Karnataka High Court
K S Jagadeesh Reddy vs The Joint Commissioner on 18 February, 2014
Author: B.S.Patil
Bench: B.S.Patil
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF FEBRUARY, 2014
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.55595/2013 & W.P.Nos.56557-559/2013(LB-BMP)
C/w
W.P.No.3445/2014 & W.P.Nos.4008-10/2014 (LB-BMP)
BETWEEN
K S JAGADEESH REDDY
S/O LATE K SRINIVASA REDDY
AGED ABOUT 50 YARS
R/AT NO.45, KASAVANAHALLI
BELLANDUR POST-560103
BANGALORE EAST TALUK. ... PETITIONER
(COMMON)
(By Sri.NISHANTH A V, ADV.)
AND
1. THE JOINT COMMISSIONER
BRUHAT BANGALORE MAHANAGARA PALIKE
MAHADEVAPURA SUB DIVISION
WHITE FIELD MAIN ROAD
RHBR COLONY, MAHADEVAPURA
BANGALORE-560048
2. SMT SUSHEELA
W/O K V REDDY
AGED ABOUT 58 YEARS
R/AT NO.21, 1ST FLOOR
12TH MAIN ROAD
14TH CROSS, WILSON GARDEN
BANGALORE-560027. ... RESPONDENTS
(COMMON)
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(By Sri.K S RAVI, ADV. A/W Sri JAYAKUMAR S.PATIL,
Sr.COUNSEL FOR C/R2,
Sri S.J.PURANIK, ADV. FOR R1)
W.P.No.55595/2013 & W.P.Nos.56557-559/2013 ARE FILED
UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA,
PRAYING TO QUASH THE ORDER DT.27.11.2013 PASSED BY THE
R1, VIDE ANNEXURE-A AND ETC.
W.P.No.3445/2014 & W.P.Nos.4008-10/2014 ARE FILED
UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA,
PRAYING TO QUASH THE ORDER DATED 30.12.2013 PASSED BY
THE RESPONDENT VIDE ANN-A
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. These two batches of writ petitions are filed by the same petitioner. Petitioner and respondents are same in both the petitions.
2. In the first batch of writ petitions, i.e., W.P.No.55595/2013 & 56557-559/13, petitioner has called in question order dated 27.11.2013 passed by the Joint Commissioner, Mahadevapura Zone, BBMP, Bangalore, thereby setting aside the khatha entered in the name of the petitioner in respect of the petition schedule properties, by exercising power under Section 114-A of the Karnataka Municipal Corporations Act, 1977 (for short, 'the Act').
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3. Second batch of writ petitions i.e., W.P.No.3445/2014 & 4008-10/2014, are the result of a consequential order passed by the BBMP pursuant to the order impugned in the first batch. After the cancellation of khatha recorded in the name of the petitioner, the sanctioned plan given to the petitioner permitting him to put up construction on the petition schedule properties has been cancelled by an endorsement dated 30.12.2013 issued by the Assistant Director (Urban Planning), Mahadevapura Zone, BBMP, Bangalore. It is this endorsement that is challenged in the second batch of writ petitions.
4. Petitioner claims to be the absolute owner in actual possession of the petition schedule properties by virtue of registered gift deeds dated 13.02.2012 and 13.04.2012 executed in his favour by his wife Mrs. Anitha. Based on the registered gift deeds, petitioner has approached BBMP seeking issue of khatha certificate in his favour. There are, in all, four bits of properties comprised in the same survey number and khatha in respect of these properties have been recorded by the BBMP in the name of the petitioner, as is evident from Annexures-B1, C1, D1 and E1, dated 23.03.2012, 23.02.2013, 31.01.2013 and 12.06.2013, respectively.
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5. Petitioner has obtained sanctioned plan on 08.11.2012 & 30.04.2013 from the BBMP for putting up constructions on the petition schedule property. According to him, he has entered into a joint development agreement and has commenced construction on Schedule A & B properties by investing huge amount. At that stage, a notice dated 02.07.2013 was issued by the 1st respondent based on the complaint made by the 2nd respondent complaining that suppressing certain material facts regarding pendency of O.S.No.4287/2000 before the City Civil Court, Bangalore, khatha had been fraudulently obtained by the petitioner. The second respondent made a request for revocation of khatha and cancellation of the building plan sanctioned.
6. Petitioner submitted his reply. Despite such reply, 1st respondent initiated proceedings under Section 114-A of the Act. Petitioner filed detailed objections to the notice received by him. The 1st respondent has passed the impugned order on 27.11.2013 cancelling the khatha. Aggrieved by the same, the present writ petition is filed.
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7. Main contentions urged by learned Counsel for the petitioner Mr. Nishanth are, that khatha recorded in the name of the petitioner is pursuant to the registered gift deeds executed by the owner of the property Smt. Anitha who is none other than the wife of the petitioner and that at no stage any material fact was suppressed before getting the khatha recorded in the name of the petitioner. It is his further submission that khatha of the property was changed in the name of Mrs. Anitha as back as on 09.06.2010 and there was no challenge or any grievance by anybody regarding the khatha standing in the name of Smt. Anitha. Therefore, it was not open for the 1st respondent to record a finding that khatha entered in the name of the petitioner based on the registered gift deeds was the result of suppression of material fact or due to misrepresentation of any fact.
8. It is also his contention that as per the registered partition deed dated 21.08.2003, petition schedule property has fallen to the share of Smt. Anitha and her name was entered in the khatha of BBMP on 09.06.2010. Hence, as long as the registered partition deed holds good and as long as title of Smt. Anitha is not disturbed by any judgment or decree of civil court, 6 question of interfering with the khatha registered in the name of the petitioner will not arise. He has lastly contended that the 1st respondent has acted like a civil court ignoring the registered documents including the release deeds executed by Leelamma and Shamala who have transposed themselves as plaintiffs in O.S.No.4287/2000. He has invited the attention of the Court to the registered partition deed produced before the 1st respondent, to which the 2nd respondent herein is a consenting party, wherein a mention is made regarding the suit filed in O.S.No.4287/2000 pending before the Civil Court, to support his contention that there was no suppression of any fact, let alone the pendency of civil suit.
9. Reliance is placed by learned Counsel on the judgment in the case of SMT. SUGUNA RAJKUMAR VS R.RAJMAL & ANOTHER
- ILR 2005 KAR 1583, to substantiate his contention that in case of such disputes, BBMP has to refer the parties to the Civil Court for adjudication of their rights by the competent civil court and not to embark upon an inquiry into the entitlement to the property by the parties.
10. Learned Senior Counsel appearing for the 2nd respondent Mr. Jayakumar S.Patil, has urged that petitioner has got 7 khatha changed in his name by suppressing pendency of the suit O.S.No.4287/2000. He has invited the attention of the Court to the order dated 06.10.2010 passed in W.P.No.13948/2008 and connected cases, to contend that as observed in the said order, any settlement reached between the parties has been held to be void and therefore, the registered partition deed on which petitioner has placed reliance being the result of a settlement between the parties cannot be relied upon to sustain the khatha entered in the name of Smt. Anitha and the one that is now recorded in the name of the petitioner. It is his further contention that all the members of the family and all persons who are entitled for a share in the property are not parties to the registered partition deed and therefore, the same could not have been acted upon. He has urged that if only the pendency of the suit had been brought to the notice of the Corporation, the change of khatha in the name of petitioner would not have been effected and therefore, the 1st respondent was right and justified in holding that due to suppression of material fact and on account of misrepresentation made based on the partition deed, khatha came to be registered in the name of the petitioner and hence, the 1st respondent was justified in 8 invoking the power of review under Section 114-A of the Act, to set aside such illegal khatha recorded.
11. Learned Counsel appearing for the 1st respondent- Corporation supports the impugned order and places reliance on the judgment rendered by this Court in the case of SMT. R.M.PUSHPA VS BRUHAT BANGALORE MAHANAGARA PALIKE, BANGALORE & OTHERS - 2013(3) KAR.L.J. 73.
12. Having heard the learned Counsel for both the parties and on careful perusal of the entire materials on record, I find that power of review to be exercised by the Commissioner under Section 114-A of the Act to re-open a case, is pegged by the condition that upon inquiry, he has to be satisfied that transfer of title was got registered by fraud, misrepresentation or suppression of facts or by furnishing false, incorrect or incomplete material.
13. The question that falls for consideration in this case is, whether the khatha recorded in the name of the petitioner is the result of fraud, misrepresentation or suppression of material facts.
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14. 1st respondent has proceeded on the basis that filing of O.S.No.4287/2000 and its pendency was not brought to the notice of the authorities of the BBMP while recording the name of the petitioner in the khatha. It is held that in view of the pendency of O.S.No.4287/2000, wherein plaintiff - Anitha had herself contended that the suit properties were the joint family properties, the same shall be regarded as an admission on her part that others also had right over the property and she was not the absolute owner of the same. It is further found that the release deeds executed by Leelamma and Shamala releasing their share in favour of Anitha in the suit properties as per the registered release deeds produced would not be considered because the validity of the same was required to be examined by the Civil Court and that Anitha was not entitled to transfer the property during the pendency of the suit.
15. It is evident from the reasoning given by the 1st respondent that he has purported to record a finding that Anitha - plaintiff in the suit could not have dealt with the property during the pendency of the suit. He has also held that the registered partition deed and the registered release deeds 10 were matters based on which the plaintiff cannot claim any right until the same is decided by the Civil Court.
16. It is not in dispute that khatha in the name of Anitha has been entered way back in the year 2010 and the said entry has remained unchallenged. It is also not in dispute that there is no order of temporary injunction restraining Anitha or any other party to the proceedings from dealing with the property. The 2nd respondent herein is a consenting witness to the registered partition deed under which the petition schedule property has fallen to the share of Smt. Anitha. Persons who are presently pursuing the suit are, Leelamma and Shamala as plaintiffs having been transposed as such. They have executed registered release deeds in favour of Smt. Anitha. Nobody has challenged the validity of these release deeds. Nor is there any finding recorded in any of the proceedings by the Civil Court doubting the authenticity, validity or legality of these registered documents.
17. Order passed by this Court in W.P.No.13948/2008 and connected cases disposed of on 06.10.2010 does not say that the registered partition entered into between the parties is void. What this Court has done in the said judgment is, to examine 11 the order passed by the learned City Civil Judge who had dismissed IA-7 and also of the suit by his order dated 12.09.2008 as having been settled out of court. By construing the provisions contained under Order XXIII Rule 3B, this Court has found that dismissal of suit as settled out of court was illegal and the suit was required to be restored to file. The said order passed cannot be regarded as one declaring the registered partition entered into between the parties as illegal or void. They are all matters on which final verdict will have to be pronounced by the Civil Court depending on the nature of evidence to be led in. Suffice to observe that pendency of civil suit per se could not have been taken as a material to revoke the khatha entered in the name of the donee - petitioner as long as the khatha entered in the name of Anitha remained unchallenged.
18. It is also relevant to notice here that none of the conditions mentioned in Section 114-A of the Act regarding fraud, suppression of material facts or misrepresentation, are present in the instant case, in as much as, in the registered partition deed which was produced before the BBMP, a mention has been made regarding the pendency of the suit and 12 therefore, it cannot be said that the pendency of the suit was actively suppressed by the petitioner while getting the khatha recorded in his name. Hence, the order passed by the 1st respondent is clearly illegal and unsustainable.
19. In a matter like this, where parties are agitating their rights before the Civil Court and the khatha is transferred based on registered documents, it was not at all appropriate for the 1st respondent to invoke powers under Section 114-A of the Act and review the order registering khatha based on registered gift deeds. The khatha so registered will be subject to the result of the proceedings pending in the Civil Court. Therefore, I have no hesitation in holding that the impugned order deserves to be set aside as being illegal. Hence, W.P.No.55595/2013 & 56557- 559/13 are allowed. The impugned order is set aside.
20. The result of the second batch of writ petitions in W.P.No.3445/2014 & 4008-10/2014, depends on the result of the first batch of writ petitions. As I have already held that revocation of khatha of the petitioner is bad and the khatha deserves to be restored in the name of the petitioner as it stood earlier before the impugned order was passed, the natural consequence is that cancellation of sanctioned plan which is 13 based on revocation of khatha of the petitioner has to be set aside. Therefore, the second batch of writ petitions in W.P.No.3445/2014 & 4008-10/2014 are accordingly allowed. Cancellation of the sanction plan impugned in these writ petitions are set aside.
In the facts and circumstances of the case and having regard to the relationship between the parties, they are directed to bear their respective costs.
Sd/-
JUDGE VK/KK