Allowed

Smt Sheela Anish v. the Bruhat Bengaluru Mahanagara Palike (Bbmp)

Karnataka HC30 Oct 2024WP/16428/2024

Case brief

AI extract

What is this about?

A writ petition challenging BBMP's review order cancelling the petitioner's Katha for a Connaught Road property and restoring it in favour of a deceased claimant's heirs. The court held the title dispute stood concluded by prior civil suit and writ proceedings, quashed the impugned order and directed restoration of the Katha.

What did the court decide?

Impugned review order dated 10.06.2024 quashed; BBMP directed to restore Katha for the subject property in favour of the petitioner.

Smt Sheela Anish Vs the Bruhat Bengaluru… — Municipal and Town Planning | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:43941 WP No. 16428 of 2024

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 30^TH DAY OF OCTOBER, 2024

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 16428 OF 2024 (LB-BMP)

¶7

BETWEEN:

¶8

SMT SHEELA ANISH D/O LATE KRISHNA MURTHYF, AGED ABOUT 64 YEARS OLD, RESIDING AT NO. 8, CONNAUGHT ROAD, QUEENS ROAD CROSS, BANGALORE - 560052.

¶9

…PETITIONER

¶10

(BY SRI. UDAYA HOLLA, SENIOR ADVOCATE FOR

¶11

SRI. MAHESH M., ADVOCATE)

¶12

Digitally signed by ANAND N Location: HIGH COURT OF KARNATAKA

¶13

AND:

¶14

THE BRUHAT BENGALURU MAHANAGARA PALIKE (BBMP)

¶15

CORPORATION OFFICES,

¶16

N R SQUARE, J C ROAD, BENGALURU 560002.

¶17

REPRESENTED BY ITS COMMISSIONER.

¶18

JOINT COMMISSIONER

¶19

BBMP, BENGALURU EAST, MAYO HALL, BENGALURU-560001

¶20

2 - NC: 2024:KHC:43941 WP No. 16428 of 2024

¶21

ASSISTANT REVENUE OFFICER VASANTHNAGAR SUB DIVISION, BBMP, BENGALURU-560005

¶22

LATE. T. HARRY DIAS S/O THOMAS SEBASTIN SINCE DEAD REPRESENTED BY HIS LEGAL HEIRS

¶23

MARGARET ROSE SELATH W/O LATE HARRY DIAS AGED ABOUT 78 YEARS

¶24

GERARD STEPHEN HARRY ANTHONY S/O LATE HARRY DIAS, AGED ABOUT 54 YEARS.

¶25

MARI ELIZEBETH HARRY D/O LATE HARRY DIAS, AGED ABOUT 54 YEARS.

¶26

CHRISTINA SUNITHA HARRY D/O LATE HARRY DIAS, AGED ABOUT 52 YEARS.

¶27

H DERICK LEONARD S/O LATE HARRY DIAS, AGED ABOUT 44 YEARS.

¶28

ALL ARE RESIDING AT NO. 591, 1ST A CROSS, BHUVANESHWARI NAGAR, R T NAGAR POST, BENGALURU - 560 032.

¶29

…RESPONDENTS

¶30

(BY SRI. B V MURALIDHAR., ADVOCATE FOR R1 TO R3;

¶31

SRI. NAVEED AHMED, ADVOCATE A/W

¶32

¶33

NC: 2024:KHC:43941 WP No. 16428 of 2024

¶34

SRI. MOHAMMED AFROZE, ADVOCATE FOR R5 TO R8)

¶35

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 10/06/2024 (ANNEXURE-A) PASSED BY THE R2 IN REVIEW PETITION NO. JC(E)/114A/40/2018-2019 UNDER SECTION 114A OF THE KARNATAKA MUNICIPAL CORPORATION ACT, 1979.

¶36

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD

¶37

ORAL ORDER

¶38

The petitioner, who has purchased the property bearing No.8 [Old No.10/A], PID No.78-52-8, Ward No.78 of Connaught Road, Bengaluru [ the subject property ] under the Sale Deed dated 05.01.2016, has impugned the second respondent's order dated 10.06.2024 in Review Petition No.

¶39

JC(E)114A/40/2018/19. The second respondent, by this impugned order dated 10.06.2024, has set aside the revenue entries for the subject property that existed in favour of the petitioner directing the Katha

¶40

¶41

NC: 2024:KHC:43941 WP No. 16428 of 2024

¶42

to be transferred in favour of Mr. T. Harry Dias, who is now no more and is represented by the fourth to eighth respondents. Ms. Margaret Rose Selath, the fourth respondent and one of the legal representatives of Mr. T. Harry Dias, is also no more. However, the other respondents viz ., the fifth to eighth respondents, are legal representatives of both Mr. T. Harry Dias and Ms. Margaret Rose Selath.

¶43

On 06.09.2000, the Katha for the subject property is mutated in favour of Mr. T. Harry Dias. Mr. Mario Alphonse Dyas and his family members have called in question this order in W.P. No.30294/2001. This Court, by the order dated 27.10.2004, has allowed this petition quashing such order directing the concerned Assistant Revenue Officer, BBMP, to cancel the Katha in favour of Mr. T. Harry Dias and keep as it was earlier in its records, subject to the outcome of the civil proceedings. This Court's order reads as under:

¶44

5 - NC: 2024:KHC:43941 WP No. 16428 of 2024

¶45

18. In the circumstances, Order dated 6-92000 passed by the Respondent No.2 is hereby quashed by issue of a writ of certiorari. This writ petition is allowed and the respondent Nos.1 an 2 are directed to cancel the Khata that they have issued in the name of the Respondent No.3 and to retain it as it was earlier in the records and further to effect any change only on the outcome of the civil proceedings between the parties and as directed by the Civil Court."

¶46

The civil proceedings referred to by this Court in this order is the suit in O.S.No.9006/2003 is initiated by Mr. T. Harry Dias as a proceeding under the Indian Succession Act, 1925 for Letter of Administration for the Will and Testament dated 08.03.1959. However, with the Testament and Will being contested, the proceeding is registered as a suit in O.S No.9006/2003.

¶47

This suit, which was pending as of this Court's order dated 27.10.2004, is dismissed by the concerned civil Court by the judgment and decree

¶48

¶49

NC: 2024:KHC:43941 WP No. 16428 of 2024

¶50

dated 26.07.2006. It is after this decision that the Katha for the subject property is restored in favour of Mr. Mario Alphonso Dyas and his family members in the year 2007. Mr. Mario Alphonso Dyas’s family members have executed and registered the Release Deed dated 04.02.2008 in his favour resulting in the transfer of Katha for the subject property in his favour. Mr. Mario Alphonse Dyas has executed the Sale Deed dated 05.01.2016 in favour of the petitioner transferring the Subject Property, and consequentially, the Katha for this property is mutated in favour of the petitioner.

¶51

The controversy should have ended at this

¶52

stage, but the contesting respondents [ who admittedly claim under Mr. T. Harry Dia s] have challenged mutation of Katha in favour of the petitioner under Section 114A of the Karnataka Municipal Corporations Act 1976 [for short, ' the KMC Act '], which has culminated in the impugned order

¶53

¶54

NC: 2024:KHC:43941 WP No. 16428 of 2024

¶55

dated 10.06.2024. The second respondent has cancelled the Katha for the Subject property in favour of the petitioner drawing adverse inference against the petitioner. The adverse inference drawn by the second respondent is that the petitioner is a stranger to the family of the person who is granted the subject property. Further, the second respondent has drawn this adverse inference in the light of what the officer records as " the fact in dispute " viz ., who are the legal representatives of the grantee.

¶56

Mr. Udaya Holla, the learned Senior counsel for the petitioner, submits that the controversy between every person who claims under Mr. T. Harry Dias and the defendants in O.S.No.9006/2003 [ who is essentially the petitioner now ] is concluded with the decision of this Court in W.P.No.30294/2001 and the judgment and decree in O.S.No.9006/2003. The learned Senior Counsel canvasses that Katha in favour of the defendants [ Mr.

¶57

¶58

NC: 2024:KHC:43941 WP No. 16428 of 2024

¶59

Mario Alphonso Dyas and his family members ] is consequent to the observation by this Court that the changes shall be effected only on the outcome of the civil proceedings, and the outcome in the civil proceedings is that Mr. T. Harry Dias, who claimed as a Beneficiary/Legatee asserted under the last Will and Testament dated 08.03.1959, has failed to establish such bequeath to assert exclusive title to the property.

¶60

Mr. Udaya Holla also emphasizes that the second respondent could not have even otherwise entered any dispute about who could claim under the original grantee, and the second respondent in addressing such question and deciding it on adverse inference, has usurped jurisdiction which is impermissible in law.

¶61

Mr. B. V. Muralidhar, the learned counsel for the BBMP, when queried on certain observations

¶62

¶63

NC: 2024:KHC:43941 WP No. 16428 of 2024

¶64

in the impugned order¹ , fairly submits that this is a misreading of the judgment and decree in O.S.No.9006/2003 and that he cannot refute the assertion by the learned Senior counsel that the second respondent could not have entertained any dispute about who are the legal representatives of the grantee, especially in the present case at the instance of Mr. T. Harry Dias as all the questions inter se this person and the petitioner's predecessor's-in-interest are examined in O.S.No.9006/2003.

¶65

Mr. Naveed Ahmed, the learned counsel for the contesting respondents supported by his colleague Mr. Mohammed Afroze, submits that this Court may not interfere with the impugned order because (a) the proceedings in O.S.No.9006/2003 and W.P.No.30294/2001 relates to another property and the present controversy is over Katha for another

¶66

1 The observation is that the petitioner has filed suit in O.S.No.9006/2003 before City Civil Court, Bangalore and the suit is dismissed with an observation that petitioner is not related to Mr. R. S. Dyas [the Grantee] or his family.

¶67

10 -

¶68

NC: 2024:KHC:43941 WP No. 16428 of 2024

¶69

property, (b) this Court, while disposing of the writ petition in W.P.No.30294/2001, has categorically directed the BBMP and the concerned Assistant Revenue Officer to effect Katha for the subject property only on the outcome of the civil proceedings [O.S.No.9006/2003] and the civil Court, though has dismissed the suit, has not positively directed restoration of Katha in favour of the defendants in the suit, including Mr. Mario Alphonse Dyas, and (c) the Katha in favour of the aforesaid is entered fraudulently based on a certain transfer which is not supported by the documents and this is seen, amongst others, from the unsigned Annexure-N.

¶70

In rejoinder, Mr. Udaya Holla submits that Mr. T. Harry Dias himself has acknowledged that his interest in the subject property is only as a legatee and the defendants in O.S.No.9006/2003 viz ., the petitioner's predecessor's-in-interest are the legal representatives of the undisputed owner of the

¶71

11 -

¶72

NC: 2024:KHC:43941 WP No. 16428 of 2024

¶73

subject property, and the learned Senior Counsel, relying upon the details in these proceedings refutes the assertion that the proceedings in O.S.No.9006/2003 and W.P.No.30294/2001 relates

¶74

to another property and the subject Katha is for another property.

¶75

On whether O.S.No.9006/2003 and W.P.No.30294/2001 and the present controversy relate to the subject property :

¶76

11.1 Indisputably, the revenue entries for

¶77

the subject property are mutated in favour of the Mr. T. Harry Dias vide the Order dated 06.09.2000.

¶78

The petitioner’s predecessors-in-interest have challenged this order dated 06.09.2000 in W.P.No.30294/2001. This Court's direction in W.P.No.30294/2001 is to effect entry to changes in

¶79

the Katha for the concerned property only on the outcome of the civil proceedings between the parties. The terms of these orders show the proceedings

¶80

12 -

¶81

NC: 2024:KHC:43941 WP No. 16428 of 2024

¶82

related to the property bearing No.8 [Old No.10/A], PID No.78-52-8, Ward No.78 of Connaught Road, Bengaluru – the Subject Property . The question that was considered by this Court in W.P. No.30294/2001 was whether Mr. T. Harry Dias could be entitled to Katha for the Subject Property in terms of the order dated 06.09.2000. The records do not justify the conclusion that Mr. T. Harry Dias claimed interest in W.P. No.30294/2001 to a property other than the subject property.

¶83

11.2 This Court must next refer to the fact that after the judgment and decree in the civil suit in O.S.No.9006/2003, the Katha for the subject property is mutated in favour of Mr. Mario Alphonse Dyas and his family members and that consequent to a registered Release Deed dated 04.02.2008 by the others in his favour, the Katha is mutated in his favour in the year 2014. Further, with the execution of the Sale Deed dated 05.01.2016 by him in favour

¶84

13 -

¶85

NC: 2024:KHC:43941 WP No. 16428 of 2024

¶86

of the petitioner for the Subject Property, the Katha is mutated in favour of the petitioner. This Court, even in the limited expanse of these proceedings, is not persuaded to opine that the earlier dispute related to the property other than the subject property, and this Court must opine that the assertion that the proceedings in O.S.No.9006/2003 [ or in W.P.No.30294/2001 ] relate to another property and the present dispute relates to the subject property is as specious as anything could be.

¶87

On the civil Court in O.S.No.9006/2003 has not specifically directed transfer of Katha in favour of Mr. Mario Alphonso Dyas and his family member:

¶88

12.1 Mr. Naveed Ahmed proposes to rely upon observations by this Court in W.P.No.30294/2001 to contend that the Katha could not have been mutated in favour of the defendants in O.S.No.9006/2003 as the civil Court did not direct so specifically. This contention cannot prevail. With the revenue entries

¶89

14 -

¶90

NC: 2024:KHC:43941 WP No. 16428 of 2024

¶91

mutated in favour of the Mr. T. Harry Dias vide the Order dated 06.09.2000, the petitioner's predecessors-in-interest have contested the same in W.P.No.30294/2001 while contesting the last Will and Testament dated 08.03.1959 relied upon by Mr. T. Harry Dias in O.S.No.9006/2003.

¶92

W.P.No.30294/2001 is to effect entry to changes in the Katha for the property on the outcome of the civil proceedings between the parties and with the further observations as directed by the civil Court. The civil Court has concluded that Mr. T. Harry Dias has not established the bequest under the last Will and Testament dated 08.03.1959. It is undisputed that the petitioner claims under the admitted legal representatives of the original owner, Mr. R. S. Dyas. This Court cannot infer that this Court’s observations

¶93

has restrained the Authorities to give effect to the consequential mutation of revenue entries that must

¶94

15 -

¶95

NC: 2024:KHC:43941 WP No. 16428 of 2024

¶96

ensue after such conclusion. Further, Mr. T. Harry Dias has not challenged the revenue entries in favour of the petitioner's predecessors-in-interest, which is not just once but twice [ once in the year 2007 when the Katha is restored immediately after the civil suit and subsequently with the execution of the Relinquishment Deed ]. The impugned order therefore cannot be sustained even on this ground.

¶97

On the mutation of Katha for the subject property in favour of Mr. Mario Alphonso Dyas and his family members is based on fraudulent documents:

¶98

13.1 The contesting respondents propose to propound that the Katha for the Subject Property is restored in favour of the petitioner's predecessors-ininterest [ Mr. Mario Alphonso Dyas and his family members ] by fraud, and they propose to rely upon a copy of an order as per Annexure-N. This Court must observe that this contention cannot be accepted in the light of the conclusions as aforesaid and the fact

¶99

16 -

¶100

NC: 2024:KHC:43941 WP No. 16428 of 2024

¶101

that the Katha was indeed affected as seen in Annexure-Q in the year 2007 and has remained unchallenged. Even otherwise in view of the different proceedings referred to above, this Court must observe, based on Annexure-N itself [ a Certificate which does not bear the signature of the concerned ], there cannot be an opinion that there was no due process.

¶102

This Court for the foregoing must opine that the impugned order must yield and the Katha for the subject property must continue. At this stage, Mr. Naveed Ahmed submits that there is a civil suit between the petitioner and the contesting respondents, and this Court must observe that the observations in this order shall not affect the outcome in such suit. This Court must observe that the facets presented for consideration are examined with definite opinion in the light of the earlier and indisputable proceedings, and leaving open even

¶103

17 -

¶104

NC: 2024:KHC:43941 WP No. 16428 of 2024

¶105

questions thus examined for reconsideration would violate the rule of finality, a vital cog in the judicial proceedings. This Court's opinion on facets examined must be conclusive while the facets that are not considered should remain open for adjudication in the suit. Hence, the following:

¶106

ORDER

¶107

The writ petition is allowed. The second respondent's impugned order dated 10.06.2024 in Review Petition No.JC(E) 114A/40/2018/19 [ Annexure-A ] is quashed and the BBMP is directed to restore the Katha for the subject property in favour of the petitioner.

¶108

Sd/(B M SHYAM PRASAD) JUDGE

¶109

Smt Sheela Anish v. the Bruhat Bengaluru Mahanagara Palike (Bbmp)

Case brief

What is this about?

What did the court decide?

Smt Sheela Anish v. the Bruhat Bengaluru Mahanagara Palike (Bbmp)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri C N Anantharam Vs the State of Karnataka

Mr Harish S Vs the Commissioner Bruhath Bangalore Mahanagara Palike

Kumbara Sarvajanika Vidyarthi Nilaya Trust Vs the State of Karnataka

M/S Pristine Hospital and Research Centre Pvt. Ltd. Vs the Commissioner

Sri B Manjappa Vs the Grama Panchayath

Nanjesha Vs the State of Karnataka