L. Ramdev vs The Commissioner, Bangalore Mahanagara Palike and Others

Ram Mohan Reddy, J.—Petitioner has assailed the order dated 27.09.2006, Annexure-P, of the 2nd respondent-Joint Commissioner (East), Bangalore Mahanagara Palike ("BMP" for short) exercising review jurisdiction under Section 114A of the Karnataka Municipal Corporation Act, 1976, (''Act'' for short), at the instance of respondents-4 and 5, substituting the name of the petitioner to that of 4th Respondent, in the Fiscal Register of the BMP in respect of immovable property bearing Municipal No. 1, and 1/1, Muniswamappa Garden, Dobhi Ghat Road, Ulsoor.

Respondents-4 and 5, entered caveat and opposed the petition by filing statement of objections, inter alia, alleging that in fact petitioner has no right, title and interest in the immovable property in question. Respondent No. 7 though not a party to the proceeding before the 2nd respondent, in the review petition, nevertheless, was impleaded as party respondent No. 7.

Petitioner claimed to be owner in possession of land in old Sy. No. 88 new Sy. No: 102, measuring 36 guntas and old Sy No. 89 new Sy No: 103 measuring 1 Acre 12 guntas; Respondent 4 claimed title to land measuring 32 guntas in old Sy No. 85 new Sy No. 102 and 1 Acre 4 guntas in old Sy No. 86 new Sy. No. 103; Respondent 7 claimed land measuring 1 Acre 32 guntas in Sy. No. 104 of Ulsoor village, Kasba hobli, Bangalore North Taluk.

Petition was also opposed by respondents-1 to 3 BMP, inter alia, seeking to sustain the order impugned Annexure-P as well-merited, fully justified and not calling for interference, while, asserting that there was a factual dispute over identity and location of the immovable property belonging to the petitioner as well as respondent No. 4.

Having heard the learned counsel for the parties, regard being had to the conflicting claims of the parties, by order dated: 18.12.2007, BMP was directed to place material before Court which was considered by it, over location and identity of the properties in question. The Hon''ble Chief Justice by order dated 11.12.2007, specially ordered that, the petition be heard by this Court. On 17.4.2008, learned standing Counsel for BMP sought time to refer to all relevant materials relating to khatha transfer and identity of the property. After protracted dates of hearing, one Dr. S. Subramanya, Commissioner of BMP on 25.7.2008 filed an affidavit of even date stating that action against concerned officials would be taken for not having made available the records relating to khatha transfer in question. On 21.7.2009, learned counsel for BMP submitted that the record leading to recording petitioner''s name in its Fiscal Register, was untraceable and efforts would be made to secure and produce it, while file enclosing some records when placed were directed to be kept in safe custody. In the wake of nonavailability of record, on 6.2.2009, the following order was passed:

"Having heard the parties for considerable time and issued directions to the Bangalore Mahanagara Palike to furnish the record relating to the change of katha in the name of Latchmaiah and over the identity of the property in question, Sri. Ashok Haranahalli, learned counsel for the Bangalore Mahanagara Palike files an affidavit dated 5-2-2009 of one Puttaswamy, Additional Commissioner (East), stating that the said file is about 20 years old and despite efforts, is not traceable in the office of the Palike. If that is so, all that can be said about this Palike is that it is neither responsible nor accountable to the citizens of the Bangalore City if as the custodian of relevant records, it is unable to produce the records relating to transfer of katha made some 20 years ago, which speaks volumes about the business that is transacted at the hands of the officers of the Palike. Less said the better. As to who is to be held responsible is a matter which certainly needs to be decided and is presently postponed till the next date of hearing.

The claim of the petitioner is that his grandfather purchased lands in Sy. Nos. 88 and 89 of Ulsoor, way back in the year 1901 and 1902 and that, it is the very same land that is identified by the petitioner to be presently located adjacent to the Ulsoor tank. It was in this background of facts that this Court had directed the Corporation to furnish papers relating to the person who identified this land when the katha was first made out in the name of Latchmaiah. In the absence of such a record, Sri. Vedachala, learned counsel for the petitioner submits that the records possibly could be available with the office of the City Survey, Bangalore in view of the earlier litigation in the form of Revision Petition No. 18/2002-03 said to be pending before the Joint Director of Land Records, Bangalore.

In these circumstances, I think it appropriate to direct the petitioner to implead the State of Karnataka by its Revenue Department as party-Respondent No. 6. Petitioner to amend the cause-title, serve copies of the Writ petition along with annexures on the learned Government Advocate, who is directed to take notice and to secure the records from the Joint Director or from any other authority in respect of the lands in Sy. Nos. 88 and 89 of Ulsoor Village. Further hearing of I.A. No. II/2007 for impleading, is deferred till the next date of hearing. List after five weeks."

On 31.3.2009, the following order was passed:

"The Assistant Director of Land Records, City Survey-II present before Court is identified by the learned Government Advocate. The claim of the petitioner is that his grandfather purchased land in Sy. Nos. 88 and 89 of Ulsoor during the years 1901 and 1902 and that the land in question as identified by the petitioner is the very same land which was assigned Sy. Nos. 88 and 89. According to the petitioner, on a resurvey, the Survey Department has reassigned new Nos. 102 and 103. After having heard the learned counsel for the parties and perused the pleadings, there was reasonable cause to suspect the very identification of the aforesaid lands. In other words, as to whether they are within the area encompassed by the Ulsoor Tank or outside the said tank. An answer to this question is very essential for enabling the Bangalore City Corporation to address itself over issue of katha for the said lands. This necessitated since the Bangalore City Corporation was unable to place material before this Court over the issue of katha for the first time, in order to appreciate as to whether the land was identified when such a katha was made out in the name of Latchmaiah. It is in this view of the matter that this Court, by order dated 6-2-2009 directed impleading the State of Karnataka, Revenue Department as party- Respondent No. 6.

The officers who are present before Court are directed to hold an enquiry, secure records and answer the query raised by this Court and file a report. List on 27-05-2009."

There afterwards on 21.6.2009, the Assistant Director of Land Records was directed to file a better report within two weeks.

The 7th respondent was directed to come on record by order dated 2.12.2009, whence, I.A.2/2007 was allowed.

It appears that on 06.08.2010, at the request of learned counsel for the parties, the ADLR-City Survey-2, was directed to hold a comprehensive survey over the lands reassigned Sy. Nos. 102 and 103 whether were old Sy. No. 88 & 89 respectively and old Survey Nos. 85 & 86 as well as land Sy. No. 104. Parties filed their respective memo of instructions enclosing copies of their documents to the ADLR who is said to have held an enquiry and filed a report into the Registry on 15.06.2011, The report of ADLR was opposed by filing statement of objections of the 4th respondent on 19.12.2011. There afterwards, the petition was adjourned at the request of parties who desired to settle the matter out of Court and report settlement. On 31.5.2012, the following order was passed:

"Learned Counsel for R7 submits that the Commissioner''s report discloses that the property subject matter of conveyance in favour of the 7th respondent is said to have fallen within Sy. No. 104 of Muniswamappa garden. If that is so, then it is for the 7th respondent to seek necessary khatha for that property from the BMP, since the petitioner and 4th respondent have staked a claim to property in old Sy. Nos. 88 and 89, New Nos. 102 and 103 of Muniswamappa garden in respect of which the Commissioner is said to have reported their non-existence.

Learned Counsel for BMP submits that if an application is filed by the 7th respondent for khatha, it would consider the same in accordance with law and pass orders thereon at the earliest.

As I am required to head the Circuit Bench in Dharwad, list this matter in 3rd week of July 2012."

On 31.5.2012, learned counsel for the parties submitted that the parties have arrived at the terms of settlement and would be placed before the Court, if granted time. Petition was adjourned on several dates of hearing for reporting settlement. At the instance of learned counsel for BMP, on 9.6.2014, the following order was passed:

"Learned Counsel for BBMP submits that the claim of the petitioner over the property in Sy. Nos. 88 and 89 (New Nos. 102 and 103) bearing CTS Nos. 85 and 86, while the contesting respondent in whose name the khatha is changed claims Sy. Nos. 85, 86 (New Nos. 102, 103) and CTS Nos. 85 and 86. According to the learned Counsel, there is considerable dispute over the location as well as the claim of title to the property. Learned Counsel suggests that if the Government is directed to place on record the survey map of Ulsoor including Kensington road disclosing CTS numbers, then the location would be certain over enquiry by the city survey in respect of Sy. Nos. 85 and 86. Learned Government Advocate is directed to secure the records and placed on record the certified copy of the said map. List on 23.06.2014."

Learned counsel for the parties were unable to report settlement, hence, on 28.7.2014, when the petition was heard, the following order was passed:

"Sri. Vedachala, learned Counsel for the petitioner, submits that in the genealogy one Muniswamappa @ Jayappa, died leaving behind Lakshmaiah, whose children seven in number are Ramdev, Jaidev, Shailendra, Suresh Babu, Raikala, Yashoda and Sujaya. Muniswamappa is said to have purchased 36 guntas of land in Sy. No. 88 and 16 guntas of land in Sy. No. 89 under registered sale deed dated 30.7.1901, with common boundaries,

East by : Kodikatte Someswara Inam

West by : Kere katte

North by : Kambali Reararama

South by : Bhaskar Ali

Under the sale deed dated 2.10.1901, Muniswamappa is said to have purchased 20 guntas of land in Sy. No. 89, bounded on the:

East by : Anjaneya Inamthi land

West by : Kere katte

North by : Kere katte

South by : Muniswamppa''s land

By yet another registered sale deed dated 14.1.1902, Muniswamappa is said to have purchased 2 guntas of land in Sy. No. 89, bounded on the:

East by : Someswara Inamthi land

West by : Kere katte

North by : Kere katte

South by : Muniswamappa''s property

The site bearing No. 105 measuring 29 1/2 ft., x 72 ft., guntas was purchased by M. Lakshmaiah, son of Muniswamappa under sale deed dated 9.8.1933 executed by one Gangadhar, which is said to have carved out of Sy. No. 89/1, bounded on the:

East by : Plot No. 4 of Ranganayakalu Naik

West by : Plot No. 6

North by : Conservancy

South by : Road

This property is said to have been conveyed to one Kanamma under sale deed dated 10.9.1933.

From out of the land purchased in Sy. No. 89, M. Lakshmaiah is said to have conveyed area measuring 90'' x 8'' under sale deed dated 22.8.1917 in favour of Latchmaiah @ Pillaiah, boundaries of which are:

East by : Land of Muniyappa

West by : Road

North by : Remaining portion of the land

South by : Galli

Under partition deed dated 6.9.2002, the siblings of Ramdev are said to have partitioned the land in Sy. Nos. 85 and 86 [according to learned Counsel wrongly mentioned as survey numbers and ought to be CTS Numbers] in Sy. Nos. 102 and 103. The document of partition is not before Court, much less, sketch annexed to it.

According to learned Counsel for the petitioner, a resurvey of land in Sy. Nos. 88 and 89 conducted in the year 1905 discloses that Sy. No. 88 was assigned re-survey No. 102 Annexure-B1 measuring 36 guntas and Sy. No. 89 was assigned re-survey No. 103 Annexure-B2 measuring 44 guntas [1 acre 4 guntas].

The Index of land Annexures-C1 & C2 are said to make reference to Sy. Nos. 103 and 102 measuring 1 acre 4 guntas and 31 guntas + 4 guntas PK [totally measuring 35 guntas], respectively, without disclosing the year in which the entries were made in the Index of land.

Learned Counsel points to Annexures-E1, E2, E3 and E4 said to be the extracts from the tax registers of the Corporation of City of Bangalore in respect of Municipal No. 1 and Municipal No. 1/1 for the years 1989 to 23.1.1996; 1997 to 2004-05 respectively. While Annexures - E1 & E2 record the name of Muniswamappa, Annexures-E3 & E4 disclose the name of Ramdev.

The State Government filed memo dated 20.6.2014 enclosing a map of the local area No. 89, Murphy Town, Bangalore City, disclosing CTS Numbers without disclosing the survey number or re-survey numbers.

Although learned Counsel for the petitioner submits that CTS Nos. 85 and 86 relate to the property belonging to the petitioner, there is no material to establish prima facie that CTS Nos. 85 and 86 correlate to re-survey Nos. 103, 102 or old Survey Nos. 88 and 89.

There is also no material forthcoming from the respondent/Municipal Corporation, as to whether municipal Nos. 1 or 1/1 has any relation to the aforesaid survey number or re-survey number, much less, CTS Number. Therefore, there is identity crisis.

The revenue records relating to the land in question since they were revenue bearing lands cannot but be in the custody of the Revenue Department and therefore the State Government is required to place that on record. So also the City Survey Records are in the custody of the Revenue Department and village map which will also have to be placed on record.

As to when the lands fell within the jurisdiction of the Municipality since pre 1949 Bangalore City was ''Municipality'' and post 1949, it became ''Corporation'' under the Bangalore City Municipal Corporation Act, 1949 since replaced by Karnataka Municipal Corporation Act, 1976. Therefore, it is for the Municipal Corporation to place on record relevant material relating to the period when the lands in question was brought within its jurisdiction and for the first time it is assessed to Corporation Tax and therefore the records relating to the same are imperative.

The synopsis filed by learned Counsel for the petitioner is taken on record.

Relist on 31.7.2014."

Although learned counsel for the petitioner submits that there is overwhelming material relevant to decide, on the fact, that petitioner is the owner of the immovable property in question, assigned as Municipal Nos. 1 and 1/1, Muniswamappa Garden, Ulsoor, in the wake of the claims over title to the very same property by respondent No. 4, nevertheless that submission is unacceptable. So also, the Court would have to hazard a finding on the location of immovable property in question as claimed by the petitioner, vis-�-vis by the 4th respondent as well as the 7th respondent, coupled with the fact that the BMP is unable to place before the Court the record based upon which, it identified the location of the property in question, at the time of recording petitioner''s name in the tax register primarily responsible for payment of corporation tax under the ''Act''.

There is force in the submission of learned counsel for petitioner that the 2nd respondent in exercise of jurisdiction under Section 114A of the ''Act'' could not have exercised a jurisdiction vested in a Civil Court in the matter of deciding title to immovable property as held by the Full Bench of this Court in C.N. Nagendra Singh Vs. The Special Deputy Commissioner and Others, , recording a finding that the decision of revenue Court has to be necessarily based upon undisputed facts and the revenue Court cannot go into the disputed question of relationship, status of the parties, title to the property or genuineness or otherwise of a document or challenge to the documents on the ground of fraud, undue influence, misrepresentation or mistake. Even otherwise, a perusal of Section 114A of the ''Act'' makes it abundantly clear that the 2nd respondent, the authority, under the Act had no jurisdiction to dwell into documents controverted by the parties, over title to immovable property. All that the 2nd respondent had to do under Section 114A , is to ascertain whether the petition is made within the time limited therein, and if there is a genuine dispute over title to the immovable property, refer the parties to the Civil Court to have their respective claims tried and decided in a full-fledged adjudication. The 2nd respondent apparently having opined that the review application was filed within three years of the special notice recording the petitioner''s name, however, exercised a jurisdiction not vested in him to adjudicate the dispute over title to immovable property. In that view of the matter, the order impugned Annexure-P is vitiated calling for interference.

Learned counsel for the petitioner submits that the 4th respondent during the pendency of the petition and interim order of stay, has since conveyed the immovable property claimed by him, to be the very same property as that of the petitioner and therefore, has no subsisting interest.

Sri M. Shivappa, learned Senior Counsel, on instructions from the instructing counsel for respondent No. 4, submits, that there is no dispute over conveyance of the property, nevertheless the interest of the 4th respondent requires to be protected, to deliver a valid title to the purchasers. At this stage, Sri Prashanth Chandra, learned counsel for respondent-BMP submits that the name of the 4th respondent is continued in the Fiscal Registers only for collecting taxes.

According to the learned counsel for 4th respondent the property is alienated, therefore, no useful purpose would be served in continuing the name of 4th respondent in the Fiscal Register. Even otherwise also, if name of either of the petitioner or 4th respondent is continued in the Fiscal Register, it will lead to an incongruous situation of unidentified immovable property, and collecting taxes from both the parties which is impermissible, leading to multiplicity of proceedings. It is needless to state that the petitioner and 4th respondent or his successors in interest, purchasers must approach the civil Court of competent jurisdiction for adjudication over the right, title and interest, as also, location of the immovable property, in question, and it is only there-afterwards, the recovery of taxes, after an assessment under the ''Act'', is permissible from the successful party. It is made clear that BMP would have to await the decision of the Civil Court, over the competing interests of the parties both over title and location of the property in question.

In the result, petition is allowed in part. The order impugned is quashed and BMP is directed to delete from its Fiscal Register the names of both petitioner and 4th respondent and await final decision of the Civil Court. Sequentially, all other pending applications are rejected.

BMP to consider the application of the 7th respondent for issue of khatha in respect of Sy. No. 104, in accordance with law, and in the light of the order dated 31.05.2012 supra.