Karnataka High Court
Sri Syed Afsar Pasha vs The Town Municipal Council on 16 September, 2020
Author: R Devdas
Bench: R Devdas
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON' BLE MR.JUSTICE R DEVDAS
WRIT PETITION NO.45858 OF 2012 (LB-RES)
BETWEEN
SRI SYED AFSAR PASHA
ALIAS SYED ABDUL MUHEETH
S/O SYED AMEER SAHEB
AGED 55 YEARS
R/AT SHARIEFF COLONY
WARD NO.23, RATHNARAJ LAYOUT
HASSAN TOWN-573 201
HASSAN DISTRICT
AND
OLD MOTOR PARTS WORKSHOP
(GUJARI SHOP)
BEARING CMC NO.49, HALLA AREA
B.M.ROAD WORKSHOP
HASSAN TOWN
HASSAN DISTRICT
...PETITIONER
(BY SRI R.S. HEGDE, ADVOCATE)
AND
1. THE TOWN MUNICIPAL COUNCIL
HASSAN TOWN
HASSAN DISTRICT-573 201
REPTD. BY ITS COMMISSIOSNER
2. SRI SYED AKBAR
S/O. SYED GAFFAR SAB URF
H.S.GAFFAR SAB
AGED ABOUT 50 YEARS
RESIDENT OF NO.171/B
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ARALEPETE BADAVANE
HASSAN TOWN
HASSAN DISTRICT
PIN CODE-573 201
3. THE STATE OF KARNATAKA
REPTD. BY PRINCIPAL SECRETARY
URBAN DEVELOPMENT DEPARTMENT
M.S.BUILDING
DR.AMBEDKAR VEEDHI
BANGALORE-560 001
4. THE DEPUTY COMMISSIONER
HASAN DISTRICT
HASSAN, PIN CODE-573 201
...RESPONDENTS
(BY SRI SRIDHAR N. HEGDE, HCGP FOR R3 & R4;
SRI K. RAGHAVENDRA RAO, ADVOCATE FOR R1;
SRI B.N. SURESH BABU, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE IMPUGNED ORDER OF ALLOTMENT OF
SITE ISSUED BY R1 IN FAVOUR OF R2 DATED 12.1.07
VIDE ANNX-H AND CONSEQUENTLY QUASH THE SALE
DEED DATED 27.7.12 EXECUTED BY THE R1 IN
FAVOUR OF R2 REGISTERED AS DOCUMENT IN BOOK
NO.1 STORED DATED 28.7.12 VIDE ANNX-J SUB-
REGISTRAR, HASSAN IN RESPECT OF SCHEDULE
SHOP PEREMISES AND ETC.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:
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ORDER
R. DEVDAS J., (ORAL):
The petitioner has filed this writ petition with the following prayer:
i) Call for the entire record relating to the case of the petitioner from the 1st respondent.
ii) Issue writ, order or direction in the nature of Certiorari, to quash the impugned order of allotment of site issued by the 1st respondent in favour of the 2nd respondent, in No.Na.Sa.Ha.Niveshana:19:98-99 dated 12.01.2007, vide Annexure-H and consequently quash the sale deed dated 27.07.2012 executed by the 1st respondent in favour of 2nd respondent, registered as Document No.HSN-1-03909/2012-13, in Book No.I stored in CD No.HSND-175 dated 28.07.2012 vide Annexure-J, in the office of the Sub-Registrar, Hassan, in respect of schedule shop premises and:
iii) Issue writ of mandamus or any other appropriate writ, order or direction directing the 1st respondent to allot and execute registered sale deed in favour of petitioner, -4- considering his case in respect of schedule shop premises and;
iv) Issue any other writ, order or direction as deemed just and proper in the facts and circumstances of the case including award of costs of the proceedings in the interest of justice and equity.
2. It is the contention of the petitioner that the father of the 2nd respondent - Syed Gaffar Sab Urf H.S.Gaffar Sab, was allotted with a shop premises belonging to the 1st respondent-City Municipal Council, Hassan Town, Hassan, during the year 1987. However, it is further contended that since the 2nd respondent and his father were not able to utilize the shop premises, they put the petitioner in possession of the shop premises in the year 1993. Thereafter, the petitioner continued to pay the lease rent to the Municipality. However, from the year 2000, the Municipality stopped collecting the rental from the petitioner. The Municipality got a notification published in the newspaper on -5- 22.05.2006 stating that the shop premises which were leased to the lease holders would be granted absolutely in their favour by collecting the market value of the premises. Since it was brought to the knowledge of the petitioner that the Municipality was executing the sale deed in favour of the 2nd respondent, he got a legal notice issued on 13.06.2006, claiming that he is the lease holder of the shop premises bearing Municipal khatha No.47/58 situated at Jail Field, B.M.Road, Hassan, measuring 20 x 15 feet, the said shop should be sold in favour of the petitioner and not in favour of the 2nd respondent. Nevertheless, the Municipality went ahead and made an allotment in favour of the 2nd respondent on 12.01.2007 and thereafter executed an absolute sale deed under a registered document dated 27.07.2012.
3. Learned counsel for the petitioner submits that the petitioner had in fact filed a suit in O.S.No.184/2006, which was later renumbered as -6- O.S.No.487/2010, before the Civil Court at Hassan seeking a relief of permanent injunction against the respondent-Municipality. It is submitted that the 2nd respondent impleaded himself in the said suit. It is also submitted that during the course of the proceedings the civil Court had granted an order of status quo and therefore it is submitted that the petitioner continued to be in occupation of the of the shop premises. However, at the instance of the petitioner the suit was dismissed as withdrawn on 05.07.2012, granting liberty to the petitioner to file fresh suit on the same cause of action. Nevertheless, instead of filing a suit, this writ petition is filed.
4. Learned counsel for the petitioner submits that since the civil Court had granted an interim relief directing the parties to maintain status quo, the petitioner continued to be in possession of the shop premises and during the course of the proceedings, the allotment was made in favour of the 2nd respondent. After the suit was withdrawn the -7- Municipality proceeded to execute a sale deed in favour of the 2nd respondent, illegally without the 2nd respondent having any valid right to seek execution of a sale deed in his favour.
5. Per contra, learned counsel for the 2nd respondent submits that the petitioner has in fact admitted that the shop premises was never allotted in favour of the petitioner. On the contrary, the petitioner had admitted that the 2nd respondent put the petitioner in possession of the shop premises. The learned counsel submits that such an admission by the petitioner that he was never allotted with the shop premises coupled with the fact that the petitioner withdrew the suit, craving liberty to file a fresh suit and thereafter, instead of filing a suit, the petitioner has filed this writ petition with a prayer seeking cancellation of the allotment and sale deed executed by the Municipality in favour of the 2nd respondent, the prayer cannot be granted in a writ -8- proceedings under Article 226 of the Constitution of India.
6. Moreover, it is submitted that in the year 1998, a notification was published by the Municipality on 03.06.1998, which is produced as Annexure-R1 along with the statement of objections. It is submitted that in the said notification, the names of the petitioner as well as the 2nd respondent is shown at Sl.Nos.115 and 120 respectively. Learned counsel further draws the attention of this Court to an endorsement dated 13.11.2007 issued by the Deputy Commissioner of Hassan District on an application said to have been made by an Association seeking information as to how many shop premises was allotted in favour of the family members of he petitioner herein. It is pointed out from the endorsement that four shop premises is said to have been allotted in favour of the close family members of the petitioner. Learned counsel further draws the attention of this Court to Annexures-A and A1, which -9- are the rent receipts produced by the petitioner along with the memorandum of writ petition. It is submitted that these rent receipts pertain to the shop premises that was actually allotted by the Municipality in favour of the petitioner. Learned counsel submits that the petitioner with his greed is trying to lay claim against the shop premises belonging to the 2nd respondent while another shop was already allotted in favour of the petitioner and three other shop premises being allotted in favour of the close family members of the petitioner.
7. Learned counsel for the 1st respondent- Municipality submits that only one shop premise was allotted in favour of the 2nd respondent and the sale deed has been executed in favour the 2nd respondent in terms of the direction given by the State Government vide G.O. dated 11.05.2006 at Annexure-B. Learned counsel therefore submits that no fault could be found in the action of the -10- Municipality in executing the sale deed with respect to the shop premises in favour of the 2nd respondent.
8. Heard the learned counsels for the petitioner, respondent Nos. 1 & 2 and learned HCGP for respondent Nos.3 and 4.
9. After perusing the petition papers, this Court finds that the claim made by the petitioner that he was put in possession of the shop premises in the year 1993, by the 2nd respondent and his father and that he is entitled to get the shop premises allotted and sold in his favour, cannot be accepted. With the material on record, it is clear that the petitioner and his family members have been allotted with other shop premises. The petitioner's name along with the name of the 2nd respondent finds place in the list of lease holders published in the year 1998. It is clearly shows that a different shop premises was already allotted in favour of the petitioner and he is subsequently laying claim against another shop premises on the basis that the 2nd respondent put the -11- petitioner in possession of the second shop premises. The notification issued by the State Government makes it very clear that if the Municipality has leased out a shop premises to any person, the Municipality is empowered to executed a sale deed instead of collecting monthly rental or yearly rental. The petitioner has not approached this Court with clean hands. The petitioner has not stated that a shop premises was already allotted in his favour. On the other hand, the petitioner has clearly stated that the 2nd respondent put the petitioner in possession of the shop premises belonging to the 2nd respondent. This would evidence the fact that the Municipality had never allotted the shop premises in question in favour of the petitioner. That being the case, it does not lie in the mouth of the petitioner to seek allotment and sale of the shop premises in his favour. Moreover, as rightly submitted by the learned counsel for the respondent No.2 that under a writ proceedings, the disputed questions of fact cannot be gone into and a -12- direction of canceling or quashing a registered instrument also cannot be made in a writ proceedings. Such disputed questions of fact can only be decided in an appropriate proceedings before the civil Court. This Court cannot loose sight of the fact that the petitioner had in fact withdrawn the suit in O.S.No.487/2010, seeking liberty to file a fresh suit. Thereafter, instead of filing a suit, this writ petition has been filed with a prayer seeking to quash the sale deed executed in favour of the 2nd respondent.
10. For the reasons stated above, the writ petition stands dismissed.
SD/-
JUDGE DL