Dr.S. Shobha vs The Commissioner Bbmp
2021 Latest Caselaw 3357 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 20TH DAY OF SEPTEMBER, 2021

                        BEFORE

       THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

          WRIT PETITION No.6370/2019 (LB- BMP)

BETWEEN

1.     DR.S.SHOBHA
       W/O DR.S.JANARADHANA MURTHY
       AGED ABOUT 62 YEARS,
       R/O NO.5, 17TH MAIN
       GIRINAGAR, BENGALURU - 560 026.

2.     DR.S.RAJALAKSHMI
       D/O DR.S.JANARADHANA MURTHY
       AGED ABOUT 32 YEARS,
       R/O NO.5, 17TH MAIN,
       GIRINAGAR, BENGALURU - 560 026.

                                         ... PETITIONERS

(BY DR.S.SHOBHA, PARTY- IN- PERSON (PHYSICAL
    HEARING))

AND

1.     THE COMMISSIONER BBMP
       BRUHAT BANGALORE MAHANAGARA PALIKE
       N.R.SQUARE HEAD OFFICE
       BENGALURU - 560 002.

2.     THE ASSISTANT REVENUE OFFICER
       PADMANABHANAGAR SUB- DIVISION
       BRUHAT BANGALORE MAHANAGARA PALIKE
       CHENNAMANA ACCHUKATTU
                         2



     VIDYA PITA CRICLE
     BENGALURU - 560 019.

3.   MR.GOPI
     AGED ABOUT 72 YEARS,
     S/O KRISHNAMNAIDU
     CAUVERY NAGAR,
     NEAR KATHARIGUPPE
     BENGALURU - 560 074.

4.   THE SUB - REGISTRAR
     BASAVANAGUDI SUB - DIVISION,
     GANDHI BAZAAR MAIN ROAD,
     BENGALURU - 560 004.

     (R4 IS IMPLEADED VIDE COURT ORDER
     DATED 09.03.2020)
                                   ... RESPONDENTS

(BY SRI H.DEVENDRAPPA, ADVOCATE FOR R1 & R2
    (VIDEO CONFERENCE);
    SRI NITHYANANDA K.R., HCGP FOR R4 (PHYSICAL
    HEARING ))

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DIRECT THE RESPONDENT CORPORATION TO ISSUE THE
KHATHA IN THE NAME OF THE PETITINER NO.1; DIRECT
THE SUB-REGISTRAR BASAVANAGUDI BANGALORE TO
REGISTER PROPERTY SALE DEED/GIFT DEED.



     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 08.09.2021, COMING ON
FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :-
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                         ORDER

The petitioners are before this Court seeking a

direction to the Bruhat Bengaluru Mahanagara Palike

('BBMP' for short) to issue khata in their names in

respect of premises No.13, 22nd 'A' Main Road, Ittamadu

Village, Uttarahalli Hobli, Bangalore ('the property' for

short) and also sought a direction to the Sub-Registrar,

Basavanagudi/respondent No.4 to register the property.

2. Sans unnecessary details, the facts that are

pleaded in the writ petition and claimed by the

petitioners are as follows:-

Mother and daughter are petitioners 1 and 2

respectively. The claim of the petitioners is that they are

the owners of the property by virtue of an unregistered

sale deed and a General Power of Attorney ('GPA' for

short) as also a regularization certificate issued by the

Bangalore Development Authority on acceptance of

betterment charges and regularization charges. The

issue in the petition is non-issuance of khata by the

BBMP. Therefore, the ownership of the petitioner or

otherwise is not gone into.

3. The 1st petitioner on the strength of the

aforementioned documents/unregistered sale deed,

affidavit, GPA and regularization certificate applied to

the BBMP for issuance of khata. The application seeking

issuance of khata is acknowledged by the BBMP on

2-02-2015. Later, on 29-06-2017, an endorsement is

issued by the BBMP indicating to the 1st petitioner that

she is seeking change of khata or entry on the strength

of GPA and the BBMP having sought legal opinion in

terms of the judgment of the Apex Court in

S.L.P.No.13917 of 2009 dated 11-10-2011, khata

cannot be issued, unless the 1st petitioner gets a

declaration of title from the hands of a competent Court

and it is only thereafter, action would be taken. The 1st

petitioner after issuance of the said endorsement has

filed this petition seeking a direction to the BBMP to

issue khata.

4. Heard petitioner No.1 in person and Sri H.

Devendrappa, learned counsel appearing for respondent

Nos.1 and 2/BBMP, Sri.Nithyananda.K.R., learned High

Court Government Pleader for respondent No.4 and

Sri S.C.Vijayakumar, learned counsel appearing for the

impleading applicants.

5. The 1st petitioner submits that the BBMP is

deliberately not issuing khata in her favour and at the

same breadth has issued khata to all the houses in the

area including neighbouring houses who have applied

pursuant to certain GPA or sale deed, since at the point

in time, registration of properties which came under

Sarakki notified area were not being done.

6. On other hand, the learned counsel appearing

for BBMP would submit that no khata can be issued on

the basis of GPA, unless the petitioners produce

documents with regard to their title.

7. This Court has passed several orders in this

case. One that is germane is the order passed on

30-03-2021, which reads as follows:

"The 1st petitioner party-in-person, has taken this Court through the decision of the Hon'ble Supreme court in the case of SURAJ LAMP AND INDUSTRIES (P) LTD. TR.DIR.v.

STATE OF HARYANA in SLP No.13917 of 2009 which has, in fact, been referred by the respondent-BBMP authorities in the endorsement dated 26-09-2017 issued to the petitioners. It is pointed out from the conclusive portion of the order of the Hon'ble Supreme Court that if the entries have been made in the municipal records, they may be relied upon to apply for regularization of allotments/leases by development authorities. It was further made clear that if

the documents relating to Special Power of Attorney, General Power of Attorney transactions had been accepted and acted upon by the authorities or by Municipal or Revenue authorities to effect mutation, they need not be disturbed, merely on account of the decision rendered by the Hon'ble Supreme Court.

It is contended by the petitioner that the competent authority had passed an order on 31-10-1996 regularising the unauthorized construction by collecting penalty of Rs.6,660/- which was paid to the Government Treasury. Further, it is contended that the then Sarakki Area notified Committee had issued an endorsement following the payment of the penalty/improvement charges and thereafter entered the name of the petitioner No.1 in the khata register.

      If     that   is        the      case,     the
respondent/BBMP               authorities        are

required to furnish information as to why the name of the petitioner No.1 was

not continued in the khata register after it took over the jurisdiction from Sarakki Notified Area Committee. If similar benefit has been granted to the neighbours and other owners of the properties having continued the entry of the persons names in the khata register which was entered by the Sarakki Notified Area Committee, then the benefit should also be given to the petitioners.

Therefore, the concerned Assistant Revenue Officer of Padmanabhanagar Division, BBMP shall file an affidavit meeting the observations made hereinabove.

Re-list this matter on 06-04-2021.

A copy of this order shall be furnished to the learned counsel for the respondent/BBMP."

(Emphasis supplied)

8. The contentions of the 1st petitioner and the 2nd

respondent were noticed and directed that if it is the

case of the 1st petitioner that the competent authority

has passed an order on 31-01-1996 regularising

unauthorized constructions by collecting penalty which

was paid to the Government Treasury, the authorities of

the BBMP are required to furnish information as to why

the name of the petitioner was not continued in the

khata register after it took over the jurisdiction of

Sarakki Notified Area Committee. This Court also

noticed, if similar benefits had been granted to

neighours and other owners of the properties having

continued the entry in the names of persons in the

khata register which was entered by the Sarakki

Notified Area Committee, then that benefit should also

be given to the petitioners.

9. An affidavit was also directed to be filed by the

BBMP. Accordingly affidavit is filed by a competent

officer of the BBMP which reads as follows:-

"AFFIDAVIT I, Sri Rajkumar, S/o Babu Rao, aged about 42 years, presently discharging the duties as Assistant Revenue Officer,

Padmanabhanagar Division, B.B.M.P., Bangalore do hereby solemnly affirm and state on oath as follows:-

1. I am working as Assistant Revenue Officer, Padmanabhanagar Division, B.B.M.P., Bangalore and I know the facts and circumstances of the above case. Hence, I am swearing to this affidavit.

2. I submit that, I have read the order of the Hon'ble Court dated 30-03-2021 wherein I have been directed to file affidavit to clarify certain issues with regard to issuance of the khata in the name of the petitioner.

3. I submit that when Sarakki Notified Area came within the ambit of BBMP certain documents depicting the name of the owners as khatedars in respect of their respective sites were required to be examined.

4. I submit that as per my knowledge there are no instances where khata has been made in the name of the other owners of the

properties after taking over the jurisdiction from Sarakki Notified Area Committee.

5. I submit that the genuinity and authenticity of the documents referred by the petitioner are required to be tested after visiting the spot and also verifying the documents maintained by Sarakki Notified Area Committee.

6. I submit that there is an objection raised by one of the land owners to not to issue khata in favour of the petitioner in respect of the site which she claimed as owner.

7. I submit that after verification of all the documents including conducting of spot inspection, I need some reasonable time

Wherefore, since we have been working on this issue, I pray that some reasonable time may kindly be granted to look into the entire matter and thereby report the same to the Hon'ble Court with regard to steps that

are going to be taken by the authority in this regard.

I the deponent do hereby declare and ratify that this is my signature and the contents mentioned above paragraphs are true and correct to the best of my knowledge, belief and information."

(Emphasis added)

The affidavit which is filed pursuant to the direction of

this Court does not categorically deny that there are no

instances of khata having been issued in the names of

other owners of the properties after the BBMP took over

Sarakki Notified Area. It is also deposed that after

Sarakki Notified Area was taken over, certain

documents depicting the names of owners as khatedars

in respect of sites were required to be examined. It is

further deposed that genuinity and authenticity of

documents produced by the 1st petitioner are required

to be tested after visiting the spot and also verifying the

documents maintained by the Sarakki Notified Area

Committee.

10. Therefore, even according to the BBMP, the

endorsement issued on 29-06-2017 is not after verifying

entire records. The BBMP again on 12-04-2021 appears

to have notified the Assistant Revenue Officer of JP

Nagar to secure documents with regard to issuance of

khata in favour the petitioners of their property. It is

replied by the Assistant Revenue Officer that there are

no documents found with regard to the property of the

petitioners after a thorough search in the documents

belonging to all the properties of Sarakki Notified Area

Committee.

11. Entire properties in the Sarakki Notified Area

came within the precincts of the BBMP. It is not the

property of the petitioners alone that came within the

BBMP. If the documents of all other properties are

available, the BBMP cannot now contend that the

documents of the petitioners alone are not available

with it, after it took over Sarakki Notified Area. The

endorsement or communications that are produced

along with the statement of objections would not lend

support to the endorsement that is issued to the 1st

petitioner.

12. Yet another reason that is given by the BBMP

is that there are rival claimants as described in the

impleading application. The said impleading applicants

filed I.A.No.I/2021 seeking to come on record as party

respondents by getting themselves impleaded into these

proceedings. The objectors to the issuance of khatha

and the impleading application that is filed is on the

strength of a particular sale deed dated 6-07-1981.

After about 40 years, on 19-12-2020, the said

impleading applicants give a complaint to the BBMP not

to issue khata as they are in possession of a particular

sale deed mentioned (supra). Therefore, the impleading

applicants have no right to come into these proceedings

for consideration in respect of issuance of khata in

favour of the petitioners, unless they establish their

independent right before a competent civil Court as they

have emerged after 40 years of a particular sale deed

dated 6.07.1981. Hence, their impleading application

deserves to the rejected. The impediment projected by

the BBMP on the basis of the rival claim can be no

impediment in the eye of law.

13. Insofar as issuance of khata in favour of the

petitioners in terms of what the 1st petitioner has

applied is concerned, if all documents of properties

which were taken over from Sarakki Notified Area are

available, it cannot be said that papers of the petitioners

alone are not available or traceable. On this ground,

the BBMP cannot deny consideration of the case of the

1st petitioner for issuance of khata concerning the

property of the petitioners. It would also be open to the

1st petitioner to produce all such documents in her

possession, which would enure to the consideration of

the BBMP for issuance of khata.

14. For the aforesaid reasons, I pass the following:

ORDER

(i) The Writ Petition is disposed, with a direction to the BBMP to reconsider the case of the petitioners for issuance of khata in their favour, on the materials that are produced or further materials that would be produced by them, in accordance with law.

(ii) The aforesaid exercise of consideration in respect of issuance of khata in favour of the petitioners shall be complied with by the BBMP within three months' from the date of receipt of a copy of this order.

(iii) I.A.No.1/2021 filed for impleading the applicants is rejected.

In view of the disposal of the Writ Petition, all

other pending applications, except I.A.No.1/2021

rejected hereinabove, do not survive for consideration

and accordingly, stands disposed.

Sd/-

JUDGE

bkp CT:MJ