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Judgment
V.G. Sabhahit, J.—This appeal is filed by the petitioners in W.P No. 26372/2005 being aggrieved by the order dated 26.06.2007, wherein the learned single Judge has, dismissed the writ petition.
The appellants, herein filed W.P., No. 26372/2005 seeking for quashing of, the impugned notification dated 02.02.2005 published on 03.12.2005 by the Bangalore Development Authority (for short, B.D.A. ) in so far as it relates to the petitioner''s site bearing No. H47/G, situate at 5th block, Rajajinagar, Bangalore.
it is averred in the writ petition that the petitioners have purchased the above said property under the registered sale deed dated 05.10.2004 from Sri K. Shivashankaran, son of M. Kuppu Swamy for valuable consideration of Rs. 32,00,000/- by taking loan and the said sale deed was registered as document No. RJN-1-04539/2004-05 before the Sub-Registrar, Rajajinagar, Bangalore.
3.1. It is further averred that the vendor of the said property represented the petitioners that originally, the City Improvement Trust Board had-issued a memo on 10.06.1971 in the name of K. Shivashankaran in respect of the confirmation of possession of the site No. ll47/G, 5th block, Rajajinagar, Bangalore,- and he handed over xerox copy of the receipt dated 23.05.1971 issued by the City Improvement Trust Board for Rs. 9,060/- in respect of the schedule property. The BDA., executed an absolute sale deed dated 19.08.1992 in favour of the vendor of the petitioners, Sri K. Shivashankaran and the said sale was executed by the Under Secretary of the BDA., and registered on 26.08.1992. Thereafter, the Bangalore City Corporation, has collected up to date taxes and revenue including arrears from the vendor of the petitioners on 17.12.1992. The vendor of the petitioners had applied for sanction of building plan and the same was sanctioned by collecting requisite charges. The khatha certificate was also issued by the Bangalore Mahanagara Palike.
3.2 The vendor of the petitioners had taken loan from the Indian Overseas Bank and due to non-payment of the loan, the Bank had taken proceedings under Securitisation and Reconstruct on of Financial Assets and Enforcement of Security Interest Act and had issued possession notice on 05.07.2004, After purchase of the schedule property by the petitioners as per the sale deed dated 05.10.2004, the katha certificate has been issued by the Bangalore Mahanagara Palike on 28.10.2004 by collecting requisite revenue and other taxes the petitioners have paid up-to-date taxes to the Corporation and have obtained encumbrance certificate from 01.05.1973 till 06.10.2004. Petitioners are bona fide purchasers of the property under auction and have verified the Encumbrance Certificate and original title deeds, which were in the custody of the financing Bank. However, the B.D.A., has issued paper notice dated 02.12.2005 published on 03.12.2005 in Deccan Herald English daily news paper, fixing the date of auction as 12.12.2005 at 10:30 a.m. Being aggrieved by the said notification dated 3.12.2005, fixing public auction on 12.12.2005, the writ petition was filed for the above said prayers, contending that the petitioners are the absolute owners of the property in question and B.D.A. had No. jurisdiction to. auction the property.
Learned single Judge after considering the contentions of the learned Counsel appearing for the petitioners and the learned Counsel appearing for the respondent, by order dated 26.06.2007, held that the vendor of the petitioners had no title over the property in, question; the auction took place on 23.05.1971, however, the sale deed, according to the petitioners, was executed only on 19.08.1992 i.e., after 21 years from the date of auction; in the sale deed, the age of the vendor of the petitioners is shown as 38 years and wherefore, on the date of auction, he would have been a minor aged about 17 years and in view of the fact that the B.D.A. has denied the execution of the sale deed in favour of the vendor of the petitioners, the vendor of the petitioners had no title to the property in question and he could not have conveyed a better title in favour of the petitioners. Therefore, the petitioners have to work out their remedy by filing suit for declaration of title before the competent Civil Court and this Court cannot consider the disputed question of fact in exercise of writ jurisdiction of this Court and accordingly, held that there is no merit in the writ petition and dismissed the writ, petition. Being aggrieved by the said order dismissing the writ petition, writ petitioners have preferred this appeal.
There is a delay of 4 days in filing the appeal. I.A. No. 2/2007 is filed for condonation of the said delay.
We have heard the learned Counsel appearing for the appellants.
Learned Counsel appearing for the appellants submitted that the appellants are bona fide purchasers of the property in question for value and sale deed has been duly executed by the office of the B.D.A., in favour of the vendor of the petitioners. Therefore, the respondent B.D.A., could not have notified the property belonging to the appellants for public auction and the learned single Judge was not justified in dismissing the writ petition and the writ petition ought to have been allowed.
We have given careful consideration to the contentions of the learned Counsel appearing for the appellants and scrutinized the material on record.
the material on record would clearly show that even according to the averments, made in the petition, the petitioners - appellants herein purchased the disputed property under the registered sale deed dated 05.10.2004. It is the contention of the appellants that their vendor had acquired a valid title to the property in question under the registered sale deed executed by B.D.A. on 19.08.1992 and the katha had been changed in the name of the their vendor and after purchase of the property under the registered sale deed dated 05.10.2004, katha has been issued in the name of the appellants and they have been paying taxes in accordance with law. The material on record would further show that the public auction was held on 23.05.1971 and the sale deed has been executed on 19.08.19921n favour of the petitioner - appellants herein. However, the B.D.A. has denied the execution of the sale deed. Therefore, the very basis of title of the vendor of the appellants is disputed and the disputed question of fact cannot be gone into, in exercise of writ jurisdiction of this court. It is for the appellants to work out their remedy after approaching the competent Civil Court in accordance with law. In view of the above said facts of the case, it is clear that the learned single Judge has rightly held that the petitioners - appellants herein are not entitled to any relief in exercise of writ jurisdiction of this Court.
Learned single Judge has safeguarded the interest of the petitioners - appellants herein by observing that any observation made in the writ petition shall not come in the way of any competent Civil Court going in to the merits of the claim, if the petitioners choose to approach the Civil Court. Accordingly, we hold that the order passed by the learned single Judge is justified and does not suffer from any error or illegality as to call for interference in this intra court appeal and pass the following Order:
The Writ Appeal is dismissed. In view of dismissal of the Writ Appeal, it is unnecessary to go Into the question of delay of 04 days In filing the appeal.