SRI M DALICHAND V. THE DEPUTY COMMISSIONER

WP/3898/2024

AI Insights

The case revolves around a dispute concerning the ownership and revenue entries of certain lands in Vibhutipura Village, Bengaluru, which were originally owned by the petitioner's father and later claimed by the respondents based on the Urban Land (Ceiling and Regulation) Act, 1976. The petitioner challenged the official notification issued by the Deputy Commissioner, Bangalore Urban District, which altered the revenue entries to reflect the names of the respondents. The court examined the historical context of land transactions, the legal proceedings under the Urban Land Ceiling Act, and the subsequent actions taken by the revenue authorities. The judgment emphasized the importance of the original sale deed and the lack of possession by the government as critical factors in determining the rightful owner of the land.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 696251 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 05-07-2024
• Assessment Year: misc
• Other Referred Cases: VIMAL CHAND GHEVARCHAND JAIN AND OTHERS Vs. RAMAKANT EKNATH JADOO, SMT. MALLAMMA Vs. STATE OF KARNATAKA, REVENUE DEPARTMENT AND ANOTHER, BALAMAKOND KHATRI EDUCATIONAL AND INDUSTRIAL TRUST, AMRITSAR vs STATE OF PUNJAB AND OTHERS
• Laws Referred To: Urban Land (Ceiling and Regulation) Act, 1976
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: B P RADHA; S SREEVATSA
• Assessee Lawyers: K N PHANINDRA
• Keywords: Land dispute; Notification Quash; Urban Land Ceiling; Writ petition; Revenue Entries
• Section: 10(3); 226; 8(4); 227; 10(6)

Judgement Text

" - 1 - NC: 2024:KHC:25507 WP No. 3898 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF JULY, 2024 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH WRIT PETITION NO.3898 OF 2024 (KLR-RES) BETWEEN: SRI. M. DALICHAND S/O LATE J MITHALAL JAIN AGED ABOUT 55 YEARS, RESIDING AT NO.45/4 CASTLE STREET, ASHOK NAGAR, BANGALORE-560025. …PETITIONER (BY SRI. K.N. PHANINDRA, SENIOR COUNSEL FOR SRI. SAMMITH S., ADVOCATE) AND: 1. THE DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT, KANDHAYA BHAVAN, BANGALORE-560009. 2. THE TAHSILDAR BANGALORE EAST TALUK, K.R PURAM, BANGALORE-560036. 3. SRI. RAJAGOPALA REDDY S/O LATE E. SHANKARAPPA REDDY, AGED ABOUT 76 YEARS, RESIDENT OF NO. 3, SRI. E. SHANKARAPPA REDDY GARDEN, BESIDES TATA SHERWOOD APARTMENTS, Digitally signed by ARUNKUMAR M S Location: High Court of Karnataka - 2 - NC: 2024:KHC:25507 WP No. 3898 of 2024 BASAVANAGARA, MARATHHALLI POST, BANGALORE-560037, 4. SRI. S. NAGARAJA REDDY S/O LATE E SHANKARAPPA REDDY, AGED ABOUT 71 YEARS, RESIDING AT NO. 3, LAKSHMI NILAYA, 5TH CROSS, VEERABHADRANAGARA, 1ST STAGE, MARATHHALLI POST, BANGALORE-560037. 5. SRI. S. CHANDRASHEKARA REDDY S/O LATE SRI E SHANKARAPPA REDDY, AGED ABOUT 38 YEARS, RESIDENT OF NO. 3, SRI E SHANKARAPPA REDDY GARDEN, BESIDES TATA SHERWOOD APARTMENTS, BASAVANAGARA,MARATHHALLI POST, BANGALORE-560037. 6. SRI. S. VIJAYARAGHAVA REDDY S/O LATE SRI E SHANKARAPPA REDDY, AGED ABOUT 64 YEARS, RESIDENT OF NO. 153, JAYASHANAKARA DREAM MEADOWS, KUNDALAHALLI POST, BEHIND RYAN INTERNATIONAL SCHOOL BANGALORE-560037. …RESPONDENTS (BY SMT. B.P. RADHA, AGA FOR R1 AND R2; SRI.S. SREEVATSA, SENIOR COUNSEL FOR SMT. UDITA RAMESH, ADVOCATE FOR R3 TO R6) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE OFFICIAL NOTIFICATION DATED 30/01/2021 BEARING NO.ULC/CR/62/18-19 ISSUED BY THE RESPONDENT NO.1 AS CONTAINED IN ANNEXURE-L AS ILLEGAL AND VOID AND ETC. - 3 - NC: 2024:KHC:25507 WP No. 3898 of 2024 THIS PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER 1. In this writ petition, petitioner is assailing official Notification dated 30.01.2021 issued by the respondent No.1 (Annexure-L), inter alia sought for a direction to the respondent Nos.1 and 2 to effect the name of the petitioner in the revenue entries in respect of the subject matter land as well as consider the representations dated 23.08.2023 and 16.10.2023 (Annexures-\"S and T\" respectively). 2. Facts in nutshell in this writ petition are that, the petitioner has stated that the father of the petitioner had purchased land to an extent of 8 acres 10 guntas in various Sy. Nos.148/1, 12/1, 12/4, 12/5 and 12/6 of Vibhutipura Village, Bengaluru South Taluk, as per registered Sale Deed dated dated 18.01.1964 (Annexure-A). It is stated in the Writ Petition that one J. Mithalal Jain had filed declaration before the Spl. Deputy Commissioner, Urban Land Ceiling, Bangalore, declaring that the lands are held by him under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter - 4 - NC: 2024:KHC:25507 WP No. 3898 of 2024 referred to as 'the Act'). The competent authority has initiated proceedings against the father of the petitioner under S.8(4) of the Act and passed the order dated 05.04.1983 and ordered for forfeiting the excess vacant land measuring 32,385 Sq. Meters held by the father of the petitioner as per Annexure-B. It is further stated in the Writ Petition that the RTC entries were changed in the name of the Government in so far as the excess land is concerned. It is further stated in the Writ Petition that the father of respondent Nos.3 to 6 - E. Shankarappa Reddy had filed W.P. No.21898/1986 before this Court challenging the order dated 05.04.1983 (Annexure-B) on the ground that the said order has been passed without giving notice to him. During the interregnum period, father of the petitioner died on 28.05.1994 and as such, petitioner has succeeded to the estate of the deceased. It is further averred in the Writ Petition that this Court in W.P. No.21898/1986 relegated the father of the respondent Nos.3 to 6 to approach the Karnataka Appellate Tribunal for redressal of grievances as per order dated 29.06.1999 (Annexure-F). Pursuant to the same, father of the respondent Nos.3 to 6 filed Appeal No.8/1999 before the Karnataka Appellate Tribunal and the Tribunal, by Order dated - 5 - NC: 2024:KHC:25507 WP No. 3898 of 2024 08.09.1999, rejected the Appeal on the ground of maintainability in view of repeal of the Act, as per Annexure-G to the Writ Petition. It is also stated by the petitioner that, the respondent Nos.3 to 6 had filed Appeal (Annexure-H) before the respondent No.2 seeking restoration of entries in the revenue records in view of repeal of the Act, and as such, the respondent No.2, forwarded the report to the respondent No.1 as per Annexures- \"J and K\". The respondent No.1, based on the report made by the respondent No.2, has passed Notification dated 30.01.2021 directing the respondent No.2 to remove the name of the 'Government' in the revenue extracts and transfer the RTC into the name of the father of the respondent Nos.3 to 6 (Annexure-L). In furtherance of the same, mutation has been changed by deleting 'Government' from the RTC as per Annexures- \"N, P, Q and R\" respectively. Thereafter, the petitioner has made a representation to the respondent No.2 to cancel the revenue entries made in respect of the respondent Nos.3 to 6 as per the representations dated 23.08.2023 and 16.10.2023 (Annexure- S and T respectively). In furtherance of the same, the respondent No.1, by communication dated 18.10.2023, directed the respondent - 6 - NC: 2024:KHC:25507 WP No. 3898 of 2024 No.2 to conduct spot inspection and to file report regarding the status of the land in Sy. No.12/4 and 12/6 (Annexure-U). In furtherance of the same, a report was made by the respondent No.2 on 17.11.2023 (Annexure-Y). Despite the report has been filed by respondent No.2, respondent No.1 has not taken any decision in the matter and as such, the petitioner has presented this Writ Petition, seeking direction to respondent to consider the representations at Annexures - \"S and T\" respectively. It is also the grievance of the petitioner that the impugned order dated 30.01.2021 (Annexure-L) has been passed by respondent No.1 directing the respondent No.2 to reflect the name of the contesting respondents in the revenue records is contrary to law and as such, the said order at Annexure-L is challenged in this Writ Petition. 3. I have heard Sri. K.N. Phanindra, learned Senior Counsel appearing on behalf of Sri. Sammith S., learned counsel for the petitioner and Sri. S. Sreevatsa, learned Senior Counsel appearing on behalf of Smt. Udita Ramesh, learned counsel for respondent Nos.3 to 6, and Smt. B.P. Radha, learned Additional Government Advocate appearing for respondent Nos.1 and 2. - 7 - NC: 2024:KHC:25507 WP No. 3898 of 2024 4. Learned Senior Counsel appearing for the petitioner drew the attention of the Court to the sale deeds executed by father of respondent Nos.3 to 6 at Annexure-A and contended that, the father of respondent Nos.3 to 6 has sold the entire subject land in favour of the father of the petitioner herein and therefore, neither the father of respondent Nos.3 to 6 nor the respondent Nos.3 to 6 have any right, title or interest over the property in question. He also submitted that, in view of the proceedings under Section 8(4) of the Act, it is held that the father of the petitioner had held excess vacant land to an extent of 35,285 sq. meters, however, the possession of the land in question is with the petitioner and the respondent- authorities have not taken back the excess land from the petitioner. He further contended that, the revenue records, though stand in the name of father of respondent Nos.3 to 6 however, in view of the sale deed executed at Annexure-A, neither father of respondent Nos.3 to 6 nor respondent Nos.3 to 6 have interest over the property in question. He also drew attention to the report at Annexure-V and argued that the Government has not taken possession of the land in question in furtherance of the order dated 05.04.1983 (Annexure-B). It is - 8 - NC: 2024:KHC:25507 WP No. 3898 of 2024 also contended by the learned Senior Counsel that, in terms of S.10(3) of the Act, if the respondent - authorities fail to take possession in respect of the excess lands in question, same shall be made retained by the owner of the land in question and therefore, the said aspect has been brushed aside by the respondent No.1 while issuing the Notification dated 30.01.2021 (Annexure-L) and therefore, sought for interference of this Court. 5. Per contra, Sri. S. Sreevatsa, learned Senior Counsel appearing for the respondent Nos.3 to 6, contended that the sale deed dated 18.01.1964 said to have been executed by the father of the respondent Nos.3 to 6 in favour of father of the petitioner is only a nominal sale deed for a consideration of Rs.4,000/- and the said sale deed has been executed by the father of respondent Nos.3 to 6 for securing loan of Rs.4,000/- and in that context, the aforementioned sale deed has been executed. Hence, learned Senior Counsel for respondent Nos.3 to 6 disputes the title of the petitioner. It is also argued by the learned Senior Counsel that, though the above sale deed has been executed on 18.01.1964, same has not been acted upon and entire RTC extracts stand in the name of the father of the - 9 - NC: 2024:KHC:25507 WP No. 3898 of 2024 respondent Nos.3 to 6. He also submitted that, father of the respondent Nos.3 to 6 - E. Shankarappa had filed declaration under Section 6(1) of the Act as per document No.3 and the competent authority has not clubbed the application filed by the father of respondent Nos.3 to 6 along with the application filed by the father of the petitioner. Learned Senior Counsel further contended that, the proceedings before the competent authority at Annexure-B to the Writ Petition is behind the back of the father of the respondent Nos.3 to 6. Learned Senior Counsel for the respondent Nos.3 to 6 further pleaded that, the father of the respondent Nos.3 to 6 has challenged the Order dated 05.04.1983 (document-B) before this Court in W.P. No.21898/1986, however, this Court, on the ground of alternative remedy, relegated the father of the respondent Nos.3 to 6 to approach the Karnataka Appellate Tribunal. In furtherance of the same, father of the respondent Nos.3 to 6 has filed Appeal No.8/1999 before the Karnataka Appellate Tribunal, Bangalore, however, on account of repealing of the Act as per the Repeal Act dated 26.07.1999, the Appeal was disposed of as not maintainable. It is further submission of the learned Senior Counsel that the father of the respondent Nos.3 - 10 - NC: 2024:KHC:25507 WP No. 3898 of 2024 to 6 had approached respondent No.1, seeking restoration of the entries in the RTC as per document No.10, however, same has not been considered and as such, the respondent Nos.3 to 6 have filed application before respondent No.2 for restoration of entries in the RTC extracts. It is further contended that, report has been sought from the Village Accountant and Revenue Inspector by the respondent No.1 and based on the report made by the Village Accountant and Revenue Inspector, impugned order dated 30.01.2021 has been rightly passed which cannot be interfered with in this writ petition. It is also contended by the learned Senior Counsel that subject matter - land has been converted and sites have been formed. He also contended that suits are pending consideration before the Civil Court with regard to the title to the land in question and therefore, it is the submission of the learned Senior Counsel that the contentions raised by the petitioner cannot be accepted in view of disputed questions of fact and same cannot be adjudicated by the revenue authorities. 6. Learned Additional Government Advocate sought to justify the impugned order. - 11 - NC: 2024:KHC:25507 WP No. 3898 of 2024 7. In the light of the submissions made by the learned counsel appearing for the parties, on careful examination of the writ papers would indicate that, the land in question has been purchased by the father of the petitioner as per registered Sale Deed dated 18.01.1964(Annexure-A). It is not in dispute with regard to the fact that neither the father of the respondent Nos.3 to 6 nor respondent Nos.3 to 6 have challenged the aforementioned sale deed, seeking cancellation of the said sale deed before the competent civil court, in a manner known to law. In this regard, it is relevant to cite the Judgment of the Hon'ble Supreme Court in the case of VIMAL CHAND GHEVARCHAND JAIN AND OTHERS Vs. RAMAKANT EKNATH JADOO reported in (2009) 5 SCC 713. Therein, at paragraph Nos.31 to 37 it is held as below: \"31. Indisputably when a true character of a document is questioned, extrinsic evidence by way of oral evidence is admissible. {See R. Janakiraman Vs. State Rep. by Inspector of Police, CBI, SPE, Madras (2006) 1 SCC 697 para 24]; Roop Kumar Vs. Mohan Thedani [(2003) 6 SCC 595, para 19]; and State Bank of India & Anr. Vs. Mula Sahakari Sakhar Karkhana Ltd. [(2006) 6 SCC 293 paras 23 to 32]}. We would, therefore, proceed on the premise that it was open to the respondent to adduce oral evidence in regard to the nature of the document. But, in - 12 - NC: 2024:KHC:25507 WP No. 3898 of 2024 our opinion, he did not discharge the burden of proof in respect thereof which was on him. The document in question was not only a registered one but also the title deeds in respect of the properties have also been handed over. Symbolical possession if not actual physical possession, thus, must be held to have been handed over. It was acted upon. The appellants started paying rent in respect of the said property. No objection thereto has been raised by the respondent. 32. The respondent paid certain amount by cheque towards the licence fee. It was for him to show on what account the money was paid. Only because the parties had other transactions by itself was not sufficient to hold that the defendant has discharged his onus. If the sum of Rs.50,000/- was the amount of loan wherefor the deed of sale was executed by way of security, having regard to his admission that the firm is an income-tax payee and maintains books of account in regular course of business, failure on his part to produce any documentary evidence merited drawing of an adverse inference. Why did he not examine himself before the trial court or before the appellate court? He should have furnished an explanation in this regard to prove his plea. Why he failed to produce documentary evidence had also not been explained. 33. The approach of the first appellant court in relying upon certain circumstantial evidence was also of no use. Why the plaintiffs have purchased the properties at village Saikheda or why they had allowed another tenant to continue were not decisive far less relevant for - 13 - NC: 2024:KHC:25507 WP No. 3898 of 2024 construction of a document. The first appellate court had arrived at a conclusion first and then started to assign reasons in support thereof. It, as indicated hereinbefore, did not pose unto itself the correct questions. Apart from wrongly placing the burden of proof on the plaintiffs, even adverse inference against the defendant had not been drawn. The pleadings were required to be considered provided any evidence in support thereof had been adduced. No cogent evidence had been adduced by the respondent to show that the deed of sale was a sham transaction and/or the same was executed by way of a security. 34. The right of possession over a property is a facet of title. As soon as a deed of sale is registered, the title passes to the vendee. The vendor, in terms of the stipulations made in the deed of sale, is bound to deliver possession of the property sold. If he does not do so, he makes him liable for damages. The indemnity clause should have been construed keeping in view that legal principle in mind. 35. Although evidences had been brought on record to show that upon grant of leave and licence, the keys of godowns had been handed over but in respect thereof no contrary findings had been arrived at. We would assume that the parties entered into an arrangement as a result whereof the father of the respondent was to continue in possession. The character of his possession, however, changed from that of an owner to a licensee. A legal fiction in a situation of this nature is created in terms - 14 - NC: 2024:KHC:25507 WP No. 3898 of 2024 whereof the owner becomes dispossessed and regains possession in a different capacity, namely, as a licensee. 36. If the appellants were able to prove that the deed of sale was duly executed and it was neither a sham transaction nor represented a transaction of different character, a suit for recovery of possession was maintainable. A heavy onus lay on the respondent to show that the apparent state of affairs was not the real state of affairs. It was for the defendant in a case of this nature to prove his defence. The first appellant court, therefore, in our opinion, misdirected itself in passing the impugned judgment insofar as it failed to take into consideration the relevant facts and based its decision on wholly irrelevant consideration. 37. A heavy burden of proof lay upon the defendant to show that the transaction was a sham one. It was not a case where the parties did not intend to enter into any transaction at all. Admittedly, a transaction had taken place. Only the nature of transaction was in issue. A distinction must be borne in mind in regard to the nominal nature of a transaction which is no transaction in the eye of law at all and the nature and character of a transaction as reflected in a deed of conveyance. The construction of the deed clearly shows that it was a deed of sale. The stipulation with regard to payment of compensation in the event the appellants are dispossessed was by way of an indemnity and did not affect the real nature of transaction. In any event, the said stipulation could not have been read in isolation. The judgment of the first - 15 - NC: 2024:KHC:25507 WP No. 3898 of 2024 appellate court was, therefore, perverse. The High Court, thus, failed to consider the real dispute between the parties.\" 8. It is also not in dispute that the respondent Nos.3 to 6 have to establish right in respect of the land in question since the registered Sale Deed dated 18.01.1964 is binding on the respondent Nos.3 to 6. It is also not in dispute with regard to the fact that proceedings under Section 8(4)of the Act was held against the father of the petitioner as per Annexure-B and the competent authority, by order dated 05.04.1983 arrived at a conclusion based on the sale deeds referred to above and ordered for acquiring the excess vacant land of 32,385 sq. meters of the subject land. Though the revenue records have not been mutated after the execution of the registered Sale Deed dated 18.01.1964, however, the registered Sale Deed dated 18.01.1964 is binding on the petitioner and respondent Nos.3 to 6. It is also not disputed that, the suit is pending consideration before the Civil Court, Bengaluru, in O.S. No.7546/2018 relating to the subject matter land in question. In that view of the matter, as the sale deed dated 18.01.1964 stands in the name of the father of the petitioner herein, the - 16 - NC: 2024:KHC:25507 WP No. 3898 of 2024 respondent No.1 ought not to have issued the impugned official memorandum dated 30.01.2021 (at Annexure-L), directing the respondent No.2 to enter the name of the contesting respondents in the RTC extracts. 9. It is needless to say that, the aspects relating to taking possession in respect of the subject land by the competent authority under the Act, in view of Section 10 (6) of the Act plays vital role to determine the ownership in respect of the land in question. This Court in the case of SMT. MALLAMMA Vs. STATE OF KARNATAKA, REVENUE DEPARTMENT AND ANOTHER, reported in ILR 2008 KAR 4041at paragraph 11 and 12 held as follows: 11. The Supreme Court in BALAMAKOND KHATRI EDUCATIONAL AND INDUSTRIAL TRUST, AMRITSAR vs STATE OF PUNJAB AND OTHERS [(1996) 4 SCC 212] has held that the normal mode of evidence in taking of possession of land is by drafting a Panchanama in presence of Panchas. In the instant case the records produced do not show that any mahazar is prepared witnessed by independent panch witnesses to prove the resumption of possession on 11-4-1989. Only on the basis of the self-serving reports of the Revenue Officers, it is difficult to believe that the possession is taken on 11-4- - 17 - NC: 2024:KHC:25507 WP No. 3898 of 2024 1989. In that view, it is to be held that the appellant was never displaced from physical possession and that provisions of Section 3(2) (a) will apply. 12. The compensation is yet to be determined therefore the question of refund of compensation by the appellant does not arise. The contention that there is delay and laches in filing the writ petition is untenable. The explanation offered by the appellant is convincing. When the right of physical possession of the appellant was invaded the appellant has filed the writ petition, therefore, we do not find any delay or laches on the part of the appellant.\" 10. Following the declaration of law made by this Court referred to above and on perusal of the report made by the Village Accountant and the Revenue Inspector to the respondent No.2, it is evident that, the respondent - Government has not taken possession of the land in question and therefore, the owner of the land in question is entitled for retaining the excess land and the said aspect of the matter was not considered by respondent No.1 while passing the impugned order at Annexure-L dated 30.01.2021. In view of the disputed facts relating to the rival claim made by the respondent Nos.3 to 6, it is open for the respondent Nos.3 to 6 to establish their right in respect of the land in question, as nothing is produced - 18 - NC: 2024:KHC:25507 WP No. 3898 of 2024 before this Court with regard to cancellation of the original sale deed dated 18.01.1964 (Annexure-A) by the contesting respondent Nos.3 to 6. In that view of the matter, the respondent Nos.3 to 6, if so advised, can establish their right in respect of the land in question before the competent Civil court in the suit referred to above, and in the result, I pass the following: ORDER 1) Writ Petition is allowed; 2) Order dated 30th January, 2021 (Annexure-L) passed by the respondent No.2 is hereby quashed; 3) Respondents 1 and 2 are directed to consider the representations dated 23.08.2023 and 16.10.2023 (Annexure- \"S\" and \"T\" respectively), made by the petitioner, within three months from the date of receipt of certified copy of this order. SD/- JUDGE sac List No.: 1 Sl No.: 37 "