Dismissed

Mr Anto Michael v. the State of Karnataka

Karnataka HC10 Sept 2024WP/44975/2017

Case brief

AI extract

What is this about?

Grandchildren of a pre-1954 purchaser claimed khatedar rights and rents over lands in K.G. Byadarahalli village, alleging BBMP issued khatas to third parties and trespassed. The Court held title was seriously disputed, third parties were not arrayed, and the claim suffered delay; it dismissed the writ with liberty to approach an appropriate forum.

What the court decided

AI extract

Mr Anto Michael Vs the State of Karnataka — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:37818 WP No. 44975 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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WRIT PETITION NO. 44975 OF 2017 (LB-BMP)

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BETWEEN:

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MR ANTO MICHAEL AGED ABOUT 48 YEARS

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MISS SAGAYA MARIA TONY AGED ABOUT 50 YEARS

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BOTH ARE CHILDREN OF LATE ANTHONY MICHAEL AND GRANDCHILDREN OF LATE SUBEDAR A MICHAEL

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Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA

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BOTH ARE REPRESENTED BY THEIR SPA HOLDER, SRI. SUDARSHAN S S/O LATE T.K.SHANKARAPPA, AGED ABOUT 43 YEARS, THE PETITIONERS AND SPA HOLDER, RESIDING AT NO.17, CENTRAL STREET, CLEVELAND TOWN, BENGALURU-560 005

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…PETITIONERS

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(BY SRI. S. SUDHARSHAN, SPA HOLDER)

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AND:

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THE STATE OF KARNATAKA REPRESENTED BY PRINCIPAL SECRETARY DEPARTMENT OF REVENUE, VIDHANA SOUDHA, BANGALORE-01

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THE COMMISSIONER BRUHATH BENGALURU MAHANAGARA PALIKE, CORPORATION HEAD OFFICE, HUDSON CIRCLE, BENGALURU-02

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JOINT COMMISSIONER (EAST) BRUHATH BENGALURU MAHANAGARA PALIKE, MAYO HALL, RESIDENCY ROAD, BENGALURU-01

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ASSISTANT REVENUE OFFICER (VASANTHNAGAR) SUB-DIVISION, BBMP OFFICE, THIMMAIAH ROAD, SHIVAJINAGAR

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BENGALURU-560051

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COMMISSIONER OF POLICE BENGALURU CITY, NO.1, INFANTRY ROAD, BENGALURU-560051

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INSPECTOR OF POLICE J.C.NAGAR POLICE STATION, NANDIDURGA ROAD, JAYAMAHAL,

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BENGALURU-46

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…RESPONDENTS

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(BY SRI. B. BOPANNA, AGA FOR R1, R5 & R6 SRI. K.B. MONESH KUMAR, ADVOCATE FOR R2 TO R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS 1 TO 3 TO ENTER THE NAMES OF THE PETITIONER AS KHATHEDARS OF THE LANDS CLAIMED BY THEM; DIRECT THE RESPONDENTS 1 TO 3 TO PAY THE RENTS OF THE LANDS CLAIMED BY THEM TO AN EXTEND OF 62 ACRES 35 GUNTAS 7 SQUARE YARDS AND 3 SQUARE FEET IN SURVEY NUMBERS 1 TO 30 OF K.G. BYADARAHALLI VILLAGE, CIVIL AND MILITARY STATION, BENGALURU NORTH TALUK, BENGALURU, CALCULATING AVERAGE RENT SINCE 1954 UNTIL

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TODAY WITH A BANK RATE OF INTEREST 18% PER ANUM AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL ORDER

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The petitioners filed this writ petition seeking the

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following prayers:

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a) Issue writ in the nature of mandamus directing the respondent Nos.1 to 3 to enter the names of the petitioner as khathedars of the lands claimed by them.

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b) To direct the respondent Nos.1 to 3 to pay the rents of the lands they claimed to an extent of 62 acres, 35 guntas, 7 square yards, and 3 square feet in Sy.Nos.1 to 30 of K.G. Byadarahalli village, Civil and Military Station, Bengaluru North Taluk, Bengaluru, calculating average rent from 1954 until today with a bank interest rate of 18% per annum.

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c) To direct respondent Nos.1 to 3 to pay compensation for the lands acquired by them in K.G.Byadarahalli village, Civil and Military Station, Bengaluru North Taluk, Bengaluru, used by them for

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construction of roads and drainage in total, at present valuation.

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d) To direct the respondent Nos.1 to 3 not to interfere or construct structures under the peaceful possession of the petitioners' property in the future and not put up any further constructions on the petitioner's property, which is claimed by respondent Nos.1 to 3 in Sy.Nos.1 to 30, an area of 62 acres, 35 guntas, 7 square yards and 3 square feet. However, the present construction of the Indira canteen is continued in Sy. No.95 of K.G.Byadarahalli village, Civil and Military Station, Bengaluru North Taluk, Bengaluru, in new BBMP ward No.62 Majere Ramaswamy Palya. Representation dated 25.09.2017 is produced as Annexure-A.

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e) To direct the respondents 1 to 3 to pay compensation under Section 35A of the Civil Procedure Code, 1908, for abuse of process of law for deliberately entering wrong entries in their records and trespassing and constructing in the petitioner's property.

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f) To pass any such orders/directions as this Hon'ble Court may deed fit to grant under the facts and findings of this petition.

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It is the case of the petitioners that petitioners are the absolute owners of the entire K.G.Byadarahalli village, Civil and Military Station, Bengaluru north taluk, Bengaluru, consisting of 261 acres and 18 guntas of land by virtue of a registered sale deed. Petitioners' grandfather purchased the same. A. Michael retired from Subedar and

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died on 06.02.1954. In the year 1954, the Inams Abolition Act of Mysore (Personal and Miscellaneous) was enacted. Khayam Gutta villages were excluded from the said act under Chapter 1, section 1, sub-section three clause (a) as enfranchised properties have excluded and did not come in the ambit of Inams, which entitles the only legal heir Anthony Micheal S/o Subedar A. Michael as an absolute private owner of the property. In 1956, a gazette notification of the acquisition was issued for Khayam Gutta, Baiderahalli, and Kasaba Hobli. Only 31 acres 13 guntas of land bearing 4 survey numbers were not acquired out of 261 acres and 18 guntas of the Civil and Military Station.

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The respondents, since the enactment of the Inams Abolition Act of Mysore (Personal and

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Miscellaneous) in the year 1954, have not entered the names of legal representatives of late. Subedar A Michael as khatedars, deliberately with a malicious intention and under the veil of gazette notification dated 15.09.1956, claiming 62 acres, 33 guntas and 7 square yards in K.G. Byadarahalli village, Civil And Military Station, Bengaluru North Taluk, Bengaluru, stating that the entire village is vested in the Government. In the year 1959, the then Bangalore City Corporation, now known as BBMP, vide its letter dated 27.10.1959, asked the permission of the Tahsildar of Inams Abolition, Bangalore district, Bangalore, to permit them to register their names as khatedars against 30 survey numbers in khayam Gutta Byadarahalli village. The Tahsildar vide communication dated 05.01.1960 clearly mentioned that Khayam Gutta Byadarahalli village, Civil area of Bangalore North Taluk, Bangalore, is not vested with the Government, so no was taken.

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The deputy commissioner of Bangalore district, Bangalore, vide communication dated 08.05.2001, reiterated the opinion expressed by the Tahsildar of Inams Abolition and explained that only 31 acres and 13 guntas of land bearing only 4 survey numbers of Kasaba Hobli, K.G. Baiderahalli village were not acquired, 261 acres and 18 guntas of K.G. Baiderahalli village, Civil and Military Station.

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On 20.09.2017, the BBMP officials of Vasanth Nagar Division trespassed into the petitioner's private property. They demolished more than 50 sheds of coolie workers, who have been living under the permission of the land owners at the Chinnappa Garden, Link road, Majare Ramaswamy palya, K.G Byadarahalli Village, Civil and Military Station, Bangalore, without getting any court orders and without showing any records of proof of ownership illegally continued construction. Hence, the respondents' actions amount to criminal trespassing and

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the illegal demolition of sheds. Therefore, the petitioner filed this writ petition.

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Sri. Sudarshan S., Special Power of Attorney holder of the petitioners submits that the petitioners are the absolute owners of the property in question. He submits that the BBMP - respondent No.2 issued a khata extract in favour of the property in question in favour of third parties, and third parties have no right, title or interest over the property in question. The third parties have constructed, and several buildings have come up on the property. He submits that respondent Nos.1 to 3 have no right to issue khata in favour of third parties. He further submits that the said land is not vested with the Government and has no right to allot the sites in favour of third parties. Further, it is submitted that, though petitioners have brought to the notice of respondent Nos.1 to 3 regarding the title of the property, respondent Nos.1 to 3 have denied the lawful and natural claim of the petitioners. He also submits that the persons who have

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constructed the buildings on the property have no right, title or interest over the property. Hence, he submits that the construction undertaken by the third parties amounts to criminal trespass and prays to demolish the buildings constructed by the third parties. He also contended that petitioners are entitled to compensation as the land is used for roads and drainage. Hence, on these grounds, we pray to allow the writ petition.

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Learned counsel for respondent Nos.1 to 3 submits that as there is a dispute in regard to the title of the petitioners over the scheduled property and further submits that the third parties have constructed the building in the property in question and the respondents have not trespassed into the property in question. He submits that the petitioners have not sought any relief against the alleged encroaches and have not objected when constructing the building. The BBMP, based on the documents produced by the respective owners, have issued a khata by law. The petitioners have no locus standi

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to file the writ petition against the respondents. Further, he submits that when there is a serious dispute regarding the title, the writ court has no jurisdiction to decide the disputed question of facts. Hence, on these grounds, he prays to dismiss the writ petition.

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Perused the records and considered the

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submissions of the learned counsel for the parties.

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It is the case of the petitioners that, the petitioners are their grandfather purchased the owners of the property in question and the same under the registered sale deed dated 06.02.1954. The Inams Abolition Act of Mysore (Personal and Miscellaneous) was enacted in 1954, and the name of the legal heir of Subedar A Michael as Khatedar was not entered in the records, and the said land was vested in the Government. After that, in 1959, the then Bangalore City Corporation asked the Tahsildar for Inams Abolition to permit them to register as khatedar against 30 survey numbers. The deputy commissioner has issued an endorsement dated

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08.05.2001, clarifying that Khayam Gutta Byadarahalli village, Kasaba Hobli, consisting of 31 acres and 13 guntas of land bearing 4 survey numbers, were not acquired. The respondent, Nos.2 and 3, along with villagers, filed the Revision Appeal 9/1980, claiming occupancy rights and declaration as khatedar for several survey numbers in Khayam Gutta Byadarahalli village, Civil and Military Station. The said revision appeal was rejected. The matter has been pending before the Land Tribunal, Bangalore North, till today. During the pendency of the proceedings before the Land Tribunal, the petitioners filed this writ petition seeking a mandamus, to direct the respondent Nos.1 to 3 to enter the names of the petitioners as khatedars of the lands claimed by them and to pay the rents to the lands claimed by them to the extent of 62 acres 35 guntas 7 square yards and three sq. ft in Sy. Nos.1 to 30 of K.G.Byadarahalli village, Civil and Military Station, Bangalore North Taluk, Bangalore, calculating average rent from 1954 until today with a Bank interest rate of 18% per annum.

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Respondents Nos.1 to 3 have stated that they have not utilised the lands. Hence, the question of paying the rent as claimed by the petitioners would not arise. Further, during the argument, the party-in-person, i.e., Sri.S. Sudarshan, a practising advocate, submitted that several buildings had come up on the property in question. The party, in person, i.e., Sudarshan, submits that he has not arrayed the persons who have constructed the buildings. Further, no steps have taken by the petitioners against the alleged encroachers.

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The petitioners' grievance is that some third parties have constructed the building and sought relief against the respondents who are not responsible for it. The respondents -BBMP have issued khata in favour of the persons who have applied, after verifying the title deeds. If the petitioners were aggrieved by the action of the respondent, BBMP, in issuing the khata, the petitioners could have challenged the khata issued by the BBMP. The petitioners have no legal right to claim any relief against

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the respondents. Further, the dispute in the present writ petition is a disputed question of facts. It is well settled that the High Court, exercising extraordinary jurisdiction under Article 226 of the Constitution of India, does not adjudicate the serious disputed question of facts. The said view is supported by the judgment of the Hon’ble Apex Court in the case of Shubhas Jain Vs. Rajeshwari Shivam and others reported in 2021 (20) SCC 454 . Further, the writ petition filed by the petitioners is not maintainable for non-joinder of necessary parties.

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Further, party-in-person Sudarshan.S submits that since 1956, the petitioners have submitted the representation to the respondents, but the respondents have not considered the representation. Though the first representation was submitted in 1956, the writ petition was filed in 2017. Hence, the writ petition filed by the petitioners is liable to be dismissed for delay and latches. The cause of action arose for the petitioners to approach the appropriate forum in 1996. As observed above the

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writ petition was filed in the year 2017. In view of the law laid down by the Hon’ble Apex court in the case of SUJEET

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SINGH V/S STATE OF U.P AND OTHERS in SLP (C) NO. 3008/2022 disposed of on 28/02/2022, held that “ Mere filing of representation before the authorities does not extend the Limitation period”. Hence, I do not find any merits in the writ petition.

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