K SEEVAN vs. THE JOINT COMMISSIONER (EAST)

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 23RD DAYOF NOVEMBER 2012 BEFORE THE HON'BLE MR. JUSTICE S.ABDUL NAZEER WRIT PETITION NOS.33871/2011 & 37249/2011 (LB-BMP) Between : 1 K Seevan S/o Sathi Pani Aged About 44 Yars R/At No.1128, 14th Cross Indiranagara 2nd Stage Bangalore-38

2 Namashivayam Seevan S/O Sathi Pani Aged About 46 Years R/At No.1128, 14th Cross Indiranagara 2nd Stage Bangalore-38 …. Petitioners. (By Sri. Udaya Holla, Sr. Adv. For Sri Ravi L Vaidya, Adv.)

2 And : 1 The Joint Commissioner (EAST), Bruhat Bangalore Mahanagara Palike, Mayo Hall, Bangalore.

2 The Assistant Revenue Officer, Vasanthanagara Sub-Division, Queens Road, BBMP, Bangalore-01

3 The Chief Commissioner Of Income Tax, Income Tax Department, Central Revenue Building, Queens Road, Bangalore-01

4 The Appropriate Authority, Section 269 UD (1), Income Tax Department Central Revenue Building, Queens Road Bangalore-01. …. Respondents.

(By Sri. Subramanya R., Adv. For Ashok Haranahalli A/S, Advs. For R1 and R2 Sri S. Vijayashankar, Sr. Adv. For Sri M V Seshachala, Adv. For R3 & 4) ---

These Writ Petitions are filed under Articles 226 & 227 of the Constitution of India, praying to quash the endorsements dated 31.5.2011 issued by the second respondent, etc. These Writ petitions coming on for Further Hearing this day, the Court passed the following:

3 ORDER

In these cases, the petitioners have called in question the validity of the endorsements at Annexures 'R' and 'S' both dated 31.5.2011 whereby the second respondent has informed the petitioners that katha of the property bearing Nos.4 and 5, Infantry Road, has been transferred to the name of the 4th respondent. 2. The contention of the petitioners is as under: Property bearing No.4 measuring 1,00, 223 sq.ft. was purchased by one Ramalingam Mudaliar under a registered sale deed dated 1.7.1924. Subsequently, Ramalingam Mudaliar bequeathed the same in favour of his daughter Sheshamma Pani under a registered Will dated 10.9.1942, which was probated on 22.11.1943. Sheshamma Pani was the wife of Dr.A.C.Pani. They are the grand parents of the petitioners. A small portion of the said property, which is distinctly identified as No.4-A was auctioned in

4 Execution Case No.248/1957. Manekji was the successful bidder. Later, the said auction was set aside. Manekji has sold the entire property bearing No.4 by suppressing the aforesaid proceedings in favour of Nariman K. Irani and Aimai Irani under a registered deed of transfer dated 14.5.1957. The said deed of transfer is null and void. Based on the said deed of transfer, Nariman K. Irani and Aiamai Irani have filed O.S.No.37/1958 against Dr.A.C.Pani and Sheshamma Pani, which culminated in RSA No.580/1967. In the judgment dated 28.7.1972 passed in the said second appeal, this Court has affirmed the concurrent finding that no title is passed on to Nariman K. Irani and Aiamai Irani under the deed of transfer. The claim of Manekji, Nariman K. Irani and Aiamai Irani was totally fraudulent and hence void. The deed of transfer is also void- ab-initio. 3. It is further contended that Aimai Irani had filed yet another suit claiming title to the property based on the very same

5 deed of transfer dated 14.5.1957 against Sheshamma Pani, Sath Pani and another in O.S.No.10147/1984, which was dismissed on 20.4.1985. However, to knock off the said property, Darius N. Irani (son of late Nariman Irani) and Aiami Irani have collusively entered into separate agreements with one M/s Mass Traders Pvt. Ltd., for the sale of the property Nos.4 and 5 under agreements dated 22.5.1989. Thereafter, they have filed form No.37-I under the Income Tax Act, 1961 ('IT Act' for short) as required under law. 4. In the meanwhile, 4th respondent passed an order under Section 269-UD of the IT Act preemptively purchasing a portion of property No.4 measuring 14,200 sq. ft. from Sheshamma Pani as per order dated 28.6.1989. Based on the Form No.37-I, the 4th respondent has hurriedly passed the orders under Section 269-UD of the IT Act preemptively purchasing portion of the said property Nos.4 and 5 measuring 43309 sq. ft. The orders passed by the Income Tax Authorities dated 28.6.1989 and 14.6.1993 are

6 collusive in nature. The said orders were called in question before this Court culminating in the judgment dated 9.6.2009 in W.A.No.2911/2005. In the said appeal, the petitioners have made an application for impleading. The said application was rejected giving liberty to establish their right and title. Subject to such right, the writ appeal was decided. The writ appeals were dismissed upholding the order of preemptive purchase order passed by the 4th respondent. 5. The petitioners approached the 4th respondent under Section 269-UD under the IT Act in a petition/representation dated 12.4.2010 requesting him to rectify the mistake committed while passing the aforesaid orders. The 4th respondent has not considered the said petition/representation. 6. Thereafter, the petitioners approached the second respondent for change of katha in their favour by rejecting the

7 katha standing in the name of Aimai Irani. Instead of considering the application for change of katha, the second respondent has initiated proceedings in No.KTR.218/09-10. The 4th respondent filed an application for change of katha in respect of portion of the property Nos.4 and 5. Based on the application, the second respondent has initiated proceedings in No.KTR.187/10/11. The second respondent has not taken note of the earlier application filed by the petitioners for change of katha in respect of larger portion of the same property and has issued the impugned endorsement directing the 4th respondent to establish its title to the property in question before the competent Court. Therefore, petitioners have filed these writ petitions challenging the validity of the said endorsements. 7. Respondent Nos.3 and 4 have filed their statement of objections by contending that petitioners have no locus standi to file these writ petitions. They have filed these petitions claiming

8 title under a Will dated 10.9.1942 and a probate order dated 22.11.1943 without producing the Will and the Probate Order. The establishment of title after a period of 70 years cannot be maintained. The application filed by the petitioners in W.A.No.2911/2005 in collateral proceedings has been rejected observing that if they had any claim, it was open to them to agitate the issues regarding title in the writ proceedings stage. 8. The original preemptive purchase order was passed in the year 1989. Consideration amount has been passed by the Union of India in the year 1989 itself. Possession of the property bearing Nos.4 and 5, Infantry Road, Bangalore has been taken over immediately thereafter. For the past 22 years, property bearing Nos.4 and 5 is in possession of Union of India. The entire property is fenced. Separate watch and guard have been appointed to guard this property. Before passing of the preemptive purchase order, the Union of India has examined the title and found that this property

9 was brought to public auction in Execution Case Nos.106 and 107 of 1949. The learned District Judge, Civil Station, Banglore, in Execution Case Nos.106 and 107 of 1949-50 has passed an order of sale of the property bearing Nos.4 and 5, Infantry Road, Bangalore. This property was purchased by E.M.Manekji. The sale certificate issued by the learned District Judge and the Execution Order in favour of E.M.Manekji came to be challenged before the High Court of Mysore in Miscellaneous Appeal Nos.72 and 73 of 1953. The High Court of Mysore considered the application after hearing the rival parties under an order dated 12.11.1954. The Hon'ble High Court of Mysore has confirmed the order passed by the learned District Judge and confirmed the sale in favour of E.M.Manekji. 9. It is further contended that R.Swaminathan and R.Vishwanathan, sons of V.Ramalinga Mudaliar mortgaged the property bearing No.4, Infantry Road, Bangalore, measuring north by 263½ ft., south by 239½ ft., east by 356 ft., west by 441 ft.

10 (including main house and out house) in favour of Sundara Murthy, son of V.Shanmuga Mudaliar for a sum of Rs.25,000/-. Sundara Murthy filed a suit for recovery of the mortgaged amount and obtained a decree. This decree was executed in Execution Case Nos.106 and 107 of 1949-50. On 20.3.1952, a Court Commissioner and Advocate-Smt.Sharada put up the property for auction. The property bearing No.4, Infantry Road, Bangalore, was sold for a consideration of Rs.36,000/- plus the mortgaged amount of Rs.25,000/- to E.M.Manekji. The sale came to be confirmed by the Court of District Judge,Civil Station in Execution No.106/1949-50. 10. This order was challenged before the Hon'ble High Court of Mysore by R.Vishwanathan, R.Swaminathan and R.Amarnathan. The appeal was filed against the executors (of the Will of late V.Ramalinga Mudaliar) S.Abdul Wajid, S.L.Manniji Rao, R.Narayanaswamy and auction purchaser E.M.Manekji. The High Court of Mysore numbered the appeal as M.A.Nos.72 and

11 73/1953 and confirmed the sale in favour of E.M.Manekji under an order dated 12.11.1954. E.M.Manekji after purchase of the property in Court auction has subsequently redeemed the mortgage by paying the entire mortgage amount to Mrs.Neelaveni Sundara Murthy on 10.7.1956. 11. Thereafter, Manekji under a registered sale deed transfereed the property bearing No.4, Infantry Road, Bangalore, measuring north by 263½ ft., south by 239½ ft., east by 356 ft., and west by 441 ft. to Nariman K. Irani and Aimai N.Irani for Rs.61,000/-. 12. Proceedings came to be initiated under the Urban Land Ceiling Act, Bangalore by the Special Deputy Commissioner in case No.ULC(6) 24/80-81. Under an order dated 18.9.1980, it was found that the land held by Mrs.Aimai N. Irani and Darius N. Irani consisting of property bearing Nos.4 and 5, Infantry Road,

12 Bangalore, measuring 1412.22 sq. mtrs., and 2023.61 sq.mtrs., respectively does not exceed the stipulated limit. They do not possess any excess vacant land. Consequently, the proceedings came to be dropped. The katha of the property bearing Nos.4 and 5, Infantry Road, Bangalore was transferred under an order dated 16.5.1985. Thus, Mrs.Aimai N. Irani and Darius N. Irani were the absolute owners of property bearing Nos.4 and 5, Infantry Road, Bangalore and in absolute possession over it. When the Union of India passed an order preemptively purchasing the same, they became the absolute owner of this property. Consequently, the President, Union of India, is the absolute owner and in possession every since 1989. In view of the various litigations raised and the interim orders, the katha in respect of the property could not be transferred to the Union of India. After disposal of the writ appeal, an application was filed and the katha stands transferred to the name of the President, Union of India. Therefore, they have prayed for dismissal of the writ petitions.

13 13. Sri Udaya Holla, learned Senior Counsel appearing for the petitioners contends that petitioners are the owners and in possession of the property in question. He has taken me through various documents produced along with the writ petitions to substantiate that petitioners own the property. He relies on a judgment of this Court in RSA No.580/1967 disposed of on 28.7.1972 filed by Nariman K. Irani, since deceased by his L.Rs. Darius N Irani and Aimai N Irani against Dr.A.C.Pani and Mrs.A.G.Pani, whereby this Court has dismissed the appeal. He has pointed out the observations of this Court in paragraph 3 of the judgment. It is as under: “On a perusal of the judgments of the lower Courts, I do not think that I can accede to the contentions of the learned Counsel. On the entire consideration of the evidence, the appellate Court has held that the two strips of land were not sold by Court auction and therefore, the auction

14 purchaser got no right to convey title by his sale deed Ex.P4 which was the basis of the plaintiffs title. On the question of possession also, the finding adverse to the plaintiffs was reached on the appreciation of the entire evidence. These are concurrent findings of facts which must be held to be conclusive in the second appeal.” 14. He has also relied on the judgment of the 10th Additional City Civil Judge, Bangalore, in O.S.No.10147/1994 dated 20.4.1985 whereby the suit filed by Aimai N. Irani against Mrs.Seshamal Pani and two others has been dismissed following the decision of this Court in the aforesaid second appeal. It is his further submission that the agreements entered into by Darius N. Irani and Aimai Irani agreeing to sell the property to M/s Mass Traders Pvt. Ltd., is a collusive document. Since the petitioners are the owners of the property, the Bruhat Bangalore Mahanagara Palike ('BBMP' for short) is not justified in issuing the impugned endorsements. It is further argued that the endorsements have been

15 issued on the direction of the Chief Secretary, which is again opposed to law. He submits that the endorsements at Annexures 'R' and 'S' are required to be quashed. 15. On the other hand, Sri S.Vijayashankar, learned Senior Counsel appearing for respondent Nos.3 and 4 submits that the judgment of this Court in RSA No.180/1967 and the order in O.S.No.37/1958 are not clear as to whether it is in respect of property bearing No.4 or 4/A, Infantry Road, Bangalore. It is further contended that the original preemptive purchase order was passed in the year 1989 and the consideration amount has been paid by the Union of India in the year 1989 itself. Possession in respect of the property Nos.4 and 5, Infantry Road, Bangalore, has been taken over immediately thereafter. For the past 22 years, the said property is in possession of Union of India. It is completely fenced. Separate watch and guard have been appointed to guard this property. He has also taken me through various documents in order

16 to support his contention that the property has been validly purchased by the Union of India. 16. It is further argued that the order passed under Section 269-UD of IT Act preemptively purchasing a portion of the property bearing Nos.4 and 5, Infantry Road, Bangalore, was called in question culminating in the judgment dated 9.6.2009 in W.A.No.2911/2005. In the said case, the petitioners filed an application to come on record as additional respondents by contending that the property in question is their joint family property and their rights are also involved. In the said appeal, they have also produced a copy of the judgment of this Court in RSA No.580/1967 disposed of on 28.7.1972. While dismissing their application, this Court has observed that their contention cannot be gone into in the said appeal. They have to establish their right title in respect of the property in an appropriate proceedings before the competent Court of law in accordance with law. When this Court

17 has observed that the petitioners have to approach the competent Court as the matter involves disputed question relating to title, they cannot maintain these writ petitions for quashing of the katha made in favour of respondent Nos.3 and 4 on the ground that they are the owners of the property. 17. It is further argued that despite purchase of the property by the Union of India, the Corporation did not transfer the katha of the said property. That is why they had requested the Chief Secretary, to direct the BBMP to dispose of their application seeking transfer of katha expeditiously. The Chief Secretary has not directed the Corporation to transfer the katha. 18. I have carefully considered the arguments made by the learned Counsel at the Bar and perused the materials placed on record.

18 19. The petitioners have produced the various documents and the orders of this Court in support of their contention that they are the owners of the property in question. They have also relied on the decision of this Court in RSA No.580/1967 dated 28.7.1972. The judgment relates to two splits of land marked as 'ABCD' and 'EFGH' in the plaint sketch. After considering the matter, this Court has observed as under: “On a perusal of the judgments of the lower Courts, I do not think that I can accede to the contentions of the learned Counsel. On the entire consideration of the evidence, the appellate Court has held that the two strips of land were not sold by Court auction and therefore, the auction purchaser got no right to convey title by his sale deed Ex.P4 which was the basis of the plaintiffs title. On the question of possession also, the finding adverse to the plaintiffs was reached on the appreciation of the entire evidence. These are concurrent findings of facts which must be held

19 to be conclusive in the second appeal.” 20. The suit filed by Aimai N. Irani in O.S.No.10147/1984 was dismissed on the basis of the judgment of this Court in the aforesaid appeal. The contention of the respondents is that Income Tax authority had passed preemptive order on the basis of which the property has been purchased by the Union of India. They have also relied on several documents in support of their contention that the purchase made by them is valid. In fact, the preemptive order was challenged by M/s Mass Traders Pvt. Ltd. in W.P.Nos.39258 and 39259/1993. The said writ petitions were dismissed on 25.5.2005. A writ appeal was filed challenging the said order in W.A.No.2911/2005. In the said case, the petitioners herein filed an application Misc.W.No.4823/2009 to come on record as additional respondents. The said application was dismissed with the following observations:

20 “4. Having regard to the submissions made that the property was sold as far as back in the year 1993 and the disputed question of fact in justification of their claims cannot be gone into by this Court in these proceedings, liberty is given to the proposed 7th and 8th respondent to establish the right, title in the property in an appropriate proceedings before the competent Court of law in accordance with law. 5. Subject to the liberty granted, Misc.W.No.4823/2009 is rejected.” 21. This order has attained finality. Therefore, whether the petitioners are the owners of the property or not has to be established in the Civil Court.

21 CITY OF BANGALORE - ILR 1988 (3) KAR 2416, this Court has held that it is not open to the Corporation to adjudicate the title of the property on the ground that the earlier transaction was not fully supported by valid title deeds to the property. 23. In C.KRISHNAPPA VS. COMMISSIONER, CORPORATION OF THE CITY OF BANGALORE AND ANOTHER - 1990 (1) KLJ 414, it has been held thus: “If there is a dispute with regard to title, the dispute must be decided in a Civil Court before mutation may be entered in the property register when both the parties are applicants for change of katha before the Corporation.” 24. In SMT.SHANTAMMA VS. BANGALORE MAHANAGAR PALIKE AND OTHERS - 2005 (1) KLJ 63, this Court has again held that whenever there is a bona fide dispute as

22 to ownership, Corporation authorities should not be adventurous in effecting the change of katha. If the ownership itself is doubtful and not clear, disputed entry in the katha should not be made till the decision of a competent Civil Court. 25. It is to be noted here that though the property was purchased by the Union of India as early as in the year 1993 and an application was made for transfer of katha, it has not changed the katha. Therefore, the third respondent appears to have requested the Chief Secretary to direct the BBMP to change the katha. It is also clear from the proceeding sheet maintained by the BBMP that the Chief Secretary has not directed the BBMP to change the katha. The second respondent has made a note in the proceeding sheet relating to the direction of the Chief Secretary, which is as under: “¸À£Áä£Àå ªÀÄÄRå PÁAiÀÄðzÀ²ðUÀ¼ÀÄ F «µÀAiÀÄzÀ §UÉÎ ¢£ÁAPÀB 19.05.2011 gÀAzÀÄ zÀÆgÀªÁtô ªÀÄÆ®PÀ

23 £À£ÉÆßA¢UÉ ªÀiÁvÀ£Ár DzÁAiÀÄ vÉjUÉ E¯ÁSÉAiÀÄ ºÉ¸ÀjUÉ SÁvÉ ªÀUÁðªÀuÉ PÉÆÃj ¸À°è¹gÀĪÀ CfðAiÀÄ£ÀÄß ¥Á°PÉ CvÀåAvÀ ²ÃWÀæªÁV «¯ÉêÁj ªÀiÁqÀĪÀAvÉ ¸ÀÆa¹gÀÄvÁÛgÉ. F »£É߯ÉAiÀÄ°è ¸ÀzÀj «µÀAiÀÄzÀ §UÉÎ ªÀiÁ£Àå PÀ£ÁðlPÀ GZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ°è ¤ÃrgÀĪÀ wæð£À DzÉñÀªÀ£ÀÄß CzÀsåAiÀÄ£À ªÀiÁr MAzÀÄ ¤zsÁðgÀPÉÌ §gÀĪÀÅzÀÄ ¸ÀÆPÀÛªÉAzÀÄ C©ü¥Áæ¬Ä¹ F «µÀAiÀĪÀ£ÀÄß ªÀÄgÀÄ ¥Àj²Ã®£É £Àqɹ ¸ÀàµÀÖ C©ü¥ÁæAiÀÄ ¤ÃqÀĪÀAvÉ PÉÆÃjzÉ.” 26. It is clear that the Chief Secretary has not directed the Corporation to transfer the katha. The note in Annexures 'R' and 'S' is also to the similar effect. Therefore, it is futile to contend that the Corporation has acted as per the direction of the Chief Secretary and has transferred the katha.

24 27. The contention of the petitioners that they are the owners of the petition schedule property cannot be established in a summary proceedings under Article 226 of the Constitution because it requires a detailed examination of the evidence as may be had in the suit. The object of Article 226 is the enforcement and not establishment of a right or title. The petition under Article 226 cannot be converted into a suit. It is well established that in case of highly disputed question of fact, civil suit would be the appropriate action. Therefore, I decline to entertain these writ petition. It is accordingly dismissed reserving liberty to the petitioners to approach the Civil Court for appropriate reliefs. The observations made in this order should not be understood as expressing any opinion on the merits relating to title of the property. All the contentions on merit are kept open. Needless to say that the Corporation is bound to transfer the katha of the property in question in terms of the decree, which may be passed by the Civil

25 Court or of the first appellate Court in case the decree of the Civil Court is challenged. No costs. Sd/- JUDGE. BMM/-