IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.40586 OF 2019 (LB-RES) Between:
Sri. T. Prasanna Kumar, Aged about 56 years, Son of Late C.T.Thimmappa, Residing at No.1540, Hemavathipete, Doddaballapura Town, Bengaluru Rural District – 561 203. …Petitioner (By Smt.Shivaleela, Advocate for Sri. Murthy K., Advocate) AND:
1. The Commissioner, City Municipal Council, Doddaballapura Town, Bengaluru Rural District – 561 203.
2. The Deputy Commissioner, Bengaluru Rural District, Bengaluru.
(Amended as per order dated 22.11.2019) (By Smt. Prathima Honnapura, AGA for R-1; Sri. K.N.Srinivasa, Adv. for R-2) ..Respondents This Writ Petition is filed under Article 227 of Constitution of India, praying to quash Annexure – L endorsement dated 12.07.2019 issued by respondent authority, consequently issue necessary direction/order to the respondent to make E-Katha in respect of the schedule property in the name of petitioner pursuant to Annexure – K.
This Writ Petition coming on for Preliminary Hearing in ‘B’ group this day, the Court made the following:
ORDER The petitioner makes an oral request to implead the Deputy Commissioner as an additional respondent and the said request is accepted. The petitioner is permitted to array the Deputy Commissioner as an additional respondent.
2. The petitioner claims to be the owner in possession of commercial property bearing Municipal Khatha No.3293/VS656 and has sought for quashing an endorsement at Annexure – L, whereby, the 1st respondent has declined the issuance of E-Khatha observing that the suit in O.S.No.584/2018 pending between the parties and khatha could not be affected till conclusion of the suit.
3. Learned counsel for the petitioner submits that the suit in O.S.No.584/2018 is filed for permanent injunction against the 1st respondent and the same is pending. In fact, an order of temporary injunction has been passed in favour of the petitioner in the said proceedings. It is further contended that the petitioner is seeking E-Khatha on the basis of registered instruments.
4. Learned counsel appearing for 1st respondent points out that there has been encroachment by certain property owners including petitioner and he refers to the survey report in Annexure – R4.
5. It is to be noted that the only request made by the petitioner is for issuance of E-Khatha. It is noticed that in reply to the suit for injunction filed by the 1st respondent – Authority, in the written statement, the copy of which is produced at Annexure – H it has specifically asserted that the right of way including public road has been encroached by some of the property owners including the petitioner herein. Whenever any claim is sought to be made by the Municipal Authority relating to encroachment of land belonging to public, the right in such property over which the Municipal Authority seeks to assert its right, then the property course would be seek for an enquiry by the Deputy Commissioner as contemplated under Section 82 of the Karnataka Municipalities Act, 1964. Accordingly, the pendency of the present suit ought not to come in the way of the 1st respondent to consider the application of the petitioner for E-Khatha. The request of the petitioner for issuance of Khatha ought to be made by referring to the earlier Khatha standing in the name of the petitioner and on such other enquiry as may be required. In the event the respondent – Authority is of the opinion that public land vested in the authority is encroached upon or with any documents or title of the petitioner is not in order, then it may take necessary action under Section 82 of the Karnataka Municipalities Act, 1964 or otherwise before appropriate forum including the civil Court as may be found to be necessary. However, the request of the petitioner for issuance of E-Katha cannot be kept in abeyance. Accordingly, petition is allowed.
6. Respondent No.1 is directed to consider the request of the petitioner within a period not later than eight weeks from the date of receipt of certified copy of this order. Liberty is however reserved to respondent No.1 seeks to initiate necessary proceedings to assert its right over the property as observed above. It is made clear that such proceedings are independent of the proceedings relating to effecting E-Katha as observed above.
Accordingly, writ petition is allowed, subject to the above observations.
Sd/- JUDGE MH/-