Karnataka High Court
Sri. N. Venkatesh vs The Joint Commissioner on 3 June, 2019
Author: G.Narendar
Bench: G.Narendar
WP 21193/2019
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR.JUSTICE G.NARENDAR
W.P.NO.21193/2019 (LB BMP)
BETWEEN
1. SRI. N. VENKATESH
S/O LATE A NARAYANAPPA,
AGED ABOUT 65 YEARS,
2. SMT. D VIJAYALAKSHMI
W/O N VENKATESH,
AGED ABOUT 56 YEARS,
BOTH ARE RESIDING AT:
NO.41, 1ST 'F' MAIN, 8TH CROSS,
2ND PHASE, GIRINAGAR,
BENGALURU 560085.
... PETITIONERS
(BY SRI DR J S HALASHETTI, ADV.)
AND
1. THE JOINT COMMISSIONER
RAJARAJESHWARINAGAR REGION,
BRUHAT BENGALURU
MAHANAGARA PALIKE,
18TH CROSS, IDEAL HOMES,
RAJARAJESHWARINAGAR,
BENGALURU 560098.
2. ASSISTANT REVENUE OFFICER
BRUHAT BENGALURU
MAHANAGARA PALIKE,
KENGERI SUB-DIVISION,
BENGALURU 560098.
WP 21193/2019
2
3. RAVI AGARWAL,
AGE: MAJOR,
R/AT NO.256, 2ND FLOOR,
LRDE LAYOUT, KARTHIKNAGAR,
3RD CROSS, BENGALURU 560037.
... RESPONDENTS
(BY SMT. AMBIKA, ADV. FOR C/R1,
SRI S.V.SRINIVAS, ADV. FOR R3,
NOTICE NOT ORDERED IN R/O R2.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE IMPUGNED ORDER DTD:16.2.2019 PASSED BYTHE R-1
WHICH IS PRODUCED AS ANNEXURE-U
THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. Heard the learned Counsel for the petitioner and the learned Counsel for respondent Nos.1 & 3.
2. Petitioners are before this Court being aggrieved by the order dated 16.02.2019 passed by respondent No.1 in Case No.JC/RRNZ/PR/1129/2018-19, whereby respondent No.1 was pleased to cancel the khatha bearing No.62/1/61/A/10 in exercise of its powers under Section 114(A) of the Karnataka Municipal Corporations Act, 1976 (for short, 'the Act').
WP 21193/20193
3. It is contended on behalf of the petitioners that petitioner No.1 is the General Power of Attorney Holder in respect of 4 acres of land and that the said land was converted for residential purpose and in the said layout, petitioner No.1 had formed site bearing No.61 and that the said site was sold in favour of respondent No.3 and that petitioner No.1 had also formed another site bearing No.61/A and that petitioner No.1 had sold it to petitioner No.2 who is none other than his wife, and that subsequently, petitioner No.2 gifted the said site in favour of petitioner No.1.
4. It is the case of respondent No.3 that the said site bearing No.61/A is not available on ground and that the said site has been created on paper and disputing and alleging fraud, respondent No.3 approached respondent No.1 and that respondent No.1 in exercise of its powers vested under Section 114(A) of the Act proceeded to issue notice to the petitioner and reversed the entries in the WP 21193/2019 4 records and thereby cancelled the khatha made out in favour of petitioner No.1.
5. It is contended by the learned Counsel for respondent No.3 that respondent No.3 has instituted a suit in O.S.No.5128/2018 and the same is pending on the file of XXXIII Addl. City Civil Judge, Bengaluru. That in the said suit, respondent No.3 is also joined by his brother in whose favour, it is alleged that respondent No.3 has gifted the suit property and that both respondent No.3 and his brother who is plaintiff No.2 are jointly enjoying the property. That the said suit is preferred praying for grant of a judgment and decree, to declare the plaintiffs as the absolute owners i.e., including respondent No.3 and have also sought for a further declaration to declare the sale deed dated 16.07.2014 and the gift deed dated 12.09.2014 are not binding on the plaintiffs. It is under these deeds, petitioner No.1 is claiming rights. Respondent No.3 has also sought for other consequential reliefs including grant of mandatory injunction directing the defendant to remove the permanent structure on the suit schedule property and WP 21193/2019 5 also for a decree of permanent injunction to restrain the petitioner and anyone claiming through him.
6. Learned Counsel for the petitioners would contend that the order impugned is contrary to the provisions of Section 114(A) of the Act as the authority is not vested with the powers after the period of three years under the provision. It is contended that the law in this regard is no more res integra. He has placed reliance on the decisions rendered by this Court in the case of K.SUSHEELA VS BANGALORE MAHANAGARA PALIKE & OTHERS - ILR 2004 KAR 1542, and SMT. TAHARUNISSA VS THE JOINT COMMISSIONER (SOUTH), BRUHAT BANGALORE MAHANAGARA PALIKE & OTHERS - (2013)2 KarLJ 567, to impress upon the Court with regard to the fact that exercise of power under Section 114(A) beyond the period of three years from the date of recording of transfer of title stands vitiated. It is further contended that no opportunity has also been granted and that the impugned order has been passed on the date petitioner No.1 appeared before respondent No.1 and filed his objections.
WP 21193/20196
7. This Court having heard the learned Counsel for the parties and having adverted to various documents and the facts pleaded and the rulings relied upon by the petitioners, it is of the considered opinion that the writ petition requires to be disposed off by permitting the Civil Court to run its course and render the judgment and decree on merits. No doubt, this Court would have viewed the contentions in a different light, but for the fact of the pending suit. It is also relevant to note that respondent No.3 had indeed purchased the site from petitioner No.1 only and there is no doubt with regard to the said fact. It is not the case of the petitioner that the site sold by him to respondent No.3 lies elsewhere.
8. Be that as it may, these are disputes which are required to be looked and adjudicated after a full-fledged trial as they involve disputed questions of fact. Respondent No.3 has instituted a comprehensive suit. The parties are not strangers and are known to each other in view of the earlier transactions. Keeping all these facts in mind and WP 21193/2019 7 also taking into consideration the law laid down in W.A.No.4254/2001 dated 30.07.2003, this Court is of the considered opinion that the instant writ proceedings cannot be a substitute for rendering findings touching upon the title or possession of the parties, more so when the issue is seized of by the competent civil court. The proceedings under Articles 226 & 227 of the Constitution of India cannot be construed or constructed in a manner, whereby this Court would be rendering findings touching upon the title and rights of the parties and the said adjudication is best left open to the competent civil court.
9. In the case on hand, the parties are also at issue before the Trial Court in O.S.No.5128/2018. Learned Counsel for the petitioners would submit that he has already obtained a decree of declaration as against respondent No.3.
10. Be that as it may, in view of the pendency of the suit before the Civil Court in O.S.No.5128/2018, this Court is of the considered opinion that the writ petition requires to WP 21193/2019 8 be partially considered. Consequently, the impugned order is required to be interfered on the sole ground that the same has been passed during the pendency of the suit. The revenue authorities ought to have held their hands once the matter was seized of by the Civil Court. That by itself would not entail in restoring the entry in favour of the petitioner. Admittedly, the entries are contested on the ground of fraud by respondent No.3. In view of the serious nature of allegations and in view of the pending suit, the respondent-authorities are directed to remove the entries both in the names of the petitioner and respondent No.3 and enter the details of the pending suit. After the disposal of the suit, the revenue authorities shall act in accordance with the findings rendered by the Trial Court and shall implement the judgment and decree in letter and spirit by carrying out necessary entries in the revenue records.
11. That apart, it is seen that the suit being one for declaration, is one that is required to be disposed off by the civil court within an outer limit of 24 months in view of Section 3 of the Karnataka Case Flow Management Rules, WP 21193/2019 9 2005. The suit is instituted on 07.07.2018. In that view of the matter, it would be in the interests of justice and equity that the Trial Court be directed to expedite the disposal of the suit within the stipulated period of 24 months. Accordingly, the XXXIII Addl. City Civil Judge, Bengaluru, shall endeavour to hear and dispose off the suit bearing O.S.No.5128/2018 within the time stipulated under the aforesaid Rules, at any rate on or before 16.07.2020. The writ petition stands ordered accordingly.
12. It is made clear that the observations made herein above in this order shall not influence the Trial Court while disposing the suit on merits and the issues shall be decided solely on merits.
13. In view of the above order, there shall be no order as to costs.
Sd/-
JUDGE KK CT-HR