Karnataka High Court
Kamal Chopra vs Commissioner, Corporation Of The City ... on 4 January, 1988
Equivalent citations: ILR1988KAR2416
ORDER Bopanna, J.
1. Issue rule.
2. By consent of the learned Counsel for the parties, these petitions are treated as having been posted for hearing and 1 have heard the learned Counsel.
3. The petitioners who are aggrieved by the order of the respondent/Corporation have filed these Writ Petitions on the ground that by the impugned order, the Corporation has adjudicated the title of the petitioners to the lands in question and accordingly that order is wholly without jurisdiction and contrary to the relevant provisions of the Karnataka Municipal Corporations Act, 1976 (in short the Act). The facts are not in serious controversy.
4. The petitioners in W.P.No. 1769 of 1987 purchased the property in question from the partners of the firm known as C.N. Char & Co. represented by the Managing Partner one C.N. Char. The property was purchased under a registered sale deed dated 28-6-1984, a sum of Rs. 2,92,000/- was paid as sale consideration for the aforesaid property and the petitioners were put in possession of the property as could be seen from recital No. 8 in the said sale deed. The various covenants mentioned in the said sale deed disclose that the sellers had assured the petitioners that there was no charge of maintenance or any other charges on the site and that the petitioners may at all times hereafter hold, possess and enjoy the said property without any obstruction or disturbance by the sellers or any person claiming through or under them. After purchasing the property the petitioners applied to the respondent/Corporation for the transfer of the Katha of the property from the names of their vendors, viz., C. Sampath Kumar and others, the partners of the aforesaid firm, to their names. The Commissioner, after making the necessary enquiries, came to the conclusion that the property in question had vested in them and, therefore, the original owner of the said property, viz., the Mysore Spinning & Manufacturing Co. Ltd. had no title to the said property and, accordingly, it was of the view that the transfer of katha to the names of the successive purchasers was obtained on the basis of documents which created no title in their favour and, therefore, the entries made in the Corporation registers transferring the katha to the names of the successive purchasers were liable to be cancelled. The Corporation accordingly made the impugned order to the following effect:
"I therefore, hold that the katha obtained by N. Basavaraj and N. Sampath Kumar for the land sold by The Mysore Spinning and Manufacturing Company Limited were based without title and therefore liable to be cancelled. Accordingly, I cancel the katha issued in favour of Sri. N. Sampath Kumar vide Special Notice No. 86.KTR 79/70-71, dated 20-11-1970, and Sri. N. Basavaraj vide Special Notice No. B6.KTR.80/70-71 dated 20-11-1970, and the land restored to Corporation of the City of Bangalore."
It is significant to note that the Corporation not only cancelled the Katha issued in favour of Sampath Kumar but also restored the land to it on the ground that it was the owner of the land in question. By this order, the Corporation had adjudicated its title to the land in question unilaterally and declared itself to be the owner of the said land.
5. The genesis of the title to the said property may be noted at this stage :
It cannot be disputed that property measuring 98277 Sq. Yards as could be seen from the preamble to the Sale Deed dated 2-11-1970 executed by Mysore Spinning and Manufacturing Co. Ltd, in favour of N. Sampath Kumar, partner of C.N. Char & Co. that the vendor, viz., the Mysore Spinning & Manufacturing Co. Ltd. was in continuous enjoyment and undisturbed and undisputed possession of the said land for several decades in pursuance of the various sale deeds and municipal and Government grants covered by correspondence since the year 1904 and the said land bore Municipal number Old 1006 and New 1, in Division V, II Main Road, Malleswaram, Bangalore City Corporation. Under that sale deed, it was sold to the aforesaid firm of C.N. Char & Co. This firm C.N. Char & Co. sold a portion of the property measuring 822.70 Sq. Yards to the petitioners under the registered sale deed dated 28-6-1984. The Corporation had also transferred the katha of the property in the name of Sampath Kumar, as could be seen from Annexure D in the Writ Petition, by its endorsement dated 27-2-1984. The Corporation was also receiving taxes from Sampath Kumar for the aforesaid property, as could be seen from the Annexures from E-1 to E-12. This Sampath Kumar as a partner of C.N. Char & Co. had made an application to the State Government requesting them to issue an order exempting the vacant land held by him (in excess of the ceiling limit) as prescribed under the provisions of the Karnataka Urban Land (Ceiling and Regulation) Act, 1976. That application was favourably considered by the State Government under Annexure F dated 28-3-1983 and this Sampath Kumar was permitted to sell the vacant land subject to the following conditions :
"1. That the land may be sold to intending purchasers and the sale transaction shall be completed within a period of one year from the date of this order.
2. The purchasers should not change the land use for which the land is converted, without permission from the Government and Competent Authorities.
3. That the sale proceeds shall be utilised for settling the loans and decrees from Courts.
4. That if at any time, if any of the conditions (1) to (3) is violated the exemption granted stand cancelled."
However, it is only when the petitioners filed the application for transfer of the katha in their names pursuant to the sale deed at Annexure A executed on 28-6-1984, the Corporation appears to have discovered, all of a sudden, that the property in question was their property and, therefore, the original owner, viz., the Mysore Spinning and Manufacturing Co. Ltd. had no title to the aforesaid land. As noticed earlier, this company has sold this land as its absolute owner since the year 1904 and its ownership or possession of the land was never challenged by the Corporation even in the year 1970 when it sold the land in question to C.N. Char & Co. From 1970 to 1984 the Corporation had not taken the trouble of investigating its title to the property which had by that time vested in C.N. Char & Co. and subsequently with the petitioners under the Sale Deed dated 28-6-1984 (Annexure-A). It is only when the application was made by the petitioners for the transfer of the katha, the Corporation appears to have discovered that Mysore Spinning & Manufacturing Co. Ltd. had no title to the said property. The Corporation may be justified in taking the view that this Company had no title to the land in question. But, the Corporation cannot arrogate to itself the power to adjudicate its title of this property when third party's right had intervened by a registered sale deed in their favour for valuable consideration. What has happened in this case is that by an executive order, the petitioner's right to the ownership, enjoyment and possession of the property has been taken away by the Corporation. At the time of hearing it was felt that the action of the Corporation was patently illegal and Mr. Shivaprakash, learned Counsel for the Corporation took time in order to advise the Corporation suitably on the untenable stand taken in the impugned order. But, subsequently, it was represented by the learned Counsel that this Court should proceed to make an order on merits since the Corporation was not inclined to make any concession regarding its title to the property in question.
6. In my view, having regard to the facts narrated above, it is not open to the Corporation to adjudicate the title to the property in question on the ground that the earlier transactions were not fully supported by valid title deeds to the property in question. If at all the Corporation is convinced that this property had vested in it and this property could not have been transferred by the original owner, i.e., the Mysore Spinning and Manufacturing Co. Ltd. to C.N. Char & Co. the Corporation should work out its remedy in a properly constituted suit against all the previous vendors of the property and also against the petitioners since the title to the property has now vested in the petitioners pursuant to the sale deed dated 28-6-1984.
7. However, it is contended by the learned Counsel for the Corporation that the right of the Corporation to the said property would be effectively taken away by this Court by making a direction to it to issue the katha in favour of the petitioners. I do not think that, if at all the Corporation has any title to the property in question, issuance of katha in favour of the petitioners would in any way prejudice its title to the said property. Issuing katha is only an executive act and it is well settled that mere transfer of katha in favour of a person, body or Corporation would not confer any title in favour of such person, body or Corporation. It only evidences possession of the property and it is open to the Corporation to issue the katha to the petitioners making it clear that 'katha is transferred without prejudice to its title to the property in question' and the title will have to be established by it not by making an executive order of the type which is impugned in these petitions, but in a properly constituted suit.
8. However, it is contended by the learned Counsel for the Corporation that under Section 14(3) of the Act, the petitioners were bound to produce before the Commissioner any document evidencing the transfer or succession and they having failed to produce such documents, the Corporation was justified in refusing to enter their names in the katha register. The words "any documents evidencing the transfer or succession" as occurring under Sub-section (3) of Section 114 of the Act would only mean the relevant documents to support the title of the petitioners to the property in question. The material on record discloses that the property was in possession of the Mysore Spinning & Manufacturing Co. Ltd. since the year 1904 and they sold the property to C.N. Char & Co. in the year 1970. So, this company was in possession of the property for a period of about 7 decades and, therefore, their right to own and enjoy the property could not have been challenged by any party including the Government after a lapse of more than 60 years. So prima facie this company was the original owner of the property and only from this company C.N. Char & Co. had indisputably obtained the property in question under the sale deed executed in the year 1970 and C.N. Char &Co. had transferred this property to the petitioners in the year 1984, i.e., after a lapse of nearly 14 years. In the circumstances, for the purpose of Section 114(3) of the Act, the only relevant documents for effecting transfer of katha were the 2 registered sale deeds which prove the transfer of the land from the original owner to C.N. Char & Co. and from C.N. Char & Co. to the petitioners and these two documents admittedly were produced by the petitioners. In the circumstances, it cannot be said that the petitioners did not comply with the provisions of Section 114 of the Act. They having established that they had discharged their statutory obligation under Section 114(3) of the Act, the Corporation is bound to issue the katha in their favour in the discharge of its duties.
9. Accordingly, W.P. No. 1769 of 1987 is allowed and the impugned order is quashed. The Corporation is directed to issue katha of the property in favour of the petitioners and make the necessary entries in the registers of the Corporation without prejudice to its right to establish its title to the property by filing a properly constituted suit in the civil Court subject to the law of limitation or any other law that may operate against the Corporation.
10. It was, however, submitted by the learned Counsel for the Corporation that this Court should also make an observation regarding the right of the petiioners to seek a building licence pursuant to the issuance of the katha in their favour by the Corporation. That matter is not before this Court in this Writ Petition. If the petitioners make a proper application, the Corporation should decide that application on merits with reference to the law that is applicable to such application.
11. The facts in W.P.No. 1770 of 1987 are similar to the facts in W.P.No. 1769 of 1987 disposed of just now, but the sale deeds are at Annexures H and J, and on the basis of those sale deeds the petitioners in this Writ Petition are entitled to an order of transfer of katha in their favour subject to the observations made by me above.
12. Accordingly, W.P.No. 1770 of 1987 is also allowed on the above terms.