AYESHA BEGUM W/O SHAHA ISMAIL QUADRI v. STAE OF KARNATAKA THROUGH ITS REVENUE SECRETARY
2017-02-06
ARAVIND KUMAR, B.A.PATIL
body2017
DigiLaw.ai
ORDER : 1. These intra-Court appeals are directed against order dated 18.02.2016 passed by learned Single Judge in W.P. Nos. 202984/2015 and 203168-203171/2015. 2. Appellants-petitioners claim right over the open space in Sy. No. 47 of Gullar Haveli, Bidar contending that owner of the approved layout had reserved some open space and he had submitted an application for change of use of land which was granted by the Commissioner, City Municipal Council by issuing a No-objection Certificate and accordingly, third respondent sanctioned the mutation in the name of petitioners with regard to open space and had also collected necessary development charges and betterment charges as per the provisions of Karnataka Municipalities Act, 1964 (for short ‘Act’). It has been further contended that fifth respondent filed a complaint before third respondent for cancellation of mutation entry entered in the name of petitioners and thereafter fifth respondent preferred a revision petition before second respondent-Deputy Commissioner under Section 322 of the Act against endorsement dated 27.12.2011, who in turn allowed said revision petition and remitted the matter back to the Commissioner, City Municipal Corporation, Bidar for adjudication afresh. Pursuant to said order, endorsement dated 04.02.2013 has been issued by City Municipal Commissioner, Bidar anulling the khata made in favour of petitioners and as such, order dated 25.06.2012 passed by Deputy Commissioner and endorsement dated 04.02.2013 – Annexures-A and A1 came to be challenged in writ petitions. 3. Learned Single Judge by order dated 18.02.2016 has held that there was justification for the revisional authority to invoke Section 322 of the Act and set aside the recording of the names of petitioners in the revenue records in respect of open space. Learned Single Judge has further directed the City Municipal Commissioner, Bidar to hold enquiry afresh in accordance with law and in the light of observations made in W.P. No. 37720/2002 decided on 21.07.2008. With these observations, writ petitions came to be rejected. 4. It is the grievance of petitioners that though order of revisional authority dated 25.06.2012 as well as endorsement dated 04.02.2013 – Annexures-A and A1 respectively were challenged before the learned Single Judge, no finding has been recorded with reference to Annexure-A1 by the learned Single Judge and third respondent has not examined the issue afresh as directed by revisional authority in the light of order dated 25.06.2012 Annexure-A on the ground that endorsement dated 04.02.2013 – Annexure-A1 has been issued.
Hence, he prays for setting aside the order passed by the learned Single Judge and prays for allowing the writ petition. 5. Per contra, Sri Gourish Khashampur, learned Advocate appearing for respondent-3 would submit that proceedings afresh has now been initiated by third respondent and said authority would examine the claim of petitioners as per the directions issued by Deputy Commissioner-second respondent on 25.06.2012 – Annexure-A and without reference to endorsement dated 04.02.2013 Annexure-A1. 6. Sri Ravi B. Patil, learned Advocate appearing for respondent-5 would support the impugned endorsement dated 04.02.2013 Annexure-A1 and contend that endorsement issued to the petitioners indicating thereunder that cancelling khata made over to the names of petitioners would still stand irrespective of the fact that matter is being adjudicated afresh since revisional authority itself has held in the order of remand dated 25.06.2012 – Annexure-A that it is to be anulled. Hence, he prays for dismissal of the appeal. 7. Having heard the learned Advocates appearing for parties and after bestowing our careful and anxious consideration to the rival contentions raised, we find that petitioners herein had questioned the revisional authority order dated 25.06.2012 – Annexure-A and also the endorsement dated 04.02.2013 – Annexure-A1 passed by Commissioner, City Municipal Council, Bidar. While dismissing writ petitions and affirming the order of remand passed by Deputy Commissioner dated 25.06.2012 – Annexure-A, learned Single Judge has not examined the correctness or illegality of the endorsement dated 04.02.2013 – Annexure-A1. We would have considered or examined the correctness or otherwise of the said endorsement since an appeal is continuation of original proceedings. However, we notice that submission has now been made by the learned Advocate appearing for respondent No. 3 as recorded hereinabove that in view of the order passed by Deputy Commissioner dated 25.06.2012, third respondent would be examining the matter afresh without being influenced by endorsement dated 04.02.2013 – Annexure-A1 issued to petitioners. 8. Hence, placing the submission of learned Advocate appearing for respondent3 on record, we affirm the order passed by Deputy Commissioner dated 25.06.2012 – Annexure-A to the extent of setting aside the order dated 03.01.2005 and confirm the order remanding the matter back to the third respondent-Commissioner, City Municipal Council, Bidar for adjudication afresh.
8. Hence, placing the submission of learned Advocate appearing for respondent3 on record, we affirm the order passed by Deputy Commissioner dated 25.06.2012 – Annexure-A to the extent of setting aside the order dated 03.01.2005 and confirm the order remanding the matter back to the third respondent-Commissioner, City Municipal Council, Bidar for adjudication afresh. Third respondent shall dispose the matter without being influenced by the endorsement dated 04.02.2013 – Annexure-A1 and proceedings shall be disposed off expeditiously, at any rate, within three months from the date of receipt of a copy of this order. Accordingly, writ appeals stand disposed of. However, it is explicitly made clear that this order would not confer any right on the petitioners to seek entry of their names in the mutation register during pendency of proceedings before third respondent and it would depend on the outcome of the proceedings before third respondent. Ordered accordingly.