M.M. Malleshaiah Vs. K. Gururaj and anr. - Court Judgment

Excerpt:
- section 6: [d.v. shylendra kumar, j] appeal dispute relating to dismembering petitioner from membership of co-operative society - dismissal of by registrar of society held, appeal against said order should be heard and decided by division bench of tribunal as per section 6 of karnataka appellate tribunal act. dismissal of appeal by single judge, invalid and without jurisdiction. - , lease-cum-sale deed but the officials of the bda are not impleaded as a proper and necessary party in the private complaint for the reasons best known to him. but, the petitioner has not done so, 11. therefore, viewed from any angle, i do not find any good reasons to warrant this court to interfere with the order under challenge.orderk. ramanna, j.1. this revision is directed against the order dated 30-2-2001 passed by the i additional chief metropolitan magistrate, bangalore, in pcr no. 128 of 1997, whereby the trial court dismissed the complaint filed by this revision petitioner.2. assailing the order of dismissal of the complaint the revision petitioner has come up, with this petition under section 397 of the cr, p.c. the allegations of the petitioner in his pcr are that the respondent 1-accused colluding with bda officers and officials obtained a lease-cum-sale deed dated 27-9-1985 and the possession certificate dated 11-10-1985 and made use of the same in the civil court. likewise, the respondent-accused is responsible for creation of lease-cum-sale deed dated 27-9-1985 and possession certificate dated.....

Judgment:
ORDER

K. Ramanna, J.

1. This revision is directed against the order dated 30-2-2001 passed by the I Additional Chief Metropolitan Magistrate, Bangalore, in PCR No. 128 of 1997, whereby the Trial Court dismissed the complaint filed by this revision petitioner.

2. Assailing the order of dismissal of the complaint the revision petitioner has come up, with this petition under Section 397 of the Cr, P.C. The allegations of the petitioner in his PCR are that the respondent 1-accused colluding with BDA officers and officials obtained a lease-cum-sale deed dated 27-9-1985 and the possession certificate dated 11-10-1985 and made use of the same in the Civil Court. Likewise, the respondent-accused is responsible for creation of lease-cum-sale deed dated 27-9-1985 and possession certificate dated 11-10-1985 in favour of Smt. B.K. Padmavathamma. On this ground the petitioner has sought for penal action against the respondent under Sections 466, 467, 468 and 469 of the IPC. After registering the same the Trial Court referred it to the police for investigation and report under Section 156(3) of the Cr. P.C. After investigation the police have submitted the 'B' report that the case is purely of civil nature and the respondent-accused has not committed any offence much less the alleged offences. The petitioner complainant filed a protest petition. The Trial Court has recorded the sworn statement of the petitioner and after considering his sworn statement and the documents produced by him dismissed the complaint on 20-8-1987. It is this order which is under challenge before this Court.

3. The grounds urged in this petition are that BDA Rules do not permit reconveyance of the revenue sites and the Trial Court did not consider the ratio laid down in decision reported in the case of B.N. Sathyanarayana Rao v. State of Karnataka : ILR1987KAR790 . Further, the procedure for allotment of BDA site has not been followed and the documents were forged by the respondent.

4. Heard further arguments of the learned Counsels appearing on both sides.

5. I have carefully examined the records placed before the Court.

6. As could be seen from the sworn statement in PCR No. 128 of 1987 the complainant has deposed that the respondent herein has demolished his (petitioner's) house. Earlier to that there was a dispute between himself and the respondent. It was the contention of the respondent that petitioner's house was on the road and he had purchased the site having the BDA No. 487/A from one Ishwar Rao through the respondent and the respondent has won the case in the Civil Court on the basis of the forged documents of BDA. The petitioner came to know about the forged documents when the same were produced by the respondent on that day and the BDA officials demolished his house. The respondent had got demolished petitioner's house on the basis of the forged documents. At the time when his house was demolished there was no reconveyance. The BDA has given documents only to Padmavathamma and the respondent herein. Hence he requested for legal action against the respondent. So, after considering his statement the Trial Court dismissed the protest petition and accepted 'B' final report submitted by the Investigating Officer.

7. The petitioner has sought shelter by relying on a decision of this Court in the case of B.N. Sathyanarayana Rao, wherein this Court has held that:

'There is no provision in the Act or in the Rules framed thereunder which enable the BDA to reconvey the site. Reconveyance in a way is opposed to the scheme itself. Scheme is formed for the purpose of forming sites for allotting them as per the Rules. The Rules do not provide for reconveyance. Therefore it is not possible to hold that there is any right to seek reconveyance'.

8. I have gone through the documents produced in this revision, which according to the petitioner are forged one. The respondent also produced the copy of the judgment in O.S. No. 10153 of 1985 on the file of the XVIII Additional City Civil Judge, Bangalore, wherein the petitioner herein was the defendant and the respondent was the plaintiff. All these documents which the petitioner contends to be the forged documents and formed part of the case in O.S. No, 10153 of 1985. On considering the evidence adduced and the documents produced by the parties the suit O.S. No. 10153 of 1985 filed by the respondent herein came to be decreed in his favour on 28-2-1991. It appears that this petitioner has challenged the said decree before this Court in R.F.A. No. 129 of 1991. After considering the materials placed on record this Court dismissed the appeal and three months time was granted to the third respondent-BDA to demolish the unauthorised construction put up by the revision petitioner and accordingly the house of the revision petitioner came to be demolished. It is seen from the records that subsequently the petitioner has filed Writ Petition No. 22084 of 1991 seeking a direction to the BDA to consider his application for reconveyance. Despite the fact that the BDA has issued an endorsements in 1985 and 1989 that it is road and not a site and subsequently the request of this revision petitioner came to be rejected and issued an endorsement. Accordingly, the endorsement dated 5-9-1992 came to be issued. But this revision petitioner challenged the endorsement issued by the BDA in Writ Petition No. 19177 of 1992. Again this Court dismissed that petition on 8-12-1995.

9. The Legislature has brought Third Amendment Act 1993 in respect of the BDA Act to Section 38(c), wherein the BDA was empowered to make amendment in certain cases. Accordingly reconveyance of the said site was made in favour of the respondent. In the said amendment the BDA was given powers to validate certain reconveyance. Accordingly reconveyance was permitted in the Act. Therefore, no suit or other proceeding shall be instituted, maintained or continued in any manner for cancellation of such amendment or for quashing the validity of any action taken or done under Section 38(c) of the Principal Act. Therefore, the contention of the learned Counsel for the petitioner that the BDA has no power to reconvey any such sites in favour of the respondent is incorrect.

10. According to the petitioner this respondent in collusion with the officials and officers of the BDA has concocted the documents i.e., lease-cum-sale deed but the officials of the BDA are not impleaded as a proper and necessary party in the private complaint for the reasons best known to him. Therefore, even after careful scrutiny of the documents produced by both parties and also the order under revision passed by the Trial Court, it could be said that the Trial Court has rightly held that, if the documents are issued contrary to the prescribed rules the complainant ought to have prosecuted the concerned officers or officials of the BDA who are all responsible for creating such documents. But, the petitioner has not done so,

11. Therefore, viewed from any angle, I do not find any good reasons to warrant this Court to interfere with the order under challenge. In the instant case, absolutely no prima facie material is placed to show that the respondent has committed the offence alleged. Hence, the revision petition does not survive and it is liable to be dismissed.

12. Accordingly, the revision petition is dismissed.