He INTHE HIGH COURT OF KARNATAKA AT BANGALORE W-P.16738 OF 2003 1 IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 25™ DAY OF SEPTEMBER 2098. BEFORE THE HON'BLE MR. JUSTICE RAM MOHAN REDDY WRIT PETITION NO. 16738 OF 2005 {LB-BMP) BETWEEN JAYAMMA. W/O RAMAIAH REDDY HINDU, AGED ABOUT 70 YEARS, R/O NO.73, 87H BLOCK KORAMANGALA BANGALORE 560 005 +» PETITIONER (By Sri : V S SRINIVAS RAGHAVAN AND POONAM PATIL ADVs FOR M/S. INDUS LAW A/S) AND: 1 THE ASSISTANT REVENUE OFFICER HOMBEGCWDA NAGAR RANGE, BANGALORE SOUTH CIRCLE CORPORATION OF CITY OF BANGALORE BANGALORE 2 ‘THE DEPUTY COMMISSIONER (SOUTH) CORPORATION OF CITY OF BANGALORE BANGALORE 3° _R BABU REDDY S/O RAMAIAH REDDY HINDU, AGED ABOUT 32 YEARS, R/O NO.73, 8TH BLOCK KORAMANGALA, BANGALORE 560 095 Net SUCRESE RAKNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT 4 CORPORATION OF THE CITY OF BANGALORE N.R.SQUARE, BANGALORE 2 INTHE HIGH COURT OF KARNATAKA AT BANGALORE W.16738 OF 2005 ‘ ‘ 7 : g i 2 i 7 &« ‘ UKI OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT | INTHE HIGH COURT OF KARNATAKA ATBANGALORE W2.16738 OF 2005 2 REPRESENTED BY THE COMMISSIONER .. RESPONDENTS (By Sri: VEENA JADAV, ADV FOR R1, 2&4) (BY SRI. G L VISWANATH, ADV FOR R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET-ASIDE THE ENDORSEMENT PASSED BY THE R1 VIDE ANX-F DATED 30.9.2003 AND ALSO THE ORDER PASSED BY R2 VIDE ANX-M AND 29.4,2005 IN REV. PET.NO. U.A.[t] PR-531/2004-05 THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY TiTE COURT MADE THE FOLLOWING: ORDER ‘The residential property bearing No.30/1 formerly bearing No.}7/6-30, Bannerghatta Road, 36% Division (Chinnaianapalya), Bangalore, was conveyed in favour of the" petitioner under a Deed of sale dated 6-2-1974 Annexure-‘A” and a Rectification Deed dated 18-07- 1974 Annexure-“B”, consequent upon which, a katha certificate Annexure-“C”, was issued by the respondent - Corporation of the City of Bangalore recording the name of the petitioner in its records as being primarily responsible to pay the taxes. The petitioner having paid Corporation taxes for the years 2000-01 and 2001-02, ih IN THE HIGH COURT OF KARNATAKA AT BANGALORE WP.16738 OF 2005COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUKI Ur RAKIAIARA ror wwuns 4 [N THE HUGE COURT OF KARNATAKA AT BANGALORE W2P16738 OF 2003 3 when offered to pay taxes for the year 2003-04 and 2004-05, the 4th respondent City Corporation refused to receive the tax on the premise that the katha of the property was not in her name, which prompted the petitioner to address a petiticn dated 20-08-2004 Annexure-“E” to the 24 respondent ~ Deputy Commissioner (South), Corporation of City of Bangalore, to investigate into the matter and to furnish copies of the order relating to the change of katha from her name. ‘The 254 respondent, responded by furnishing a copy of the endorsement Annexure-“F” issued to the 3 respondent, none other than the petitioner’s son and a copy of the 3° respondent’s application for change of ketha together with its enclosure being an unregistered Pariiticn Deed, Annexures “G” and “H” respectively. The petitioner filed a representation, Annexure-J, to the Qe respondent-Deputy Commissioner, objecting to the change of katha, alleging that she did not consent to the change of katha in favour of her son - the 3 respondent, and that the Ist respondent - Assistant Revenue Officer did not extend an opportunity of bM [INTHE HIGH COURT OF KARNATAKA AT BANGALORE W-P.16738 OF 2005aan taster JN THE HIGH COURT OF KARNATAKA AT BANGALORE W> 16738 OF 208 4 4 hearing before effecting a change of katha. The 2x4 respondent ~ Deputy Commissioner is seid tc have issued notice to both the 3 respondent, and the petitioner, whence the petitioner filed written arguments, Annexure-“K”, while the 3"! respondent tiled objections, Annexure-“L”, contending that the netitioner had executed a Partition Decd, wherein, the property in question fell to his sare. The 294 respondent, by order dated 29-04-2005 Annexure-“M”, held that it was not within bis jurisdiction to determine the validity or otherwise of the execution cf the Partition Deed and directed the parties to the Civil Court to have their rights over the property in question adjudicated upon. Hence, this writ petition. 2. The petition is opposed by filing statement of objection dated 06.09.2005 of Respondents 1, 2 and 4, interatia contending that the 3" respondent made an F RAKNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT epplication dated 17.09.03 for change of katha of the Property in question, into his name, enclosing the Memorandum of Family arrangement dated 27.09.2001 inh : IN THE HIGH COURT OF KARNATAKA AT BANGALORE W2P.16738 OF 2008 ‘ t § 3 i 2 5 5 $s z G $OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT IN THE HIGH COURT OF KARNATAKA AT HANGALONE WP 16758 OF 205 Ss and a memorandum of partition dated 26.09.2003, the basis for the change of katha by endorsement. dated 30.09.2003. According to the said respondents as the application was in accordance with Section 114 of the Karnataka Municipal Corporation Act, 1976, for short ‘Act’, the change of kathia cannot be found fault witl: and that the petitioner having questioned the validity of the partition deed and Memorandum of family arrangement, the respondenis faving no jursidiction to decide the said dispute. justiflably rejected the petitioner’s objections to the change of katha by order dated 29.04.2005. In addition it is contended that in the enquiry before. the 294 respondent, on the petitioner’s complaint, it was noticed that the petitioner had arted upon the aforesaid two documents of title and the 3° respondent's sisters had sworn to affidavits, contirming the execution of the said documents. 3. The petition is also opposed by filing statement of objections dated 19.06.2008 of respondent No.3, contending that the writ petition is not maintainable Ih INTHE HIGH COURT OF KARNATAKA AT BANGALORE W.P.16738 OF 20053 8 : g g g 5 5 Z 8 5 & 3 8 2 g 3 5 g 5 & 5 o 3 : Q 2 $ $ ; i 5 j 2 3 ; 2 i 5 £ i i i ; INTHE HIGH COURT OF KARNATAKA AT BANGALORE WP. 16738 0F 2008 6 due to suppression of material fact of the petitioner executing a deed of Gift dated 29.06.2004, of the property in question in favour of her husband Ramaiah Reddy, and was not entitled to have the katha changed to her name as on 20.08.2004, the date of complaint to the 2e¢ respondent. It is further contended that the property fallen to the share of his father by name Ramaiah Reddy, -when acquired by CITB, the compensation paid was consideration for purchase of the property in question and over which the building was erected or taking a loan, which when not repaid was subject mater of O.S.10337/80. The respondent claims to have discharged the loan leading to the Memorandwun of family arrangement styled as “Settlement Deed’, voluntarily executed by the petitioner Ramaiah Reddy, the 3" respondent and his two sisters, followed by the ‘Pallu Patti’ dated 26.09.2003, the basis for the application for change of katha. According to the respondent the family alTangement was given effect to and each of the parties exercised their right title and interest over the properties ye INTHE HIGH COURT OF KARNATAKA AT BANGALORE WP 16738 OF 2008{INTHE HIGH COURT OF KARNATAKA AT BANGALORE W-P.16758 OF 2008 7 fallen to their respective shares. The additional Statement of Objections dtd. 24.09.2008, discloses thai the said respondent has instituted a. suit to declare his title to the said property and to declare the Gift deed as we mall® : Se @el) and void and has obtained an Interim injunction restraining the petitioner from ‘«ncumbering or alienating the said property. 4. Before proceeding to consiter the contentions of the parties, it is expedient to advert to Section 114 of Karnataka Municipal Corporations Act, 1976, which reads thus: “114. Obligation of transferor and transferee to give notice of transfer—(1) Whenever the title of any person primarily able to ihe payment of the property tax on any premises to or over such premises is transferred, the person whose title is urensferred and the person to whom the same is transferred shall, within three months after the execution of the instrument of transfer or after its registration if it be registered or after the transfer is effected, if “ corrected vide chamber order dtd.7.2.09 Bie pc fa ore mas TTT Sn Men er ernie rer Sn Sr RAIS FUT! CUURE UT RARAIARA MIGE CUOUKT OF KARNATAKA HIGH COUR _DUTHIE HIGH COURT OF KARNATAKA AT BANGALORE W>.16738 OP 2003 |SUUKI UF KAKNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT INTHE HIGH COURT OF KARNATAKA AT BANGALORE W-P.16738 OF 2005 8 no instrument be executed, give notice of such transfer to the Commissioner. (2) In the event of the death of any person primarily liable as aferesaid, the person to whom the title of the deceased shall be transferred as heir or otherwise shall give notice of such transfer to the Commissioner within one yeer from the death of the deceased. (3) Whenever such transfer comes to the knowledge of the Commissioner or authorised officer through such notice the name of ihe transferee shall be entered in the property tax register. (4) Every person who makes a transfer as aforesaid without giving such notice to the Commissioner, shall, in addition to any other liability which he may incur through such neglect, continue to be liable for the payment of the property tax assessed on the premises transferred until he gives notice or until the transfer shall have been recorded in the Corporation registers, but nothing in this section shall be held to affect. — bh [IV THE HIGH COURT OF KARNATAKA AT BANGALORE W-P.16738 OF 2008,KA HIGH COURT vows sewn Ur WARIVAIAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAI INTHE INGH COURT OF KARNATAKA AT RANGALORE WE.16738 OF 2008 9 (a) the liability of the transferee for the payment of the said tax; or (b) the prior charge of the Corporation under Section 111 (5) Notwithstanding anything coritained in this Act, in respect of any building or vacant land belonging io the City of Mysore Improvement Trust eord, the Bangalore Development Authority or the Karnataka Housing Board or any local authority the possession of which bas been delivered to any person it pursuance of any grant, allotment or lease by. the Board or local authority concerned, the transfer of title of any person primarily liable to the payment of property tax shall not be recorded in the Corporation registers without consulting the Board or local authority concerned.” 5. For the purpose of this case, suffice it to notice that Sub-Section (1) of Section 114 requires the transferor and the transferee to give a notice in writing ioner of the City Corporation over the change in right title and interest in the property, falling ba "THE HIGH COURT OF KARNATAKA AT BANGALORE W.L6738 OF 2008 49TH wownweneesMUMIA FUT LUURI UF RAKNATAKA HIGH COURT OF KARNATAKA HIGH COURI 5 5 t 5 ; j 5 t IN THE HIGH COURT OF KARNATAKA AT BANGALORE W2P.16738 OF 2005 10 within the territorial limits of the Corporation. Section 114A empowers the Commissioner to review the order under Section 114, within a period of three therefrom, if satisfied that the transfer of tite was got recorded in the corporation register by fraud, mis representation or suppression of facts or by farnishing false, incorrect or incomplete material. 6. The word ‘katha’ is not found in the Act, but in common parlance, over the years, is synonymous with the certificate is ed the Corporation in exercise of jurisdiction under Section 114 cf the Act, recording the name of the owner/occupier of the immovable property, primarily responsible to pay the Corporation taxes. It is also true that this ‘katha’, is important on account of its relevancy for variety of purposes, be it securing a gas connection, telephone line, driving licence, ration card, inorlgage by deposit of title deeds, conveyance of immovabic property, licence to erect a building, so on and so forth, though docs not confer right title or isterest in the immovable property. [INTHE HIGH COURT OF KARNATAKA AT BANGALORE WP 16738 OF 2005F KARNATAKA HIGH COUR INTHE HIGH COURT OF KARNATAKA AT BANGALORE WP.16738 OF 2008 ll 7. The ownership of the property in question, in view of the registered conveyance deed’ dated 06.02.1974 Annexure-‘A’ and the rectification deed insfer dated 18.07.1974 Annexure-‘B’, followed by the Of title in the registers of the City Corporation, in the name of the petitioner is net in dispute. The transfer of title of the property in question, in the records of the Corporation ought t» preceds the iste of notice by the ed to the transferor and the tansteree, addres onunissioner of the Corporation, The respondents have placed no material to establish notice in writing by the petitioner for transfer of title in favour of the 3 S & 5 3 $ = g = § g 2 z s / 6 & 5 3 g z Q E $ § q E 5 > ; ; , respondent over the property in question in the registers of the Corporation. 8. The Learned counsel for the petitioner contends that the (change of katha) transfer of title into the name of the 3 respondent, in the records of the Corporation, no} preceded by a notice in writing by the petitioner, is unsustainable and illegal being in violation of the mandate of Section 114 of the Act. ‘This contention is i IN THE HIGH COURT OF KARNATAKA AT BANGALORE WP.167360F 2008 FOTH VAVLYNEYN JO IINAN ERIE waren:IN THE HIGH COURT OF KARNATAKA AT BANGALORE W-P.16738 OF 2005 12 sought to be countered by the learned counsel for the respondents, by pointing out to Annexure-F form of notice of transfer of title to contend that the said form prescribed by the Commissioner does not contain the requirement of notice of the transferor. Im addition it is contended that the Memoranduin of Family settlement Annexure-G and the unregistered partion deed Annexure-H, executed by the petitioner indisputably transferred title to the im:iovable property in question in favour of the 24 respendent, constiuuting substantial legal evidence of the said fa 9. The contention that the unregistered documents Annexures “G” & “H” are substantial legal evidence cf the transfer of title of the immovable property in question, is unacceptable in view of the petitioner’s deniat of their execution. ‘That dispute being 4 pure question of fact is impermissible of an adjudication in a writ proceeding, and hence the contention must necessarily fail ha IN THE HIGH COURT OF KARNATAKA AT BANGALORE WP 16736 OF 2008x 3 3 & = g = $ = g = s 6 & 5 8 8 z i = $ & g Zz & 3 5 & 5 5 3 E 2 E 3 g 5 é 3 5 : 5 3 3 IN THE RIGH COURT OF KARNATAKA AT BANGALORE WP.16738 OF 2005 13 10. It is no doubt true that a perusal of Annexure- “Ff”, the form for change of katha, does not provide for notice by the transferor but is an application by the transferee alone. This form according to the couisei for the Corporation was devised under a al Katha Scheme’, propounded by the then Commissicrier of Corporation by name Ashok Dalwai during the year 2001. Having noticed the lacuua in the said form Annexure-“F”, more appro; italy not being Section 114 for the compliant, — the (Corporation) Brukat Bangalore Mahanagar Palike (BBMP) on 22.09.2098 filed @ statement of compliance enclosing a cupy of the explanation dated 26.08.2008 of Ashok Dalwai admitting the mistake, having crept in inadvertently, of omission to provide for notice by the transferor under the simplified scheme of transfer of katha. in addition the learned counsel filed a memo enclosing the newspapers “New Indian Express” and ‘Vijaya Karnataka”, dated 25.09.2008 causing public notice calling upon aggrieved transferors, whose katha5 8 & z Q = $ SYST VE AARIVAIAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAI |r en SSH SE REN INTHE HIGH COURT OF KARNATAKA AT BANGALORE W.P 16738 OF 2008, 14 notice of the transferor, and on the unilateral application of the transferee under the katha scheme. 11. In the circumstances, the petitioner did make out a case for review of the order transferring the katha of the property in question in favour of the 3 abe respondent, which the respondent, fell in. serious error in declining to adjudicate upon. The transfer of katha in violation of Secticn 134 of the Act and the principles of natural justice, is illegal, and as a znds consequence the order of the @r®respondent declining to review the order of transfer of katha, is unsustainabl 12. Although the Learned Counsel for the 2 respondent seeks vo persuade the Court to accept that the petitioner bad, in the Partition Deed (unregistered), respondent * acceded to the jact that the 3" /could maintain an application for transfer of katha and have the same tansferred, I am afraid, in the circumstances is unacceptable. I say so because of the mandate of section 114 of the Act requiring both the parties to give notice of transfer. b L greorrected & word inserted vide cuamber order dt.7.2.09 166 Tok nf THE HIGH COURT OF KARNATAKA ATBANGALORE W>16738 0F 2008 BALE Toy HE MON COUR eee HOI WIRE Je ines seni| nee tne ts ERS SR REESE IN THE HIGH COURT OF KARNATAKA AT BANGALORE W.P.1S738 0% 2008 15 13. Learned counsel further points out to the Statement of objections to contend that the petitioner executed a Gift Deed on 29.06.2004 in terms of Annexure-F1, much prior to the application Annexu for redoing the katha into her name and therefore, no useful purpose would be served by restoring the katha into the name of the petitioner. In addition, the learned counsel submits that the parties are presently before the Civil Court in 9.S.No.4455/ 1998. instituted by the 3" respondent for a declaration of right, title and interest over the property in question and for cancellation of the Gift Deed. According to the learned counsel, even assuming that the transfer of katha was not proper, nevertheless, in the light of the pendency of the civil litigation, restoring the katha into the name of the petitioner would not be conducive as the probability of the peutioner doing away with the property is imminent. 14. From the nature of obj ions put forth by the 3 respondent, what is discernable is that the 3r bX INTHE HIGH COURT OF KARNATAKA AT RANGALORE W_.16758 OF 2008 HOI WIVIVADIEN un tnas: ° 8 < g : 3 5 3 & & 5 9° 8 § Q : g 3 3 g 5 o 3 z 2 i 5 g ; : 3 5 e j y 3 INTHE HIGH COURT OF KARNATAKA AT BANGALORE WE. 16738 OF 2005 16 respondent alleges that the petitioner executed a Gift Deed Annexure-“R1”, in favour of her husbard, preceded by an unregistered Partition Deed Anncxure- “H” under which the property fell to the share ofthe respondent. The fact as to whether the petitioner did execute the Gift Deed or the Paxtition Deed ars matters which cannot be conveniently adjudicated in this writ petition. Moreover it is not the case of the 3 respondent that the petitioner has issued notice under Section 114 of the Act for transfer of katha in favour of the Donee under the Gift Deed. Even according to the learned counsel for the 3° respondent, the matter is at large before the Civil Cunrt where the petitioner has instituted a suit to declare title of the immovable Property pursuant to the Partition Deed, and for cancellation of the Gift Deed. Once the Civil Court adjudicates upon such a dispute, it is needless to state that ihe truth or otherwise of the execution of the documents by the petitioner would came to fore. In my opinion, the alleged execution of the documents by the petitioner, cannot disentitle the petitioner in law to a IN THE HIGH COURT OF KARNATAKA AT BANGALORE WP 16738 OF 2003oso neers a nea RNASE BV THE HIGH COURT OF KARNATAKA ATBANGALORE W2P.16738 OF 2008 17 restoration of the katha of the said property, as the transfer of katha without notice to the petitioner is nonest. 15. The 3" respondent having instituted the suit to declare tile to the said property, obtained an interim injunction Annexure “R-6” restraining the petitioner from alienating and encumbering the suit schedule Property and therefore, it cannot but ke said that the «4 respondent's apprehension that the petitioner is likely to do away with the property immediately after the katha is restored to her name, is neither reasonable nor tenable. 16. The aciion of the Commissioner of the Corporation ¢ ' the City of Bangalore, by propounding a simplified scheme for tranfer of katha in the name of a “Sarala Katha Scheme” prescribing an application contraty to the requirement of Section 114 of the Act, exhibits a callous disregard of the normal requirements of rule of law, apart from what is legitimately and reasonably expected from a State functioning a Jt ISTHE HIGH COURT OF KARNATAKA AT BANGALORE W.P.16736 OF 2008 HOTH WIVIWNWM 20 HAs tients cme eee oooHIGH Cour § & z $ 6 & 5 3 8 z Q = g g Zz é g 6 & 5 8 8 z g z g Z é 3 5 z 5 3 3 1N THE HIGH COURT OF KARNATAKA AT BANGALORE WE 1678 OF 208 18 Society governed by the constitution which guarantees its citizens against arbitrary invasion by the executive of peaceful possession and enjoyment of imniovable properties. Suffice it to state that the BRMP is a creature of a statute and cannot perpetuate a wrong by not making available a form for transfer of katha in consonance with the provisions of Section 114 of the Act, 17, Before parting with this case. it is appropriate to notice the French declaration of Human and Civil Rights of 1789 and the scope of Article 17 of the Universal declaration of Human Rights 1948 adopted in the United Nations General Assembly, which provides that the right to property hitherto considered as a constitutional right ts now accepted as a human right. In otherwords, ‘no person can be deprived of his property save in accordance with law. The observations of the Apex Court in S.R.EJAZ -V- T.N.HANDLOOMS b& INTHE HIGH COURT OF KARNATAKA AT BANGALORE W-P 16734 OF 2008,OUR INTHE HIGH COURT OF KARNATAKA AT BANGALORE WP.16738 0F 2005 . 19 x WEAVERS’ CO-OPERATIVE SOCIETY LTD.,! in the circumstances is apposite: “If such actions by the mighty or powerful are condoned in a. democratic country, nobody would be safe nor can the citizens protect their properties. Law frowas upon such conduct. ‘The Court. accords legitimacy and legality only to possession taken in due cow of law. If such actions are condoned, the fundamental rights guaranteed under the Constitution of India or the legai rights would be given a go-by cither by the authority or by rich and influential persons or by musclemen. Law of jungle will prevail and ‘might would be right’ instead of Tight being might’ « 8 = g g § = 5 : g 8 & § °° 8 = gs g i z = é g = 5 oo 8 E 2 Z $ £ i i i 5 é j > } 18. In the result, this writ petition is allowed. ‘The endorsement dated 30-09-2003 Annexure-“F” and the order Gated 29-04-2005 Annexure-“M” are quashed and &S a concomitant, the katha of the property in question stands restored to the name of the petitioner. It is needless to state that the parties shall be bound by the bk (2002) 3 SCC 137=AIR 2002 S hs2 IV TRE HIGH COURT OF KARNATAKA AT RANGALORE WE.16%8 OF 2006 HOME niiwaniene a ima conIGH COUR wwrtswun! UF RAKIVATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA Hi 1 THE HIGH COURT OF KARNATAKA AT BANGALORE W 4s 072008 20 decision of the Civil Court in respect of their rights over the property in question. Sd/< Tudge IN THE HIGH COURT OF KARNATAKA AT MANGALORE WP 16738 0F 2005