IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION Nos.41455 OF 2017 C/W 40045-47 OF 2017 (KLR-RES) IN WRIT PETITION NO.41455 OF 2017 BETWEEN:
Sri Ashok R.Jain S/o Mr.Rikabchand Jain Aged about 54 years R/at No.41, Panchasheel Apartments III Floor, III Cross, Gandhinagar Bengaluru-560 009 ... Petitioner (By Sri.S.V.Giridhar, Adv.) AND 1. The Assistant Commissioner Bengaluru North Sub-Division Bengaluru-560 001 2. The Special Tahasildar Bengaluru North (Additional) Taluk Bengaluru-560 009 3. Mr.Syed Ahmed S/o late Syed Kalusabi (Since deceased by his LR’s) a. Mrs.Mumtaz Begum W/o late Mr.Syed Ahmed Aged about 63 years b. Mrs.Syeda Jilani D/o Late Mr.Syed Ahmed Aged about 51 years c. Mr.Mohammed Ali S/o Late Mr.Syed Ahmed Aged about 48 years d. Mr.Shamma S/o Late Mr.Syed Ahmed Aged about 41 years e. Mr.Syed Ilahi S/o late Mr.Syed Ahmed Aged about 41 years f. Mrs.Kushid Begum D/o Late Mr.Syed Ahmed Aged about 36 years Respondents No.3a to 3f are all R/at No.19, Bellahalli Village, Yelahanka Hobli Bengaluru North (Additional) Taluk Bengaluru-563 128 4. Mr.Muralidhara Shastry S/o Mr.Narayan Shastry No.1-1-81, Abhadpet Opp. II Ward School Hindupur, Ananthpur District Andra Pradesh-515 201 5. Mr.Pramodkumar Gyanchand S/o Mr.Gyanchand Jain Aged about 47 years No.21, North Park Road, Kumarakrupa Road Cross Bengaluru-560 001 6. Mr.Kamaleshkumar S/o Mr.Manikchand Aged about 42 years ‘Sankalp’, No.10, Lakshmi Road Shanthinagar Bengaluru-560 027 7. Mr.Somashekar S/o Mr.Gopalakrishnamurthy Aged about 74 years No.1, Radha Apartments Basappa Road, Shanthinagar Bengaluru-560 027 ... Respondents (By Sri.T.S.Mahantesh, AGA, for R1 & R2, Sri.Jhanesh Kumar K., Adv. for R4, Sri.Tharanath Shetty K., Adv.
for R-3 (a, d & f), R-3 (b), R-5, R-6 & R-7 served) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order-I, dated: 10.07.2017 at Annexure-A passed by R-1 in appeal bearing No. RA (BNA) No.13/2013-14 and etc.
IN WRIT PETITION NOS.40045-47 OF 2017 BETWEEN 1. Sri Pramod Kumar Ghyanchand S/o Sukhraj Ghyanchand Jain Aged about 45 years R/at No.2/1, North Park Road Kumara Krupa Road Cross Bengaluru-560 001 2. Sri.Kamalesh Kumar S/o Sri Manikchand Aged about 40 years R/at “Sankalp” No.10, Lakshmi Road 2nd Cross, Shanthinagar Bengaluru-560 027 3. Sri Somashekar S/o Sri Gopalakrishnamurthy Aged about 49 years R/at No.1, Radha Apartments Basappa Road, Shanthinagar Bengaluru-560 027 ... Petitioners (By Sri.B.N.Prakash, Adv.) AND 1. The State of Karnataka Rep. by its Secretary Department of Revenue Vidhana Soudha Bengaluru-560 001 2. The Assistant Commissioner Bengaluru North Sub-Division Bengaluru-560 009 3. The Tahsildar Bengaluru North (Addl.) Taluk Bengaluru-560 009 4. Shri Syed Ahmed Since dead by his LR’s a. Mrs.Mumtaz Begum W/o late Mr.Syed Ahmed Aged about 63 years b. Mrs.Syeda Jilani D/o Late Mr.Syed Ahmed Aged about 51 years c. Mr.Mohammed Ali S/o Late Mr.Syed Ahmed Aged about 48 years d. Mr.Shamma S/o Late Mr.Syed Ahmed Aged about 41 years e. Mr.Syed Ilahi S/o late Mr.Syed Ahmed Aged about 41 years f. Mrs.Kushid Begum D/o Late Mr.Syed Ahmed Aged about 36 years Respondents No.3a to 3f are all R/at No.19, Bellahalli Village, Yelahanka Hobli Bengaluru North (Additional) Taluk Bengaluru-563 128 5. Mr.Muralidhara Shastry S/o Mr.Narayan Shastry No.1-1-81, Abhadpet Opp. II Ward School Hindupur, Ananthpur District Andra Pradesh-515 201 6. Sri Ashok R.Jain Sri Rikabchand Jain Aged about 55 years R/at No.41, Panchasheel Apartments III Floor, III Cross, Gandhinagar Bengaluru-560 009 ... Respondents (By Sri.T.S.Mahantesh, AGA, for R1 - R3 Sri.Jhanesh Kumar K., Adv. for R5 Sri.Tharanath Shetty K., Adv.
for R-4 (a, d & f) R-4 (b), (c) served) These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order dated:10.07.2017 and corrigendum order dated:26.07.2017 passed by the R-2 vide Annexure-A and B in respect of lands bearing Sy.No.62 measuring 6 Acres 6 Guntas, Sy. No.63 measuring 5 Acres 21 Guntas and Sy.No.66, measuring 2 Acres 36 ½ Guntas, situated at Bellahalli Village, Yelahanka Hobli, Bengaluru North (Additional) Taluk and etc.
These writ petitions coming on for preliminary hearing in ‘B’ group, this day, the Court made the following:
O R D E R These writ petitions are filed impugning the order dated 10.07.2017 vide Annexure ‘A’ and order dated 26.07.2017 vide Annexure ‘B’, both passed by respondent No.1 – Assistant Commissioner, Bengaluru North Sub-Division.
2. According to the petitioners, they are the registered owners of property in question in respect of which a suit for specific performance was filed and a decree is secured behind the back of the petitioners and it is their further grievance that the said decree is the subject matter of litigation in O.S.No.1485/2012 on the file of the Principal Civil Judge, Sr. Dvn., Bengaluru Rural District. It is stated in the said suit that they have secured an order of injunction with reference to the judgment and decree passed for specific performance in O.S.No.562/2012. Further, it is stated that on the basis of the judgment and decree passed in O.S.No.562/2012, mutation entries are taken up and it is acted upon inspite of their being an order of stay of the judgment and decree passed in O.S.No.562/2012. It is also stated that though the said fact was brought to the notice of respondent No.1 – Assistant Commissioner, the same is not looked into and the orders impugned are passed. Hence, they have come up in these petitions.
3. Initially, when these matters were taken up for hearing, this Court called upon the counsel for the petitioners as to why they did not choose to exhaust their remedy in filing revision before the Deputy Commissioner, who is the competent authority to decide the correctness or otherwise of the orders impugned. In fact, that was one of the objection raised by the contesting respondent also.
4. However, learned counsel for the petitioners would bring to the notice of this Court that in normal circumstance that is the remedy which is available. However, in the fact situation where there is a specific order passed by the Court of Civil Judge in O.S.No.1485/2012, i.e., to stay the judgment and decree passed in O.S.No.562/2012 on the file of the Civil Judge, Sr. Dvn., Bengaluru Rural District passed in an earlier round of litigation, is neither looked into nor considered before passing the order impugned. Therefore, there is an attempt on the part of respondent No.1 – Assistant Commissioner in implementing the judgment and decree stayed in another proceedings which is in effect giving effect to an order which is non est in the eye of law. Therefore, it is stated that the petitioners have approached this Court invoking the original jurisdiction of this Court under Article 226 of the Constitution of India.
5. After giving careful consideration to the submission made by the learned counsel for the petitioners as well as respondents, this Court is of the considered opinion that when the material available on record is not looked into by the concerned officer before passing the orders impugned, then there is lack of exercise of power in judicious manner. Therefore, the same requires reconsideration by the very same officer by looking into all the materials available on record. Therefore the impugned orders are quashed and the proceedings in R.A.No.(BNA)13/2013-14 is remanded to the Court of Assistant Commissioner, Bengaluru North Sub Division, Bengaluru for reconsideration.
6. In this proceeding, legal representatives of respondent No.3 – Syed Ahmed in W.P.No.41455/2017 who is respondent NO.4 in W.P.Nos.40045-40047/2017 would submit that though they are necessary parties, they were not made parties in the proceedings before the Assistant Commissioner and he also seeks permission of this Court to get themselves impleaded in the said proceeding.
7. Prayer sought for is allowed.
8. As and when application is filed by the legal representatives of Mr.Syed Ahmed, their application shall be considered and they should be permitted to come on record before respondent No.1 and after giving sufficient opportunity of hearing to the said persons, appropriate orders be passed on merits.
9. With these observations, the Writ Petitions are disposed of.
Sd/- JUDGE brn