Karnataka High Court

Sri N Kumar vs The Commissioner on 8 July, 2022

Bench: Acting Chief Justice, J.M.Khazi

                           1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 8TH DAY OF JULY 2022

                       PRESENT

            THE HON'BLE MR. ALOK ARADHE
                ACTING CHIEF JUSTICE

                         AND

          THE HON'BLE MS.JUSTICE J.M. KHAZI

             W.A. NO.3643 OF 2019 (LB-BMP)
                           IN
             W.P.No.26795 OF 2018 (LB-BMP)

BETWEEN:

SRI. N. KUMAR
S/O LATE D.A. NAGAPPA
AGED ABOUT 41 YEARS
R/AT NO.54, 2ND FLOOR
15TH CROSS, ESHWARA LAYOUT
INDIRANAGAR II STAGE
BANGALORE-560038.
                                         ... APPELLANT

(BY MR. D.R. RAVISHANKAR, SR. COUNSEL FOR
    MR. SARAVANA S. ADV.,)

AND:

1.     THE COMMISSIONER
       BRUHAT BANGALORE MAHANAGARA PALIKE
       HUDSON CIRCLE, BANGALORE-560002
       REPRESENTED BY ITS COMMISSIONER.

2.     THE ASSISTANT REVENUE OFFICER
       BYATARAYANAPURA SUB DIVISION
       YELAHANKA ZONE
                            2



    BRUHATH BANGALORE MAHANAGARA PALIKE
    THANISANDRA, BANGALORE-560077.

                                   ... RESPONDENTS

(BY MR. K.N. PUTTE GOWDA, ADV., FOR R1 & R2)
                         ---

     THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDERS PASSED BY THE LEARNED SINGLE JUDGE IN WP
NO.26795/18 DATED 13/08/2019 TO THE EXTENT IT
DIRECTS THE CONSIDERATION OF THE PETITIONER'S
REQUEST FOR CHANGE OF KATHA IN ACCORDANCE WITH
LAW FROM THE DATE OF ADDITIONAL REPRESENTATION.
DIRECT THE RESPONDENTS TO MAKE OUT KATHA IN
RESPECT    OF  12.34   GUNTAS   IN  SY.NO.108   OF
THIRUMENAHALLI     VILLAGE,   YELAHANKA      HOBLI,
BANGALORE NORTH TALUK, WITHIN A TIME STIPULATED BY
THIS HON BLE COURT.

     THIS W.A. COMING ON FOR PRELIMINARY HEARING,
THIS DAY,   ACTING CHIEF JUSTICE   DELIVERED THE
FOLLOWING:

                      JUDGMENT

This intra court appeal has been filed against the

order dated 13.08.2019 passed by the learned Single

Judge, by which the impugned endorsement dated

15.03.2018 issued by the Assistant Revenue Officer,

BBMP has been quashed on the ground that the same

is contrary to the principles of natural justice and the

matter has been remitted to the Assistant Revenue

Officer, BBMP to decide the additional representation

submitted by the appellant within two weeks.

2. Facts giving rise to filing of this appeal

briefly stated are that the appellant is the owner of

land bearing Sy.No.106/2 situate at Thirumenahalli

Village, Yelahanka Hobli, Bangalore North Taluk. The

land bearing Sy.No.108 is adjoining land. The

neighbour of the appellant wanted a 40 feet passage

to his land, which the appellant provided from his

land. In lieu thereof, by a registered exchange deed

dated 09.07.2014, an area marked with letters EFGH

in the map appended to Annexure-E was given to the

petitioner. The aforesaid land was a part of the

converted land.

3. The appellant submitted a representation

for change of Khatha. However, the prayer made by

the petitioner was not acceded to. The land marked

with letters EFGH is a converted land and is within

the BBMP limits. Therefore, the appellant submitted

an application for change of Khatha. By endorsement

dated 21.05.2016, the appellant was informed that

unless he secures the permission from the Local

Planning Authority, the khatha cannot be mutated in

his name. The aforesaid endorsement was challenged

by him in a writ petition viz., W.P.No.23390/2017,

which was disposed of with a direction to raise all

contentions before the competent statutory authority.

4. Thereafter, order dated 17.07.2017 was

passed by Assistant Revenue Officer of BBMP holding

that division of Khatha requires sanction by zonal

committee. Thereafter, the representation submitted

by the appellant was rejected by an endorsement

dated 15.03.2018. The appellant challenged the

aforesaid endorsement in a writ petition viz.,

W.P.No.26795/2018 and the matter was settled before

the Lok Adalath before which the Assistant

Commissioner, BBMP agreed that the representation

submitted by the appellant shall be considered within

six weeks and Khatha will be issued within a period of

six weeks. However, the aforesaid order was not

complied with and W.P.No.26795/2018 was restored.

5. The learned Single Judge by an order dated

13.08.2019 quashed the endorsement dated

15.03.2018 and directed the Assistant Commissioner

to re-consider the case afresh and pass orders within

two months. The aforesaid order has been

challenged by the appellant in this intra court appeal.

Admittedly, in compliance of the order passed by the

learned Single Judge, a fresh order has been passed

by the Assistant Commissioner on 12.11.2019, which

has also been challenged in this intra court appeal by

way of an amendment.

6. Learned counsel for the petitioner

submitted that the petitioner is before this court in

third round of litigation seeking change of Khatha on

the basis of registered exchange deed. It is further

submitted that the appellant does not want to sub

divide his plot for layout and therefore, the

requirement of preparing the layout plan and getting

the approval of the same from town planning

committee does not arise. It is submitted that on the

basis of a registered document in respect of land in

question, the BBMP is required to change the khatha

in favour of the appellant.

7. On the other hand, learned counsel for the

respondent submitted that since, a fresh cause of

action has accrued to the appellant, therefore, he

should file a fresh petition and the challenge to the

validity of the order passed by the Assistant

Commissioner, BBMP on 12.11.2019 cannot be made

in this writ appeal.

8. We have considered the submissions made

on both sides and have perused the record.

Admittedly, the land marked with letters 'EFGH' in the

map appended to Annexure-E has been transferred in

favour of the appellant by a registered exchange deed

dated 09.07.2014. The validity of the aforesaid

registered agreement is not under challenge in this

proceeding. The aforesaid land forms part of a

converted land and is situate within the limits of

BBMP. In pursuance of the order passed by the

learned Single Judge, the request of the petitioner for

change of Khatha has been rejected in the light of

Section 17 of the Karnataka Town and Country

Planning Act, 1961. The aforesaid provision has been

amended by an amending Act No.38/15 and has come

into force with effect from 10.09.2015. The aforesaid

amendment in the provision has not been taken note

of by the Assistant Commissioner. The amended

provision reads as under:

17. Sanction for sub-division of plot or lay-out of private street

(1) Every person who intends to sub- divide his plot or make or lay-out a private street on or after the date of the publication of the declaration of intention to prepare the outline development plan under sub-section (1) of section 10, shall submit the lay-out plan together with the prescribed particulars to the Planning Authority for sanction.

Thus, the requirement of approval from the

competent authority under the Town and Country

Planning Act applies to a person who intends to sub

divide his plot or make a layout. The appellant is

neither seeking to sub divide his plot nor is he a

person who intends to make a layout. Therefore, the

requirement contained in Section 17(1) of the Act does

not apply to the case of the appellant. In the peculiar

facts of the case, taking into account the fact that the

appellant is before us in third round of litigation

requesting change in khatha, we are not inclined to

relegate the appellant to another round of litigation.