Karnataka High Court
The Commissioner vs Sri. N. A. Venugopal on 27 June, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:22280
WP No. 13004 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO.13004 OF 2021 (GM-CPC)
BETWEEN:
1. THE COMMISSIONER
BRUHAT BENGALURU MAHANAGARA PALIKE,
J.C. ROAD, BENGALURU-560 001.
2. THE DEPUTY COMMISSIONER (WEST ZONE)
BRUHAT BENGALURU MAHANAGARA PALIKE,
BHASHYAM PARK, SAMPIGE ROAD,
MALLESHWARAM, BENGALURU-560 003.
...PETITIONERS
(BY SRI. BATHE GOWDA K.V., ADVOCATE)
AND:
SRI. N. A. VENUGOPAL
W/O. SRI. N. M. ANNAIAH,
AGED ABOUT 58 YEARS,
Digitally NO. 18/21, NARAYANI,
signed by 7TH CROSS, II BLOCK,
VANDANA JAYANAGAR,
S BANGALORE-560 011.
Location:
High Court
of ...RESPONDENT
Karnataka
(BY SRI. RAMESH P KULKARNI, ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION
OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE II
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH-17)
IN MIS. PETITION. NO. 634/2014 DATED 30.01.2020 AS PER ANNEXURE-A.
THIS PETITION, COMING ON FOR FINAL DISPOSAL, THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:22280
WP No. 13004 of 2021
ORDER
This petition is directed against the impugned order dated 30.01.2020 passed in Misc. Petition No.634/2014 by the II Addl.
City Civil & Sessions Judge, Bengaluru, whereby the said petition filed by the respondent herein was allowed by the trial Court.
2. Heard learned counsel for the petitioners and learned counsel for the respondent and perused the material on record.
3. The material on record discloses that the respondent filed the aforesaid petition seeking permission to withdraw sums of Rs.1,92,11,572/- and Rs.1,92,11,572/- together with accrued interest and for a direction against the petitioners to issue TDR Certificate in favour of the respondent for the amount deducted by them in respect of the acquired property i.e., petition schedule property and for other reliefs. The said petition was contested by the petitioners, who filed their statement of objections. Pursuant thereto, respondent examined himself as PW1 and Exhibits P1 to P22 were marked on his behalf. The petitioners examined one witness as RW1 and Ex.R1 to Ex.R7 were marked by them. After hearing the parties, the trial Court proceeded to pass the impugned -3- NC: 2023:KHC:22280 WP No. 13004 of 2021 order in favour of the respondent against the petitioners, who are before this Court by way of the present petition.
4. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the petitioner submitted that the trial Court committed an error in allowing the petition filed by the respondent without considering or appreciating the material on record. It was also submitted that subsequent to the impugned order in W.P.No.3934/2020 filed by Smt. Amulya, sister of the respondent herein against the respondent and the petitioners herein, this Court has passed an interim order dated 17.02.2020 directing stay of withdrawal of the subject amount in question. It was therefore submitted that the impugned order passed by the trial Court deserves to be set aside.
5. Per contra, learned counsel for the respondent submits that there is no merit in the petition and that the same deserves to be dismissed.
6. A perusal of the material on record including the impugned order will clearly indicate that the trial Court has correctly -4- NC: 2023:KHC:22280 WP No. 13004 of 2021 and properly considered and appreciated the pleadings and evidence of the parties and has upheld the claim of the respondent and rejected the claim of the petitioners by holding as under:
"This petition filed by the petitioner to permit him to withdraw the amount of Rs.1,92,11,572/- and Rs.1,92,11,572/- with interest, which is deposited by the respondents before this court. Direct the respondents to issue TDS certificate in his favour for the amount deducted by them.
2. In the petition, It is stated that the property involved in this case is a vacant site bearing BBMP PID No.26-39-20/D, totally measuring 693.11 sq. yards, situated at Railway Approach road, Platform Road, Malleshwaram, Bengaluru. M/s. Mysore Spinning and Manufacturing Company Limited (hereinafter referred the same as Company for short) was the owner in possession of the bigger tract of land. The said company was in possession of the said property for several decades by 1970 and running a fabric manufacturing unit. The Bengaluru Mahanagara Palike has made the Khatha in-favour of the said company in-respect of the said property bearing old No.1006, New No.1. On 26.10.2017 the company sold the portion of the property to the petitioner through registered sale deed. After purchase of the said property, the petitioner got changed the Khatha in his name and he is paying property tax assessed by the respondents. Since the date of purchase, he was in -5- NC: 2023:KHC:22280 WP No. 13004 of 2021 exclusive possession and enjoyment of the said property as its owner until the respondents illegally took the possession by force and formed the road recently.
.3. It is stated that, the respondent No.1 issued notification on 12.11.2009 for acquisition of property belongs to the claimant and it was published in Times of India English daily and Kannada daily on 13.11.2009. For the purpose of widening road, it was proposed to acquire the land in schedule property to the extent of 4 meters equal to 13.12 feet depth from the western boundary of the road. On 03.12.2009 the respondent issued a personal notice to the petitioner indicated their intention of acquiring the property and to apply of Transferable Development Rights Certificate (TDR). The respondent also offered to give Transferable Development Rights Certificate in lieu of their land to be taken for widening the road under it. Without any option, the petitioner was ready to give his property for widening road and obtain TDR. On 01.06.2010 he submitted a letter to the respondent No.2 for grant of TDR. He also gave another letter with title deeds and saying that he may either give the consent or may file his objections to the acquisition. He never consented for the acquisition and take a TDR in lieu thereof. It is stated that, the respondents had began the civil work on the schedule property without following the law and in a high handed manner by taking forcible possession of it. Though the -6- NC: 2023:KHC:22280 WP No. 13004 of 2021 respondents had notified acquisition of only 4 meters from existing land, they took over the possession of entire petition schedule property and formed the road. They have not followed any of the provisions of either the Land Acquisition Act or any other law in taking over the land of the petitioner. The above said act of the respondents was wholly illegal. They took a petition schedule property without paying any compensation. It is high-handed and contrary to Article 300-A of the Constitution of India.
.4. It is stated that, the petitioner has lost his valuable property, which is situated in the heart of the city. The respondents have acquired the property and they are bound to compensate the petitioner for the same. They have not issued TDR certificate and not paid the compensation to the petitioner. Hence, he approached the Hon'ble High Court of Karnataka in W.P. No.42047/2011. The Hon'ble Court has passed an order and directed the respondents to initiate acquisition proceedings of the lands within 10 months from the date of the said order and to determine the compensation/damages/occupation charges. It is further ordered that, if the order of determining the compensation amount is not acceptable to the petitioner, it is open to him to approach the Civil Court seeking the enhancement of compensation. It is stated that, the respondents did not comply the order of the Hon'ble Court. Hence, the petitioner has filed contempt petition before the Hon'ble High Court of -7- NC: 2023:KHC:22280 WP No. 13004 of 2021 Karnataka in CCC No.361/2013. During pendency of the petition, some amount was assessed by the respondents towards compensation. Hence, contempt petition was closed. Thereafter, the petitioner has filed I.A. No.2/2013 in W.P. No.42047/2011. The Hon'ble Court has passed an order and directed the petitioner to produce original title deeds for verification purpose before the Joint Commissioner, BBMP and he shall execute the necessary documents in favour of BBMP, on satisfying that the petitioner is a title holder of the schedule property, the respondents shall disburse half of the compensation amount within one month. The liberty is reserved to the petitioner to approach the civil court for the purpose of seeking the compensation.
.5. It is stated that as per direction of the Hon'ble High Court of Karnataka dated 04.02.2014, the respondents did not comply the same. Hence, once-again the petitioner approached the Hon'ble High Court and filed I.A. No.1/2014. On 24.07.2014 the Hon'ble Court permitted the petitioner to make an application and entitle to withdraw the amount. It is stated that, the respondents have deposited the amount of Rs.1,92,11,572/- and Rs.1,92,11,572/- by way of cheques before this court. The balance amount is held by the respondents as TDS. Therefore, the petitioner being the owner of the schedule property is entitle for the above said amount with interest. Hence, the petitioner prayed for allowing the petition.-8-
NC: 2023:KHC:22280 WP No. 13004 of 2021 .6. After service of notice, the respondents have appeared through their counsel. They filed objections to the main as follows:
The petition is not maintainable in the eye of law. The petitioner was filed the I.A. No.1 in W.P. No.42047/2011 before the Hon'ble High Court of Karnataka seeking the release of the amounts before this court. On 24.07.2014 the Hon'ble Court disposed of the I.A. No.1 with the observation that it is for the City Civil Court to satisfy itself of the Marketable title of the petitioner and his entitlement to receive the compensation and take a decision in the matter. The respondents deposited the compensation of Rs.1,92,11,572/- and Rs.1,92,11,572/- before this court towards half of the compensation amount. The petitioner is hereby called upon to strict proof in-respect of his ownership over the petition schedule property. It is stated that the sale deed dated 23.10.1970 disclose that the property originally belonged to Mysore Spinning and Manufacturing Company Limited. The sale deed discloses that no title deeds are delivered to the purchaser. It is stated that the Khatha does not confirm title.
.7. It is stated that on 14.01.2013 by virtue of the release deed executed by his Highness the Maharaj of Mysore in-favour of the said Company, was the holder of the land to an extent of 13 acres 1 gunta. The said company was carrying on the business of Textile and Subsequently became sick. It was acquired by the Central Government by an act of -9- NC: 2023:KHC:22280 WP No. 13004 of 2021 parliament, namely the Sick Textiles Undertakings (Nationalizations) Act, 1974. Therefore, to an extent of 13 acres 1 gunta of land stood vested with the Central Government free from all claims and encumbrances. It is stated that M/s. Mysore Spinning and Manufacturing Mills Limited, Bengaluru was the owner of the land to an extent of 13 acres 1 gunta. Whereas, the National Textile Corporation (APKIK & M) Limited, after acquisition, sold the land inviting tender to an extent of 18 acres 69 guntas. The said company has sold some extent to the various persons. There is an encroachment on the Government Land, Railway property, property of BBMP (Nullah and park). The respondents have filed a Revision petition before the Regional Commissioner, Bengaluru for cancellation of Khatha issued in- respect of the aforesaid land. The petitioner is also a party to the said proceedings and filed his objections. From the above, the respondents prayed for dismissal of the petition with exemplary cost.
.8. To prove his case, the petitioner himself examined as PW.1. The documents got marked as Ex.P.1 to Ex.P.21. For respondents' side, the respondent No.2 Prasanna Kumar examined as RW.1. The documents got marked as Ex.R.1 to 7. In the cross- examination of RW.1, Ex.P.22 marked by way of confrontation.
.9. Heard the arguments.
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NC: 2023:KHC:22280 WP No. 13004 of 2021 .10. The points that would arise for consideration of this court are:
1) Whether the petitioner proves his marketable title over the petition schedule property?
2) Whether the petitioner is entitle for withdrawal of the amount deposited by the respondents before this court?
3) Whether the petitioner is entitle for TDR certificate from the respondents as prayed for?
4) What order?
.11. My findings on the above points are:
Point No.1: In the affirmative, Point No.2: In the affirmative, Point No.3: In the affirmative, Point No.4: As per final order, for the following:
REASONS .12. Point No.1: As per the records, the petitioner claiming that he is the owner of the petition schedule property i.e., site property bearing BBMP PID No.26-39-20/D, Railway Approach Road, Platform Road, Bengaluru (initially vacant land bearing No.1006 later numbered as plot No.1) measuring North to South 96 feet 8 inches on East and 24 feet on the West and East to West 94 feet on the North and 130 feet on the South. This property it totally measures 693.11 sq. yards. He further contended that
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NC: 2023:KHC:22280 WP No. 13004 of 2021 the respondents have issued notification for acquisition of portion of the property measuring 4 meters in his property. Subsequently forcibly and without authority of the law, they have acquired his entire extent of property and formed road. They have not paid the compensation to him and issued TDS certificate. Hence, the petitioner approached the Hon'ble High Court of Karnataka in W.P. No.42047/2011. He has produced certified copy of the order passed by the Hon'ble High Court of Karnataka dated 13.04.2012 in W.P. No.42047/2011 and got marked as Ex.P.14. The petitioner has filed the said Writ Petition, directing the respondents to pay the compensation in-respect of the acquired property belongs to him. The Hon'ble Court disposed of the said Writ petition with the following direction which are reads as follows:
(i) The respondents shall request the State Government to initiate the proceedings for the compulsory acquisition of the lands. If the State Government concedes to such a request, the acquisition proceedings, including the passing of the award and the disbursement of the amounts, shall be done within a period of ten months from today;
(ii) If the respondents and the Government fail to resort to the compulsory acquisition of the lands for whatsoever reason, then the respondent No.1 is directed to pass the order determining the compensation/damages/occupation charges within ten months from today. Needless to observe that, if the order determining the compensation amount is not acceptable to the petitioner, it is open to him to approach the Civil Court seeking the enhancement of the same.
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NC: 2023:KHC:22280 WP No. 13004 of 2021
5. One of the two alternative courses directed herein-above shall be complied with by the respondents within the prescribed time-frame.
.13. The petitioner further stated that, the respondents have not complied the order of the Hon'ble Court in W.P. No.42047/2011. Hence, he has filed contempt petition against the respondents. He has produced certified copy of the order passed by the Hon'ble High Court of Karnataka dated 24.04.2013 in CCC No.361/2013 (CIVIL). He has filed the said contempt petition prayed for taking cognizance of the contempt committed by the respondent by disobeying the order of the Hon'ble Court in W.P. No.42047/2011 dated 13.04.2012. In the said case, the learned counsel for the respondent has submitted that they have complied the order of the Hon'ble Court, which has been communicated to the petitioner. In view of the submission made by both the parties, the Hon'ble court dropped the disposed of the said contempt petition and passed the following order:
In the light of the submission made by the learned counsel appearing for both the parties, the instant contempt petition filed by the complainant stands dropped reserving liberty to the complainant to redress his grievance before the appropriate Legal Forum, if he is still not satisfied or need arises. Ordered accordingly.
.14. It is further case of the petitioner that he has filed the application/ I.A. No.2/2013 in W.P. No.42047/2011 seeking certain directions to the respondents. The Hon'ble Court has passed an order
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NC: 2023:KHC:22280 WP No. 13004 of 2021 on the said I.A. He has produced certified copy of the order passed on I.A. No.2/203 dated 08.01.2014 and got marked as Ex.P.16. The Hon'ble Court has allowed the said I.A. and passed the following order:
i) The petitioner is directed to produce the original title deeds for the verification purpose before the Joint Commissioner, BBMP (West Zone).
ii) The petitioner shall execute the necessary documents in favour of BBMP.
iii) On satisfying that the petitioner is a title holder of the schedule property, the respondents shall disburse half of the compensation amount within one month from the date of issuance of the certified copy of today's order and the remaining half of the amount in the next one month thereafter. If on the scrutiny of the title deeds, the respondents are not satisfied with the petitioner's title deeds, the respondents shall deposit the said compensation amount with the civil court within two months from the date of the issuance of the certified copy of today's order.
iv) The liberty is reserved to the petitioner vide order, dated 13.04.2012 to approach the Civil court for the purpose of seeking enhancement of compensation amount remains in tact.
v) The disbursement of the compensation amount shall be without prejudice to the petitioner's right to seek the higher compensation in the competent Civil Court.
.15. The petitioner further contended that he has filed another application - I.A. No.1/2014 in the said Writ petition. On 24.07.2014 the Hon'ble High Court passed the order. He has produced certified copy of the said order of the Hon'ble High Court and got marked as Ex.P.17. The Hon'ble High Court has
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NC: 2023:KHC:22280 WP No. 13004 of 2021 passed an order on the said I.A., which reads as follows:
"No express permission is required to be taken from this Court for making an application before the City Civil Court for the withdrawal of the amounts deposited towards the acquisitions of the petitioner's lands. The petitioner can always make an application before the City Civil Court and it is for the City Civil Court to satisfy itself of the marketable title of the petitioner and his entitlement to receive the compensation and take a decision in the matter"
.16. It is further case of the petitioner that after passing order by the Hon'ble High Court of Karnataka on I.A. No.1/2004 in W.P. No.42047/2011, the respondents have not paid compensation amount to him. They have deposited the compensation amount before this court. Therefore, as per the order of the Hon'ble High Court, he has filed the present petition for withdrawal of the award amount.
.17. As per the direction of the Hon'ble High Court the petitioner has to prove his marketable title over the petition schedule premises. The petitioner contended that M/s. Mysore Spinning and Manufacturing Company Limited was the owner in possession of the bigger tract of land. It was in possession and enjoyment of the said land for several decades since 1970 and running a fabric manufacturing unit. The respondent-predecessor- in- office i.e., the Bengaluru Mahanagara Palike had made the Khatha in-favour of the said company in-
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NC: 2023:KHC:22280 WP No. 13004 of 2021 respect of the above said property bearing old No.1006, New No.1. The petitioner further stated that on 26.10.2017 the company sold the portion of the property to him through registered sale deed. As per the sale deed the Khatha of the property transferred in his name and he is paying tax. Hence, he contended that since the date of purchase, he has been in exclusive possession and enjoyment of the said property as its owner until the respondents illegally took the possession by force and formed the road recently. PW.1 in his examination-in-chief reiterated the above said averments of the petition.
.18. To prove his case, the petitioner has produced the documents and got marked in the evidence. Ex.P.1 is the letter by the petitioner dated 04.02.2014 to the respondents for submitting original title deeds and other documents relates to the petition schedule property i.e., acquired property for further verification. In view of the order passed by the Hon'ble High Court of Karnataka in W.P. No.42047/2011 the petitioner has submitted Ex.P.1 before the respondents. He has submitted the said letter along with the original documents. The respondents have made an endorsement for receiving the above said letter and original documents. The petitioner has produced certified copy of the sale deed dated 23.10.1970 and got marked as Ex.P.2. Original of the said sale deed produced and got marked as Ex.R.7. The recitals of the sale deed disclosing that M/s.
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NC: 2023:KHC:22280 WP No. 13004 of 2021 Mysore Spinning and Manufacturing Company Limited sold property i.e., vacant land in Plot No.1, measuring about 693.11 sq. yards to the petitioner by way of registered sale deed. The possession of the property handed over to the petitioner. The petitioner has purchased the property for consideration of Rs.69,311/-. The petitioner produced the sketch prepared at the time of execution of sale deed along with Ex.P.2. He has produced the property card issued by the Department of Survey Settlements and Land Records, City Survey No.II, K.R. Circle, Bengaluru and got marked as Ex.P.3. This document attached with sketch. It is mentioned that the property CTS 905 measuring 578 sq. meter situated at Sheshadripuram Division No.61 is in the name of holder N.A. Venugopal i.e., petitioner. Ex.P.4 is the City Survey Enquiry Register Extract issued by the above mentioned ADLR. It is mentioned that the petitioner has purchased the property bearing No.13/1 measuring 578 sq. meters through sale deed dated 26.10.1970. The name of the petitioner mentioned in the said record as holder of the property. Ex.P.5 is the map of local area No.61 Sheshadripuram, Bengaluru city 1996 issued by the ADLR, City Sy.No.2, K.R. Circle, Bengaluru.
.19. Ex.P.6 to 9 are the tax paid receipts in the name of petitioner for the year 1980, 1975, 2004 and 2005 respectively. These tax paid receipts are pertaining to the petition schedule property. Ex.P.10
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NC: 2023:KHC:22280 WP No. 13004 of 2021 and 11 are the Khata certificate and Khatha extract issued on 26.12.2015, which are in the name of petitioner in-respect of the petition schedule property i.e., property No.20/D-PID No.26-39-20/D. It is measuring 578 sq. meters (6238 sq. feet). Ex.P.12 is the notice dated 06.01.2014 issued by the BBMP to the petitioner and intimation about estimation of compensation in-respect of the acquired property. Ex.P.13 is the postal cover in which Ex.P.12 was sent to the petitioner. Ex.P.18 and 19 are the encumbrance certificates for the year from 01.04.1972 to 31.03.2004. It is mentioned that the M/s. Mysore Spinning and Manufacturing Company Limited sold the petition schedule property to the petitioner. Ex.P.21 is the RTI copy of letter issued by the Asst. Revenue Officer of the respondent about transfer of Khatha in the name of petitioner in-respect of the petition schedule property. Ex.P.22 is the notice dated 03.12.2009 issued by the defendant No.1 in-favour of the petitioner and intimated about acquisition of property belongs to him for widening of the road and construction of underpass. They called for the petitioner to submit all the details in the enclosed Application for permission for Development Rights Certificate so as to be processed by this office for the needful and for payment of compensation.
.20. From perusal of the averments of the petition, oral evidence of PW.1 and documentary evidence of Ex.P.1 to 22, it is clear that, the petition
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NC: 2023:KHC:22280 WP No. 13004 of 2021 schedule property was belonging to M/s. Mysore Spinning and Manufacturing Company Ltd., Bengaluru, as per Ex.R.7 (Ex.P.2) of the sale deed dated 23.10.1970, the said Company sold the petition schedule property to the petitioner and handed over the possession of the same. As per Ex.P.3, property card issued in the name of petitioner in-respect of property CTS No.905 measuring 578 sq. meters. As per Ex.P.4 name of the petitioner mentioned in CTS Survey Enquiry Extract in-respect of petition schedule property. As per Ex.P.6 to 9, the petitioner paid property tax to the respondent No.1. As per Ex.P.10 and 11 the respondents have issued Khatha certificate and Khatha extract in the name of petitioner in-respect of property New No.20/D PID No.26-39- 20/D, sital area measuring 6238 sq. feet, situated at Railway Approach Road, Bengaluru. As per Ex.P.22, the respondents have issued notice to the petitioner that they have acquired certain portion of the property belongs to the petitioner and directed to him to submit application for payment of compensation and to take back all his belonging from the acquired portion of the property so as to take up developmental work. RW.1 is the respondent No.2 of the case. In his cross- examination, he has admitted that they have formed the road in the petition schedule property. He has specifically admitted the suggestion put by the petitioner's side that since 1970 the petitioner was in possession of the petition schedule property. He has admitted that they issued letter (Ex.P.22) to the
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NC: 2023:KHC:22280 WP No. 13004 of 2021 petitioner and requested for providing portion of the property for formation of road. It is noticed that in the cross-examination of PW.1, the respondents have not denied the Ex.P.1 to P.22.
.21. During the course of arguments, the learned counsel for the petitioner submitted that the petitioner is the owner of the petition schedule property. In the year 1970, he purchased the said property from M/s. Mysore Spinning and Manufacturing Company Limited, since he was in possession and enjoyment of the said property till the respondents were forcibly took the entire extent of property and formed the road. RW.1 in his cross-examination has admitted that since 1970 the petitioner was in possession and enjoyment of the petition schedule property. On the basis of the sale deed of Ex.P.2, the respondent authorities have changed Khatha in the name of the petitioner, they issued Khatha extract and khata certificate in the name of the petitioner and the petitioner paid tax to the respondents. He further submitted that the petitioner has proved his marketable title over the petition schedule property by way of oral and documentary evidence.
.22. I have carefully perused the contention of the respondents as taken in the objection to the main. In para No.3 of the objections to the main, the respondents stated that, under the common law owner means a person who has got valid title legally conveyed to him after complying with the
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NC: 2023:KHC:22280 WP No. 13004 of 2021 requirements of law such as transfer of property Act, Registration Act, Income Tax Act, etc., ownership denotes the relation between a person and an object forming the subject matter of his ownership. It consists of a complex of rights in rem, being good against the entire world and not merely against specific persons. Ownership of land is essentially one of the "better right" inter alia, as collection of rights to use and enjoy property, including right to transmit to others. The petitioner is hereby called upon to strict proof of his ownership over the suit schedule property. They further contended that as per the sale deed of the petitioner, no title deeds are delivered to the petitioner. It is further contended that the vendor of the petitioner i.e., Company was the holder of the land to an extent of 13 acres 1 gunta. It was transferred/acquired in the name of National Textile Corporation Limited. The said Company invited tender to an extent of 18 acres 69 guntas. It is contended that the Company was encroached the property belongs to the Government, BBMP and Railway Department. Hence, it is contended that the vendor of the petitioner had no right to execute the sale deed in favour of the petitioner.
.23. From perusal of the objection to the main, I am of the opinion that, there is no specific para-wise denial of averments of the petition by the respondents. In the petition, the petitioner specifically contended that the Company was the owner and in possession of
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NC: 2023:KHC:22280 WP No. 13004 of 2021 the property since 1970, the BMP had made Khatha in favour of the said Company in-respect of property bearing old No.1006, new No.1 i.e., 1006/1. Out of the same, the company sold the portion of the property i.e., petition schedule property to him through registered sale deed dated 23.10.1970, since he was in possession and enjoyment of the said property as if owner, the respondents authorities have transferred Khatha in his name and he paid tax to them. He further contended that the respondents have acquired portion of the petition schedule property and issued notification, it was published in daily newspapers and they issued notice personally. It is further contention of the petitioner that subsequently all of a sudden the respondents took the possession of the entire extent of the petition schedule property and formed the road. I am of the opinion that, the above said averments of the petition is not at all denied the respondents in their objections to the main.
.24. It is further contention of the respondents that His Highness Mysore Maharaja executed release deed on 14.01.1913 in favour of M/s. Mysore Spinning and Manufacturing Mills Limited. As per the said release deed the said Company was the holder of the land to an extent of 13 acres 1 gunta. It was running business of Textile in the said property. Subsequently it become sick and the above said entire extent of land was acquired the Central government as per the provisions of Sick Textiles undertakings
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NC: 2023:KHC:22280 WP No. 13004 of 2021 Nationalization) Act and land vested with the Central Government free from all claims and encumbrances. Subsequently the National Textiles Company invited tender for sale of 18 acres 69 guntas. Previous to the acquisition the company has sold some extent of property to the various persons. It is stated that there is an encroachment on the Government land and railway property, property of BBMP (Nullah and park). During the course of the arguments, the learned counsel for the respondents submitted that the vendor of the petitioner had no title over the petition schedule property, in-spite of the same, the property sold by the company in-favour of the petitioner is illegal and it does not create any right and title of the petitioner over the petition schedule property. The petitioner claiming that GPA holder of the company executed Ex.P.2 of sale deed in his favour. But the petitioner has not produced alleged GPA executed by the company in-favour of one S.B. Bankeshwar, who executed the sale deed to the petitioner, the company was not passed any resolution for sale of property to the petitioner, the petitioner has not produced title deeds of his vendor and as per the sale deed, title deeds are not handed over to the petitioner. Hence, sale deed of the petitioner (Ex.P.2) is illegal and on the basis of said sale deed the petitioner cannot claim his title over the petition schedule property.
.25. I have perused the above said contention of the respondents about alled encroachment on the
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NC: 2023:KHC:22280 WP No. 13004 of 2021 Government land, railway property and property of BBMP (Nullah and park). I am of the opinion that, to prove their case that the company encroached on the Government land, railway property and property of BBMP (Nullah and park), no documentary evidence produced before this court. No documentary evidence produced and proved that alleged encroached property is in the name of Government, railway Department and BBMP. The respondents have not pleaded, adduced oral evidence and produced documents about measurement of alleged encroachment by the company i.e., M/s. Mysore Spinning and Manufacturing Company Limited. I am of the opinion that, if there is an encroachment in their property by the company, till today the respondents have not taken any action against the said encroachment. The Government and Railway Department have also not taken any action against the petitioner and his vendor. In the cross-examination of PW.1, it was suggested that petition schedule property is not belonging to the company and it is belonging to the BBMP. But the PW.1 specifically denied the same. In the objection to the main, the respondents have not pleaded that the petition schedule property belongs to them. But for the first time in the cross-examination of PW.1, they have suggested that the petition schedule property belongs to them. I am of the opinion that, to prove that petition schedule property belongs to BBMP, the respondents have not produced documentary evidence. Therefore,
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NC: 2023:KHC:22280 WP No. 13004 of 2021 I am of the opinion that, the respondents have miserably failed to prove that the company has encroached the property belongs to them, Government and Railway Department. More-over, it is not the case of the respondents that petition schedule property is coming under alleged encroached area. Further I am of the opinion that, the respondents have not produced the documents to show that the alleged encroached area is belonging to them, Government and Railway Department. Further I am of the opinion that, when no property standing in the name of BBMP, Government and Railway Department, the question of alleged encroachment by the company does not arise.
.26. As discussed above, as per the sale deed of the petitioner for the year 1970, the respondents transferred the Khatha in his name in-respect of petition schedule property, they have collected tax and issued Khatha extract and Khatha certificate in the name of the petitioner. I am of the opinion that, the respondents have accepted the ownership of the petitioner and transferred Khatha in his name and received the tax. They have admitted that the petitioner was in possession of the petition schedule property since 1970. It is pertaining to note that in the objection to the main, the respondents have not claiming their title over the petition schedule property. As stated above they have not proved that the vendor of the petitioner encroached the property belongs to them, Government and Railway Department. The
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NC: 2023:KHC:22280 WP No. 13004 of 2021 respondents have not proved their title over the property in question. Such being the case, I am of the opinion that, conduct of the respondents will be looked into. As per Ex.P.22, the respondents issued notice to the petitioner for acquisition of portion of the petition schedule property, they issued acquisition notification in the news-papers. It is admitted fact that even though, the respondents have issued notification for acquisition of portion of the petition schedule property, later on illegally they acquired the possession of the entire extent of property belongs to the petitioner and formed road. When the petitioner asking for compensation and TDR certificate, all of a sudden they have denied the title of the petitioner over the petition schedule property. It is noticed that after filing of this petition, the respondents have filed Revision Petition before the Regional Commissioner, Bengaluru for cancellation of Khatha of the petitioner in-respect of the petition schedule property and said case numbered as MUN/RP/No.45/2015. The petitioner of this case has appeared in the said case and filed objections and it is pending for consideration. I am of the opinion that, after thought, the respondents have prepared the said revision petition before the Regional Commissioner.
.27. I have perused the cross-examination of PW.1 by the respondents' side. It was suggested that power of attorney holder who executed the sale deed of the Ex.P.2 was no right to execute the sale deed,
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NC: 2023:KHC:22280 WP No. 13004 of 2021 the company has no right to sale of site, the properties belong to the Government, Railway Department and BBMP adjacent to the company property, the said properties have been encroached, whatever the property purchased by him is not belongs to the company, it is belonging to the BBMP, the company was in ownership of only to an extent of 13.592 acres, the company had no right over the petition schedule property, he has created the sale deed, his father was not purchased the property with clean hands, he is not the owner of the property and hence, he is not entitle for the compensation as prayed in the petition. But PW.1 has specifically denied the same.
.28. The petitioner has produced certified copy of judgment passed by this court dated 28.04.2014 in L.A.C. No.89/2012 and got marked as Ex.P.20. In the petition it is stated that the vendor of the petitioner - company has also sold another 2 bits of land adjoining to the petition schedule property in favour of Smt. Rekharani Chopra, Smt. Latharani Chopra, Mahendra Kumar Chopra, Smt. Kusum Rani Chopra and Kamal Chopra. These lands were sold under 2 separate sale deeds. The respondents had refused to make Khatha in their names. Hence, the said purchasers have approached the Hon'ble High Court of Karnataka. The Hon'ble Court has passed an order and directed to the respondents authority to make a khata in their names and giving liberty to the BBMP to initiate civil case in- respect of title. But the respondents have not done
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NC: 2023:KHC:22280 WP No. 13004 of 2021 anything about the same. Later on, the respondents have acquired the above said lands for formation of road and deposited the compensation before this court. A case has been registered in L.A.C. No.89/2012. On 28.04.2014, this court passed the judgment on merits, uphold the title of the claimants and permit them for withdrawal of compensation amount. PW.1 in his examination-in-chief deposed about L.A.C. No.89/2012. I am of the opinion that, in the cross-examination of PW.1, the respondents have not at all denied about L.A.C. No.89/2012 and passing judgment in the said case. It is also not the case of the respondents that as against the said judgment, they have prepared an appeal. RW.1 in his cross- examination has stated that they have not filed any appeal as against judgment and award passed in L.A.C. No.89/2012. I have perused the Ex.P.20 of judgment passed by this court. As per the order of the Hon'ble Court, the respondents have referred the said case before this court. The respondents 1 and 2 of this case have referred the matter to this court under Section 30 and 31(2) of the L.A. Act. It was referred for acquisition of property bearing PID No.26-39-21(D) and 26-39-22 (D) situated at ward No.26, Railway approach road. It was acquired for the purpose of widening road by the respondents. Smt. Mohinidevi Chopra and 4 others have claimants in the said case. After full pledged enquiry, this court decided the title of the claimants and order for disbursement of compensation amount. I am of the opinion that, the
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NC: 2023:KHC:22280 WP No. 13004 of 2021 subject matter of the properties in L.A.C. No.89/2012 are adjacent to the property involved in this case. Vendor of the claimants in the said case and petitioner in the present case is one and the same i.e., M/s. Mysore Spinning and Manufacturing Company Limited. I am of the opinion that, the respondents cannot denied the title of the petitioner in the case on hand.
.29. From perusal of Ex.P.20 of the judgment in L.A.C. No.89/2012 and the present case, it is clear that the Company has sold 2 properties to the claimants in L.A.C. No.89/2012 bearing PID No.26-39- 21(D) and 26-39-22(D) situated in ward No.26, Railway Approach road. The Company sold the said properties through registered sale deed on 02.11.1970. In the present case, the Company sold the petition schedule property to the petitioner through registered sale deed dated 23,10.1970. Hence, it is clear that the Company sold the properties in the year 1970 to the claimants in L.A.C. No.89/2012 and the petitioner of the present case. As discussed above, after purchase of the properties, the claimants in L.A.C. No.89/2012 have applied for transfer of Khatha before the respondent (BBMP). But they refused to transfer the Khatha. Hence, the claimants had filed W.P. No.1769/1988 against BBMP before the Hon'ble High Court of Karnataka. In the Writ Petition, the Hon'ble Court passed an order and directed the respondent (BBMP) for transfer of Khatha in the name
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NC: 2023:KHC:22280 WP No. 13004 of 2021 of claimant. The Hon'ble Court observed that if the BBMP having title over the property, it can file Civil suit subject to the law of limitation. But it is noticed that till today the respondents have not filed any suit for declaration of title over the property belongs to the claimants in L.A.C. No.89/2012. In the present case also the respondents have not filed any suit for declaration to prove their title over petition schedule property. I am of the opinion that the respondents are not firm about their title over the petition schedule property.
.30. In support of his arguments, the learned counsel for the respondents side decisions of the Hon'ble courts as follows:
1) 2010 (4) AIR Kar R 708;
2) AIR 1971 Supreme Court 1865
3) 2002(1) KCCR 423;
4) AIR 1997 Supreme Court 152
5) 1999(5) KLD 352;
6) AIR 1970 Madras 226;
7) 2011 (1) property Law Decisions 536 (Uttr).
8) AIR 1938 Bombay 77;
.31. I have perused the arguments canvassed by the respondents' side. It is submitted that the Company i.e., M/s. Mysore Spinning and
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NC: 2023:KHC:22280 WP No. 13004 of 2021 Manufacturing Company Limited had the owner and in possession of 13 acres 1 gunta of land. Subsequently the said Company has become sick and the said land was acquired by the Central Government i.e., National Textile Corporation Limited. After acquisition of the land by the National Textile Corporation Limited, it was issued paper publication in Prajavani Kannada daily dated 05.04.2003 (Ex.R.2) for sale of land measuring 18 acres 69 guntas. Therefore, it is clear that there is an encroachment of the properties by the Company belongs to the Government, Railway Department and BBMP. Considering the same, I am of the opinion that, as discussed above, the respondents have not proved alleged encroachment of the property by the Company. They have also not proved that petition schedule property belongs to them. It is noticed that, the sale deed of petitioner is for the year 1970. Subsequently, in the year 1974, the National Textile Corporation Limited took the portion of the property belongs to the Company. Hence, it is clear that the sale deed of the petitioner is prior to the acquisition of the property by the National Textile Corporation Limited. Therefore, I am not accepted the above said contention of the respondents that in view of acquisition of property by the National Textile Corporation Limited, the sale deed of the petitioner is illegal. The respondents have contended that the property of M/s. Mysore Spinning and Manufacturing Company Limited was mortgaged to the bank. Hence, whatever the sale deed of the petitioner is illegal. I am
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NC: 2023:KHC:22280 WP No. 13004 of 2021 of the opinion that the respondents have not produced the documents before this court about alleged mortgage of property by the Company. In the absence of particulars of the mortgage deed, it cannot be held that the sale deed of the petitioner is illegal. It is the further contention of the respondents that the Company was not passed any resolution for sale of property to the petitioner, sale deed was not executed by the GPA holder S.B. Bankeshwar in-favour of the petitioner. The petitioner has not produced resolution passed by the company and GPA executed in-favour of S.B. Bankeshwar. Hence, the petitioner has created the sale deed. Considering the same, I am of the opinion that, in the objection to the main, the respondents have not taken such contention that the petitioner has created the sale deed. It is noticed that the sale deed executed in-favour of the petitioner in the year 1970 by the S.B. Bankeshwar on behalf of the company, till today the said company not challenged the sale deed of the petitioner. Even the National Textile Corporation Limited, subsequently acquired the property of the Company, also has not challenged the sale deed of the petitioner. Further I am of the opinion that, non-delivery of the title deeds to the petitioner by his vendor is not a ground for holding that the sale deed of the petitioner is illegal. PW.1 in his cross-examination stated that the Company has not handed over the title deeds of the property. After purchase of sites, he has asked the Company for handing over the title deeds. The
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NC: 2023:KHC:22280 WP No. 13004 of 2021 Company stated that they having title larger extent of property, hence they cannot hand over the title deeds to the petitioner who purchased the portion of the property. From the above said grounds, I am not accepted the case of the respondents that the sale deed of the petitioner is illegal. I have perused the Hon'ble Court decisions cited by the respondents' side as cited supra. From looking into the facts and circumstances of the case, I am of the opinion that, the Hon'ble Courts decisions will not help the case of the respondents. From the above discussion, I come to the conclusion that, the petitioner has proved his marketable title over the petition schedule property. Further I come to the conclusion that the petitioner has proved his marketable title over the petition schedule property by way of cogent oral and documentary evidence. Hence, I answer point No.1 in the affirmative.
.32. Points 2 and 3: In view of my finding to the point No.1, the plaintiff has proved his marketable title over the petition schedule property. It is admitted fact that, the respondents have acquired the entire extent of petition schedule property belongs to the petitioner and formed the road. It is an admitted fact that without authority and acquisition, the respondents have forcibly took possession of entire extent of petition schedule property belongs to the petitioner and formed the road. Therefore, I come to the conclusion that, as the owner of the petition schedule property,
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NC: 2023:KHC:22280 WP No. 13004 of 2021 the petitioner is entitle for withdrawal of the award amount of Rs.1,92,11,572/- and Rs.1,92,11,572/- with accrued interest thereon, which are deposited before this court by the respondents. The petitioner is also entitle for TDR certificate from the respondents for the amount deducted by them. From the above discussion, I come to the conclusion that, the petition filed by the petitioner is liable to be allowed. From looking into the facts and circumstances of the case, there is no order as to cost. Hence, I answer the points 2 and 3 in the affirmative.
.33. Point No.4: In view of my findings to the points 1 to 3, I proceed to pass the following:
ORDER The petitioner is permitted to withdraw the amounts deposited by the respondents before this court for a sum of Rs.1,92,11,572/- and Rs.1,92,11,572/-with accrued interest thereon.
The defendants are directed to issue TDR certificate in-favour of the petitioner for the amount deducted by them in-respect of the acquired property i.e., petition schedule property.
No order as to cost."
7. Upon re-appreciation, re-evaluation and reconsideration of the entire material on record, I am of the considered opinion that the impugned order passed by the trial
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NC: 2023:KHC:22280 WP No. 13004 of 2021 Court cannot be said to be suffered from any illegality or infirmity nor can the same be said to be capricious or perverse or having occasioned failure of justice warranting interference by this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India as held by the Apex Court in the cases of Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC 423, K.P. Natarajan Vs. Muthalammal - AIR 2021 SC 3443 and Mohammed Ali Vs. Jaya
- (2022) 10 SCC 477.
8. However, in the light of the undisputed fact that this Court has passed an order of stay dated 17.02.2020 in the aforesaid W.P.No.3934/2020, it would be just and appropriate to issue certain directions in this regard. Under these circumstances, I am of the view that the petition deserves to be disposed of without interfering with the impugned order and by issuing certain directions in this regard.
9. In the result, I pass the following:-
ORDER
(i) Petition is hereby disposed of without interfering with the impugned order.
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NC: 2023:KHC:22280 WP No. 13004 of 2021
(ii) It is however made clear that any withdrawal of the subject amount in question by the respondent pursuant to the impugned order would be subject to further orders passed by this Court in W.P.No.3934/2020 referred to supra.
Subject to the aforesaid directions, petition stands disposed of.
Sd/-
JUDGE Srl. / SV