IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION Nos.36231-234/2018 (LB-RES) Between:
1. Sri B. Hanumanthachar S/o. Late Bhimachar Aged about 70 years T.S.T. Complex, No.28 Huliyar Road, Hiriyur – 577 598 Chitradurga District Senior Citizenship not claimed.
2. Sri H. Sathyanarayanachar S/o. B. Hanumanthachar Aged about 45 years T.S.T. Complex, No.28 Huliyar Road, Hiriyur – 577 598 Chitradurga District.
3. Sri H. Karibasaveshwara S/o. B. Hanumanthachar Aged about 45 years T.S.T. Complex, No.28 Huliyar Road, Hiriyur – 577 598 Chitradurga District.
4. Sri T.S. Tanyasi Gounder S/o. Late T. Suryappa Gounder Aged about 60 years T.G. Colony, Adivala Hiriyur Taluk – 577 598 Chitradurga District Senior Citizenship not claimed. … Petitioners (By Sri Devadas N., Senior Counsel for Smt. Anasuyadevi K.S., Advocate) And:
1. Municipal Commissioner The City Municipal Council (Nagara Sabhe) Hiriyur – 577 598 Chitradurga District.
2. Sri Ramesh S. Sunnagar Municipal Commissioner CMC, Hiriyur – 577 598 Chitradurga District. ... Respondents (By Sri S.N. Hatti, Advocate for R1;
Sri V.S. Venkatesha Gowda, Advocate for R2) These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to call for records relating to the impugned order dated 03.08.2018 at Annexures-E, E1 and E2 and on perusal of the same; quash the impugned order/endorsement dated 03.08.2018 (Annexures-E, E1 and E2) issued by respondent No.1 and etc.
These Writ Petitions coming on for preliminary hearing in ‘B’ group this day, the Court made the following:
ORDER The petitioners who are owners of the property having purchased the same through sale deeds executed on 23.09.2006 have filed the present writ petitions seeking an appropriate writ to quash the impugned endorsements at Annexures-E, E1 and E2 issued by respondent No.1 and to consequently set aside the inquiry notice at Annexure-B.
2. The petitioners had sought for effecting katha of the property in their names by virtue of registered sale deeds. The same, however, had not been considered by the respondent authorities by virtue of endorsement at Annexure-E. The endorsement at Annexure-E is to the effect that the application of the petitioners cannot be considered in light of the observations made by the *Divisional Commissioner in the order dated 25.10.1999 and as per which there was no provision to alienate the property. Learned senior * Corrected vide Court Order dated 26.04.2019 counsel Shri N. Devdas appearing on behalf of the petitioners state that the vendors of the petitioners on an earlier occasion had challenged the endorsement canceling the building license in W.P.Nos. 12222- 224/2010 and this Court by order dated 13.06.2013, had set aside the impugned orders dated 06.03.2010 and 27.03.2010 reserving liberty to the respondent authorities to take action in accordance with law.
3. The petitioners state that after disposal of the said writ petitions, representations at Annexures- M1 to M3 have been submitted to the authority seeking for effecting katha and necessary entries in the records of the municipal authorities taking note of the registered sale deeds executed in favour of the petitioners.
4. As no action was taken pursuant to the representations made by the petitioners and writ petition Nos.52797-801/2015 was filed seeking for an appropriate direction to consider the representations to issue katha and enter the names of the petitioners in the municipal records. This Court by order dated 11.06.2018 allowed the said writ petitions and directed the Municipal Commissioner to consider the representations of the petitioners and pass orders in terms of the registered sale deeds dated 23.09.2006. The petitioners state that pursuant to the directions passed in the said petitions, notice came to be issued at Annexure-B calling upon the petitioners to produce certain documents with certain observations in the said notice calling for an explanation as regards the order of the *Divisional Commissioner dated 25.10.1999.
5. The petitioners having approached the authority for consideration of their representations and not having been responded to positively and had issued the endorsements impugned herein at Annexures-E, E1 and E2, have filed the present writ petitions.
* Corrected vide Court Order dated 26.04.2019.
6. The petitioners state that the order dated 25.10.1999 at Annexure-G was passed in a revision petition preferred under Section 322 of the Karnataka Municipalities Act, 1964 (‘the Act’ for short) against the order of the Assistant Commissioner, Chitradurga dated 16.04.1998 holding that the properties bearing Nos.2414, 2415, 2416, 2417 and 2418 belonged to Sri Marappa Gounder, Sri T. Surappa Gounder and legal representatives of Sri Tanyasi Gounder. The revision petitions preferred by the Town Municipality, Hiriyur, the Karnataka Pradesh Agricultural Society, Hiriyur and the Poura Hitharakshana Samithi (R), Hiriyur, came to be dismissed upholding the order of the Assistant Commissioner dated 16.04.1998. While disposing of the said revision petitions, it was noticed that the representative suit numbered as Misc.No.1/1992 before the District Judge, Chitradurga regarding the same subject matter had come to be dismissed and the same was affirmed in C.R.P. No.4126/1992. It was also observed that in the event of any claim by the Municipal Authorities being rejected in terms of Section 82 of the Act, the only remedy that was available is by way of Civil Suit under Section 82(2) of the KMC Act.
7. It is an undisputed fact that subsequent to the order dated 25.10.1999 there has been no approach to assail the said order by the rival claimants or by the municipality as against the order passed under Section 82 of the Act by the Assistant Commissioner. Hence, for all practical purpose, the order of the Assistant Commissioner has attained finality.
8. Learned counsel for the respondents however, rely on the observations made in the said revision petitions regarding the purpose and object with respect to which the properties had been granted.
9. Learned counsel for the petitioners points out that the katha of the property was changed into the name of their vendors Sri T. Marappa Gounder, Sri T.Surappa Gounder and Sri T.P. Markandayya S/o. Palaniyappa Gounder as per the order dated 12.02.1992 at Annexure-H. Hence, it is contended that insofar as considering the applications of the petitioners, new grounds cannot be made out in light of the transfer of katha in favour of the predecessors in title of the petitioners as per Annexure-H. It is further submitted that subsequent to the order of the Divisional Commissioner dated 25.10.1999, katha of the property had also been transferred into the name of T.Surappa Gounder by the Municipality as per its order dated 27.09.2000 as per Annexure-H1. The petitioners also state that the building license has been issued on 02.08.2000 and as regards certain deviations in the construction as per the order at Annexure-K dated 09.05.2005, upon payment of penalty and deviations have been regularized.
10. Insofar as the action of the Deputy Commissioner in canceling the building license with respect to the property in question, the same having been challenged in W.P.Nos.12222-224/2010, this Court had quashed the said orders.
11. Learned senior counsel appearing on behalf of the petitioners points out that under Section 111 of the Act, once rights have been acquired by instrument of transfer, the same is to be intimated in writing to the Municipal Commissioner and it is further contended that under Section 113 of the Act, when information regarding transfer is given to the Municipal Commissioner or Chief Officer as contemplated under Sections 111 and 112 of the Act, name of the transferee is required to be entered in the Property Tax Register. Accordingly, it is submitted that taking note of the sale deeds, which are registered instruments, the authority in terms of Section 113 of the Act is bound to make necessary entries in the books.
12. Learned counsel appearing on behalf of respondent No.1 and learned counsel appearing on behalf of respondent No.2, at the outset, have taken objection to the pleadings made at paragraphs 4.2 and 4.3. In light of the submission of learned senior counsel, the observations at paragraphs 4.2 and 4.3 are expunged as being extraneous and irrelevant for the adjudication of the dispute on hand.
13. Learned counsel appearing on behalf of respondent No.1 has contended that the question of consideration of the application for change of katha having been decided, alternative remedy is available under Section 322 of the Act. It is further submitted that as regards the merits of the consideration of the petitioners request, in light of the order dated 25.10.1999 and taking note of the purpose for which grant was made, the question of consideration of the application of the petitioners does not arise.
14. The correctness of the endorsement is a matter which requires adjudication. The authority has been directed on a previous occasion to consider the representation in light of the sale deeds that have been executed and take necessary action as per the order passed in W.P.Nos.52797-801/2015. It is clear as per the order passed on 11.06.2018 that the authorities were directed to consider and pass necessary orders in terms of the registered sale deeds dated 23.09.2006.
15. The execution of the sale deeds are also not in dispute. In fact, under Section 113 of the Act, an obligation is cast on the authority that once the transfer is brought to the notice of the authority, the same should be taken note of and to make necessary entries of katha. Normally, an enquiry into the title of the predecessor is not to be taken up while considering the application for entry under Section 113 of the Act.
16. It is also to be noted that the Assistant Commissioner in an order passed under Section 82 of the Act has considered the rival claims and rejected the rival claims. The matter has been affirmed by dismissal of the revision petitions by the Divisional Commissioner on 25.10.1999. It is also to be noted that the proceedings in representative suit that had been presented before the District Court, Chitradurga had also been dismissed and the same order of dismissal was affirmed by the High Court in C.R.P. No.4126/1992. At this point of time seeking to re-open the question of violation of condition of grant cannot be permitted. The substantial remedy was only as observed while disposing of the revision petitions under Section 82 of the Act i.e. to file a suit as envisaged therein. The observation made in the revision petitions to the effect that parties are to keep in mind the purpose of the grant will not confer any right as such on the authority to re- open the question when the only remedy available is under Section 82 of the Act. At this point of time noting that the order was passed under Section 82 of the Act on 25.10.1999, any challenge to the order would by now be a stale claim. Learned senior counsel appearing on behalf of the petitioners has filed a memo enclosing copy of undertaking filed in the year 2010 to the respondent authority stating that the second floor of the proposed building would be set apart for a Choultry.
17. It is stated that the petitioners would abide by the said undertaking and construct a choultry in the second floor that can be used by the public free of cost. The said undertaking is taken note of.
18. In light of the order passed by the Assistant Commissioner having attained finality and also noticing that the rival claims as regards property also having attained finality, question of declining to consider the application of petitioners for effecting katha entry in terms of Section 113 of the Act is impermissible. It is also to be noted that katha has been transferred into the name of the vendors of the petitioners as per the order at Annexures-H and H1 and hence at this point of time, to say there was some defect in the title of the predecessors cannot be accepted.
19. Accordingly, the endorsements at Annexures-E, E1 and E2 and the notice at Annexure-B are set aside. Respondent No.1 is directed to consider and pass orders in light of the observations made above without raking up any other aspect regarding the title of the predecessors by strictly taking note of the registered instruments, which are the sale deeds produced at Annexures-A to D, the validity of which is not in question.
20. The notice at Annexure-B is set aside reserving liberty to respondent No.1 to call upon the petitioners to furnish documents as may be necessary for the purpose of consideration of petitioners representations in light of the observations made in the order. The said consideration is to be completed by respondent No.1 within a period of six weeks of the release of the order. Consequent to the determination as regards the application of the petitioners for effecting katha, the request for building license would require to be disposed of.
In light of the observations made above, petitions are disposed of.
Insofar as the contentions of availing an alternative remedy is concerned, it is to be noticed that it is not a strict rule that would curtail the jurisdiction of this Court. Taking note of the nature of the dispute, the earlier directions passed by this Court in W.P.Nos.52797-52801/2015 to consider the representations of the petitioners it would be an appropriate case to entertain these petitions without relegating the parties to avail of alternate remedy and bring a quietus to the long litigation between the parties and hence, the said contention is rejected.
Sd/- JUDGE KA