IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P.NOS.2395-2396 OF 2019 (LB-BMP) BETWEEN 1. S.RAJACHANDRAN NAIR, AGED ABOUT 58 YEARS, SON OF MR.K.G.S.N. PILLAI, GPA HOLDER OF PLAINTIFF NO.2 2. MRS. M.PREMALATHA, AGED ABOUT 50 YEARS, WIFE OF S.RAJACHANDRAN NAIR, REPRESENTED BY HER CONSTITUTED ATTORNEY, S.RAJACHANDRAN NAIR BOTH OF THEM ARE RESIDING AT C-435, SOBHA AMBER, SOBHA ULTIMA, JAKKUR PLANTATION, JAKKUR POST, BENGALURU-560 064. ... PETITIONERS (BY SRI.PRAMOD NAIR, ADVOCATE) AND 1. THE COMMISSIONER, BBMP, N R CHOWK, BENGALURU -560 001.
2. JOINT COMMISSONER (EAST), BBMP, N R CHOWK, BENGALURU -560 001.
3. MR.M.C.PRAVEEN, S/O CHANDRA SHEKAR SHETTY, NO.1-34, BAZAAR STREET, PENUMURU, CHITTOR, ANDHRA PRADESH-517 216 ... RESPONDENTS (BY SRI.VASANTH MADHAV S, ADVOCATE FOR C/R3, SRI H.DEVENDRAPPA, ADVOCATE FOR R1 & R2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS OF THE ENTIRE FILE RELATING TO PROCEEDINGS ON THE FILE OF THE JOINT COMMISSIONER (EAST), BRUHAT BANGALORE MAHANAGARA PALIKE, BANGALORE AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The subject matter of these Writ Petitions relates to mutation of entries in the property records maintained by the respondent-BBMP. The impugned order dated 18.12.2018 made by the Joint Commissioner of BBMP at Annexure – A apparently is in contravention of the ratio of long line of judgments which have held that the dispute touching the title to the property shall not be adjudicated upon by the Local Bodies i.e., the BBMP herein.
2. The learned counsel for the petitioners banks upon Para 20 of a decision of this court in the case of Smt.Shantamma Vs. BMP and Others (2005) 1 KLJ 63 which reads as under:
“20. This Court has time and again impressed upon the Corporation Authorities that it is not the function of the Municipal Authorities to examine such disputed facts, it should be left to Civil Court to pronounce upon the validity of the title and whenever there is a bona fide dispute as to the ownership, the Corporation Authorities or the Municipal Authorities should not be very adventurous in effecting changes or indicating the proper ownership by issue of kathas etc.”
3. At internal Page 5 of the impugned order, the unnumbered second para reads as under:
“After hearing the arguments, perusing the documents and decisions relied upon by the parties, even though this Authority is not entitled to go into the title deeds and decide the title of the parties in this proceeding, only which is specifically to be decided by the Civil Courts, this Authority taking into consideration the opinion of the legal department and the decision of the Tahsildar, and the title deeds of the Petitioner, hereby passes the following :
ORDER The application/petition filed by the Petitioner for Typed mutation of khata in respect of Survey No.24/7B of Nagawara Village, to an extent of 32 guntas, is allowed and the katha mutated in the name of the Respondents, except in respect of Site No.324, stands cancelled and the Assistant Revenue Officer (H.B.R Layout) is directed to mutate the name of the Petitioner after collecting usual charges as per Rules. However this order is subject to the decision of the Civil Courts, which is seized of the matter and the khata is mutated in the name of the Petitioners, subject to the final outcome of the civil suits pending adjudication.
Typed to my dictation and after corrections passed the order in open court on this 18th day of December 2018.”
4. The aforesaid paragraph contains the correct statement of law in terms of the decision referred to above. However, the operative portion of the order contravenes the spirit of the said law in as much as the authority having opined that it was not open to it to decide the title dispute of the parties, still it banked upon a legal opinion of the Law Department of the BBMP, a copy whereof having not been complainedly not furnished to the petitioner and thereby has directed cancellation of the subject entries concerning the petition site.
5. The respondent-BBMP could not have ventured, deciding the title dispute especially when petitioners’ civil suit in O.S.No.5429/2017, for declaration of title and consequential injunction between himself and 3rd respondent herein, is pending adjudication before the City Civil Court, Bangalore.
6. In the above circumstances, these Writ Petitions succeed in part; a Writ of Certiorari issues, quashing the impugned order dated 18.12.2018 made by the Joint Commissioner of BBMP at Annexure – A; the entries as before making of the impugned order, shall be restored in respect of the petition property, subject to outcome of the pending suit mentioned above. It is needless to mention that the petitioner shall not seek unnecessary adjournment in the suit proceedings.
All contentions of the parties are kept open for being urged in the suit and the observations made hereinabove being confined to disposal of this case, shall not influence the decision making in the said suit.
Costs made easy.
Sd/- JUDGE cbc