Karnataka High Court
Sri Sagir Ahmed vs The Bbmp on 19 October, 2022
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.18428 OF 2021 (LB-BMP)
C/w
WRIT PETITION NO.18812 OF 2021 (KLR-RES)
IN W.P.NO.18428 OF 2021:
BETWEEN:
SRI. SAGIR AHMED,
AGED ABOUT 61 YEARS,
S/O LATE BASHEER AHMED KHAN,
R/AT 3/1A, MOSQUE ROAD CROSS,
FRAZER TOWN,
BENGALURU - 560 005.
REP. BY GPA HOLDER
SRI. SHOEB AHMED,
S/O LATE ASGHAR AHMED,
AGED ABOUT 79 YEARS,
R/AT 3/1A, MOSQUE ROAD CROSS,
FRAZER TOWN, BENGALURU - 560 005.
...PETITIONER
(BY SRI RAMESHA H E, ADVOCATE)
AND:
1. THE BBMP,
REP. BY ITS COMMISSIONER,
CORPORATION CIRCLE,
BENGALURU - 560 002.
2. THE JOINT COMMISSIONER,
MAHADEVAPURA ZONE, BBMP,
BENGALURU - 560 078.
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3. THE ASST. EXECUTIVE ENGINEER,
HOODI SUBZONE, BBMP,
BENGALURU - 560 078.
4. DIVISIONAL RAILWAY MANAGER,
SOUTH WESTERN RAILWAY,
BENGALURU - 560 023.
5. THE BENGALURU DEVELOPMENT AUTHORITY,
REPRESENTED BY ITS COMMISSIONER,
NO.7, 5TH MAIN ROAD,
BENGALURU - 560 020.
6. SURESH E PUTHANVEETTIL,
AGED ABOUT 62 YEARS,
R/AT NO.173, SHIVANANDANAGARA,
NEW THIPPASANDRA,
BENGALURU - 560 076.
7. KAVITA PODWAL,
AGED ABOUT 57 YEARS,
W/O SURESH PUTHANAVENTIL,
R/AT NO.173, SHIVANANDANAGARA,
NEW THIPPASANDRA,
BENGALURU - 560 076.
8. THE STATE OF KARNATAKA,
REP. BY ITS PRINCIPAL SECRETARY,
M.S. BUILDING,
BENGALURU - 560 002.
9. THE DEPUTY COMMISSIONER,
KANDAYS BHAVANA,
K.G. ROAD,
BENGALURU - 560 009.
...RESPONDENTS
(BY SRI. B.S.KARTHIKEYAN, ADVOCATE FOR R1 TO R3;
SRI. ABHINAY Y T, ADVOCATE FOR R4;
SRI. M.V.CHARATI, ADVOCATE FOR R5;
SRI. SURESH E PUTHANVEETTIL, R6(PARTY-IN-PERSON);
SMT. KAVITA PODWAL, R7(PARTY-IN-PERSON);
MR. R SRINIVAS GOWDA, AGA FOR R8 & R9)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE
THAT THE ORDER DTD 05.01.2021 IN APPEAL NO.JC.MZ/A-
13/2013-14 VIDE ANNX-H ORDER PASSED BY THE R-2 IS
ILLEGAL AND QUASH THE SAME AND ETC.
IN W.P.NO.18812 OF 2021:
BETWEEN:
SRI.SAGIR AHMED,
AGED ABOUT 61 YEARS,
S/O LATE BASHEER AHMED KHAN,
R/AT 3/1A, MOSQUE ROAD CROSS,
FRAZER TOWN,
BENGALURU 560 005.
REP. BY GPA HOLDER,
SRI.SHOEB AHMED,
S/O LATE ASGHAR AHMED,
AGED ABOUT 49 YEARS,
R/AT 3/1A, MOSQUE ROAD CROSS,
FRAZER TOWN, BENGALURU-560005.
...PETITIONER
(BY SRI RAMESHA H E, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REP. BY ITS PRINCIPAL SECRETARY,
M S BUILDING,
BENGALURU-560002.
2. THE DEPUTY COMMISSIONER
KANDAYA BHAVANA, K.G.ROAD,
BENGALURU-560009.
3. DIVISIONAL RAILWAY MANAGER,
SOUTH WESTERN RAILWAY,
BENGALURU-560023.
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4. THE BENGALURU DEVELOPMENT AUTHORITY,
NO.7, 5TH MAIN ROAD,
KUMARA PARK WEST,
BENGALURU-560020.
REPRESENTED BY ITS COMMISSIONER,
5. KAVITA PODWAL,
AGED ABOUT 57 YEARS,
W/O SURESH PUTHANAVENTIL,
R/AT NO.173, SHIVANANDANAGARA,
NEW THIPPASANDRA,
BENGALURU-560075.
6. SURESH E PUTHANVEETTIL,
R/AT NO.173, SHIVANANDANAGARA,
NEW THIPPASANDRA,
BENGALURU - 560 076.
AMENDED V.C.O DATED 14.07.2022
...RESPONDENTS
(BY SRI. R SRINIVAS GOWDA, AGA FOR R1 & R2;
SRI. Y T ABHINAY, ADVOCATE FOR R3;
SRI. K KRISHNA, ADVOCATE FOR R4;
SMT. KAVITA PODWAL, (PARTY-IN-PERSON) R5;
SRI. SURESH E P, (PARTY-IN-PERSON)R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE
THAT THE ORDER DATED 05.07.2019 IN APPEAL NO.426/2018
ANNEXURE-K ORDER PASSED BY THE KARNATAKA APPELLATE
TRIBUNAL, IS ILLEGAL AND QUASH THE SAME AND ETC.
THESE PETITIONS COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:-
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ORDER
Both these petitions are by the same person. In W.P.No.18428/2021, challenge is to the order dated 5.1.2021 made by the Joint Commissioner, BBMP whereby Appeal No.13/2013-14 having been favoured, the transfer of khata made in favour of the petitioner has been cancelled. The operative portion of the said order reads as under:
"Appeal is allowed. The 'A' Khata stood in the name of respondent in respect of 1 acre 16.08 guntas of land in Sy no 88 of Doddanekundi village is stand cancelled. The ARO Hoodi Subdivision, Mahadevapura Zone BBMP is hereby directed to cancel the 'A' khata stood in the name of Respondent in respect of 1 acre 16 guntas of land in Sy no 88 Doddanekundi village in the concerned register."
2. In the companion case i.e., W.P.No.18812/2021, the petitioner seeks to lay a challenge to the order dated 5.7.2019 made by the Karnataka Appellate Tribunal in 5th Respondent's Appeal No.426/2018 whereby the Deputy Commissioner's land Conversion Order dated 19.12.2012 having been set at 6 naught, matter is remitted to his portal for consideration afresh. The operation portion of the order reads as under:
"ORDER The appeal filed u/s.49(c) of the Karnataka Land Revenue Act, 1964, is hereby allowed. The order of the 1st Respondent dt:19-12-2012, passed in No.ALN(E.V.H.) SR 236/2012-13 is hereby set aside.
The matter is remitted back to the 1st Respondent to reconsider the application of the 2nd Respondent afresh, hold proper enquiry by giving an opportunity of being heard to the Appellant herein and also all other persons interest in Sy.No.88 including the railway department, BDA etc., and pass appropriate orders in accordance with law, within 90 days from the date of receipt of the LCR."
3. After service of notice, the official respondents are represented by the learned AGA, the respondent- Railways is represented by its Panel Counsel and similarly, the BDA & BBMP are represented by their Panel Advocates; private respondents make their submission personally, all they resist the Petitions making submission in justification of the impugned orders and the reasons on which they have been structured.
4. BRIEF FACTS:
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(a) The agricultural land in Sy.No.88 of Doddanekkundi village, Bangalore East Taluk, admeasured in all 2 Acres & 28 Guntas including 17 Guntas 'B' Kharab.
Of this, the respondent-Railways had acquired 27 Guntas way back in the year 1963 and the BDA too had acquired 8.5 Guntas way back in the year 1997. What thereafter remained was 1 Acre & 16.08 Guntas, although the private respondent contend that it is a bit less than this. The remainder of the land was bought by the petitioner vide registered sale deed dated 3.11.2005, a copy whereof avails at Annexure-A.
(b) A little before that, respondent-Smt.Kavita Podwal had bought a small piece of this land vide registered sale deed dated 17.1.2005. Petitioner obtained a declaratory decree in O.S.No.26414/2013 inter alia against respondent-Smt.Kavita Podwal on 3.1.2015 whereby his title qua the land bought by Smt.Kavita Podwal, is declared in his favour and against her. The challenge is now pending in R.F.A.No.372/2015 before the Division Bench of this 8 Court and the said decree is stated to have been stayed, although with some modification a bit later.
(c) Respondent-Sri.Suresh had also bought a bit of land in the said survey number vide registered sale deed dated 27.3.1991, he claims to have put up a sheet house with power supply connection from 2016. He has also obtained an injunctive decree against vendors of the petitioner in O.S.No.15356/2005 decreed on 16.2.2008 and that the vendors' appeal in R.F.A.No.1333/2008 is said to be pending before a Co-ordinate Bench too. However, petitioner is not a party thereto.
(d) Pursuant to registered sale deed dated 3.11.2005, petitioner had sought for change of khata and accordingly, he was granted one, way back in January of 2013. Review having been sought under section 114 of the Karnataka Municipal Corporations Act, 1976 by the private respondents herein, the khata came to be rescinded by the Joint Commissioner of BBMP by impugned order dated 5.1.2021.
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(e) The application of the petitioner filed under section 95 of the Karnataka Land Revenue Act, 1964, having been favoured by the Deputy Commissioner on 19.12.2012, the permission for conversion of subject land came to be granted. Petitioner has remitted the conversion fee to the tune of Rs.1,74,240/- plus Rs.54,450/-. This order having put in challenge by the respondent- Smt.Kavita Podwal in appeal before the Karnataka Appellate Tribunal, came to be set aside mainly on the ground that the petitioner had suppressed certain material facts.
5. With this background, petitioners are knocking at the doors of writ court for assailing both these orders. Having heard the learned counsel for the parties and having perused the Petition Papers, this court is inclined to grant indulgence in the matter as under and for the following reasons:
I. AS TO RESCINDING ORDER:
(a) There is no dispute that Sy.No.88, in all
measured 2 Acres & 28 Guntas which includes 17 Guntas of 10 'B' kharab land. The Railways acquired 27 Guntas and so did the BDA to the extent of 8.5 Guntas in 1963 & 1997 respectively; consequently what remained was 1 Acre & 16.08 Guntas, though private respondent contends it is a bit less, is not in dispute. The remainder of the land was bought by the petitioner vide registered sale deed dated 3.11.2005. On the basis of registered conveyance, khata was transferred in the name of petitioner. The same could not have been rescinded by the Joint Commissioner, BBMP at the instance of the private respondents at least to the extent that it did not relate to the pieces of land bought by these private respondents which apparently are much smaller.
(b) The above apart, there is force in the contention of counsel for the petitioner that his client has obtained a declaratory decree against the respondent-Smt.Kavita Podwal and therefore, even otherwise, rescinding of khata becomes even more unjustifiable; the said decree having been put in challenge in RFA No.372/2015 is stayed and later modified, is beside the point. Even if the private 11 respondent-Smt.Kavita Podwal succeeds in her appeal, at the most, she would become owner of a small portion of property comprised in her sale deed and nothing beyond. The other private respondent-Mr.Suresh having obtained an injunctive decree, does not justify in any way the rescinding of the khata in a wholesale way. Here again, Mr.Suresh also cannot have grievance against the khata standing in respect of the property excluding what he has bought way back in the year 1991.
(c) The Apex Court in the case of PREM SINGH VS. BIRBAL (2006) 5 SCC 353 has held that the local bodies have to act upon registered conveyance taking their contents with presumptive value, ordinarily relegating the disputants to the civil remedies. This aspect of the matter has been blissfully ignored by the Joint Commissioner of the BBMP who refers to several other civil litigations in respect of which, barring a few, petitioners claim to have worked out compromise decree. Be that as it may, those who were allegedly having decrees in their favour had not invoked review of khata under section 114A of the Karnataka 12 Municipal Corporations Act, 1976. The private respondent who is vociferous herein cannot hold brief for them and make submission in justification of BBMP Joint Commissioner's order. Beyond this, more is not necessary to deliberate lest it should prejudice the case of those who are not before this court.
(d) A decree has been obtained by the petitioners against respondent-Smt.Kavita Podwal and it has not been obliterated by the stay granted by the Appellate Court in light of Apex Court decision in SHREE CHAMUNDI MOPEDS LTD vs. CHURCH OF SOUTH INDIA TRUST ASSOCIATION, MADRAS, AIR 1992 SC 1439. Nonetheless, justice of the case warrants that khata should be restored to the petitioner at least to the extent of land comprised in his sale deed dated 3.11.2005 minus the portions of land that have been bought by the private respondents, of course subject to outcome of pending appeals. To this arrangement, counsel for the petitioner too is agreeable and accordingly, has filed an ill-drafted Memo dated 19.10.2022 which reads as under:
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"1. Hon'ble High Court has passed an order stating that to file memo for undertaking not disturbs the possession of Respondent Nos.6 & 7 in W.P.No.18428/2021 & in W.P.18812/2021 Respondent Nos.5 & 6 are concerned, the Petitioner did not disturb the possession until disposal of the above appeals.
2. The respondent No.7 has filed the appeal RFA 372/2015 & Respondent No.6 RFA 1333/2005 both are pending adjudication.
Wherefore, it is most respectfully submit that the petitioner will not disturb the respondent Nos.6 & 7 possession."
II. AS TO CANCELLATION OF CONVERSION ORDER:
(a) Petitioner became the owner of subject land by virtue of registered sale deed dated 3.11.2005 and therefore, he is entitled to make use of his land as he wants, of course subject to statutory limitations; he chose to have the land converted to non-agricultural user in accordance with law and paid fines prescribed for that;
some pieces of land were purchased by others and therefore, no conversion could have been granted, is bit difficult to countenance, especially when those other purchasers have not sought for rescinding of said order before the Deputy Commissioner. What applies to the khata arrangement as discussed above, would perforce apply to 14 the case of private respondents herein, as well since Conversion Order is land specific.
(b) If the HAL Sanitary Board had approved the layout allegedly formed in the very land, the buyers of pieces of land allegedly have put up structures and such other developments have taken place, may not be a ground for rescinding the Conversion Order inasmuch as the approval of layout by the said authority arguably presupposes such a conversion or absence of requirement of conversion under provisions i.e., Section 95 of the 1964 Act. The court need not deliberate much on this since the Apex Court in BANGALORE CITY CORPORATION HOUSING SOCIETY LIMITED VS. STATE AND OTHERS (2012) 3 SCC 727 has somewhat held the view that the HAL Authority has no power for granting approval. This again need not bar the court inasmuch as the 2012 order of conversion can only be a declaration of conversion and rescinding of it will have its own civil consequences in the eyes of authorities.
(c) The Karnataka Appellate Tribunal grossly erred in setting aside the Conversion Order in a wholesale way at 15 the instance of the private respondents who had brought only small pieces of land. It should have been confined to only to the extent of grievance raised by the challengers, and thus the rest ought to have been left intact. Even the treatment of Court decree on title of the appeal of the 5th respondent-Smt.Kavita Podwal has also not been duly deliberated. It could have given some protective relief to the challengers while upholding the Conversion Order; this option has not been exercised by the KAT which apparently was available from the facts on record and that has resulted into a great prejudice to the petitioner.
(d) It also could have stated that the Conversion Order per se would not disturb the settlers on the land leaving liberty to the petitioner to seek civil remedies against them inter alia on the basis of conversion order. After all, a Conversion Order cannot be construed as a title of the petitioner to the land in question although to some extent, it presupposes the same. Thus, several lacune galore in both the orders, one made by the Joint Commissioner of BBMP rescinding khata granted to the 16 petitioner and the other made by the KAT whereby petitioner's land Conversion Order has been set at naught. This is an eminently fit case for indulgence of the writ court, of course making some protective provision to the private respondents and those who are not before the court, as well.
In the above circumstances, I make the following order:
(i) W.P. No. 18428/2021 succeeds in part, and a Writ of Certiorari issues quashing the BBMP order dated 5.1.2021 and as a consequence, the khata of the petitioner shall be restored as before within an outer limit of 60 days;
(ii) W.P. No. 18812/2021 succeeds in part, and a Writ of Certiorari issues quashing the order dated 5.7.2019 of the Karnataka Appellate Tribunal and as a consequence, the conversion order dated 19.12.2012 issued by the Deputy Commissioner, is revived to the extent of the land comprised in petitioner's sale deed dated 3.11.2005 minus the land acquired for the Railways, Bangalore Development Authority and also pieces of the lands comprised in the sale 17 deeds of the private respondents herein. It is made clear that, if the private respondent's appeal in the subject RFA fails, the conversion would extend to the land comprised in that sale deed, as well.
(iii) Petitioners' undertaking that he would not in any way disturb the occupation of the private respondents and others in the respective properties and also shall not obstruct their usual ingress & egress facilities availing to the same, is placed on record.
(iv) It is made clear that these orders shall not be construed as enabling the respondent - BBMP to rescind the khata of private respondent - Mr.Suresh, as well. However, it is open to the petitioner to litigate on the civil side in this regard.
(v) All other remedies, if any, may be worked out by the petitioner elsewhere in accordance with law and in that connection, all contentions are kept open.
Costs made easy.
Sd/-
JUDGE cbc