Allowed

Smt. Hemabasavaraju v. Smt. Honnamma

Karnataka HC12 Sept 2022WP/38315/2017

Case brief

AI extract

What is this about?

The High Court allowed a writ petition to quash an appellate order that set aside a cooperative society sale deed. Relying on a prior categoric finding confirming the directors' competency, the court set aside the order and dismissed the society's dispute regarding the property.

What did the court decide?

The petition was allowed, and the impugned orders dated 23.05.2017 and 03.09.2009 were set aside.

Smt. Hemabasavaraju Vs Smt. Honnamma — Cooperative Societies | Karnataka HC (2022)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF SEPTEMBER, 2022

¶3

BEFORE

¶4

THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR

¶5

WRIT PETITION NO.38315 OF 2017 (CS-RES)

¶6

BETWEEN

¶7

SMT. HEMA BASAVARAJU AGED ABOUT 60 YEARS, W/O. G.S. BASAVARAJU, CHANNABASAVESHWARA NILAYA, NO.682, 9TH MAIN, 4TH 'A' CROSS, RPC LAYOUT, BENGALURU-560 040, REPRESENTED BY GPA HOLDER, SRI. G.S. BASAVARAJU, AGED ABOUT 62 YEARS, S/O. LATE CHANNABASAPPA

¶8

…PETITIONER

¶9

(BY SRI. ABHINAV R., ADVOCATE)

¶10

AND

¶11

SMT. HONNAMMA AGED ABOUT 61 YEARS, W/O. SHIVASHARANAPPA, NO.794, M.I.G., 2ND PHASE, YELAHANKA NEW LAYOUT, BENGALURU-560 054.

¶12

KARNATAKA URBAN HOUSE BUILDING CO-OPERATIVE SOCIETY LTD., NO.3471/A, 1ST MAIN ROAD, 7TH CROSS, GAYATHRI NAGAR, BENGALURU-560 021, REPRESENTED BY ITS SECRETARY.

¶13

¶14

SRI. M. SHANKARAPPA AGED MAJOR, FATHERS NAME NOT KNOWN TO THE APPELLANT, NO.1240, SRI. LAKSHMINARAYANA NILAYA, 3RD BLOCK, 3RD PHASE, 3RD CROSS, BASAVESHWARA NAGAR, BENGALURU-560 059.

¶15

SRI. CHIKKAPUTTAIAH AGED MAJOR, FATHERS NAME NOT KNOWN TO THE APPELLANT, NO.16/38, 7TH MAIN, 1ST PHASE, BTM LAYOUT, BENGALURU-560 068.

¶16

THE ASSISTANT REGISTRAR OF CO OPERATIVE SOCIETIES, CIRCLE-1, MALLESHWARAM CO-OPERATIVE SOCIETY BUILDING, MARGOSA ROAD, MALLESHWARAM, BENGALURU-560 003.

¶17

…RESPONDENTS

¶18

(BY SRI. SREEKANTAIAH M., ADV. FOR C/R1 SRI. S.R. HEGDE HUDLAMANE, ADV. FOR R2 SMT. KAVITHA H.C., HCGP FOR R5 R4 SERVED)

¶19

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 23.05.2017 PASSED IN APPEAL NO.1/2011 BY THE KARNATAKA APPELLATE TRIBUNAL, BENGALURU AT ANNEXURE-Q, QUASH THE ORDER DATED 03.09.2009 PASSED BY THE R-5 VIDE ANNEXURE-J AND CONSEQUENTLY, DISMISS THE SAID DISPUTE, BY ALLOWING THE PRESENT PETITION.

¶20

¶21

THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

¶22

ORDER

¶23

In this petition, the petitioner seeks quashing of

¶24

the impugned order dated 23.05.2017 passed in Appeal No.1/2011 by the Karnataka Appellate Tribunal (for short 'KAT') and for other reliefs :

¶25

(a) Issue a writ in the nature of Certiorari quashing the order dated 03.09.2009 passed by the 5th Respondent in Dispute No.ARB-1/ABN/01/200203 at Annexure 'J' and consequently, dismiss the said dispute, by allowing the present petition.

¶26

2. Heard the learned counsel for the petitioner

¶27

and the learned counsel for the respondents and perused the material.

¶28

The material on record discloses that on

¶29

27.04.1994, respondent No.2 - Society represented by

¶30

the then Director Chikkaputtaiah and Lakkappa, executed a registered sale deed in respect of subject

¶31

¶32

site bearing Nos.72 and 73 situated in a residential layout at Agrahara Dasarahalli, Yashawanthapura Hobli, Bangalore North Taluk and put the petitioner in possession of the same vide Possession Certificate dated 30.10.1994. Pursuant thereto, the katha in respect of the subject sites were made out in the name of the petitioner who also paid the taxes and obtained approved building plan from the BBMP in his favour and put up a residential construction on the said site.

¶33

Subsequently, respondent No.1 who also claimed to be a member of the said Society raised a dispute under Section 70 of the Karnataka Cooperative Societies' Act (for short 'Act 1957') inter-alia contending the aforesaid directors of the respondent No.2-Society were not competent or authorized or empowered to execute the sale deed in favour of the petitioner. By an order dated 03.09.2009, respondent

¶34

¶35

No.5 - Asst. Director of Cooperative Societies, allowed the said dispute and annulled the aforesaid sale deed in favour of the petitioner. Aggrieved by the same, the petitioner preferred an Appeal No.1/2011 before the KAT Bangalore, which dismissed the appeal preferred by the petitioner both on the grounds of delay as well as on merits, thereby confirming the aforesaid order passed by the respondent No.5 - ARCS. Aggrieved by the impugned order passed by both ARCS and KAT, Bangalore, the petitioner is before this court by way of the present petition.

¶36

The material on record further discloses

¶37

that the issue with regard to competency, authority and jurisdiction of the aforesaid directors Chikkaputtaiah and Lakkappa of respondent No.2Karnataka Urban House Building Cooperative Society Limited had granted urban House Building Cooperative Society came up for consideration in batches in cases

¶38

¶39

of D.M. Shobha and others vs. ARCS and others, in WP No.21150/2012 and connected matters, before this Court which disposed off, categorically holding that the aforesaid Directors Chikkaputtaiah and Lakkappa were competent, authorized and entitled to execute the sale deeds in favour of the respective members. In this context, it is necessary to reiterate that respondent No.5 - ARCS has passed the impugned order dated 03.09.2009 at the instance of respondent No.1, thereby setting aside the sale deed dated 27.04.1994 on the ground that the aforesaid Chikkaputtaiah and Lakkappa were not competent or authorized to execute the sale deed in favour of the petitioner. However, in view of the aforesaid order passed by this Court in W.P.No.21150/2012 dated 10.10.2013, I am of the considered opinion that the said order and finding regard therein the competency, authority and jurisdiction of Chikkaputtaiah and Lakkappa to execute the sale deed in favour of the

¶40

¶41

members of Respondent No.2 - Society, including the persons who are identically situated such as the petitioner would apply to the present case also.

¶42

Perusal of the impugned order passed by

¶43

the KAT, Bangalore would clearly indicate that the said finding recorded by this court in W.P.No.21150/2012 and connected matters has not been considered or appreciated by the KAT, Bangalore and consequently, on this ground alone, I am of the considered opinion that, the impugned order passed by the KAT, Bangalore as well as the impugned order passed by respondent No.5 - ARCS deserves to be set-aside and the dispute raised by respondent No.1 is liable to be dismissed. In D.M. Shobha's case as stated supra, while coming to the aforesaid conclusion, this Court held as under :

¶44

¶45

27. The next question that falls for consideration is with regard to the authority and competence of the erstwhile President and Secretary of the Society Mr. Chikkaputtaiah and Mr. Lakkappa along with two other office bearers to make allotments in favour of the petitioners and to execute the sale deeds. There was dispute regarding the valid constitution of the management of the 3rd respondent-Society amongst different groups as is clear from the pleadings and the orders passed by the Tribunal and also by this Court. On an earlier occasion in Dispute No.83/78-79 raised before the Assistant Registrar, the question regarding the valid constitution of the managing committee of the 3rd respondent-Society was agitated between the two groups, one headed by Chikkaputtaiah and Lakkappa and the other headed by Shankarappa. The Assistant Registrar, in Dispute No.83/78-79 vide his order dated 04.06.1988 held that the group headed by Shankarappa was in the management of the society. This was challenged in appeal by Chikkaputtaiah and Lakkappa before the Tribunal, wherein, the Tribunal allowed the appeal and held that the group headed by Chikkaputtaiah and Lakkappa were in the

¶46

¶47

management of the society. This order was challenged in W.P.No.18141/1988 by the group headed by Shankarappa. The writ petition was dismissed for non-prosecution and an application filed seeking restoration of the writ petition was also dismissed, whereupon in the writ appeal filed in W.A.No.1524/1994, an interim order of status quo regarding the management of the society as it existed on that date was granted on 26.08.1994. Subsequently, the writ appeal was allowed setting aside the order dismissing the writ petition for non-prosecution and remitting the matter to the learned Single Judge to consider the same on merits, whereupon the writ petition was disposed of with a direction to hold election to the society.

¶48

28. It is thus evident from the aforementioned facts and circumstances that the dispute regarding the managing committee, whether it was headed by Chikkaputtaiah and Lakkappa or by any other person including Shankarappa was the subject matter before the Assistant Registrar and the Tribunal recorded a finding that the group headed by Chikkaputtaiah and Lakkappa were in the management of the society. This finding was not interfered with by

¶49

¶50

this Court. While disposing of the writ petition this Court merely issued a direction for holding fresh election. The interim order of status quo regarding the management of society as it existed when the said order was granted also made it clear that the management of the society continued as it stood earlier, meaning thereby that Chikkaputtaiah and Lakappa were the President and Secretary in management of the 3rd respondent-Society. In addition, as rightly contended by Mr.Keshav Bhat, learned counsel for the petitioners, the relevant rule, namely Rule 13(3) of the Rules and the proviso to the same, specifically provides that the Committee whose term of office is deemed to have been expired shall continue in office till the next Committee is elected and shall thereafter handover the charge of the office to such new Committee. The Management of the Society cannot be left in the vacuum. If no election is held well before the expiry of the term of the Managing Committee, as per the proviso to Rule 13(3) of the Rules, the existing Committee will continue in office. This was the rule which was in force at the relevant time. There is no doubt an amendment brought about in the year 1999 providing for take over by the Special Officer, in

¶51

¶52

case no elections are held well before the expiry of the term of the Committee and new Committee is not elected. Hence, looked from both the angles, that is to say taking note of the previous litigation and also the effect of Rule 13(3) of the Rules, it is clear that Chikkaputtaiah and Lakkappa were the President and Secretary of the Society and at the time when they executed the Sale Deeds in the year 1994 and 1995, they were in the helm of affairs as such President and Secretary. Therefore, it cannot be said that the allotment made by them was without authority or without competence.

¶53

29. The letter issued by the Deputy Registrar vide Annexure-U on 10.08.1994 also makes it clear that on verification of the previous orders of the Tribunal and of this Court and also the books of the Society, he was of the opinion that Chikkaputtaiah was the President and Lakkappa was the Secretary and there were five other Directors, out of whom, one had expired. The Tribunal has brushed aside this letter dated 10.08.1994 issued by the Deputy Registrar merely on the ground that the letter was addressed to the Secretary of the Society and the Deputy Registrar was acting as if he was

¶54

¶55

favouring the Secretary in issuing such letter. Such reasoning given by the Tribunal in understanding the tenor of the letter and in not making an attempt to find out the truth involved in the matter is totally vitiated. In addition, it has to be also stated here that the Assistant Registrar disqualified Mr. Chikkaputtaiah as President for a period of two years on the ground that he had continued as President for more than six years. This order dated 06.03.1998 is produced at Annexure-T. This also presupposed that as on the date Chikkaputtaiah was disqualified (06.03.1998), he was discharging his duties as the President and was in the Management of the Society. It is also relevant to notice that Chikkaputtaiah challenged the order dated 06.03.1998 in W.P.No.16142/1998. The said writ petition was dismissed on 12.11.1998 holding that he had remained in office for more than two decades and therefore, there was no justification to interfere with the order passed by the Assistant Registrar. The Tribunal was not justified in ignoring these relevant and important materials while coming to the conclusion that Chikkputtaiah and Lakkappa were not in the Management of the Society and had no authority

¶56

¶57

to make the allotment of the sites in favour of the petitioners.

¶58

30. This takes me to the next question regarding the alleged illegalities committed in making allotments. The grievance made before the Assistant Registrar in this regard is that the seniority of the members was overlooked while making allotments to the newly inducted members. It is not in dispute that none of the so-called senior members have either raised any dispute or they have been examined as witnesses before the Assistant Registrar. The particulars such as names, date of enrollment of the so-called senior members has not been either pleaded in the dispute raised or is it placed before the Tribunal by way of oral or documentary evidence. The document on which reliance is placed is the seniority list produced on 25.11.2006 by Shankarappa. Learned Senior Counsel Mr. Ravi B.Naik points out that this list was produced after the evidence of Shankarappa was closed on 13.11.2006 without serving a copy of the same on the present writ petitioners who were respondents before the Assistant Registrar. The correctness of this list was denied by the petitioners as one created and concocted.

¶59

¶60

Mr.Naik submits that as the so-called seniority list was not produced in the course of evidence by Shankarappa before the Assistant Registrar and was not admitted in evidence in the manner known to law and further that the petitioners had no opportunity to rebut the same by challenging the veracity of it, the Tribunal could not have placed reliance on it to come to the conclusion that the same was the seniority list prepared by the competent person.

¶61

31. I see considerable force in this submission. If a document has to be produced in evidence during any adjudicatory process, the same has to be produced in accordance with law by providing an opportunity to the other side to rebut its probative value. In the instant case, the records disclose that the document was produced on 25.11.2006 after the evidence of Shankarappa was closed on 13.11.2006. This clearly shows that after his evidence was over, he has placed this document for the perusal of the Assistant Registrar. The Assistant Registrar has, therefore, rightly not taken note of this document while recording a finding that there was no material produced by either of the parties regarding the seniority of the members.

¶62

¶63

But, the Tribunal has erroneously placed reliance on this document and has come to the conclusion that the allotment was made ignoring the seniority of the members. There was absolutely no basis for recording such a finding.

¶64

32. It is necessary to notice here that the allottees had filed writ petitions before this Court in W.P.No.30858-897/1995 challenging the endorsement issued by the BDA and seeking a direction to effect khata in the name of the allottees. The said writ petitions were allowed on 25.09.1995 issuing certain directions. The Society was permitted to apply to the BDA seeking approval/sanction of the modified plan of the private layout in Sy.Nos.60/1, 61/1 & 69/2 of Agrahara Dasaralli Village. The BDA was directed to consider the documents produced by the Society to satisfy itself regarding its title by the society and subject to payment of balance layout and other charges call upon the Society to release and relinquish the common areas, etc. More importantly, a direction was issued to the BDA to consider the request of the writ petitioners herein for registration of khata and assessment to tax with regard to the sites

¶65

¶66

allotted to them after necessary procedure was adhered to and complied with by the Society.

¶67

33. Pursuant to this order, a sum of Rs.44,95,000/- was deposited by the Society before the BDA. The BDA sanctioned the modified plan and registered the khata in the names of the allottees. In the modified plan, in respect of some sites, twin numbers were given which is evident from Annexure-F1. Though twin numbers are given to some of the sites (six in all), a perusal of the Sale Deeds in respect of these sites produced by the allottees in the writ petition would make it clear that two numbers were given to a single site and it is not a case of allotment of two sites in favour of a single member. The Tribunal has yet again erred on this aspect while holding that two sites were allotted in favour of a single member. Therefore, it has to be held that the allegations made with regard to ignoring senior members while issuing allotment orders and also allotting more than one site in favour of some of the allottees, is totally baseless and was not established in the inquiry conducted.

¶68

¶69

34. Reliance placed on the judgment of this Court by the counsel for the respondents in the light of the findings recorded by me above is not apposite as they have no relevance to the facts of the present case. It has to be also stated that in this case the allotments have been made way back in the year 1994 and 1995. The first dispute is raised after a period of 3½ years by Shankarappa and the second dispute is raised after a period of 5½ years by the Administrator. Petitioners have put up construction over the properties allotted to them which were duly conveyed by executing valid Sale Deeds in their favour by obtaining sanction plan and by investing their life savings. Unmindful of all these facts, the Tribunal has issued directions cancelling the Sale Deeds.

¶70

35. A careful perusal of the entire materials on record do not disclose that any of the allottees had any role in the alleged mismanagement of the Society. They appeared to be bona fide members, who have been allotted sites, after receiving sital value by the Society. The consequences that would be fall on these petitioners if such an order cancelling the

¶71

¶72

Sale Deeds were to be made, is not at all taken note of by the Tribunal.

¶73

36. Hence, for all the aforementioned reasons, these writ petitions are allowed. The order passed by the Tribunal confirming the order of the Assistant Registrar is set aside. The disputes raised under Section 70 of the Act by the respondents - Shankarappa and the Administrator are hereby dismissed. No costs".

¶74

In view of the categorical finding recorded by this Court in the context of the authority, competency and entitlement of Chikkaputtaiah and Lakkappa to execute the sale deed by upholding the same, I am of the view that the impugned order passed by respondent No.5 - ARCS and KAT deserves to be set-aside.

¶75

¶76

In the result, I pass the following :

¶77

ORDER

¶78

i. The petition is hereby allowed .

¶79

ii. The impugned Orders at Annexure 'Q' dated 23.05.2017 and Annexure 'J' dated 03.09.2009 are hereby set-aside.

¶80

iii. The dispute raised by respondent No.1 before the respondent No.5 stands dismissed.

¶81

Sd/JUDGE

¶82

snc

Smt. Hemabasavaraju v. Smt. Honnamma

Case brief

What is this about?

What did the court decide?

Smt. Hemabasavaraju v. Smt. Honnamma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Gmr Infrastructure Ltd. Vs Assistant Director of Income Tax

Kum. Madhuri S Vs Karnataka State Law University

Smt.Venkamma Vs the State of Karnataka

Sree Deepthi Educational Trust (Regd) Vs the State of Karnataka

Sri Govindaraju Vs the Deputy Registrar of Co. -

Ananthu K P Vs the State of Karnataka