Full Judgment
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024 BEFORE THE HON'BLE MR JUSTICE E.S.INDIRESH WRIT PETITION NO. 10287 OF 2021 (KLR-RES) BETWEEN:
1. BASAPPA S/O GIRIYAPPA AGED ABOUT 86 YEARS R/AT NO.749, 14TH CROSS, 1ST STAGE, J.P.NAGAR, BANGALORE-560037.
2. KRISHNAPPA S/O BYRAPPA, AGED ABOUT 73 YEARS R/AT SHALAPURA TEMPLE ROAD, HOSAKEREHALLI, BSK 3RD STAGE, BENGALURU-560085. …PETITIONERS (BY SRI. SHARATH S. GOWDA., ADVOCATE) Digitally signed by AND: SHARMA ANAND CHAYA Location: High Court 1. THE DEPUTY COMMISSIONER of Karnataka BENGALURU URBAN DISTRICT K.G.ROAD, BENGALURU-560009.
2. THE JOINT DIRECTOR OF LAND RECORDS, DEPUTY COMMISSIONER'S OFFICE, BENGALURU URBAN DISTRICT K.G.ROAD, BENGALURU-560009.
3. THE TAHASILDAR BENGALURU SOUTH TALUK, K.G.ROAD, KANDAYA BHAVAN, BENGALURU-560009. -2-
4. THE TALUK SURVEYOR BENGALURU SOUTH TALUK, K.G.ROAD, KANDAYA BHAVAN, BENGALURU-560009.
5. THE ASSISTANT DIRECTOR OF LAND RECORDS BENGALURU SOUTH TALUK, KANDAYA BHAVAN, BENGALURU-560009.
6. NATIONAL EDUCATION FOUNDATION REPRESENTED BY ITS SECRETARY SRI LEPAKSHA, R/AT NO.11/2, NHC COMPLEX, 2ND FLOOR, 5TH MAIN, GANDHINAGAR, BENGALURU-560009. …RESPONDENTS (BY SRI. HARISHA A.S., AGA FOR R-1 TO R-5, SRI. UDAY HOLLA, SR. ADV. FOR SRI. K.VIJAYA KUMAR, ADV. FOR C/R6.) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DTD. 18.06.2019 PASSED BY THE R-1 DEPUTY COMMISSIONER, BENGALURU DISTRICT IN REVISION PETITION (SURVEY APPEAL) NO.4/2018 VIDE ANNX-A ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING - B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE E.S.INDIRESH
ORAL ORDER
In this writ petition, the petitioner is assailing order
dated 18.06.2019 passed by respondent No.1 in RP.No.4/2018 (Annexure-A). -3-
2. The relevant facts for adjudication of this writ
petition are that, the petitioners claim to be the owner of the land bearing survey No.52 of Hosakerehalli village, Bengaluru South Taluk to the extent of 2 acres stating that the aforementioned lands were granted in favour of petitioner No.2 as per order dated 01.09.1977 and the
copy of the Saguvali chit is produced at Annexure-B. It is further stated by the petitioners that, respondent No.2, being the owner of land to an extent of 2 acres executed registered sale deed in respect of 1 acre of the land in favour of the petitioner No.1 as per registered sale deed dated 27.12.1995. Thereafter, the revenue entries have been mutated in favour of petitioners as per Annexure-'D' and 'E' respectively.
3. It is the grievance of the petitioners that the
respondent No.6 without title or interest in respect of 2 acres of land belonging to the petitioners, tried to interfere with the same and as such, petitioners have filed O.S.No.6934/2013 before the Civil Court. -4-
4. It is further pleaded by the petitioners that the
respondent No.6 has contended before the Civil Court that the Government has auctioned 20 acres of land in Sy.No.52 of Hosakerehalli village on 21.10.1940 and the auction purchaser-Siddananjappa, had purchased the land in terms of the confirmation order dated 05.04.1941. Thereafter, the said Siddananjappa has sold portion of the
land to one S.T.Ambedkar and his wife Gangubai. Subsequently, the aforementioned persons have sold the portion of lands to one P.I. Josehph and A Krishnarao and his brother, who are sons of S.T.Amedkar as per the mutation in RRT No.(2)CR.15/2001-02 dated 26.02.2002. It is stated that respondent No.6 has purchased 6 acres of land from legal heirs of S.T.Ambedkar as per registered
sale deed dated 04.12.2003. It is also stated by the petitioners that, 6 acres of land purchased by respondent No.6 were phoded and given new survey numbers as 2 acres 38 guntas in Sy.No.179 and 3 acres 2 guntas in Sy.No.180, situate at Hosakerehalli Village, Uttarahalli Hobli, Bengaluru South Taluk, Bengaluru. -5-
5. It is also contended by the petitioners that, the respondent No.6 being aggrieved by the proceedings
initiated by the Special Deputy Commissioner vide order
dated 03.12.2008, have filed WP.No.36114/2009 and this Court by order dated 23.08.2010 (Annexure-G) disposed of the petition with a direction to the jurisdictional Tahasildar to identify the property based on the revenue and survey records. Pursuant to the direction issued by this Court, the jurisdiction Tahasildar has drawn the sketch, with the assistance of the survey department as per Annexure-H to the writ petition.
6. It is also stated by the petitioner that the phodi
sketch prepared at Annexure-H was questioned by the petitioners before respondent No.5 and the respondent No.5 vide order dated 23.07.2014 in Appeal No.54/2013- 2014 (Annexure-J), dismissed the appeal on the ground that the land in question has been converted for non- agricultural purpose. In the meanwhile, as the suit in O.S.No.6934/2013 filed by the petitioners came to be -6- dismissed vide judgment and decree dated 19.03.2016. Being aggrieved by the same, the petitioners have filed RFA No.1611/2016 and same is pending consideration before this Court.
7. Insofar as the proceedings before the Revenue
authorities are concerned, order dated 12.01.2018 in Appeal No.101/2017-18 passed by the Joint Director of Land Records questioned before respondent No.6 in RP No.4/2018 and the respondent No.1, without granting fair
opportunity of hearing of the petitioners passed an order
dated 18.06.2019 (Annexure-A) and being aggrieved by the same, the petitioners preferred this petition.
8. I have heard learned counsel Sri. Sharath S Gowda, apearing for the petitioners. Sri Uday Holla, learned senior counsel for Sri.Vijaykumar for caveat/respondent No.6 and Sri. Harisha A S, learned AGA. -7-
9. It is contended by the learned counsel appearing for the petitioner that the respondent has not extended fair opportunity of hearing to the petitioners and
as such invited the attention of this Court to the order
sheet in the impugned proceedings at Anneuxre-Q. He also contended that finding recorded by respondent No.1 rejecting the claim made by the petitioners herein solely on the ground that the land in question has been converted and the said finding recorded by the respondent No.1 requires to be interfered within this writ petition.
10. Per contra, Sri. Uday Holla, learned senior
counsel invited the attention of this Court to paragraph No.10 in O.S.No.6934/2013 produced at Annexure-K and submitted that the grant said to have been made in favour of the petitioners herein was cancelled and therefore, learned senior counsel submitted that the petitioners herein have to establish their rights over the lands in
-8- question, in the appeal pending consideration before this Court in RFA NO.1611 of 2016.
11. Learned Senior Counsel would further
emphasise that the lands in question have been converted for non-agricultural purpose as the land itself falls within the BBMP limits and therefore placing reliance on the judgments of this Court in the cases of J M Narayana and Ors. vs. Corporation of the City of Bengaluru reported in ILR 2005 KAR 60 and Secretary to Government, Department of Urban Development and Ors. vs. Ningavva, since deceased by her LRs and Ors. reported in ILR 2021 KAR 3028, and submitted that the petitioners have worked out their remedy to prove title in the pending appeal.
12. Learned AGA Sri. Harisha A S sought to justify the impugned judgment for respondent authorities. -9-
13. In the light of the submission made by the
learned counsel for parties, the core question to be answered in this writ petition as to whether the land claimed by the petitioners is overlapped with the land purchased by the private respondent authorities as per registered sale deed dated 04.12.2003.
14. Having taken note of the factual aspects on
record that the petitioners are claiming right in respect of land in question as a grantee and on the other hand the private respondent is claiming right over the property in terms of the sale deed dated 04.12.2003 and insofar as identification and phodi of the land in question, this Court in WP.No.36114/2009 disposed of on 23.08.2010 (Annexure-G) at paragraph Nos.5 and 6 held as under:
"5. According to the petitioner, the grant of 8 acres of land in Sy.No.52 in favour of the petitioner by the Government was during January 2001 and a conversion was also granted and apart from that there was also exemption. The main grievance of the petitioner is in respect of the claim made by 5th and 6th respondents to the extent of 2 acres of - 10 -
land in Sy.No.52, which according to the petitioner, falls elsewhere. However, in the presence of the contesting respondents, it is for the Tahasildar to identify the property, if not already identified, to the extent of 2 acres based on the revenue records and survey records. The question of petitioner and 5th and 6th respondents compromising the issues and getting an order may not arise.
6. It is for the petitioner and the contesting
respondents to approach the Tahasildar, who shall after expiry, ascertain the rights of each of the parties and pass appropriate orders in accordance with law. Accordingly, petition is disposed of."
15. Having taken note of the observation made above, the jurisdictional Tahasildar identified the
properties based on revenue and survey records. Thereafter, the land in question has been phodied and the same has been challenged before respondent Nos.1, 2 and 5 and respondent No.1 by impugned order dated 18.06.2019 (Annexure-A) allowed the appeal preferred by respondent No.5 based on the undisputed fact that the land in question has been converted for non-agricultural purpose in the year 2009 itself and that apart the suit filed by the petitioners in O.S.No.6934/2013 came to be - 11 - dismissed by the trial Court as per judgment and decree dated 19.03.2016 (Annexure-K).
16. It is also not in dispute that the said judgment
of the Trial Court has been questioned before this Court in RFA No.1611/2016 and the civil rights of the parties is yet to be crystallized in the above appeal. In that view of the matter, since the land in question has been converted for non-agricultural purpose and as such, I find force in the submission made by the learned Senior counsel appearing for respondent No.6 that the revenue authorities have no
jurisdiction to interfere with the converted land in question. Therefore, there is no merit in the writ petition. Accordingly the writ petition is dismissed.
17. However, the parties are directed to await the
final judgment that may be passed in RFA No. 1611/2016, pending consideration before this Court and it is open for the parties to agitate their rights before the competent - 12 - authorities in a manner known to law in furtherance of the
judgment of this Court in RFA No.1611/2016.
18. All contentions of the parties are kept open to urge before the pending RFA No.1611/2016 with regard to their civil rights. Sd/- (E.S.INDIRESH) JUDGE SSD List No.: 1 Sl No.: 31