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2017 DIGILAW 1106 (KAR)

P. Mahesh S/o Purushotham v. Bruhat Bengaluru Mahanagara Palike (BBMP)

2017-08-02

VINEET KOTHARI

body2017
ORDER : 1. The petitioners have approached this Court by way of these writ petitions with the following prayers: “(i) Issue a writ in the nature of certiorari to quash the order bearing No.Ward-132/PR/23/14 Date of Order 02-08-2017 W.P.Nos.30044-045/2017 P. Mahesh & Anr. Vs. The Bruhat Bengaluru Mahanagara Palike (BBMP) & Ors. 15/16-17 dated 14.03.2017 passed by the Respondent No.2 vide Annexures-K to the writ petition. (ii) Issue a writ in the nature of mandamus directing the Respondent No.5 to restore the electricity power supply to the schedule property as per R.R.No.N2EH-104566 to N2EH-104570 and not to interfere with the electricity power supply to the schedule property at the instance of Respondent Nos.3 & 4. (iii) Pass such other orders as this Hon’ble Court deems fit in the facts and circumstances of the case. 2. The petitioners are aggrieved by the order passed by the 2nd Respondent-Assistant Revenue Officer, BBMP, Gali Anjaneya Swamy Temple Sub Division, Hampinagar, Bengaluru, passed on 14.03.2017 canceling the khata entries made in favour of the petitioners on the basis of Registered Sale Deed in their favour and restoring it in the name of predecessor in title Mr.Susainathan and on the basis of such change of khata entries by the A.R.O, the Respondent-BESCOM disconnected the power supply of the petitioners. 3. The petitioners have approached this Court earlier by way of W.P.Nos.3848-49/2016 and this Court was pleased to pass the following order on 07.04.2016 in the said writ petitions: “3. The petitioners submit that Katha was entered in the name of the petitioners on the basis of the sale deed dated 25.06.2012 and 27.06.2012 and the same was continued in favour of the petitioners till the same was not cancelled. When the katha was entered in the name of the petitioners the respondents No.5 and 6 made an application/complaint before the respondent Corporation regarding the transfer of Katha originally in favour of Kamalamma and then in favour of the petitioners and the very same property was purchased by the respondents No.5 and 6. The respondent Corporation on the basis of the objections and complaint made by the respondents 5 and 6 changed the katha which was registered in name of the petitioners in the year 2012. They further submit that before cancellation of the Katha, petitioners were not issued any notice or provided an opportunity to their say. Hence, petitioners are before this court. 4. They further submit that before cancellation of the Katha, petitioners were not issued any notice or provided an opportunity to their say. Hence, petitioners are before this court. 4. Under these circumstances, the cancellation order is quashed and no prejudice is caused to the respondent-Corporation, if they are directed to issue notice to the petitioners and provide them an opportunity to their say and to pass an appropriate order for change of katha. Till then electricity connection shall not be disconnected”. 4. The Respondent-Assistant Revenue Officer after hearing the petitioners, again passed the impugned order as aforesaid on 14.03.2017. The operative portion of the said order is quoted below for ready reference: “ORDER 1. The details of family members submitted by late A. Susainathan during his life time, at the time of becoming a member of Poornapragna House Building Cooperative Society and the family tree details submitted by P. Mahesh, G. Sridhar and kamalamma does not tally with each other and as Kamalamma has not submitted Marriage Invitation and her Children School records, the Katha for the Property No.43/5, 1st Main Road, Attiguppe Ward-132 is ordered to continue in the name of late A. Susainathan. 2. Copy of this order is directed to be communicated to both the parties. Sd/ Assistant Revenue Officer (Gali Anjaneya Temple) Sub Division Bruhat Bengaluru Mahanagara Palike”. Aggrieved by the same, the petitioners have approached this Court by way of present writ petitions. 5. Looking to the nature of the reasons assigned by the A.R.O. in the impugned order, this Court expressed its serious concern in the order dated 12.07.2017, which is quoted below for ready reference: “1. The learned counsel for the petitioners submits that the Respondent – Assistant Revenue Officer, Gali Anjaneya Swamy Temple Sub-Division, BBMP has passed the impugned order, Annexure K on 14/03/2017, canceling the Khata entries earlier made in favour of the petitioners made on the basis of a Registered Sale Deed in their favour who had purchased the said property in question from one Kamalamma on the ground that even the marriage of the said Kamalamma with her husband, late Mr.A. Susainathan was not proved by her by producing Marriage Invitation Card, School records of her children etc., whereas the other evidence produced by the petitioner like her Voter ID, Aadhar Card, Widow Pension Card etc. clearly show the name of her husband as A. Susainathan. 2. clearly show the name of her husband as A. Susainathan. 2. Nobody, either the complainants, Mr.H. Ramesh and Mr.S.Manohar nor any other third party has even questioned the Registered Sale Deed in favour of the present petitioners of the said property in question and on the basis of which Khata entry was made in favour of the present petitioners which came to be cancelled by the impugned order passed by the said Authority in exercise of powers under Section 114A of the Karnataka Municipal Corporations Act, 1976 (hereinafter referred to as the ‘Act’ for short). 3. Section 114A of the Act empowers only the Commissioner of the Municipal Corporation to exercise the said review powers under Section 114A of the Act and prima facie there is no delegation of power under Section 114A of the Act in favour of the Assistant Revenue Office. Therefore, the said order also prima facie appears to be passed without jurisdiction. 4. The learned counsel for the petitioner further submitted that on the basis of the said order cancelling the Khata entries in favour of the petitioners, the Respondent BBMP has also disconnected the Power Supply of the residential house of the petitioners on 01/07/2017 after serving notice dated 04/05/2017. 5. The matter requires consideration. 6. Issue Notice to the Respondents. 7. Both the Respondent Authorities – Assistant Revenue Officer, Gali Anjaneya Swamy Temple Sub-Division, I Floor, BBMP Swimming Pool Building, 9th Cross Road, Hampinagar, Bengaluru and the Assistant Executive Engineer (Electrical) BESCOM, 2nd North Sub-Division, Vijayanagar, Bengaluru are directed to remain present before this Court on the next date. 8. They are further directed to deposit a sum of Rs.50,000/-(Rupees Fifty Thousand only) each, from their personal resources with the Registrar of this Court by way of Security Deposit to ensure that the directions of this Court are complied with by them in future properly and meticulously and they may also show cause why the said amounts be not awarded as damages in favour of the petitioners. 9. Both the said Respondents may also explain their respective jurisdiction to pass the impugned orders in their respective personal Affidavits to be filed before the next date, positively. 10. 9. Both the said Respondents may also explain their respective jurisdiction to pass the impugned orders in their respective personal Affidavits to be filed before the next date, positively. 10. In the circumstances of the case, the operation of both the orders, Annexure K dated 14/03/2017 passed by the Assistant Revenue Officer, Gali Anjaneya Swamy Temple Sub-Division, BBMP and Annexure L dated 04/05/2017 passed by the Assistant Executive Engineer (Electrical), BESCOM, shall remain stayed and the Respondent – BESCOM authorities are directed to reconnect the Power Supply to the petitioner’s premises forthwith, subject to petitioners paying the regular consumption charges in the Bills raised against him. List this case again on 26.07.2017 on the top of the list”. 6. The Respondent-A.R.O., and the Assistant Executive Engineer (Ele) of the BESCOM accordingly deposited a sum of Rs.50,000/- each from their personal resources in terms of the interim order passed by this Court. 7. The matter was again heard today. 8. The learned counsel for the Respondent BBMP submits that the Respondent-A.R.O., has realized his mistake and has withdrawn the impugned order dated 14.03.2017 changing the khata entries from the name of the petitioners to that of the predecessor in title Mr.Susainathan. 9. The relevant portion of the Affidavit dated 01.08.2017 filed by the said A.R.O. in this Court today is quoted below for ready reference: “7. I submit that as directed by this Hon’ble Court, I have already deposited a sum of Rs.50,000/- on 21.07.2017 before this Hon’ble Court. 8. I submit that I have high regards towards judiciary and its orders and directions. Henceforth, I undertake to obey and honour such kind of orders of the Hon’ble Court with utmost respect. I hereby undertake to not to commit such mistakes henceforth. 9. I submit that in this context, I pray that since the order dated 14.03.2017 has already been withdrawn by my successors and also since I have realized the mistake in passing the order, I may kindly be pardoned”. 10. The learned counsel for the Respondents-BBMP therefore, prays that the relief itself is granted to the petitioners and therefore, the petitions may be dismissed as infructuous and the amount deposited by the said A.R.O. may be refunded to him. 11. Similarly, Mr.S.Sriranga, learned counsel for the 5th Respondent-Asst. Executive Engineer (Ele), BESCOM also submitted that the Asst. 10. The learned counsel for the Respondents-BBMP therefore, prays that the relief itself is granted to the petitioners and therefore, the petitions may be dismissed as infructuous and the amount deposited by the said A.R.O. may be refunded to him. 11. Similarly, Mr.S.Sriranga, learned counsel for the 5th Respondent-Asst. Executive Engineer (Ele), BESCOM also submitted that the Asst. Executive Engineer reconnected the power supply to the petitioners in terms of the Court order quoted above and since the earlier Court order gave protection to the petitioners against disconnection only till the matter was decided by the A.R.O., and once the matter was decided by the A.R.O. on 14.03.2017, the power supply was disconnected after notice to him but was immediately restored by the Respondent-Authority in view of interim order dated 12.07.2017 and therefore, a lenient view may be taken about the costs/damages to be paid by him, though he has also deposited the sum of Rs.50,000/as directed by this Court. 12. The learned counsel for the petitioners brought to the notice of the Court that the Respondents 3 and 4, the private Respondents namely, Mr.H.Ramesh & Mr.S.Manohar respectively, who had no privity of any lis in the matter, unnecessarily interfered with the affairs of the petitioners and the Respondents and got this power supply disconnected and khata entries altered, which, of course, now stands restored in favour of the petitioners by the A.R.O. 13. Having heard the learned counsels for the parties, this Court is of the opinion that a grave illegality was committed by the Respondents-Authorities of BBMP as well as BESCOM in the change of khata entries made by the A.R.O. in the matter by the order dated 14.03.2017, which admittedly now stands withdrawn and A.R.O realized his mistake, that so long as the registered Sale Deed in favour of the present petitioners exists, the said title documents could not have been ignored by any of these Authorities to either change the khata entries from the account of the petitioners or to disconnect the power supply of the petitioners so long as they paid the usual consumption charges. The khata entries as per the relevant Property Tax Rules, is nothing but an identification of the assessee concerned, from whom property tax has to be realized. Such khata entries have to be naturally depend upon the title documents, but such khata entries themselves are not the Title Documents. 14. The khata entries as per the relevant Property Tax Rules, is nothing but an identification of the assessee concerned, from whom property tax has to be realized. Such khata entries have to be naturally depend upon the title documents, but such khata entries themselves are not the Title Documents. 14. Unfortunately, there is a lot of litigation about the khata entries in this State and this is more often than not treat at par with the title documents, albeit wrongly. In the present case also, this Court found that on the basis of ignoring the Sale Deed in favour of the petitioners, the khata entries were changed in favour of the predecessor in title Mr.Susainathan merely on the basis of the complaint of private Respondents 3 and 4 who had no legal say in the matter. This interference by the Respondents 3 and 4 was absolutely uncalled for and on the basis of their interference and complaints, the Respondents-Public Bodies were misled to act in an illegal manner, which they should not have done. 15. To fix the responsibilities on these erring officials only, this Court had directed them to deposit Rs.50,000/- each from their personal resources, which they have deposited. In view of the later developments, when the A.R.O. has withdrawn his impugned order dated 14.03.2017 and power supply stands restored to the petitioners, even in view of this later developments available to the petitioners, this Court is not inclined to take a lenient view in the matter as prayed for. To avoid any such illegal actions on the Respondents-Authorities of BBMP or BESCOM in future or for that matter any Public Authority, to whom a clear message should go that if they act illegally on the behest of frivolous and unconnected complainants, who have no locusstandi to intervene in the matter, the personal responsibility of such erring officials deserves to be fixed on them and the Courts will take a serious view of the matter in such cases. 16. Therefore, while these writ petitions are disposed of in view of such subsequent developments, because the khata entries also stand restored in favour of the petitioners and power supply connection also stands restored, the present writ petitions are disposed of with costs and damages for loss and inconvenience caused to the petitioners against these two officials to the extent of Rs.15,000/- each. The amount already deposited by them with the Registrar General of this Court to the extent of Rs.50,000/- each, shall be made over to the two petitioners by separate cheques in their favour of Rs.15,000/each and the remaining amount of Rs.35,000/- may be refunded back to the said two officials by separate cheques upon obtaining an acknowledgement from all the concerned parties. 17. Petitions are accordingly disposed of.