Disposed

Dr S Shobha v. the Commissioner Bbmp

Karnataka HC20 Sept 2021WP/6370/2019

Case brief

AI extract

What is this about?

Writ petition seeking issuance of khata and registration. Court noted lack of discriminatory treatment by BBMP and rejected rivals seeking impleading due to lack of civil court tenure. Disposed petition directing BBMP to reconsider case.

What did the court decide?

Writ petition disposed with direction to BBMP to reconsider issuance of khata within three months; impleading application rejected.

Dr S Shobha Vs the Commissioner Bbmp — Municipal and Town Planning | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

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WRIT PETITION No.6370/2019 (LB- BMP)

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BETWEEN

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DR.S.SHOBHA W/O DR.S.JANARADHANA MURTHY AGED ABOUT 62 YEARS, R/O NO.5, 17^TH MAIN GIRINAGAR, BENGALURU - 560 026.

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DR.S.RAJALAKSHMI D/O DR.S.JANARADHANA MURTHY AGED ABOUT 32 YEARS, R/O NO.5, 17^TH MAIN, GIRINAGAR, BENGALURU - 560 026.

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... PETITIONERS

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(BY DR.S.SHOBHA, PARTY- IN- PERSON (PHYSICAL HEARING))

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AND

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THE COMMISSIONER BBMP BRUHAT BANGALORE MAHANAGARA PALIKE N.R.SQUARE HEAD OFFICE BENGALURU – 560 002.

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THE ASSISTANT REVENUE OFFICER PADMANABHANAGAR SUB- DIVISION BRUHAT BANGALORE MAHANAGARA PALIKE CHENNAMANA ACCHUKATTU

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VIDYA PITA CRICLE BENGALURU – 560 019.

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MR.GOPI AGED ABOUT 72 YEARS, S/O KRISHNAMNAIDU CAUVERY NAGAR, NEAR KATHARIGUPPE BENGALURU – 560 074.

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THE SUB - REGISTRAR BASAVANAGUDI SUB - DIVISION, GANDHI BAZAAR MAIN ROAD, BENGALURU - 560 004.

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(R4 IS IMPLEADED VIDE COURT ORDER DATED 09.03.2020)

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... RESPONDENTS

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(BY SRI H.DEVENDRAPPA, ADVOCATE FOR R1 & R2 (VIDEO CONFERENCE);

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SRI NITHYANANDA K.R., HCGP FOR R4 (PHYSICAL HEARING ))

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENT CORPORATION TO ISSUE THE KHATHA IN THE NAME OF THE PETITINER NO.1; DIRECT THE SUB-REGISTRAR BASAVANAGUDI BANGALORE TO REGISTER PROPERTY SALE DEED/GIFT DEED.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 08.09.2021, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING :-

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ORDER

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The petitioners are before this Court seeking a direction to the Bruhat Bengaluru Mahanagara Palike (‘BBMP’ for short) to issue khata in their names in respect of premises No.13, 22^nd ‘A’ Main Road, Ittamadu Village, Uttarahalli Hobli, Bangalore (‘the property’ for short) and also sought a direction to the Sub-Registrar, Basavanagudi/respondent No.4 to register the property.

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Sans unnecessary details, the facts that are pleaded in the writ petition and claimed by the petitioners are as follows:-

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Mother and daughter are petitioners 1 and 2 respectively. The claim of the petitioners is that they are the owners of the property by virtue of an unregistered sale deed and a General Power of Attorney (‘GPA’ for short) as also a regularization certificate issued by the Bangalore Development Authority on acceptance of

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betterment charges and regularization charges. The issue in the petition is non-issuance of khata by the BBMP. Therefore, the ownership of the petitioner or otherwise is not gone into.

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The 1^st petitioner on the strength of the aforementioned documents/unregistered sale deed, affidavit, GPA and regularization certificate applied to the BBMP for issuance of khata. The application seeking issuance of khata is acknowledged by the BBMP on 2-02-2015. Later, on 29-06-2017, an endorsement is issued by the BBMP indicating to the 1^st petitioner that she is seeking change of khata or entry on the strength of GPA and the BBMP having sought legal opinion in terms of the judgment of the Apex Court in S.L.P.No.13917 of 2009 dated 11-10-2011, khata cannot be issued, unless the 1^st petitioner gets a declaration of title from the hands of a competent Court and it is only thereafter, action would be taken. The 1^st

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petitioner after issuance of the said endorsement has filed this petition seeking a direction to the BBMP to issue khata.

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Heard petitioner No.1 in person and Sri H. Devendrappa, learned counsel appearing for respondent Nos.1 and 2/BBMP, Sri.Nithyananda.K.R., learned High Court Government Pleader for respondent No.4 and Sri S.C.Vijayakumar, learned counsel appearing for the impleading applicants.

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The 1^st petitioner submits that the BBMP is deliberately not issuing khata in her favour and at the same breadth has issued khata to all the houses in the area including neighbouring houses who have applied pursuant to certain GPA or sale deed, since at the point in time, registration of properties which came under Sarakki notified area were not being done.

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On other hand, the learned counsel appearing for BBMP would submit that no khata can be issued on the basis of GPA, unless the petitioners produce documents with regard to their title.

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This Court has passed several orders in this case. One that is germane is the order passed on 30-03-2021, which reads as follows:

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“The 1^st petitioner party-in-person, has taken this Court through the decision of the Hon’ble Supreme court in the case of SURAJ LAMP AND INDUSTRIES (P) LTD. TR.DIR.v. STATE OF HARYANA in SLP No.13917 of 2009 which has, in fact, been referred by the respondent-BBMP authorities in the endorsement dated 26-09-2017 issued to the petitioners. It is pointed out from the conclusive portion of the order of the Hon’ble Supreme Court that if the entries have been made in the municipal records, they may be relied upon to apply for regularization of allotments/leases by development authorities. It was further made clear that if

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the documents relating to Special Power of Attorney, General Power of Attorney transactions had been accepted and acted upon by the authorities or by Municipal or Revenue authorities to effect mutation, they need not be disturbed, merely on account of the decision rendered by the Hon’ble Supreme Court.

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It is contended by the petitioner that the competent authority had passed an order on 31-10-1996 regularising the unauthorized construction by collecting penalty of Rs.6,660/- which was paid to the Government Treasury. Further, it is contended that the then Sarakki Area notified Committee had issued an endorsement following the payment of the penalty/improvement charges and thereafter entered the name of the petitioner No.1 in the khata register.

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If that is the case, the respondent/BBMP authorities are required to furnish information as to why the name of the petitioner No.1 was

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not continued in the khata register after it took over the jurisdiction from Sarakki Notified Area Committee. If similar benefit has been granted to the neighbours and other owners of the properties having continued the entry of the persons names in the khata register which was entered by the Sarakki Notified Area Committee, then the benefit should also be given to the petitioners.

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Therefore, the concerned Assistant Revenue Officer of Padmanabhanagar Division, BBMP shall file an affidavit meeting the observations made hereinabove.

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Re-list this matter on 06-04-2021.

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A copy of this order shall be furnished to the learned counsel for the respondent/BBMP.”

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(Emphasis supplied)

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The contentions of the 1^st petitioner and the 2^nd

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respondent were noticed and directed that if it is the case of the 1^st petitioner that the competent authority has passed an order on 31-01-1996 regularising

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unauthorized constructions by collecting penalty which was paid to the Government Treasury, the authorities of the BBMP are required to furnish information as to why the name of the petitioner was not continued in the khata register after it took over the jurisdiction of Sarakki Notified Area Committee. This Court also noticed, if similar benefits had been granted to neighours and other owners of the properties having continued the entry in the names of persons in the khata register which was entered by the Sarakki Notified Area Committee, then that benefit should also be given to the petitioners.

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An affidavit was also directed to be filed by the BBMP. Accordingly affidavit is filed by a competent officer of the BBMP which reads as follows:-

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“AFFIDAVIT

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I, Sri Rajkumar, S/o Babu Rao, aged about 42 years, presently discharging the duties as Assistant Revenue Officer,

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Padmanabhanagar Division, B.B.M.P., Bangalore do hereby solemnly affirm and state on oath as follows:-

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1. I am working as Assistant Revenue Officer, Padmanabhanagar Division, B.B.M.P., Bangalore and I know the facts and circumstances of the above case. Hence, I am swearing to this affidavit.

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2. I submit that, I have read the order of the Hon’ble Court dated 30-03-2021 wherein I have been directed to file affidavit to clarify certain issues with regard to issuance of the khata in the name of the petitioner.

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3. I submit that when Sarakki Notified Area came within the ambit of BBMP certain documents depicting the name of the owners as khatedars in respect of their respective sites were required to be examined.

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4. I submit that as per my knowledge there are no instances where khata has been made in the name of the other owners of the

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properties after taking over the jurisdiction from Sarakki Notified Area Committee.

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5. I submit that the genuinity and authenticity of the documents referred by the petitioner are required to be tested after visiting the spot and also verifying the documents maintained by Sarakki Notified Area Committee.

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6. I submit that there is an objection raised by one of the land owners to not to issue khata in favour of the petitioner in respect of the site which she claimed as owner.

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7. I submit that after verification of all the documents including conducting of spot inspection, I need some reasonable time

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Wherefore, since we have been working on this issue, I pray that some reasonable time may kindly be granted to look into the entire matter and thereby report the same to the Hon’ble Court with regard to steps that

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are going to be taken by the authority in this regard.

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I the deponent do hereby declare and ratify that this is my signature and the contents mentioned above paragraphs are true and correct to the best of my knowledge, belief and information.”

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(Emphasis added)

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The affidavit which is filed pursuant to the direction of this Court does not categorically deny that there are no instances of khata having been issued in the names of other owners of the properties after the BBMP took over Sarakki Notified Area. It is also deposed that after Sarakki Notified Area was taken over, certain documents depicting the names of owners as khatedars in respect of sites were required to be examined. It is further deposed that genuinity and authenticity of documents produced by the 1^st petitioner are required to be tested after visiting the spot and also verifying the

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documents maintained by the Sarakki Notified Area Committee.

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Therefore, even according to the BBMP, the endorsement issued on 29-06-2017 is not after verifying entire records. The BBMP again on 12-04-2021 appears to have notified the Assistant Revenue Officer of JP Nagar to secure documents with regard to issuance of khata in favour the petitioners of their property. It is replied by the Assistant Revenue Officer that there are no documents found with regard to the property of the petitioners after a thorough search in the documents belonging to all the properties of Sarakki Notified Area Committee.

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Entire properties in the Sarakki Notified Area came within the precincts of the BBMP. It is not the property of the petitioners alone that came within the BBMP. If the documents of all other properties are available, the BBMP cannot now contend that the

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documents of the petitioners alone are not available with it, after it took over Sarakki Notified Area. The endorsement or communications that are produced along with the statement of objections would not lend support to the endorsement that is issued to the 1^st petitioner.

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Yet another reason that is given by the BBMP is that there are rival claimants as described in the impleading application. The said impleading applicants filed I.A.No.I/2021 seeking to come on record as party respondents by getting themselves impleaded into these proceedings. The objectors to the issuance of khatha and the impleading application that is filed is on the strength of a particular sale deed dated 6-07-1981. After about 40 years, on 19-12-2020, the said impleading applicants give a complaint to the BBMP not to issue khata as they are in possession of a particular sale deed mentioned (supra) . Therefore, the impleading

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applicants have no right to come into these proceedings for consideration in respect of issuance of khata in favour of the petitioners, unless they establish their independent right before a competent civil Court as they have emerged after 40 years of a particular sale deed dated 6.07.1981. Hence, their impleading application deserves to the rejected. The impediment projected by the BBMP on the basis of the rival claim can be no impediment in the eye of law.

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Insofar as issuance of khata in favour of the petitioners in terms of what the 1^st petitioner has applied is concerned, if all documents of properties which were taken over from Sarakki Notified Area are available, it cannot be said that papers of the petitioners alone are not available or traceable. On this ground, the BBMP cannot deny consideration of the case of the 1^st petitioner for issuance of khata concerning the property of the petitioners. It would also be open to the

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1^st petitioner to produce all such documents in her possession, which would enure to the consideration of the BBMP for issuance of khata.

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For the aforesaid reasons, I pass the following:

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O R D E R

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(i) The Writ Petition is disposed, with a direction to the BBMP to reconsider the case of the petitioners for issuance of khata in their favour, on the materials that are produced or further materials that would be produced by them, in accordance with law.

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(ii) The aforesaid exercise of consideration in respect of issuance of khata in favour of the petitioners shall be complied with by the BBMP within three months’ from the date of receipt of a copy of this order.

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(iii) I.A.No.1/2021 filed for impleading the applicants is rejected.

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In view of the disposal of the Writ Petition, all other pending applications, except I.A.No.1/2021 rejected hereinabove, do not survive for consideration and accordingly, stands disposed.

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Sd/JUDGE

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bkp CT:MJ

Dr S Shobha v. the Commissioner Bbmp

Case brief

What is this about?

What did the court decide?

Dr S Shobha v. the Commissioner Bbmp

Case brief

What is this about?

What did the court decide?

What the court decided

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