Karnataka High Court
Syed Shaha Fathuallah Alvi vs The City Municipal Council, Bidar And ... on 8 February, 2000
Equivalent citations: ILR2000KAR2400, 2000(4)KARLJ272
Author: Tirath Singh Thakur
Bench: Tirath Singh Thakur
ORDER
1. House No. 8-1-140 situate in the New Housing Colony at Bidar stood registered in the name of Smt. Yaseen Begum, W/o the petitioner herein. It was in the year 1974, transferred in favour of the third respondent-Shri S.S. Alvi in terms of a sale deed executed by the former. In the year 1993, an entry recognising the transfer in favour of Shri Alvi, was also made in the Property Register maintained by the City Municipal Council, Bidar. By another sale deed executed and registered on the 13th of August, 1999, the house in question was transferred to the 2nd respondent in consideration of a sum of Rs. 4 lakhs. An application made by the purchaser to the City Municipal Council for what is described as change of khata in his name was opposed by the petitioner, who filed his objections, in which it was inter alia asserted that he was the real owner of the property in question which was held by his wife Smt. Yaseen Begum as a benamidar. It was further stated that the so-called transfer of the property in favour of the third respondent-S.S. Alvi, was in essence a mortgage in consideration of a sum of Rs. 10,000/- which the petitioner had secured from the mortgagee. The objections made reference to O.S. No. 158 of 1997, pending before the Civil Judge, Jr. Division, Bidar, in which the petitioner/plaintiff has sought a decree for redemption of the property in question.
2. The President of the Municipal Council, found no merit in the objections and while rejecting the same, directed an entry in favour of the 2nd respondent. Aggrieved, the petitioner has filed the present writ petition.
3. Mr. Patil, learned Counsel appearing for the petitioner, made a three-fold submission in support of the challenge mounted in the petition. Firstly it was contended that the impugned order was incompetent as a transfer of khata could be directed only by the Council or by the Commissioner acting on its behalf. Alternatively, it was argued that any entry/mutation, in regard to the transfer of the property, could be ordered only upon an enquiry into the competing claims of the parties before the Council. No such enquiry having been conducted at any stage, the order was illegal. Thirdly, it was urged that the order did not record any reason and therefore fell short of the legal requirements.
4. Mr. Hinchigeri, on the other hand contended that the petitioner had no locus standi to question the impugned order. The property in question was according to the learned Counsel registered in the name of Smt. Yaseen Begum, who had sold the same to Shri Alvi, for valuable consideration. The transfer by Sri Alvi was recognised by the Municipal Authorities also by making an appropriate entry in the register which had remained unquestioned. A further transfer by Shri Alvi, in favour of the 2nd respondent for consideration could not therefore be challenged either by the petitioner who had nothing to do with the property or even by his wife the vendor. The argument that the petitioner was the real owner of the property was not according to Mr. Hinchigeri available to him in mutation proceedings, under Section 113 of Karnataka Municipalities Act, his remedy being a civil suit which he had already instituted. The Civil Court had in fact examined the question of issue of an injunction and found that the petitioner did not have a prima facie case. An appeal against the said order had also failed as was evident from a copy of the appellate order placed on record.
5. Section 111 of the Municipalities Act, requires every person primarily liable for the payment of any tax qua any property to give notice of any transfer that he may effect of the title in such property. The person acquiring the title is also similarly required to inform the Municipal Council about the transfer. Section 112 prescribes the form of notice envisaged by Section 111 whereas Section 113 empowers the Municipal Council to substitute in the Municipal Register the name of the transferee in place of the transferor. A careful reading of the above provisions show that an entry in the Register maintained by the Municipal Council, in relation to the transfer of title qua any immovable property situate within the Municipal limits, is essentially a fiscal entry. The object underlying the making of the entries is to identify the person liable to pay the taxes in respect of property transferred. It would be a priori mean that an entry in the Register pursuant to the requirement of Sections 111 and 113 of the Act, cannot either confer or extinguish title to the same. The entry is relevant and meaningful only insofar as the recovery of Municipal Taxes are concerned. I am supported in that view by the decision of Privy Council in (Thakur) Nirman Singh and Others v Thakur Lal Rudra Partab Narain Singh and Others, where their Lordships have while dealing with an analogous situation observed thus:--
"It is an error to suppose that the proceedings for the mutation of names are judicial proceedings in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind, as it has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid.
Orders in mutation proceedings are not evidence that the successful applicant was in possession as sole legal owner in a proprietary sense, to the exclusion, for example, of all claims of the other members of the family as co-owners or for maintenance or otherwise, as revenue authorities have no jurisdiction to pronounce upon the validity of such a claim".
6. In the light of the above, what remains to be seen is whether the making of the entry ought to have been preceded by a comprehensive enquiry as to the title of the person applying for substitution in place of the one whose name figured in the Register. As noticed earlier, the name of Shri S.S. Alvi, had on the basis of the sale deed executed in his favour been entered in the Municipal Register nearly six years before the transfer of the property by him in favour of the 2nd respondent. That entry has not been upset although according to Mr. Patil, an appeal against the same is pending before the Appellate Authority. The execution of the sale deed in favour of the 2nd respondent not being in dispute, and the possession of the property having been delivered to the said respondent, the Council was perfectly justified in recognising the transfer by making an appropriate entry in the Register. Whether or not the petitioner was the true title holder as claimed by him and whether or not the transaction between his wife and Shri S.S. Alvi was in essence a mortgage and not a sale, were questions which could not be satisfactorily determined in an enquiry envisaged under Section 113 of the Act. A civil action before the Competent Court alone could resolve that controversy. A suit having been filed, the petitioner ought to pursue the same, in which case, he can ask for an appropriate modification if he succeeds in his endeavour. The absence of an enquiry beyond what was conducted does not therefore invalidate the order.
7. That brings me to the question whether the order is incompetent. It is true that the order has been made by the President of the Council, all the same it is not the case of the petitioners that the Council has disapproved of the action taken by the President. The impugned order as a matter of fact sanctions transfer of the entry from Sri Alvi, to the 2nd respondent pending approval of the Council. So long as the Council does not find fault with the proposed change and take a different view, the change made in consequence of the order would hold good.
8. The argument that the impugned order does not record reasons, is also of no avail. The order clearly states that the petitioner's objections have not been supported by any documentary evidence. That reason conveys enough looking to the case set up by him. It was necessary for the petitioner to produce material to show that he was the true owner of the property and that his wife Smt. Yaseen Begum, was only a name lender. No material was however adduced by the petitioner to that effect, in the absence whereof, the President of the Council was justified in overruling the objections.
9. There is no merit in this writ petition, which fails and is accordingly dismissed but in the circumstances without any order as to costs.