Karnataka High Court
Sri M Dalichand vs The Deputy Commissioner on 5 July, 2024
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WP No. 3898 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
WRIT PETITION NO.3898 OF 2024 (KLR-RES)
BETWEEN:
SRI. M. DALICHAND
S/O LATE J MITHALAL JAIN
AGED ABOUT 55 YEARS,
RESIDING AT NO.45/4
CASTLE STREET,
ASHOK NAGAR,
BANGALORE-560025.
...PETITIONER
(BY SRI. K.N. PHANINDRA, SENIOR COUNSEL FOR
SRI. SAMMITH S., ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER
BANGALORE URBAN DISTRICT,
Digitally signed by KANDHAYA BHAVAN,
ARUNKUMAR M S
Location: High BANGALORE-560009.
Court of Karnataka
2. THE TAHSILDAR
BANGALORE EAST TALUK,
K.R PURAM,
BANGALORE-560036.
3. SRI. RAJAGOPALA REDDY
S/O LATE E. SHANKARAPPA REDDY,
AGED ABOUT 76 YEARS,
RESIDENT OF NO. 3,
SRI. E. SHANKARAPPA REDDY GARDEN,
BESIDES TATA SHERWOOD APARTMENTS,
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WP No. 3898 of 2024
BASAVANAGARA, MARATHHALLI POST,
BANGALORE-560037,
4. SRI. S. NAGARAJA REDDY
S/O LATE E SHANKARAPPA REDDY,
AGED ABOUT 71 YEARS,
RESIDING AT NO. 3, LAKSHMI NILAYA,
5TH CROSS, VEERABHADRANAGARA,
1ST STAGE, MARATHHALLI POST,
BANGALORE-560037.
5. SRI. S. CHANDRASHEKARA REDDY
S/O LATE SRI E SHANKARAPPA REDDY,
AGED ABOUT 38 YEARS,
RESIDENT OF NO. 3,
SRI E SHANKARAPPA REDDY GARDEN,
BESIDES TATA SHERWOOD APARTMENTS,
BASAVANAGARA,MARATHHALLI POST,
BANGALORE-560037.
6. SRI. S. VIJAYARAGHAVA REDDY
S/O LATE SRI E SHANKARAPPA REDDY,
AGED ABOUT 64 YEARS,
RESIDENT OF NO. 153,
JAYASHANAKARA DREAM MEADOWS,
KUNDALAHALLI POST,
BEHIND RYAN INTERNATIONAL SCHOOL
BANGALORE-560037.
...RESPONDENTS
(BY SMT. B.P. RADHA, AGA FOR R1 AND R2;
SRI.S. SREEVATSA, SENIOR COUNSEL FOR
SMT. UDITA RAMESH, ADVOCATE FOR R3 TO R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE OFFICIAL NOTIFICATION DATED 30/01/2021
BEARING NO.ULC/CR/62/18-19 ISSUED BY THE RESPONDENT
NO.1 AS CONTAINED IN ANNEXURE-L AS ILLEGAL AND VOID
AND ETC.
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WP No. 3898 of 2024
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. In this writ petition, petitioner is assailing official
Notification dated 30.01.2021 issued by the respondent No.1
(Annexure-L), inter alia sought for a direction to the respondent
Nos.1 and 2 to effect the name of the petitioner in the revenue
entries in respect of the subject matter land as well as consider
the representations dated 23.08.2023 and 16.10.2023
(Annexures-"S and T" respectively).
2. Facts in nutshell in this writ petition are that, the
petitioner has stated that the father of the petitioner had
purchased land to an extent of 8 acres 10 guntas in various Sy.
Nos.148/1, 12/1, 12/4, 12/5 and 12/6 of Vibhutipura Village,
Bengaluru South Taluk, as per registered Sale Deed dated
dated 18.01.1964 (Annexure-A). It is stated in the Writ
Petition that one J. Mithalal Jain had filed declaration before the
Spl. Deputy Commissioner, Urban Land Ceiling, Bangalore,
declaring that the lands are held by him under the provisions of
the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter
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referred to as 'the Act'). The competent authority has initiated
proceedings against the father of the petitioner under S.8(4) of
the Act and passed the order dated 05.04.1983 and ordered for
forfeiting the excess vacant land measuring 32,385 Sq. Meters
held by the father of the petitioner as per Annexure-B. It is
further stated in the Writ Petition that the RTC entries were
changed in the name of the Government in so far as the excess
land is concerned. It is further stated in the Writ Petition that
the father of respondent Nos.3 to 6 - E. Shankarappa Reddy
had filed W.P. No.21898/1986 before this Court challenging the
order dated 05.04.1983 (Annexure-B) on the ground that the
said order has been passed without giving notice to him.
During the interregnum period, father of the petitioner died on
28.05.1994 and as such, petitioner has succeeded to the estate
of the deceased. It is further averred in the Writ Petition that
this Court in W.P. No.21898/1986 relegated the father of the
respondent Nos.3 to 6 to approach the Karnataka Appellate
Tribunal for redressal of grievances as per order dated
29.06.1999 (Annexure-F). Pursuant to the same, father of the
respondent Nos.3 to 6 filed Appeal No.8/1999 before the
Karnataka Appellate Tribunal and the Tribunal, by Order dated
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08.09.1999, rejected the Appeal on the ground of
maintainability in view of repeal of the Act, as per Annexure-G
to the Writ Petition. It is also stated by the petitioner that, the
respondent Nos.3 to 6 had filed Appeal (Annexure-H) before
the respondent No.2 seeking restoration of entries in the
revenue records in view of repeal of the Act, and as such, the
respondent No.2, forwarded the report to the respondent No.1
as per Annexures- "J and K". The respondent No.1, based on
the report made by the respondent No.2, has passed
Notification dated 30.01.2021 directing the respondent No.2 to
remove the name of the 'Government' in the revenue extracts
and transfer the RTC into the name of the father of the
respondent Nos.3 to 6 (Annexure-L). In furtherance of the
same, mutation has been changed by deleting 'Government'
from the RTC as per Annexures- "N, P, Q and R" respectively.
Thereafter, the petitioner has made a representation to the
respondent No.2 to cancel the revenue entries made in respect
of the respondent Nos.3 to 6 as per the representations dated
23.08.2023 and 16.10.2023 (Annexure- S and T respectively).
In furtherance of the same, the respondent No.1, by
communication dated 18.10.2023, directed the respondent
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No.2 to conduct spot inspection and to file report regarding the
status of the land in Sy. No.12/4 and 12/6 (Annexure-U). In
furtherance of the same, a report was made by the respondent
No.2 on 17.11.2023 (Annexure-Y). Despite the report has
been filed by respondent No.2, respondent No.1 has not taken
any decision in the matter and as such, the petitioner has
presented this Writ Petition, seeking direction to respondent to
consider the representations at Annexures - "S and T"
respectively. It is also the grievance of the petitioner that the
impugned order dated 30.01.2021 (Annexure-L) has been
passed by respondent No.1 directing the respondent No.2 to
reflect the name of the contesting respondents in the revenue
records is contrary to law and as such, the said order at
Annexure-L is challenged in this Writ Petition.
3. I have heard Sri. K.N. Phanindra, learned Senior Counsel
appearing on behalf of Sri. Sammith S., learned counsel for the
petitioner and Sri. S. Sreevatsa, learned Senior Counsel
appearing on behalf of Smt. Udita Ramesh, learned counsel for
respondent Nos.3 to 6, and Smt. B.P. Radha, learned Additional
Government Advocate appearing for respondent Nos.1 and 2.
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4. Learned Senior Counsel appearing for the petitioner drew
the attention of the Court to the sale deeds executed by father
of respondent Nos.3 to 6 at Annexure-A and contended that,
the father of respondent Nos.3 to 6 has sold the entire subject
land in favour of the father of the petitioner herein and
therefore, neither the father of respondent Nos.3 to 6 nor the
respondent Nos.3 to 6 have any right, title or interest over the
property in question. He also submitted that, in view of the
proceedings under Section 8(4) of the Act, it is held that the
father of the petitioner had held excess vacant land to an
extent of 35,285 sq. meters, however, the possession of the
land in question is with the petitioner and the respondent-
authorities have not taken back the excess land from the
petitioner. He further contended that, the revenue records,
though stand in the name of father of respondent Nos.3 to 6
however, in view of the sale deed executed at Annexure-A,
neither father of respondent Nos.3 to 6 nor respondent Nos.3
to 6 have interest over the property in question. He also drew
attention to the report at Annexure-V and argued that the
Government has not taken possession of the land in question in
furtherance of the order dated 05.04.1983 (Annexure-B). It is
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also contended by the learned Senior Counsel that, in terms of
S.10(3) of the Act, if the respondent - authorities fail to take
possession in respect of the excess lands in question, same
shall be made retained by the owner of the land in question and
therefore, the said aspect has been brushed aside by the
respondent No.1 while issuing the Notification dated
30.01.2021 (Annexure-L) and therefore, sought for interference
of this Court.
5. Per contra, Sri. S. Sreevatsa, learned Senior Counsel
appearing for the respondent Nos.3 to 6, contended that the
sale deed dated 18.01.1964 said to have been executed by the
father of the respondent Nos.3 to 6 in favour of father of the
petitioner is only a nominal sale deed for a consideration of
Rs.4,000/- and the said sale deed has been executed by the
father of respondent Nos.3 to 6 for securing loan of Rs.4,000/-
and in that context, the aforementioned sale deed has been
executed. Hence, learned Senior Counsel for respondent Nos.3
to 6 disputes the title of the petitioner. It is also argued by the
learned Senior Counsel that, though the above sale deed has
been executed on 18.01.1964, same has not been acted upon
and entire RTC extracts stand in the name of the father of the
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respondent Nos.3 to 6. He also submitted that, father of the
respondent Nos.3 to 6 - E. Shankarappa had filed declaration
under Section 6(1) of the Act as per document No.3 and the
competent authority has not clubbed the application filed by the
father of respondent Nos.3 to 6 along with the application filed
by the father of the petitioner. Learned Senior Counsel further
contended that, the proceedings before the competent
authority at Annexure-B to the Writ Petition is behind the back
of the father of the respondent Nos.3 to 6. Learned Senior
Counsel for the respondent Nos.3 to 6 further pleaded that, the
father of the respondent Nos.3 to 6 has challenged the Order
dated 05.04.1983 (document-B) before this Court in W.P.
No.21898/1986, however, this Court, on the ground of
alternative remedy, relegated the father of the respondent
Nos.3 to 6 to approach the Karnataka Appellate Tribunal. In
furtherance of the same, father of the respondent Nos.3 to 6
has filed Appeal No.8/1999 before the Karnataka Appellate
Tribunal, Bangalore, however, on account of repealing of the
Act as per the Repeal Act dated 26.07.1999, the Appeal was
disposed of as not maintainable. It is further submission of the
learned Senior Counsel that the father of the respondent Nos.3
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to 6 had approached respondent No.1, seeking restoration of
the entries in the RTC as per document No.10, however, same
has not been considered and as such, the respondent Nos.3 to
6 have filed application before respondent No.2 for restoration
of entries in the RTC extracts. It is further contended that,
report has been sought from the Village Accountant and
Revenue Inspector by the respondent No.1 and based on the
report made by the Village Accountant and Revenue Inspector,
impugned order dated 30.01.2021 has been rightly passed
which cannot be interfered with in this writ petition. It is also
contended by the learned Senior Counsel that subject matter -
land has been converted and sites have been formed. He also
contended that suits are pending consideration before the Civil
Court with regard to the title to the land in question and
therefore, it is the submission of the learned Senior Counsel
that the contentions raised by the petitioner cannot be
accepted in view of disputed questions of fact and same cannot
be adjudicated by the revenue authorities.
6. Learned Additional Government Advocate sought to
justify the impugned order.
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7. In the light of the submissions made by the learned
counsel appearing for the parties, on careful examination of the
writ papers would indicate that, the land in question has been
purchased by the father of the petitioner as per registered Sale
Deed dated 18.01.1964(Annexure-A). It is not in dispute with
regard to the fact that neither the father of the respondent
Nos.3 to 6 nor respondent Nos.3 to 6 have challenged the
aforementioned sale deed, seeking cancellation of the said sale
deed before the competent civil court, in a manner known to
law. In this regard, it is relevant to cite the Judgment of the
Hon'ble Supreme Court in the case of VIMAL CHAND
GHEVARCHAND JAIN AND OTHERS Vs. RAMAKANT EKNATH
JADOO reported in (2009) 5 SCC 713. Therein, at paragraph
Nos.31 to 37 it is held as below:
"31. Indisputably when a true character of a document is
questioned, extrinsic evidence by way of oral evidence is
admissible. {See R. Janakiraman Vs. State Rep. by
Inspector of Police, CBI, SPE, Madras (2006) 1 SCC 697
para 24]; Roop Kumar Vs. Mohan Thedani [(2003) 6 SCC
595, para 19]; and State Bank of India & Anr. Vs. Mula
Sahakari Sakhar Karkhana Ltd. [(2006) 6 SCC 293 paras
23 to 32]}. We would, therefore, proceed on the premise
that it was open to the respondent to adduce oral
evidence in regard to the nature of the document. But, in
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our opinion, he did not discharge the burden of proof in
respect thereof which was on him. The document in
question was not only a registered one but also the title
deeds in respect of the properties have also been handed
over. Symbolical possession if not actual physical
possession, thus, must be held to have been handed over.
It was acted upon. The appellants started paying rent in
respect of the said property. No objection thereto has
been raised by the respondent.
32. The respondent paid certain amount by cheque
towards the licence fee. It was for him to show on what
account the money was paid. Only because the parties
had other transactions by itself was not sufficient to hold
that the defendant has discharged his onus. If the sum of
Rs.50,000/- was the amount of loan wherefor the deed of
sale was executed by way of security, having regard to
his admission that the firm is an income-tax payee and
maintains books of account in regular course of business,
failure on his part to produce any documentary evidence
merited drawing of an adverse inference. Why did he not
examine himself before the trial court or before the
appellate court? He should have furnished an explanation
in this regard to prove his plea. Why he failed to produce
documentary evidence had also not been explained.
33. The approach of the first appellant court in relying
upon certain circumstantial evidence was also of no use.
Why the plaintiffs have purchased the properties at village
Saikheda or why they had allowed another tenant to
continue were not decisive far less relevant for
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construction of a document. The first appellate court had
arrived at a conclusion first and then started to assign
reasons in support thereof. It, as indicated hereinbefore,
did not pose unto itself the correct questions. Apart from
wrongly placing the burden of proof on the plaintiffs, even
adverse inference against the defendant had not been
drawn. The pleadings were required to be considered
provided any evidence in support thereof had been
adduced. No cogent evidence had been adduced by the
respondent to show that the deed of sale was a sham
transaction and/or the same was executed by way of a
security.
34. The right of possession over a property is a facet of
title. As soon as a deed of sale is registered, the title
passes to the vendee. The vendor, in terms of the
stipulations made in the deed of sale, is bound to deliver
possession of the property sold. If he does not do so, he
makes him liable for damages. The indemnity clause
should have been construed keeping in view that legal
principle in mind.
35. Although evidences had been brought on record to
show that upon grant of leave and licence, the keys of
godowns had been handed over but in respect thereof no
contrary findings had been arrived at. We would assume
that the parties entered into an arrangement as a result
whereof the father of the respondent was to continue in
possession. The character of his possession, however,
changed from that of an owner to a licensee. A legal
fiction in a situation of this nature is created in terms
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whereof the owner becomes dispossessed and regains
possession in a different capacity, namely, as a licensee.
36. If the appellants were able to prove that the deed of
sale was duly executed and it was neither a sham
transaction nor represented a transaction of different
character, a suit for recovery of possession was
maintainable. A heavy onus lay on the respondent to
show that the apparent state of affairs was not the real
state of affairs. It was for the defendant in a case of this
nature to prove his defence. The first appellant court,
therefore, in our opinion, misdirected itself in passing the
impugned judgment insofar as it failed to take into
consideration the relevant facts and based its decision on
wholly irrelevant consideration.
37. A heavy burden of proof lay upon the defendant to
show that the transaction was a sham one. It was not a
case where the parties did not intend to enter into any
transaction at all. Admittedly, a transaction had taken
place. Only the nature of transaction was in issue. A
distinction must be borne in mind in regard to the nominal
nature of a transaction which is no transaction in the eye
of law at all and the nature and character of a transaction
as reflected in a deed of conveyance. The construction of
the deed clearly shows that it was a deed of sale. The
stipulation with regard to payment of compensation in the
event the appellants are dispossessed was by way of an
indemnity and did not affect the real nature of
transaction. In any event, the said stipulation could not
have been read in isolation. The judgment of the first
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appellate court was, therefore, perverse. The High Court,
thus, failed to consider the real dispute between the
parties."
8. It is also not in dispute that the respondent Nos.3 to 6
have to establish right in respect of the land in question since
the registered Sale Deed dated 18.01.1964 is binding on the
respondent Nos.3 to 6. It is also not in dispute with regard to
the fact that proceedings under Section 8(4)of the Act was held
against the father of the petitioner as per Annexure-B and the
competent authority, by order dated 05.04.1983 arrived at a
conclusion based on the sale deeds referred to above and
ordered for acquiring the excess vacant land of 32,385 sq.
meters of the subject land. Though the revenue records have
not been mutated after the execution of the registered Sale
Deed dated 18.01.1964, however, the registered Sale Deed
dated 18.01.1964 is binding on the petitioner and respondent
Nos.3 to 6. It is also not disputed that, the suit is pending
consideration before the Civil Court, Bengaluru, in O.S.
No.7546/2018 relating to the subject matter land in question.
In that view of the matter, as the sale deed dated 18.01.1964
stands in the name of the father of the petitioner herein, the
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respondent No.1 ought not to have issued the impugned official
memorandum dated 30.01.2021 (at Annexure-L), directing the
respondent No.2 to enter the name of the contesting
respondents in the RTC extracts.
9. It is needless to say that, the aspects relating to taking
possession in respect of the subject land by the competent
authority under the Act, in view of Section 10 (6) of the Act
plays vital role to determine the ownership in respect of the
land in question. This Court in the case of SMT. MALLAMMA Vs.
STATE OF KARNATAKA, REVENUE DEPARTMENT AND
ANOTHER, reported in ILR 2008 KAR 4041at paragraph 11 and
12 held as follows:
11. The Supreme Court in BALAMAKOND KHATRI
EDUCATIONAL AND INDUSTRIAL TRUST, AMRITSAR
vs STATE OF PUNJAB AND OTHERS [(1996) 4 SCC
212] has held that the normal mode of evidence in
taking of possession of land is by drafting a Panchanama
in presence of Panchas. In the instant case the records
produced do not show that any mahazar is prepared
witnessed by independent panch witnesses to prove the
resumption of possession on 11-4-1989. Only on the
basis of the self-serving reports of the Revenue Officers, it
is difficult to believe that the possession is taken on 11-4-
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1989. In that view, it is to be held that the appellant was
never displaced from physical possession and that
provisions of Section 3(2) (a) will apply.
12. The compensation is yet to be determined therefore
the question of refund of compensation by the appellant
does not arise. The contention that there is delay and
laches in filing the writ petition is untenable. The
explanation offered by the appellant is convincing. When
the right of physical possession of the appellant was
invaded the appellant has filed the writ petition,
therefore, we do not find any delay or laches on the part
of the appellant."
10. Following the declaration of law made by this Court
referred to above and on perusal of the report made by the
Village Accountant and the Revenue Inspector to the
respondent No.2, it is evident that, the respondent -
Government has not taken possession of the land in question
and therefore, the owner of the land in question is entitled for
retaining the excess land and the said aspect of the matter was
not considered by respondent No.1 while passing the impugned
order at Annexure-L dated 30.01.2021. In view of the disputed
facts relating to the rival claim made by the respondent Nos.3
to 6, it is open for the respondent Nos.3 to 6 to establish their
right in respect of the land in question, as nothing is produced
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before this Court with regard to cancellation of the original sale
deed dated 18.01.1964 (Annexure-A) by the contesting
respondent Nos.3 to 6. In that view of the matter, the
respondent Nos.3 to 6, if so advised, can establish their right in
respect of the land in question before the competent Civil court
in the suit referred to above, and in the result, I pass the
following:
ORDER
1) Writ Petition is allowed;
2) Order dated 30th January, 2021 (Annexure-L)
passed by the respondent No.2 is hereby quashed;
3) Respondents 1 and 2 are directed to consider the
representations dated 23.08.2023 and 16.10.2023
(Annexure- "S" and "T" respectively), made by the
petitioner, within three months from the date of
receipt of certified copy of this order.
SD/-
JUDGE
sac
