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2023 Supreme(Online)(KAR) 22892
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JANUARY, 2023
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No.2040/2015 (LB-BMP)
BETWEEN:
BANK OFFICERS’ CO-OPERATIVE HOUSING
SOCIETY LIMITED (A CO-OPERATIVE
SOCIETY REGISTERED UNDER THE KARNATAKA
CO-OPERATIVE SOCIETIES ACT, 1959)
HAVING ITS REGISTERED OFFICE AT GF-006
‘ACHARYA SANKEERNA’, AICOBOONAGAR
9TH MAIN, II CROSS, BTM II STAGE
BANGALORE-560076
REP. BY ITS SECRETARY.
...PETITIONER
(BY SRI P.S.RAJAGOPAL, SENIOR COUNSEL A/W
SRI K PUTTEGOWDA, ADV.)
AND:
1. APPELLATE AUTHORITY & ADDITIONAL
CHIEF SECRETARY
URBAN DEVELOPMENT DEPARTMENT
GOVERNMENT OF KARNATAKA
VIKAS SOUDHA
DR. AMBEDKAR VEEDHI
BANGALORE-560001.
2. STANDING COMMITTEE ON APPEALS
BRUHAT BANGALORE MAHANAGARA PALIKE
BANGALORE-560002
REP. BY ITS CHAIRMAN.
3. BRUHAT BANGALORE MAHANGARA PALIKE
BANGALORE-560002
REP. BY ITS COMMISSIONER.
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4. 4(A) BOJAMMA
W/O LATE CHENNAPPA
4(B) MAHESH
S/O LATE CHENNAPPA
4(C) SURESH
S/O LATE CHENNAPPA
4(D) RAJESH
S/O LATE CHENNAPPA
ALL RESIDING AT NO.391/42
LAKSHMI COMPLEX
19TH MAIN ROAD, 1ST BLOCK
RAJAJINAGAR
BANGALORE-560010.
5. BANGALORE DEVELOPMENT AUTHORITY
T CHOWDAIAH ROAD
KUMAR PARK WEST
BANGALORE-560 020
REP. BY ITS COMMISSIONER.
6. STATE OF KARNATAKA
BY ITS SECRETARY TO GOVERNMENT
URBAN DEVELOPMENT DEPARTMENT
VIKASA SOUDHA
DR. AMBEDKAR VEEDHI
BENGALURU-560001.
7. D SATHYA MURTHY
ADDITIONAL CHIEF SECRETARY TO GOVERNMENT
URBAN DEVELOPMENT DEPARTMENT
VIKASA SOUDHA
DR. AMBEDKAR VEEDHI
BENGALURU-560001.
…RESPONDENTS
(BY SMT. K SHOBHA, HCGP FOR R1 & R6
SRI K.N. PUTTEGOWDA, ADV. FOR R2 & R3
SMT. M RAJESHWARI, ADV. FOR R4 (A & D)
SRI VASANTH, ADV. FOR R5
R7-SERVED
V/O DATED 08.11.2022 NOTICE TO R4 (B & C) IS H/S)
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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
RECORDS LEADING TO THE ORDERS DATED 07.12.2012 AND
25.09.2014 AND QUASH ORDER DATED 07.12.2012 PASSED BY
THE R2 (VIDE ANNEX-AN TO THE W.P.) AND ORDER DATED
25.09.2014 PASSED BY THE R1 (VIDE ANNEX-AQ TO THE W.P.
BY ISSUE OF A WRIT IN THE NATURE OF CERTIORARI AND
GRANT ALL CONSEQUENTIAL BENEFITS.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN ‘B’ GROUP THROUGH VIDEO CONFERENCE THIS
DAY, THE COURT MADE THE FOLLOWING:-
The Standing Committee of BBMP has no jurisdiction to interfere in the matter of katha. The Standing Committee cannot pass orders in respect of katha of property without issuing any notice nor affording any opportunity to the petitioner-Society.
Headnote:
KATHA - CANCELLATION - JURISDICTION - [BBMP] - Standing Committee of BBMP has no jurisdiction to interfere in the matter of katha. [BBMP] - Standing Committee cannot pass orders in respect of katha of property without issuing any notice nor affording any opportunity to the petitioner-Society.
Fact of the Case:
The petitioner-Bank Officers’ Co-operative Housing Society Limited (for short ‘the Society’) is before this Court under Article 226 of the Constitution of India, praying for a writ of certiorari to quash the order bearing No.AhShtaSa/(Kha)/17/2012-13 dated 07.12.2012 passed by the 2nd respondent (under Annexure-AN) and order bearing No.NaAhEe 4 MNG 2004 dated 25.09.2014 passed by the 1st respondent (Annexure-AQ) by which canceling the katha made in favour of the 4th respondent under order dated 03.12.2005, is set aside and confirmed the katha in favour of 4th respondent.
Finding of the Court:
The impugned order dated 07.12.2012 is one without jurisdiction. The Commissioner-BBMP rightly held that the impugned resolution or order (Annexure-AN) dated 07.12.2012 passed by the Standing Committee is contrary to the provisions of the 1976 Act and rightly forwarded the same to the Government for taking action under Section 72 of the 1976 Act. The Government failed to exercise its statutory power.
Issues: Whether the respondent-BBMP subsequent to the order passed by this Court in W.P.No.31183/2010 dated 09.12.2012, could pass impugned order at Annexure-AN dated 07.12.2012 to cancel the order dated 13.06.2011, withdrawing order dated 03.12.2005 effecting katha in favour of 4th respondent.
Ratio Decidendi: The Standing Committee of BBMP has no jurisdiction to interfere in the matter of katha. The Standing Committee cannot pass orders in respect of katha of property without issuing any notice nor affording any opportunity to the petitioner-Society. The Government failed to exercise its statutory power under Section 72 of the 1976 Act.
Final Decision: The writ petition is allowed. The impugned order (Annexure-AN) bearing No.AhShtaSa/(Kha)/17/2012-13 dated 07.12.2012 passed by the 2nd respondent and order (Annexure-AQ) bearing No.NaAhEe 4 MNG 2004 dated 25.09.2014 passed by the 1st respondent are quashed. Consequently respondents 3 and 5 are directed to maintain the land in question i.e., 0.39 guntas situated in survey number 14/13 of Tavarekere Village, Begur Hobli, BTM Layout, Bangalore South Taluk, as park.
The petitioner-Bank Officers’ Co-operative Housing
Society Limited (for short ‘the Society’) is before this
Court under Article 226 of the Constitution of India,
praying for a writ of certiorari to quash the order
bearing
No.AhShtaSa/(Kha)/17/2012-13
dated
07.12.2012 passed by the 2nd respondent (under
Annexure-AN) and order bearing No.NaAhEe 4 MNG
2004 dated 25.09.2014 passed by the 1st respondent
(Annexure-AQ) by which canceling the katha made in
favour of the 4th respondent under order dated
03.12.2005, is set aside and confirmed the katha in
favour of 4th respondent.
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2.
Heard Sri P.S. Rajagopal, learned Senior Counsel
for Sri K. Puttegowda, learned counsel for the petitioner,
Sri K.N. Puttegowda, learned counsel for respondents 2
and 3, Smt. K. Shobha, learned HCGP for respondents 1
and 6, Smt. M. Rajeshwari, learned counsel for
respondent No.4 (a) and (d) and Sri Vasanth, learned
counsel for respondent No.5. Perused the entire writ
petition papers.
3.
Sri P.S. Rajagopal, learned Senior Counsel for the
petitioner submits that 5th respondent executed lease-
cum-sale deed in the year 1983 in favour of the
petitioner-Society in respect of 30 acres of land in
Survey Nos.12 and 15 situated at Tavarekere Village,
Begur Hobli, Part of BTM Layout, Bangalore South
Taluk. It is submitted that on 22.01.1993, the Society
was put in possession of the land and on 28.05.1997
the entire property was transferred to the petitioner by
way of sale deed in terms of Annexure-C.
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4.
Learned Senior Counsel would submit that
petitioner-Society relinquished its right over the open
spaces, park areas and civic amenity on 13.05.2005 in
favour of 5th respondent-BDA. The katha in respect of
the land transferred to the petitioner-Society was
effected in favour of the petitioner-Society. It is pointed
out that under Annexure-M dated 03.12.2005 in respect
of the land measuring 0.39 guntas which stood in the
name of petitioner-Society, katha was effected in favour
of
one
Sri
Channappa-4th
respondent
herein.
Challenging the said action of the respondent-BBMP,
the
petitioner
was
before
this
Court
in
W.P.No.31183/2010. This Court by interim order dated
10.02.2012 directed the Principal Secretary, Revenue
Department to hold an enquiry with regard to the
circumstances
in
which
the
Special
Deputy
Commissioner
had
issued
permission
for
non-
agricultural use of land in favour of private persons,
identify the irregularities and illegalities committed by
the persons, who have acted contrary to law and
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procedure, and submit a report to this Court. It was
also directed to the Commissioner-BDA to look into the
circumstances, in which the so called ‘no objection
certificate’ has originated in the name of BDA to enable
the 4th respondent to seek transfer of katha in respect of
39 guntas of land. In pursuance to the interim
direction of this Court, the Principal Secretary to the
Government
conducted
proceedings
in
terms
of
(Annexure-AD)
bearing
No.AC(S)PR/03/2012-2013
dated 13.06.2012, set aside the order dated 03.12.2005
passed by the BBMP registering katha to an extent of
0.39 guntas in favour of 4th respondent. Thereafter, the
writ petition was allowed and while allowing the writ
petition it was observed that as the learned counsel for
the BDA had made a categorical statement that BDA did
not issue NOC in favour of the 3rd respondent, no need
to examine the aspect of issuing writ of certiorari.
Further it observed that as the BBMP itself having
cancelled Annexure-B reversing the entry in favour of
4th respondent, there is no need to issue direction or to
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quash the change of katha. The said order was taken
up in W.A.No.49/2015, which was dismissed on
09.02.2015 and as against the dismissal of the writ
petition as well as writ appeal, the 4th respondent had
taken up the same to the Hon’ble Apex Court in SLP
No.3248/2015 and the said SLP was also dismissed by
order dated 06.11.2015. Review filed in the SLP was
dismissed by order dated 09.03.2016.
