of the petitioners, respondent No.1 Bruhat Bengaluru Mahanagarra Palike filed a petition under Section 178-A of the Karnataka Municipal Corporations Act, 1976 before the then Deputy Commissioner and presently, the Divisional Commissioner. The matter was taken up on several dates before the concerned authorities. On 30-3-2007 when the matter was pending consideration before the second respondent, the first respondent attempted to demolish the residential premises and other structures. Thereafter, the instant writ petition was filed seeking for a declaration that Section 178-A of the Karnataka Municipal Corporation Act, 1976, is arbitrary and violative of Article 14 of the Constitution of India; to quash the petition dated 26-12-2005 pending before the Regional Commissioner, Bangalore Division in No.MUN/RP/Petition No.1/07-08 under Section 178-A of 5 the Karnataka Municipal Corporation Act, 1976 vide Annexure-F dated 26-12-2005 and for a writ of prohibition restraining the respondents from interfering with the petitioners' lawful possession and enjoyment of A & B Schedule properties from demolishing the same or otherwise.
2. Sri S.K.V.Chalapathy, learned counsel appearing for the petitioners' counsel contends that Section 178-A is ultravires the Constitution of India. That in terms of the said Section, the Regional Commissioner has been given the powers to determine the question of title to the property. Whether any property is claimed or not by any person, the Regional Commissioner, after enquiry is entitled to pass an order on the claim. That aggrieved by such an order of the Regional Commissioner, an appeal could be filed before the Karnataka Appellate Tribunal whose decision shall be final. It is therefore contended that it is the Civil Court alone that could decide the title to the property. That the Regional Commissioner 6 or any other Officer of the State is not entitled to record a finding with regard to the title to the property. He draws analogy from Section 67 of the Karnataka Land Revenue Act and contends that in identical circumstances, the parties were given a right to challenge the decision of the authority on title, before the concerned Civil Court. The said provision is absent in Section 178-A. Therefore, there is a deemed ouster of the Civil Court to decide such questions. Therefore, the provision is hit by Article 14 of the Constitution of India. That the right to challenge the same or to adjudicate title to the property in question, has been denied by Section 178A of the Act.
3. The respondent - State have filed their objections. Sri Ponnanna, learned Additional Advocate General appearing for the respondent - State by relying on the statement of objections submits that it is not correct to contend that Section 178-A of the Karnataka Municipal Corporation Act is ultravires the Constitution. That Section 178-A is not intended to create an adjudicatory mechanism 7 to adjudicate upon the civil rights of the parties to the dispute nor is it intended to create an adjudicatory mechanism either to supplant or to supplement the jurisdiction of the competent Civil Court. That the proviso merely enables a mechanism to aid, assist and accelerate the fact finding process, vis-a-vis the claims by or against the Corporation. That a reading of Section 178-A does not lead to the conclusion that the jurisdiction of the Civil Court is ousted. That the challenge to Section 178-A of the Karnataka Municipal Corporation Act, on the ground that it ousts the jurisdiction of the civil Court, is unsustainable. It is to be always construed, that the Civil court could always entertain a dispute with regard to the title to the properties. He further places reliance on Section 482 of the Karnataka Municipal Corporation Act, to contend that a suit could still be filed against the Corporation or its officials with regard to any matter pertaining to the title of the claimant or for any other reason. Therefore, it cannot be said that there is an ouster 8 of the jurisdiction of the Civil Court. Hence, he pleads that the petition be dismissed.
4. Sri S.N.Prashanth Chandra, learned counsel for respondent No.1 supports the contention of the Additional Advocate General.
5. Heard learned counsels.
6. The constitutional validity of Section 178-A of the Karnataka Municipal Corporation Act is sought to be questioned, which reads as follows:-
"178A. Decision of claims to the property by or against the Corporation -
(1) In any city to which a survey of lands other than lands ordinarily used for the purpose of agriculture only has been or shall be extended under any law for the time being in force, where any property is claimed by or on behalf of the Corporation or by any person as against the Corporation it shall be lawful for the [Regional Commissioner of the concerned revenue region] after enquiry of which due 9 notice has been given, to pass an order deciding the claims.
(2) Any person aggrieved by an order made under sub-section (1) may appeal to the Karnataka Appellate Tribunal, and the decision of the Tribunal shall be final.
(3) Any person shall be deemed to have had due notice of an enquiry or order under this section if the notice has been given in the prescribed manner]".
It is therefore contended that there is no provision for the parties to adjudicate the title to the property before the Civil Court. The analogy is drawn by the learned counsel from Section 67 of the Karnataka Land revenue Act which reads as follows:-
"67. Public roads, etc., and all lands which are not the property of others belong to the Government -
(1) All public roads, streets, lanes and paths, bridges, ditches, dikes and fences, 10 on or beside the same, the bed of the sea and of harbours and creeks below high water mark and of rivers, streams, nallas, lakes and tanks and all canal and water courses and all standing and flowing waters, and all lands wherever situated which are not the property of individuals or of aggregate of persons legally capable of holding property, and except in so far as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force, are and are hereby declared to be with all rights in or over the same or appertaining thereto, the property of the State Government.
Explanation - In this section, "high-water mark"
means the highest point reached by ordinary spring tides at any season of the year.
(2) Where any property or any right in or over any property is claimed by or on behalf of the State Government or by any person as against the State Government, it shall be lawful 11 for the Deputy Commissioner or a Survey Officer not lower in rank than a Deputy Commissioner, after formal inquiry to pass an order deciding the claim.
(3) Any person aggrieved by an order made under sub-section (2) or in appeal or revision therefrom may institute a civil suit contesting the order within a period of one year from the date of such order and the final decision in the civil suit shall be binding on the parties".
7. On considering the contentions, I'am of the view that it cannot be said that the provisions of Section 178-A of the Karnataka Municipal Corporations Act are ultravires the Constitution or that it offends Article 14 of the Constitution. Section 482 of the Karnataka Municipal Corporations Act, is relied upon by the learned Additional Advocate General to contend that the liberty to challenge the orders passed by the authorities under the Act is undisturbed. It is granted in terms of Section 482 of the 12 Karnataka Municipal Corporations Act. It enables an aggrieved person to file a suit. Therefore, notwithstanding the wordings and the language used in Section 178-A, the aggrieved person could very well institute a suit. It is also contended that even before any order could be passed by the Regional Commissioner, such a suit could be instituted.
8. Under these circumstances, in view of the contentions that such a suit could very well be filed in terms of Section 482 of the Karnataka Municipal Corporation Act, the grievance of the petitioner has been answered. Therefore, the petitioners' counsel submits that he would not have any grievance whatsoever. Therefore, it would not be possible to hold that the provisions of Section 178-A is ultravires the Constitution or offends Article 14 of the Constitution of India.
9. For the aforesaid reasons, the writ petition is dismissed so far the first prayer is concerned. The second prayer of the petitioner is to quash the proceedings 13 pending before the Deputy Commissioner/ Regional Commissioner under Section 178-A of the Act. In view of the aforesaid reasons, while upholding the constitutional validity of Section 178-A, the second and third prayer would not arise for consideration.
For the aforesaid reasons, the writ petition is disposed off by upholding the constitutional validity of Section 178-A of the Karnataka Municipal Corporation Act 1976.
SD/-
JUDGE Rsk/-