Karnataka High Court
Shri Syed Sha Imdad Ali vs Shri Iqtiyar Khan on 19 September, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2023:KHC:33871
WP No. 7249 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 7249 OF 2022 (LB-RES)
BETWEEN:
1. SHRI. SYED SHA IMDAD ALI,
S/O LATE SYED SHA MAZHAR ALI,
AGED ABOUT 72 YEARS,
REP. BY PETITIONER NO. 3.
2. SHRI. SYED SHA AKRAM ALI,
S/O LATE SYED SHA MAZHAR ALI,
AGED ABOUT 67 YEARS,
RESIDING AT NO. 508/2,
1ST STAGE, 3RD BLOCK,
4TH MAIN, HBR LAYOUT,
KALYANNAGAR, BENGALURU - 560 043,
REP. BY GPA HOLDER
SYED SHA RAKHIB ADNAN.
Digitally signed
by 3. SHRI. SYED SHA ZAFFAR ALI,
NARAYANAPPA S/O LATE SYED SHA MAZHAR ALI,
LAKSHMAMMA AGED ABOUT 63 YEARS,
Location: HIGH R/AT NO. 63/5, 3RD CROSS,
COURT OF
KARNATAKA PATEL GUNDAPPA BLOCK,
J. C. NAGAR, BENGALURU - 560 006.
...PETITIONERS
(BY SRI. MURALIDHAR S. R, ADVOCATE)
AND:
1. SHRI. IQTIYAR KHAN,
S/O REHMAN KHAN,
AGED ABOUT 55 YEARS,
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NC: 2023:KHC:33871
WP No. 7249 of 2022
R/AT: SATTAR KHAN MOHALLA,
WARD NO.7, MADDUR ROAD,
KUNIGAL TOWN - 572 130.
2. CHIEF OFFICER,
TOWN MUNICIPAL COUNCIL,
KUNIGAL - 572 130.
3. THE ASSISTANT COMMISSIONER,
TUMKUR SUB DIVISION,
TUMKUR - 572 101.
...RESPONDENTS
(BY SRI. NAVEEN CHANDRASHEKHAR, AGA FOR R3;
SRI. HALLI SHANTAPPA BASAPPA, ADVOCATE FOR R1;
SRI. A. NAGARAJAPPA, ADVOCATE FO R2)
THIS W.P IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER PASSED BY THE R-3 VIDE DTD 07.03.2022 AS PER ANNX-R
AS WITHOUT AUTHORITY AND ETC.,
THIS WP, COMING ON FOR ORDERS, THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
1. The petitioners are before this Court seeking for the following reliefs:
a) Issuing the writ of certiorari by quashing the impugned order passed by the respondent no:3 in MUN (A)(K):02/2021-22 vide dated:07-03-2022 as per Annexure-R as without authority;
b) Issuing the writ of certiorari by quashing the impugned notice issued by the respondent no:2 vide ref no:
PU.KAA.KU/KUMSHA/NOTICE/CR/04/2021-22 DATED: 28-04-2021 placed at annexure-P as no maintainable;
c) Directing respondent , no:2 to restore the katha of the land vide kunigal municipal katha no:237/229 old kaneshumari no:692 measuring 102+1 1/2/2 * 45+65/2 situated in ward no:7 of kunigal town -3- NC: 2023:KHC:33871 WP No. 7249 of 2022 municipal council at kunigal town in the name of the petitioners and issue E-Katha;
d) Any other orders or directions this Hon'ble court feels deem fit in the facts and circumstances of the case;
2. The petitioners claim to be the absolute owners and khatedars of the property bearing Kaneshumari No.692 situated in Ward No.7, Kunigal Taluk. The khata of the said property is stated to stand in the name of the petitioners. Respondent No.2-Chief Officer had issued a notice on 28.04.2021 alleging that the petitioners have encroached upon the government land. The petitioners replied to the same however, in the meantime, respondent No.3 had passed an order on 07.03.2022, cancelling the Khata of the petitioners by exercising powers under Section 306(1) of the Karnataka Municipalities Act, 1964 (for short 'the Act'). It is challenging the same, that the petitioners are before this Court seeking for the aforesaid reliefs.
3. The contention of the counsel for the petitioners is that the power under Section 306 of the Act can only be exercised by the Deputy Commissioner and not by the Assistant Commissioner. Furthermore, the Deputy -4- NC: 2023:KHC:33871 WP No. 7249 of 2022 Commissioner cannot exercise the appellate powers under Section 306 of the Act, but such powers can only be exercised suomoto after having come to a conclusion that the order is unlawful, is causing or would likely to cause injury, annoy the public, or lead to a breach of peace. He further submits that the power under Section 306 of the Act is only one suspension and not cancellation, as done by the Assistant Commissioner in the present matter.
4. Learned counsel for respondent No.1 would however submit that there is delegation of power by the Deputy Commissioner in favour of the Assistant Commissioner under Section 306 of the Act.
5. Heard Sri. Muralidhar S.R., learned counsel for the petitioners, Sri. Naveen Chandrashekar, learned Additional Government Advocate for respondent No.3, Sri. Hallishantappa Basappa, learned counsel for respondent No.1, Sri. A. Nagarajappa, learned counsel for respondent No.2 and perused records. -5-
NC: 2023:KHC:33871 WP No. 7249 of 2022
6. The legal issue in the above matter has already been decided by this Court in the case of Sri.S.K.Ramachandra Gupta vs. Deputy Commissioner and others1, wherein this Court has categorically come to a conclusion that under Section 306 of the Act, no appellate powers could be exercised. Irrespective of whether there is a delegation in favour of the Assistant Commissioner or not, it is not being gone into in this matter and the said question is kept open. The Deputy Commissioner could not exercise appellate powers under Section 306 of the Act and cancel the katha issued in favour of the petitioner. As such, I pass the following:
ORDER
(i) The writ petition is allowed.
(ii) A certiorari is issued. The impugned order dated 07.03.2022 passed by respondent No.3 in MUN (A)(K):02/2021-22 at Annexure-R is hereby quashed. The khata in favour of the petitioner is resorted. In the event of any proceedings being filed by respondent No.1, 1 W.P.No.23084/2021 dated 05.09.2023 -6- NC: 2023:KHC:33871 WP No. 7249 of 2022 the benefit of Section 14 of the Limitation Act, 1980 to be provided.
(iii) Insofar as the notice issued by respondent No.2 is concerned, the petitioners are liberty to challenge the same in appropriate proceedings.
(iv) Respondent No.1 if aggrieved by any action taken by the respondents, can initiate such proceedings as may be permissible under the applicable law.
(v) Pending interlocutory application does not survive for consideration and as such, it is disposed of.
Sd/-
JUDGE GJM List No.: 1 Sl No.: 28 CT: BHK