Mr Arun Kumar Chinnappa vs Bruhat Bangalore Mahanagara ...
2022 Latest Caselaw 2868 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 21ST DAY OF FEBRUARY, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

          WRIT PETITION NO.28277 OF 2018 (LB-BMP)

BETWEEN:

  1. MR ARUN KUMAR CHINNAPPA
     SON OF LATE PAUL S CHINNAPPA,
     AGED ABOUT 66 YEARS,
     (SENIOR CITIZEN NOT CLAIMED)

  2. MR CHANDRA KUMAR CHINNAPPA
     SON OF LATE PAUL S CHINNAPPA,
     AGED ABOUT 64 YEARS,
     (SENIOR CITIZEN NOT CLAIMED)

  3. MRS GRACE VINODHINI @ AMLU UDAYANA
     DAUGHTER OF LATE PAUL S CHINNAPPA,
     AGED ABOUT 59 YEARS,

       ALL RESIDING AT NO.94,
       2ND MAIN, PAUL CHINNAPPA LAYOUT,
       BIKASHIPURA,
       KUMARASWAMY LAYOUT POST OFFICE,
       BENGALURU-560 111.           ...PETITIONERS

(BY SRI M.B.ANIRUDH, ADVOCATE FOR
 M/S DUA ASSOCIATES)

AND:

  1. BRUHAT BANGALORE MAHANAGARA PALIKE (BBMP)
     REPRESENTED BY ITS COMMISSIONER
     BBMP HEAD OFFICE, CORPORATION CIRCLE,
     HUDSON CIRCLE, BANGALORE-560 002
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  2. JOINT COMMISSIONER
     BRUHAT BANGALORE MAHANAGARA PALIKE (BBMP)
     BOMMANAHALLI ZONE,
     2ND FLOOR, BEGUR ROAD,
     BOMMANAHALLI,
     BENGALURU - 560 068.

  3. ASSISTANT REVENUE OFFICER
     YELACHENAHALLI SUB DIVISION (WARD NO.185)
     RBI LAYOUT, BANGALURU-560078

  4. RICHARDS S J
     S/O LATE MR.R.H. JAYANATHAN
     MAJOR,
     NO.23, 5TH CROSS, B.O.B COLONY,
     PUTTENAHALLI, J.P.NAGAR, 7TH PHASE,
     BENGALURU-560078
     ALSO AT
     NO.1A, 1ST MAIN ROAD,
     3RD CROSS, K.R.LAYOUT,
     J.P.NAGARA 6TH PHASE,
     BENGALURU-560 078.                  ...RESPONDENTS

(BY SRI H DEVENDRAPPA, ADVOCATE FOR R1, R2 AND R3,
 SRI CHIKKANAGOUDAR L.S, ADVOCATE FOR C/R4 )
                         ----
      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH AND
SET ASIDE THE ORDER DATED 21.6.2018 PASSED BY R-2 IN
REVIEW PETITION NO. 849/2016-2017 VIDE ANNEX-A.

     THIS WRIT PETITION COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

The registered sale deed was executed on 30.11.1954 by

Mr.F C Hay in favor of Sri P S Chinnappa and Smt.D A Sumitra in

respect of property bearing Sy.Nos.1, 2 and 8 measuring 103

acres 19 guntas situated at Bikasipur Uttarahalli Hobli,

Bangalore South Taluk. Thereafter, they formed a residential

layout and many sites formed in the said layout were alienated in

favour of third parties. Since there was interference from

Smt.Lalitha Joyce Prabhakar, the petitioners and their mother

filed OS No.4823/1996 before the jurisdictional Civil Court for

declaration and injunction. The jurisdictional Civil Court vide

judgment and decree dated 19.11.2005 decreed the suit

declaring that the plaintiffs are absolute owners of the property

in Sy.No.208 having katha No.329, House List No.365 together

with Mangalore tiled roof house and trees standing thereon in all

measuring 275+245/2 x 118+186/2 situated at Bikasipura

village (being portion of Sy.No.1), Uttarahalli Hobli,

Subramanyapura Post, Bangalore South Taluk, Bangalore.

2. It is undisputed that the said decree has attained

finality. In pursuance of the decree passed by the Civil Court,

the petitioners submitted an application with the respondent -

BBMP so as to register katha in their favour in respect of the

property in question.

3. The respondent - BBMP in pursuance of the

application submitted by the petitioners registered the katha in

favour of the petitioners. However, a portion being property in

Sy.No.1 was not reflected in the katha. The 4th respondent

claiming to be the owner to an extent of 2 acres in Sy.No.2 filed

a petition under Section 114-A of the Karnataka Municipal

Corporation Act, 1976 (for short `Act') for setting aside the katha

registered in favour of the petitioners on the ground that the

petitioners by taking undue advantage of the katha registered in

their favour are claiming the property belonging to the 4th

respondent. The 2nd respondent after holding an enquiry passed

the impugned order setting aside the katha registered in favour

of the petitioners on the ground that the property claimed by the

petitioners falls in Sy.No.2, which belongs to the 4th respondent.

Being aggrieved by the same, this writ petition is filed.

4. Learned counsel appearing for the petitioners submits

that the 2nd respondent has exceeded his power conferred under

Section 114-A of the Act by holding that the property claimed by

the petitioners belongs to the 4th respondent. He further

submits that in the absence of necessary ingredients so as to

attract Section 114-A of the Act, the impugned order passed by

the 2nd respondent is not sustainable in law. He further submits

that the impugned order passed by the 2nd respondent is

contrary to the decree passed by the jurisdictional Civil Court

which has attained finality in OS No.4823/1996.

5. On the other hand, learned counsel appearing for the

4th respondent submits that by virtue of the registered sale deed

dated 10.10.1997, the 4th respondent is the owner in possession

of 2 acres of land in Sy.No.2 of Bikasipura. He further submits

that by taking undue advantage of the katha registered, the

petitioners are interfering with the possession of the 4th

respondent in Sy.No.2 measuring 2 acres of land and the 2nd

respondent after examining the material on record has rightly

held that the property claimed by the petitioner falls in Sy.No.2,

which belongs to the respondent No.4.

6. I have considered the submissions of the learned

counsel for the parties.

7. The impugned order is passed by the 2nd respondent

by exercising power under Section 114-A of the Act, which reads

thus:

"114-A. Review by the Commissioner.- Where the Commissioner, either suo motu or otherwise, after such enquiry as he considers necessary is satisfied that any transfer of title under Section 114 was got recorded in the Corporation register by fraud, misrepresentation, or suppression of facts or by furnishing false, incorrect or incomplete material, he may within a period of three years from the date of such recording of transfer of title reopen the case and pass such order with respect thereto as he thinks fit:

Provided that no such order shall be made except after giving the person likely to be affected thereby a reasonable opportunity of being heard."

8. A perusal of Section 114-A of the Act indicates that

the Commissioner may set aside the katha registered if he is

satisfied that katha was registered by fraud, misrepresentation,

or suppression of facts or by furnishing false, incorrect or

incomplete material. In the present case, the petitioners are

claiming to be the owners of property in question which falls in

Sy.No.1. The katha was registered in favour of the petitioners

without reflecting that the property falls in Sy.No.1. The decree

passed by the jurisdictional Civil Court clearly indicates that the

property in question falls in Sy.No.1. The 4th respondent is

claiming to be the owner of 2 acres of land in Sy.No.2. However,

the 2nd respondent exceeded his power conferred under Section

114-A of the Act by holding that the property in question falls in

Sy.No.2 which is beyond the scope of proceeding under Section

114-A of the Act since the proceedings under section 114 and

114-A of the Act do not empower the concerned authority to

determine the rights of the parties over an immovable property.

9. The grievance of the 4th respondent is that the

petitioners by virtue of the katha registered in their favour are

claiming right over the property belonging to the 4th respondent

and the same can be redressed by confining the katha registered

in favour of the petitioners in respect of the property in question

by reflecting that the said property falls in Sy.No.1 of Bikasipura

Village. The petitioners are entitled for registering the katha in

respect of the property over which, they have been declared that

they are in possession of the same in OS No.4823/1996.

10. Learned counsel for the 4th respondent has no

objection for registering the katha in respect of the property in

question by reflecting that the same falls in Sy.No.1.

11. In view of the preceding analysis, I am of the

considered opinion that the impugned order passed by the 2nd

respondent is not sustainable in law. Accordingly, I pass the

following:

ORDER

i) Writ petition is allowed.

ii) The impugned order dated 21.6.2018 passed by the

2nd respondent in Review Petition No.849/2016-2017 vide

Annexure-A is hereby quashed;

iii) Respondents No.2 and 3 are hereby directed to

register the katha in favour of the petitioners in respect of

property bearing No.208 having katha No.329, House list No.365,

together with Mangalore tiled roof house and trees standing

thereon in all measuring 275+245/2 x 118+186/2 situated at

Bikasipura village, Uttarahalli Hobli, Subramanyapura Post,

Bangalore South Taluk, Bangalore, (being portion of Sy.No.1)

within a period of two months from the date of receipt of certified

copy of this order.

If there is any dispute with regard to the identity of the

property, the parties are at liberty to approach the competent

Civil Court to adjudicate the same.

Sd/-

JUDGE

BKM