1/11 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 30th DAY OF AUGUST 2017 BEFORE THE HON'BLE Dr.JUSTICE VINEET KOTHARI WRIT PETITION No.38932/2016 (LB-BMP) BETWEEN:
M/S. PARAMOUNT CONSTRUCTIONS COMPANY A PARTNERSHIP FIRM REGISTERED UNDER THE INDIAN PARTNERSHIP ACT No.18/23, PEENYA INDUSTRIAL AREA PHASE I, PEENYA, BENGALURU-560 058 REP. BY ITS PARTNER SRI. MUKESH G. TALREJA.
…PETITIONER (BY SRI. BALAKRISHNA M.R. ADV.,) AND:
1. THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE N.R. SQUARE, BENGALURU-560 001.
2. THE JOINT COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE, RAJARAJESHWARI NAGAR ZONE BENGALURU-560 098.
3. THE ASST. REVENUE OFFICER BRUHAT BENGALURU MAHANAGARA PALIKE, YASHWANTHPURA ZONE BENGALURU-560 022.
4. THE PUNJAB NATIONAL BANK LARGE CORPORATE BRANCH CENTENARY BUILDING No.28, M.G. ROAD, BENGALURU-560 001 REP. BY ITS BRANCH MANAGER.
5. G. VENKATARATHNAM MAJOR IN AGE R/AT. No.23, 15TH CROSS B.K. NAGAR, YESHWANTHPUR BENGALURU-560 022.
…RESPONDENTS (BY SRI. K.V. MOHAN KUMAR, ADV., FOR R1 TO R3 SRI. H.R. KATTI, ADV., FOR R4 SRI. BHADRINATH, ADV., FOR SRI. L. VIJAYAKUMAR, ADV., FOR R5) THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORAI QUASHING THE ENTIRE PROCEEDINGS IN CASE No.Jum.Aa(RARA NAVA):PR:384-16-17 INTIATED BY THE 2ND RESPONDENT AS PER ANNEXURE-A & ETC., THIS W.P. COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr. Balakrishna M.R. Adv. for Petitioner Mr. K.V. Mohan Kumar, Adv. for R1 to R3 Mr. H.R. Katti, Adv., for R4 Mr. Bhadrinath, Adv., for Mr. L. Vijayakumar, Adv., for R5 1. The petitioner-M/s.Paramount Constructions Co., an auction purchaser, purchased the property in an auction held by the DRT under the provisions of the SARFAESI Act, 2002 and the Sale Certificate vide Annexure-E was issued in favour of the petitioner on 10.10.2014. On the basis of the said Sale Certificate, the petitioner approached the Respondents-BBMP Authorities for change of khata in favour of the present petitioner and the same was rejected by the 2nd Respondent Authority vide order dated 20.01.2017 on the objection raised by the 5th Respondent- Mr.G.Venkatarathnam, who claims to be an Agreement Holder from one Mr.A.Srinath vide a copy of the Agreement of Sale dated 29.11.2015 produced as Annexure-R7 along with the Statement of Objections filed by the 5th Respondent.
2. The present petition was filed in this Court on 14.07.2016 and during the course of the present petition, the 2nd Respondent-Joint Commissioner, Raja Rajeshwari Nagar Zone, BBMP, Bangalore, passed the aforesaid impugned order on 20-01-2017, for which the Amendment Application has been filed by the petitioner, seeking to challenge the said order also.
3. The learned counsel for the petitioner has submitted before the Court that upon sale of title to the petitioner of the said property in question under the provisions of the SARFAESI Act in an open auction held by the 4th Respondent-The Punjab National Bank, the petitioner being the highest bidder and the bona fide purchaser has purchased the said property and therefore, the change of ‘khata’ entry in his favour is a matter of consequence and the Respondent-Authority could not have refused to do so.
He submitted that in the impugned order passed by the said Joint Commissioner, the said Joint Commissioner has gone into the history of title of the property and concerning one Mr.Madhava Iyenger who is said to have expired on 03.02.1976 and whether the alleged General Power of Attorney executed by the said Mr.Madhava Iyengar on 08.09.1989 and Deed of Confirmation dated 28.05.2011 could be said to be valid or not was the question and therefore, there being thus a disputed title of property in the opinion of the said Joint Commissioner, he refused to change the ‘khata’ entry in favour of the present petitioner by the said impugned order dated 20.01.2017.
The learned counsel for the petitioner therefore prayed that a suitable direction may be given to the said Joint Commissioner to effect ‘khata’ entry in favour of the petitioner.
4. The learned counsel for the Respondents-BBMP has however supported the said impugned order and has submitted that since there was a serious dispute about the title of the said property, the parties were advised to approach the Civil Court to get the said title cleared before such ‘khata’ entries could be effected in favour of the present petitioner.
5. The learned counsel for the 5th Respondent Mr.
L.Vijayakumar, however submitted that the 5th Respondent is the Agreement Holder under the Agreement Anneuxre-R7 dated 29.12.2015. He further submitted that no suit for specific performance or any other proceedings have been instituted by the said 5th Respondent seeking an enforcement or obtaining a decree of transfer of title in favour of the 5th Respondent under such Agreement executed by one Mr.A.Srinath in favour of the said 5th Respondent- Mr.G.Venkatarathnam. The connection between the said vendor Mr.A.Srinath under the said Agreement Annexure-R7 dated 29.12.2015 and the borrower Ms.Poonam Lakhani against whom the SARFAESI proceedings were undertaken and the said property was put to an auction, is also not established in the present case by him.
6. Having heard the learned counsels, this Court is satisfied and is of the considered opinion that the present petition deserves to be allowed and the impugned order dated 20.01.2017 passed by the 2nd Respondent-Joint Commissioner deserves to be quashed.
7. Firstly, the said Authority – Joint Commissioner of BBMP has no jurisdiction to enter into the question of title of the property of private parties and decide it. He does not have any power of Civil Court to determine the validity of the title or otherwise of any party. Just a prima-facie satisfaction upon production of Title document is enough for him to record the khata entry in favour of the person who holds such title. The Sale Certificate under the provisions of the SARFAESI Act, prima-facie, established that the present petitioner was a bona fide auction purchaser under the provisions of the SARFAESI Act and it was a proof sufficient for the said Respondent to record the ‘khata’ entries in favour of the petitioner. He could not have adjudicated the question of title himself. Even if he could advise the parties to get the document of title cleared by Civil Court, he could not been refused to record the khata entry in favour of the petitioner who produced the Sale Certificate in legal proceedings under SARFAESI Act. The said Sale Certificate was definitely a much superior and better evidence of title over the Agreement of Sale held by the 5th Respondent, who never obtained any decree in his favour, on the basis of such Agreement to perfect his title over the subject property.
8. The objections of 5th Respondent claiming under the alleged Agreement of Sale in his favour vide Annexure- R7 executed by Mr.A.Srinath in favour of him, did not entitle him to raise any such objection at this stage before the Joint Commissioner in this regard. The said person has not at all fortified his rights by instituting a suit for specific performance nor he has perfected his title of the said property, before raising any objection against the recording of the ‘khata’ entries in favour of the present petitioner who is absolutely a bona fide auction purchaser under the legal proceedings and the special enactment known as “SARFAESI Act” whereby, the equitable mortgagee Ms.Poonal Lakhani has mortgaged the said property in favour of Punjab National Bank and the possession of the said property was taken over and put to an auction under the provisions of the said Act. The conveyance of the said title under the provisions of the said Act to the bona fide auction purchaser confers title on such person free from any encumbrance.
9. If any third party wants to raise an objection against that, he/she has to approach the competent Civil Court and establishing his/her own right over such property there upon only, he can raise any objection before the concerned Authorities of the BBMP or any public bodies who are responsible of recording of the ‘khata’ entries in favour of the auction purchaser like the present petitioner.
10. So long as such effective civil remedy is not availed by the 5th Respondent, who is nothing but a busy body in the matter and therefore, his objections could not carry any weight before the Respondent-Joint Commissioner. The said Joint Commissioner therefore was unnecessarily misled by the objections raised by the 5th Respondent and passed the impugned order which is wholly without jurisdiction. The said order therefore deserves to be quashed. The same is accordingly quashed. The 2nd Respondent-Joint Commissioner is directed to effect the ‘khata’ entries in favour of the petitioner within a period of four weeks from today.
11. The petition is allowed with costs of Rs.10,000/- each to be paid by the said 2nd Respondent- Joint Commissioner, Raja Rajeshwari Nagar Zone, BBMP, Bangalore and the Respondent No.5 Mr. G. Venkatarathnam to the present petitioner within three months from today.
Sd/- JUDGE Srl.