IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION No.45130/2017(KLR-RES) BETWEEN 1. ASHOK KUMAR S/O.LATE SRIKANTA REDDY, AGED 36 YEARS, 2. VIJAYA UPENDRA S/O LATE L.CHINNAPPA REDDY, AGED 42 YEARS, BOTH ARE RESIDING AT SONNENAHALLI @ SEETHARAMA PALYA, MAHADEVAPURA POST, BENGALURU EAST TALUK, BENGALURU-560048. ... PETITIONERS (BY SRI B.RAMESH, ADVOCATE) AND 1. THE DEPUTY COMMISSIONER BENGALURU URBAN DISTRICT, KANDAYA BHAVANA, BENGALURU-560036.
2. THE TAHASILDAR BENGALURU EAST TALUK, K.R.PURA, BENGALURU-560036.
3. SOMASHEKAR REDDY S/O KRISHNA REDDY, AGED 37 YEARS R/A SONNENAHALLI @ SEETHARAMAPALYA, MAHADEVAPURA POST, BENGALURU EAST TALUK, BENGALURU-560048.
4. SMT. VASANTHA W/O.C.JAGANNATH, AGED 62 YEARS 5. CHANDRASHEKAR.J, S/O.C.JAGANNATH, AGED 43 YEARS 6. J. SARAVANA S/O.C.JAGANNATH, AGED 47 YEARS RESPONDENT NOs.4 TO 6 ARE RESIDING AT NO.34, ITI LAYOUT NARAYANAPURA VILLAGE, DOORAVANI NAGAR POST, BENGALURU – 560 016. ... RESPONDENTS (BY SRI ERAPPA REDDY.M, ADVOCATE FOR CAVEATOR / RESPONDENT No.3 SRI KIRANKUMAR.T.L, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NOs.1 AND 2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS DATED 06.09.2017 PASSED BY THE APPELLATE TRIBUNAL IN APPEAL No.1175/2015 ON I.A.NOs.4 AND 5 VIDE ANNEXURES-S AND T AND ALLOW THE APPLICATIONS AS PRAYED FOR AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Learned Additional Government Advocate takes notice for respondent Nos.1 and 2.
2. Petitioners are said to be the permanent residents of Sonnenahalli @ Seetharama Palya, Mahadevapura Post, Bengaluru East Taluk, Bengaluru. They are impugning the orders of even date i.e., 06.09.2017 (Annexures ‘S’ and ‘T’ respectively to the petition) passed by the Karnataka Appellate Tribunal (hereinafter referred to as ‘the Tribunal’), Bengaluru, on I.A. Nos.4 and 5 in Appeal No.1175/2015.
3. The brief facts of the case leading to this writ petition are as under:
3.1 Respondent Nos.4 to 6 herein filed application before the first respondent – Deputy Commissioner on 07.09.2009 seeking conversion of land measuring to an extent of 01 Acre 08 guntas in Sy. No.2/2 from agricultural to non- agricultural purpose. The said land is situate in Sonnenahalli village, K.R. Pura hobli, Bengaluru East Taluk, Bengaluru District.
3.2 The Deputy Commissioner, by order dated 11.02.2010 (Annexure ‘A’ to the petition), granted permission for conversion of the said land from agricultural to non- agricultural purpose by imposing certain conditions stated therein. The said order of Deputy Commissioner was subject matter of challenge in Appeal No.1175/2015 (Annexure ‘B’ to the petition) preferred by respondent No.3 herein – Somashekar Reddy before the Tribunal.
3.3 The appellant in the said appeal (respondent No.3 herein) claimed that he and his two cousins, namely Anil Kumar and Madhusudan Reddy are the owners of land in Sy. No.2/1 (old No.30) khata No.130 measuring East to West on the northern side 27 feet and on the southern side 19 feet and North to South on the eastern side 56 feet and western side 49 feet in total measuring 1207.5 square feet, situate within the limits of Sonnenahalli Gramatana, by virtue of registered gift deed dated 03.03.2012 executed by their grandmother, Smt. Muniyamma, who in turn, had acquired the said property under registered sale deed dated 28.02.1969 from one Ramaiah. The appellant’s property i.e., site in Sy.No.2/1 is said to be situate adjacent to the property in Sy.No.2/2 belonging to respondent Nos.3 to 5. The appellant alleged that respondent Nos.3 to 5 before the Tribunal fraudulently obtained the order of conversion in respect of the land measuring to an extent of 01 Acre 08 guntas in Sy. No.2/2 by showing the property in Sy. No.2/1, which is belonging to him and his two cousins, as road. The appellant contended that though the boundaries of the property in respect of Sy. No.2/2 given in the schedule to the conversion order dated 11.02.2010 does not refer to existence of road, respondent Nos.3 to 5 before the Tribunal were trying to sell the apartments put up in their property in Sy. No.2/2 by showing the property belonging to him (appellant) as road to the prospective purchasers.
3.4 In the said appeal, the Tribunal, after considering the submissions of learned counsel for the appellant and on verifying the records, passed an order staying the said order of conversion dated 11.02.2010 passed by respondent No.1 – Deputy Commissioner till the receipt of the lower Court records.
3.5 Petitioners herein, who are not parties before the Tribunal, filed two applications in I.A. Nos.4 and 5 (Annexures ‘Q1’ and ‘Q2’ to the petition respectively) in the said appeal.
I.A. No.4 was filed under Order 1 Rule 10(2) of the Civil Procedure Code, 1908 read with regulation 13 of the Karnataka Appellate Tribunal Regulations, 1979, (‘KATR’ for short) seeking permission to get themselves impleaded as respondents in the said appeal and I.A. No.5 was filed under regulation 13 of the KATR read with Section 151 of the CPC., seeking to vacate the interim order passed by the Tribunal.
3.6 The Tribunal, by separate orders of even date i.e., 06.09.2017 (Annexures ‘S’ and ‘T’ to the petition), has dismissed the said applications in I.A. Nos.4 and 5 filed by petitioners herein. Being aggrieved by the same, applicants in the said I.As., are before this Court.
4. Heard the learned counsel for petitioners, learned Additional Government Advocate appearing for respondent Nos.1 and 2 and learned counsel appearing for the contesting respondent No.3. Perused the material on record.
5. It is the case of petitioners herein that the aforesaid property bearing No.2/1 (old No.30) is the absolute property of Smt. Jayamma, wife of Obala Reddy. The said Sy.No.2/1 was originally measuring to an extent of 02 Acres 10 guntas including 02 guntas of kharab and the same was belonging to Ramaiah, son of Venkatarayappa. After coming into force of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954, (hereinafter referred to as ‘the Act’), the aforesaid land vested with the Government. Ramaiah made an application to the Special Deputy Commissioner for Inams Abolition seeking for grant of an extent of 01 Acre 38 guntas out of 02 Acres 10 guntas in Sy. No.2/1 while relinquishing his right, title and interest in respect of 12 guntas of land in the said survey number for community purpose.
6. The Special Deputy Commissioner for Inams Abolition, Bangalore, by order passed in the year 1962 in Case Nos.39 and 40 (Annexure ‘F’ to the petition), based on the entries in the index of lands register and with the consent of inamdar, registered Ramaiah as permanent tenant under Section 5 of the Act in respect of an extent of 01 Acre 38 guntas in Sy. No.2/1 without premium while recording the fact that Ramaiah had relinquished his claim for the balance 12 guntas in the said survey number for community purpose.
7. It is stated that Ramaiah sold the property bearing Sy. No.2/1 measuring to an extent of 01 Acre 38 guntas in favour of Smt. Muniyamma, wife of Nagappa, under registered sale deed dated 28.02.1969. Subsequently, there was an oral family partition amongst Smt. Muniyamma, her husband viz., Nagappa and their children, in which property measuring 01 Acre 38 guntas was allotted to the share of Venugopala Reddy, who is said to be the paternal uncle of respondent No.3 herein, whose name was mutated in respect of the said land in the revenue records as per M.R. No.5/1998-99.
8. Petitioners further state that an extent of 01 Acre 31 guntas out of 01 Acre 38 guntas in Sy. No.2/1 belonging to the said Venugopala Reddy and other lands in Sonnenahalli village were acquired by Karnataka Industrial Area Development Board (for short, ‘KIADB’) for formation of industrial area. Pursuant to the said acquisition, Venugopala Reddy is said to have received compensation from KIADB. He continued to be in possession of the remaining land measuring 07 guntas in Sy. No.2/1.
9. It is further stated that Bangalore Development Authority (BDA) has identified 60 feet road passing in Sy. Nos.2/1 and 2/2 in the Comprehensive Development Plan (copy of CDP at Annexure ‘K’ to the petition).
10. It is alleged by petitioners herein that respondent No.3, namely Somashekar Reddy and his cousins viz., Anil Kumar, Madhusudhan Reddy (son of Venugopala Reddy) created a gift deed dated 03.03.2012 in respect of a non-
existing property based on the said sale deed dated 28.02.1969 executed in favour of Smt. Muniyamma by Ramaiah. The boundaries of the property conveyed under the said sale deed do not tally with the boundaries to the property covered under the gift deed dated 03.03.2012.
11. Petitioners have referred to writ petition in W.P. No.42522/2016 filed by petitioners herein and other residents of the said Sonnenahalli village inter alia seeking a direction to respondent Nos.2 to 6 therein to consider the representations stated therein and direct respondents to conduct survey of land in Sy. No.2/1 to identify the 12 guntas of land, which was reserved for community purpose way back in the year 1962 and which fact was recorded in the order of the Special Deputy Commissioner for Inams Abolition in case Nos.39 and 40. The said petition is pending consideration before this Court.
12. The records would indicate that respondent No.3 herein - K. Somashekar Reddy (appellant in Appeal No.1175/2015) and his cousins, namely Anil Kumar and V. Madusudhan Reddy (son of Venugopala Reddy) have filed suit in O.S. No.25691/2012 against Ashok Reddy (Ashok Kumar - petitioner No.1 herein) and Pundareesha Reddy @ Babu Reddy on the file of learned XXVIII Additional City Civil and Sessions Judge, Mayo Hall, Bengaluru, for the relief of permanent injunction with respect to the aforesaid property i.e., site in Sy. No.2/1 (old No.30).
13. There is another suit in O.S. No.25692/2012 filed by K. Somashekar Reddy (respondent No.3 herein), Anil Kumar and V. Madusudhan Reddy against Bruhat Bengaluru Mahanagara Palike (BBMP), on the file of learned XXVIII Additional City Civil and Sessions Judge, Mayo Hall, Bengaluru, for permanent injunction in respect of the property in Sy. No.2/1 (old No.30).
14. The records reveal that Smt. Muniyamma, the grandmother of respondent No.3 herein, has filed suit in O.S. No.1222/2012 against respondent Nos.4 to 6 herein, Smt. Jayamma and others for the relief of partition and separate possession of the land measuring 05 Acres 09 guntas in Sy. No.2/2.
15. According to petitioners herein, there exists a road on the western side of property in Sy. No.2/1 as well as property in Sy. No.2/2 and residents of the said village have been using the said road from time immemorial. By virtue of the interim order passed by the Tribunal, respondent No.3 herein tried to interfere with formation / development of road by BBMP., and as a result, villagers are put to hardship and inconvenience.
16. The material on record discloses that the petitioners herein filed an application in I.A. No.4 in Appeal No.1175/2015 seeking permission to get themselves impleaded as party – respondents in the appeal. They tried to demonstrate that the proceedings between the appellant in the said appeal (respondent No.3 herein) and respondent Nos.3 to 5 in the said appeal (respondent Nos.4 to 6 herein), who are the owners of the converted land measuring to an extent of 01 Acre 08 guntas in Sy. No.2/2, is a farce inasmuch as the said proceedings were initiated in the year 2015 and the appellant (respondent No.3 herein) after obtaining the interim order against the owners of the said converted land in Sy. No.2/2 i.e., respondent Nos.4 to 6 herein, has not taken any further action in the matter.
17. Petitioners have put forth the contention that Venugopala Reddy and his son Madhusudhan Reddy, the cousin of respondent No.3 herein and one of the beneficiaries under the alleged gift deed dated 03.03.2012, have entered into Joint Development Agreement dated 10.06.2013 (Annexure ‘H’ to the petition) with M/s. SJR Prime Corporation Pvt. Ltd. for construction of apartments in the converted land measuring 07 guntas in Sy.No.2/1 and in the said agreement, the western boundary of the said property is shown as ‘road and private property’. Similarly, respondent Nos.4 to 6 herein and one C. Jagannath Naidu (the husband of respondent No.4 herein) have entered into Joint Development Agreement dated 07.11.2012 (Annexure ‘L’ to the petition) with the aforesaid Developer for the purpose of construction of apartments in the converted land measuring to an extent of 01 Acre 11 guntas in Sy. No.2/2. Petitioners have highlighted the fact that the western boundary of the said property is also shown as ‘road and private property’.
18. It is stated that the construction of apartments is going on in the converted land measuring to an extent of 01 Acre 08 guntas in Sy. No.2/2 and respondent Nos.4 to 6 herein are trying to complete the said exercise by blocking the road, which is required to be made available for the use and enjoyment of the residents of Sonnenahalli village.
19. It is contended by the petitioners herein that though they have produced several documents to substantiate that the gift deed dated 03.03.2012 executed by Smt. Muniyamma, on the basis of which respondent No.3 herein and his two cousins are claiming ownership in respect of the property i.e., site in Sy. No.2/1 is a fabricated document and the property covered under the said gift deed is a public road, the same are not considered by the Tribunal in the proper perspective.
20. Perusal of the impugned order vide Annexure ‘S’ to the petition would indicate that the Tribunal has dismissed the application in I.A. No.4 for impleading by holding that the applicants - petitioners are not necessary parties to the proceedings inasmuch as they are neither the owners of land measuring to an extent of 01 Acre 08 guntas in Sy. No.2/2 in respect of which conversion order dated 11.02.2010 is under challenge in Appeal No.1175/2015 nor they have any semblance of right in respect of the property in Sy. No.2/1, which is said to be a site gifted in favour of respondent No.3 herein and his two cousins by their grandmother, Smt. Muniyamma.
21. It is seen that the Tribunal by separate order dated 06.09.2017 (Annexure ‘T’ to the petition) has dismissed the application in I.A. No.5 filed by the petitioners herein for vacating the interim order dated 05.02.2016 granted by the Tribunal by holding that the applicants failed to make out sufficient ground to vacate the interim order. The prayer sought by the applicants – petitioners herein to vacate the interim order dated 05.02.2016 granted by the Tribunal is premature in nature. However, the Tribunal has proceeded to decide the application in I.A. No.5 even before the applicants were permitted to come on record as party – respondents in the appeal.
22. On going through the material available on record, it is seen that there is sufficient cloud of suspicion created by the petitioners herein with reference to the title of respondent No.3 herein in respect of the land in Sy. No.2/1, which is said to be a site situate adjacent to the converted land measuring to an extent of 01 Acre 08 guntas in Sy. No.2/2, which is presently developed by respondent Nos.4 to 6 herein. Petitioners rely upon description of respective property in the schedules to Joint Development Agreements (Annexures ‘H’ and ‘L’ to the petition) to contend that the property in Sy.No.2/2 is located towards south of the property in Sy. No.2/1. Admittedly, respondent No.3 herein has obtained stay of the order of conversion dated 11.02.2010 in respect of land measuring 01 Acre 08 guntas in Sy. No.2/2, which belongs to respondent Nos.4 to 6 herein. The said order of stay is not challenged by respondent Nos.4 to 6 herein and it is allowed to be continued from the date it was granted i.e., 05.02.2016. It is also not in dispute that construction of apartments is going on in the said property bearing Sy.No.2/2 in respect of which conversion order impugned in the Appeal No.1175/2015 is stayed.
23. In this background, what is required to be considered by the Tribunal is as to whether there is collusion between the appellant in Appeal No. 1175/2015 and respondent Nos.3 to 5 before the Tribunal (respondent Nos.4 to 6 herein) to their mutual benefit in order to exclude the right of villagers of Sonnenahalli @ Seetharama playa, Mahadevapura post, Bengaluru East Taluk, who are claiming their right to use the road, which is said to be situate on the western side of the property in Sy. No.2/1 as well as property in Sy. No.2/2. They also claim that 12 guntas in Sy.No.2/1 was reserved for community purpose as per the order of Special Deputy Commissioner for Inams Abolition (Annexure ‘F’ to the petition) in the year 1962.
24. Having regard to the facts and circumstances of the case, petitioners herein are required to be made as parties before the Tribunal inasmuch as they appear to have produced all the relevant records to demonstrate the existence of the said road.
25. The Tribunal shall consider the documents produced by the applicants – petitioners herein and also verify the factual position from the revenue records available with the Assistant Commissioner and Tahasildar of Bengaluru East Taluk, K.R. Puram, Bengaluru, to decide the question as to whether the land which is situate adjacent to the converted land measuring 01 Acre 08 guntas in Sy. No.2/2 belongs to the Government or not. The Tribunal shall also consider the question as to whether the documents, which were produced by respondent Nos.4 to 6 herein before the respondent No.1 – Deputy Commissioner while seeking conversion of their land measuring to an extent of 01 Acre 08 guntas in Sy. No.2/2, are correct and satisfy the requirements of law. The right of petitioners herein to seek development of the road said to be on the western side of property in Sy. No.2/1 as well as property in Sy.No.2/2 will also have to be decided by the Tribunal in the appeal.
26. In view of the observations made, the writ petition is allowed in part. The order dated 06.09.2017 (Annexure ‘S’ to the petition) passed on I.A. No.4 in Appeal No.1175/2015 on the file of the Karnataka Appellate Tribunal, Bengaluru, is hereby set aside. The said I.A. No.4 is allowed and petitioners herein are permitted to come on record as respondents 6 and 7 in Appeal No.1175/2015 pending consideration before the Karnataka Appellate Tribunal. The order dated 06.09.2017 (Annexure ‘T’ to the petition) passed on I.A. No.5 in Appeal No.1175/2015 on the file of the Karnataka Appellate Tribunal, which is under challenge in this writ petition, is premature in nature and hence, the same cannot be considered in this writ petition. The order of conversion dated 11.02.2010 passed by respondent No.1 – Deputy Commissioner also cannot be considered in this petition. It is open for the petitioners herein to seek vacating of the interim order dated 05.02.2016 granted by the Tribunal by filing a fresh application before the Tribunal, if they are so advised.
27. Learned Additional Government Advocate is permitted to file memo of appearance within two weeks from today.
Sd/- JUDGE sma