Karnataka High Court
Sri.C.L.Jayakumar vs The Deputy Commissioner on 8 August, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2023:KHC:28066
WP No. 34435 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 34435 OF 2014 (LB-RES)
BETWEEN:
1. SRI.C.L. JAYAKUMAR
S/O C.K.LAKSHMINARAYANA SHETTY
AGED ABOUT 67 YEARS,
2. SRI.C.L. LAKSHMINAASIMHA SHETTY
S/O C.K. LAKSHMINARAYANA SHETTY
AGED ABOUT 64 YEARS,
3. SMT.C.J.PUSHPAVALLI
W/O C.L.JAYAKUMAR
AGED ABOUT 61 YEARS
ALL ARE RESIDING AT
YOGANARASIMHA TRADERS,
MANDIPETE, TUMKUR TOWN,
TUMKUR-572101
Digitally signed
by
NARAYANAPPA ...PETITIONERS
LAKSHMAMMA (BY SRI. SAMPATH BAPAT.,ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
1. THE DEPUTY COMMISSIONER
TUMKUR DISTRICT,
TUMKUR-562101.
2. THE COMMISSIONER
TOWN MUNICIPALITY,
TUMKUR TOWN,
TUMKURU TOWN,
TUMKURU-572101
3. SRI.A.V.SURESH BABU
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NC: 2023:KHC:28066
WP No. 34435 of 2014
S/ VARDHAMANAIAH,
AGED ABOUT 60 YEARS,
PROPRIETOR OF
M/S AKSHAYA AGENCIES
SIRA ROAD,
TUMKURU-572103
4. SRI.T.L.MALLIKARIJUNA
S/O ANDANAPPA,
AGED ABOUT 80 YEARS,
RESIDING AT
T.C.S STORES,
MANDIPET,
TUMKUR-572101
...RESPONDENTS
(BY SRI. M.B. SANTHOSH KUMAR., HCGP FOR R1;
MISS. SAKSHI M. KRISHNA., ADVOCATE FOR R2;
SRI. ABHINAV.R., ADVOCATE FOR R3-R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS FROM THE OFFICE OF THE R-1 PERTAINING TO THE
IMPUGNED ORDER NO. MUN(A)2/2009-2010 DATED 9.12.2011 VIDE
ANN-A AND ETC.
THIS WRIT PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioners are before this Court seeking for the following reliefs:
a. Call for the records from the office of the 1st respondent pertaining to the impugned Order No. Mun(A)12/2009-2010 dated 09/12/2011 at Annexure- A;
b. Issue a writ in the nature of writ of certiorari quashing the impugned order No. Mun(A)12/2009-2010 dated 9/12/2011 at Annexure-A passed by the 1st Respondent as illegal.-3-
NC: 2023:KHC:28066 WP No. 34435 of 2014 c. Pass any order(s) or direction(s) as this Hon'ble Court deems fit in the facts and circumstances of the case; and d. Award cost of this proceedings in the interest of justice and equity.
2. The petitioners claim to be the absolute owners of property bearing Nos.2027/2153/2235, 2027/2153A/2235B, 2584B and 2235C/2584C measuring 80 feet east to west and 130 feet north to south.
3. The petitioners claim that they have purchased the said property under three sale deeds viz., sale deed dated 04.11.1991 executed by Sri.T.K.Gundu Rao, sale deed dated 01.04.1991 executed by Sri.T.S.Krishna Swamy Rao and sale deed dated 01.04.1991 executed by Sri.T.K.Gundu Rao. It is claimed that on the basis of the said sale deeds, the katha have been effected in favour of the petitioners. However, on objections being raised by respondents No.3 and 4, who claim to be the permanent tenants under the predecessors of the vendors of the -4- NC: 2023:KHC:28066 WP No. 34435 of 2014 petitioners, the katha which had been granted in favour of the petitioners was cancelled by way of the impugned order at Annexure-A dated 09.12.2011 under Section 306(1) of the Karnataka Municipalities Act, 1964 (for short, 'the Act'). It is challenging the same, the petitioners are before this Court.
4. Sri.Sampath Bapat, learned counsel for the petitioners would submit that:
4.1. By referring to the sale deeds and sketch produced along with the memo dated 10.04.2023 that the petitioners have purchased the portions of the property demarcated as Schedule C, D, E and F and there are common passages of 15 feet dividing the property both vertically and horizontally. 4.2. The sale having been affected in favour of the petitioners, the petitioners' katha in respect of -5- NC: 2023:KHC:28066 WP No. 34435 of 2014 the aforesaid properties could not have been disturbed.
4.3. It is further alleged that the katha has been made out in the name of the respondents as regards 756 sq.ft. in terms of Annexure-R2 in the name of respondent No.3, which could not have been so done, since respondent No.3 is only a tenant.
4.4. The sale deeds being in existence insofar as petitioners are concerned, respondent No.1 could not have passed an order in terms of Annexure-A cancelling the katha in favour of the petitioners and as such, he submits that the said order is required to be quashed. 4.5. His further submission is that no order in terms of above could have been passed under Section 306 of the Act and in this regard, he relies upon the decision of the Co-ordinate -6- NC: 2023:KHC:28066 WP No. 34435 of 2014 Bench of this Court in the case of Nagamma vs. State of Karnataka and others1 more particularly Paras 9 and 10 thereof, which are reproduced hereunder for easy reference:
"9. The provisions of Section 306 of the Act do not cover within its scope, the dispute between the private parties at all. The Deputy Commissioner can neither act as a Civil Court nor can he entertain any such petition or appeal as was filed before him in the present case by the private respondent No.4 Sri.Poojappa. The question of going into the merits of contentions raised by respondent No.4 does not simply arise, because the so called appeal or petition of the private respondent No.4 was itself totally incompetent and not maintainable within the four corners of Section 306 of the Act. If the respondent No.4 did not have any locus standi to file any such appeal or petition before the Deputy Commissioner, the question of invoking his jurisdiction under these provisions could not arise and therefore entertaining the said appeal of the respondent No.4 and passing of the impugned order Annexures 'M' and 'N' thereon was an exercise, wholly without jurisdiction of the respondent No.2 - Deputy Commissioner.
10. If the basic tenets of provisions of Section 306 of the Act that there should be an actual or threatened breach of public peace on the basis of an order or resolution of the Municipal Council are absent, then completely abusing the power the Deputy Commissioner cannot entertain such a petition or appeal of a private party. It is clear that the said Deputy Commissioner has totally not applied his mind to the relevant provisions of the Act itself under which he was exercising his jurisdiction."
1 2016 (4) AKR 396 -7- NC: 2023:KHC:28066 WP No. 34435 of 2014 4.6. By relying on the above, he submits that the katha could not be cancelled by exercising powers under Section 306 of the Act. On these grounds, he submits that the impugned order is required to be quashed and the katha be made out in the name of the petitioners.
5. Sri.Abhinav R., learned counsel for respondents No.3 and 4 would submit that:
5.1. the entire property, which had been leased out on a permanent basis to respondents No.3 and 4 has not been sold in favour of the petitioners. Furthermore, the sale deeds produced by the petitioners along with above petition deal only with Schedule-D, E and F and no sale deed has been produced in respect of Schedule-C property and as such, he submits that the katha in respect of entire property could not have been made out in -8- NC: 2023:KHC:28066 WP No. 34435 of 2014 favour of the petitioners and as such, the impugned order passed by the respondent No.1 is proper and correct.
5.2. His further submission is that there being various proceedings and suits which have been filed between both the parties, where there have been orders and judgments which have been passed protecting the respondents No.3 and 4 from interference at the hands of the petitioners without following the due process of law, the khatha could not have been made in the name of the petitioners.
5.3. His further submission is that the impugned order having been passed on 09.12.2011 has been challenged in the present Writ Petition in the year 2014 after a gap of three years and as such, the petition requires to be dismissed. -9-
NC: 2023:KHC:28066 WP No. 34435 of 2014
6. Heard Sri.Sampath Bapat, learned counsel for the petitioners and Sri.M.B.Santhosh Kumar, learned HCGP for respondent No.1, Ms.Sakshi M.Krishna, counsel for respondent No.2 and Sri.Abhinav R., counsel for respondents No.3 and 4 and perused the papers.
7. A short question that arises in the present matter is as regards whether tenant permanent or otherwise could seek to impugn the katha which has been made out in the name of the owner of the property though such ownership has been derived out of a subsequent sale post the execution of a permanent lease.
8. It is not in dispute that the predecessors of Sri.T.K.Gundu Rao and Sri.T.S.Krishnaswamy Rao were the owners of the property in question, which has been leased in favour of respondents No.3 and 4 on a permanent basis. It is during the time when the permanent lease was in operation that the sales in
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NC: 2023:KHC:28066 WP No. 34435 of 2014 favour of the petitioners have occurred. In terms of Section 109 of Transfer of Property Act, once there is a sale of the property, which is subject matter of a lease, then the purchaser of the property would step into the shoes of the landlord and the tenancy would stand attorned in his favour, in this case, the permanent tenancy stood attorned on the sale.
9. It is not in dispute that the respondents No.3 and 4 are tenants of the properties and there is no sale in their favour entitling them to claim ownership right. Thus, any right that the respondents No.3 and 4 can claim is only as a tenant albeit as a permanent tenant.
10. The submission of Sri.Abhinav R., learned counsel for respondents No.3 and 4 is that the entire property has not been sold and as such, the katha could not have been made out in the name of the petitioners for the entire property deserves merit inasmuch as what has been sold to the petitioners as per the sale
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NC: 2023:KHC:28066 WP No. 34435 of 2014 deeds and there is a passage which has been excluded from such sale. Thus, the petitioners would only be entitled for a katha in respect of the area which has been sold to them and not for the entire area.
11. However, the order passed by the respondent No.1 is under Section 306 of the Act as held by a Coordinate Bench of this Court in Nagamma's case supra, there is no power vested under Section 306 of the Act to cancel any katha issued and/or adjudicate any rights or private dispute between the parties. Thus, the powers which has been exercised by respondent No.1 in passing the impugned order is not supported by Section 306 of the Act. In that view of the matter, I pass the following matter:
ORDER
1) The Writ Petition is allowed.
2) The impugned order dated 09.12.2011 at Annexure-A is hereby quashed.
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NC: 2023:KHC:28066 WP No. 34435 of 2014
3) The matter is remitted to respondent No.2 to consider the claim of the petitioners in terms of the sale deeds and make out katha in favour of the petitioner in terms of the area which has been sold in favour of the petitioners and not in excess thereof.
4) Insofar as the claim of respondents No.3 and 4 are concerned, in the event of any proceedings being initiated against them by the petitioners for eviction or otherwise, they would be entitled to take all defenses which is permissible under law.
Sd/-
JUDGE PRS List No.: 1 Sl No.: 40