Sri Basavapurnaiah vs The Joint Commissioner
2022 Latest Caselaw 5302 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF MARCH, 2022

                         BEFORE

       THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

       WRIT PETITION NO.6405 OF 2011(LB-BMP)

BETWEEN:

1. SRI BASAVAPURNAIAH,
   S/O LATE BRAHMAIAH,
   SINCE DECEASED PETITIONER NO.1
   REPRESENTED BY LRS P2 & P3
   AMENDED V.C.O DATED 09.08.2017

2. DR(SMT) PADMAVATHI,
   AGED ABOUT 49 YEARS,
   W/O DR. P RAJAMOHAN RAO,

3. DR.P RAJAMOHAN RAO,
   AGED ABOUT 59 YEARS,
   S/O LATE P VENKATAKRISHNA RAO,

  PETITIONERS NO 1 TO 3 ARE
  RESIDING AT 147/148, INNER CIRCLE,
  WHITEFIELD, BANGALORE - 560 066.
                                         ...PETITIONERS
(BY SRI. ABHINAV R, ADVOCATE)

AND:

1. THE JOINT COMMISSIONER,
   MAHADEVAPURA ZONE,
   BRUHAT BANGALORE MAHANAGARA PALIKE,
   MAHADEVAPURA, BANGALORE - 560 048.
2. THE COMMISSIONER,
   MAHADEVAPURA C M C,
                                   2



  HOODI, BANGALORE - 560 048.

3. SRI.N BASAVARAJ,
   AGED ABOUT 58 YEARS,
   EDITOR, SHALINIVANI PAPER,
   NO.49/A, IMMADIHALLI MAIN ROAD,
   WHITEFIELD, BANGALORE - 560 066.

4. SMT. SUJATHA NAGESH,
   AGED ABOUT 33 YEARS,
   W/O T NAGESH,
   EX-VICE-PRESIDENT,
   MAHADEVAPURA C M C,
   RESIDENT OF MALLOORHALLI VILLAGE,
   K R PURAM HOBLI,
   BANGALORE EAST TALUK,
   BANGALORE.

5. SRI.B KRISHNAPPA,
   AGED ABOUT 48 YEARS,
   S/O BYRAPPA,
   RESIDENT OF PATTANDUR AGRAHARA
   VILLAGE, K R PURAM HOBLI,
   BANGALORE EAST TALUK,
   BANGALORE.
                                            ...RESPONDENTS
(BY SMT. SUMANGALA SIMIMATH, ADVOCATE FOR R1 & R2;
    SRI. B N PUTTALINGAIAH, ADVOCATE FOR R3-R5)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
PASSED    BY   THE   1ST   RESPONDENT     DATED   14.01.2011    AT
ANNEXURE-K TO THE WRIT PETITION.


     THIS PETITION COMING ON FOR FINAL HEARING THROUGH
VIDEO    CONFERENCING,     THIS   DAY,   THE   COURT   MADE    THE
FOLLOWING:-
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                               ORDER

This petition seeks to lay a challenge to the order dated

14.1.2011 made by the first respondent at Annexure-K whereby,

the name of petitioners having been deleted from the khata, the

name of one Mr.Malcolm Yaull is directed to be entered to the

property records. After service of notice, the respondents having

entered appearance through their counsel have filed separate

Statements of Objections, resisting the Writ Petition.

2. When this old matter was taken up for hearing, the

Advocates appearing for the respondents have remained absent

even when it was passed over in the first instance and taken up in

the next. However, absence of counsel cannot deter the court from

adjudging the cause brought before it, in accordance with law.

3. Having heard the learned counsel for the petitioners and

having perused the Petition Papers, this Court is inclined to grant

indulgence in the matter for the following reasons:

(a) Petitioners apparently acquired title to these properties

by virtue of three registered Sale Deeds, all dated 20.12.2001,

copies whereof are at Annexures-B, B1 & B2. Pursuant to them,

there was transfer of khata and accordingly, khata endorsement

came to be issued at Annexures-C, C1 & C2, all dated 23.9.2002

wherein, the names of respective petitioners have been reflected.

(b) There was a civil dispute in O.S.No.146/2003 filed by

one M/s S.N.Vidya Mandir wherein petitioners happened to be

defendant Nos.2, 3 & 4. Suit related to a portion of the petition

property and it came to be decreed vide judgment & decree dated

3.8.2004 founded on a Compromise. There are observations in the

said judgment affirming the title & possession of petitioners on the

basis of aforesaid sale deeds.

(c) Very strangely, the contesting private respondents had

filed Municipal Review No.10/2007-08 seeking revocation of

petitioners' khata. It was filed u/s 322 of the Karnataka Municipal

Corporations Act, 1976. The same having been favoured by the

impugned order, the petitioners are finding fault with same

justifiably inasmuch as the person who is said to have given the

Power of Attorney on which sales were made, was not the Review

Petitioner. The private respondents do not have prima facie anything

to do with the subject property. Ordinarily, the review jurisdiction

vested in statutory authorities cannot be invoked by persons who do

not have litigable interest, as is the case here.

(d) The above apart, there are three registered Sale Deeds

as already mentioned. The Apex Court in PREM SINGH VS.

BIRBAL, (2006) 5 SCC 353 has held that such sale deeds have

presumptive value and there is no material produced either before

this court or before the official respondents to dislodge such a

presumption that too at the instance of third parties. In the fitness

of things, the official respondent ought to have relegated the private

respondents to civil dispute. This having not been done, there is an

accumulated error apparent on the face of the record.

(e) It is relevant to mention that the transfer of khata made

in favour of petitioners was subject to outcome of the pending suit

and now that the suit having been disposed off with findings

favourable to the petitioners, the khata could not have been

rescinded. The disposal of suit in fact has removed the clog which

arguably was hanging on the head of petitioners.

In the above circumstances, this Writ Petition succeeds; a Writ

of Certiorari issues quashing the impugned order; a direction issues

to the first respondent to restore the khata as before in favour of

the petitioners subject to they paying all & whatever taxes that have

accrued due. Time for compliance is eight weeks.

If delay is brooked, the concerned officer shall be personally

liable to pay a cost of Rs.1,000/- per day to each of the petitioners

from his pocket.

Now, no costs.

Sd/-

JUDGE

cbc