N. Venkatesh vs Joint Commissioner

Heard the submissions of the learned counsel appearing for the appellants and the third respondent appearing in person yesterday.

By this appeal, the appellants who are the writ petitioners have taken an exception to the order dated 3rd June 2019 passed by the learned Single Judge. The writ petition was filed by the present appellants for challenging the order dated 16th February 2019 passed by the first respondent (Joint Commissioner, BBMP). Another prayer was made for issue of a writ of mandamus directing the first and second respondents to restore khatha No.62/1/61/A/10 which was standing in the name of the first appellant.

A brief reference to the factual aspects will be necessary. According to the case of the appellants, one M.Manchaiah acquired the land in Sy.No.10 measuring 4 acres from Hanumaiah under a registered sale deed. The said land is situated in Pattanagere Village, Kengeri Hobli. It is claimed that the third respondent purchased site No.61 measuring 60 X 40 feet in Sy.No.10 from constituted attorney of the said M. Manchaiah. The khatha of the site No.61/A in Sy.No.10 was issued to M. Manchaiah. His constituted attorney sold the said site No.61/A measuing 40 x 20 feet in Sy.No.10 to the second appellant under a registered sale deed. It is claimed that the third respondent gifted site No.61 in Sy.No.10 to his brother under a registered gift deed. The case of the appellants is that the third respondent tried to encroach upon the property in site No.61/A. The third respondent filed a complaint before the first respondent seeking cancellation of the khatha in respect of site No.61/A and for registering the same in his name. The appellants have referred to the judgment and decree in suit bearing O.S.No.3897/2016 passed by the City Civil Court against the third respondent and his brother.

According to the case of the appellants, the second appellant gifted site No.61/A measuring East to West 40 feet and North to South 20 feet under a registered gift deed to the first appellant and thereafter, the khatha certificate in respect of site No.61/A in Sy.No.10 was issued in favour of the first appellant. Reference is made to a suit filed by the third respondent and his brother in the City Civil Court for a declaration that they are the absolute owners of site No.61 in Sy.No.10 measuring 40 x 60 feet. A declaration was sought that the sale deed dated 16th July 2014 executed by the constituted attorney of M. Manchaiah in favour of the second appellant and the gift deed dated 21st February 2017 executed by the second appellant in favour of the first appellant are not binding on the third respondent and his brother. The case of the appellants is that on the basis of the registered gift deed of 21st February 2017, the khatha was duly changed in the name of the first appellant.

After serving notice to the appellants, the first respondent passed an order cancelling the khatha in site No.61/A. According to the case of the appellants, they were not heard by the first respondent. The appellants have pointed out that in the meanwhile, the third respondent and his brother sought amendment of the plaint in the suit filed by them for inserting site No.61/A by insertion of Schedule - B and the said application was rejected. In the writ petition filed by the appellants, the challenge was to the said order dated 16th February 2019 cancelling the khatha in site No.61/A. By the impugned order, the learned Single Judge directed the authority to remove the entries both in the names of the appellants and the third respondent and to enter the details of the pending suit. The learned Single Judge observed that after the disposal of the suit, the revenue authority shall act in accordance with the decree passed in the suit. A direction was issued to dispose of the suit within a period of 24 months that is, on or before 16th July 2020.

The learned counsel appearing for the appellants has taken us through the impugned order. He submitted that the name of the third respondent was not appearing in the khatha in respect of site No.61/A and the name of only the first appellant was appearing. He further submitted that the prayer in the writ petition was for setting aside the order dated 16th February 2019 and restoration of khatha in the name of the first appellant and the said prayer has not been considered by the learned Single Judge. He also submitted that the objections filed by the appellants were not considered by the first respondent and an order was passed by the first respondent without giving an opportunity of being heard to them.

The third respondent appearing in person submitted that the appellants have played a fraud and he may be granted an opportunity to produce documents. He urged that no interference should be made with the impugned order of the learned Single Judge.

We have considered the submissions. As narrated earlier, the prayer in the writ petition filed by the appellants was for setting aside the order dated 16th February 2019 by which, khatha in site No.61/A was cancelled. The contention raised in the writ petition was that the impugned order was passed in breach of the principles of natural justice and an opportunity of being heard was not granted to the appellants. The specific ground taken in the writ petition was that even the statement of objections filed by the appellants were not considered by the first respondent. The other ground urged in the writ petition was that the third respondent was not the owner of the property in site No.61A and therefore, his complaint could not have been entertained. Relying upon Section 114A of the Karnataka Municipal Corporation Act, 1976 (for short 'the said Act'), it was contended that khatha was issued to M.Manchaiah on 20th June 2014 and it was issued to the second appellant on 28th January 2016. The contention raised was that the power under Section 114A of the said Act could not have been exercised after a lapse of three years.

Perusal of the impugned order shows that the learned Single Judge has not gone into the contention raised regarding the breach of the principles of natural justice. The argument based on Section 114A of the said Act has been specifically reproduced in paragraph 6 of the impugned order. However, the said argument has not been dealt with on merits. In paragraph 10, the learned Single Judge referred to the pendency of the suit filed by the third respondent and his brother claiming declaration of ownership in respect of site No.61. The learned Single Judge observed that the revenue authorities ought to have held their hands when the Civil Court was seized of the matter. While saying so, the learned Single Judge ignored the fact that the impugned order was passed during the pendency of the suit filed by the third respondent and his brother. The learned Single Judge has hardly recorded any reasons in the impugned order. Without considering the merits of the case canvassed by the appellants, the learned Single Judge directed removal of the entries in the name of the appellants as well as the third respondent. In fact, the writ petition was filed challenging the impugned order by which, the name of the appellants was ordered to be removed. The learned Single Judge could have rejected the petition or could have granted the relief as prayed for. However, the learned Single Judge, without adverting to the contentions raised by the appellants on merits, has passed the impugned order.

The third respondent wants to produce documents showing the fraud played by the appellants. Therefore, after setting aside the impugned order for the reasons recorded above, we propose to pass an order of remand so that the third respondent gets an opportunity to file necessary documents in the writ petition.

The learned Single Judge ought to have taken judicial notice of the fact that in the City Civil Court, Bengaluru, there is a huge filing of cases and a huge pendency. This aspect ought to have been considered before fixing a time- bound programme for the disposal of the suit. Normally, a writ Court should be very slow in directing disposal of the pending cases in the trial Court within a specified time limit inasmuch as before the Court in which the suit was pending, there may be much more urgent cases pending deserving utmost priority for disposal. Therefore, normally, the question of expediting the suit and grant of out of turn priority has to be left to the learned Trial Judge. It cannot be that someone who can afford to come to the higher Court gets priority for disposal of his case in the trial Court and other litigants patiently wait for their turn.

Accordingly, we pass the following order:

(i) The impugned order dated 3rd June 2019 is hereby quashed and set aside and W.P.No.21193/2019 is restored to the file of the learned Single Judge;

(ii) It will be open for the third respondent to file objections and to produce necessary documents along with the objections. If the third respondent has already filed the objections, it will be open for him to apply to the learned Single Judge for grant of leave to file additional objections along with documents;

(iii) We make it clear that we have made no final adjudication on the controversy involved in the writ petition and all the contentions are kept open to be decided by the learned Single Judge;

(iv) Accordingly, the appeal is partly allowed in the above terms.