Allowed

Vishwabharathi House Building v. Sri T N Thimmarajachar

Karnataka HC20 Nov 2024WP/19400/2019

Case brief

AI extract

What is this about?

The High Court allowed the writ petition seeking to quash an ex-parte order passed by the Karnataka Appellate Tribunal. The Court set aside the impugned order, remitted the matter, and directed the Registrar of Cooperative Societies to investigate allegations of illegal multiple site allotments by the petitioner.

What did the court decide?

Impugned order of Karnataka Appellate Tribunal quashed; matter remitted for hearing; Registrar directed to submit inquiry report.

Vishwabharathi House Building Vs Sri T N… — Cooperative Societies | Karnataka HC (2024)

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1 - NC: 2024:KHC:47157 WP No. 19400 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 19400 OF 2019 (CS-RES)

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BETWEEN:

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VISHWABHARATHI HOUSE BUILDING, CO-OPERATIVE SOCIETY LTD., NO.35, RATNAVILAS ROAD, BASAVANAGUDI, BANGALORE - 560 004, REPRESENTED BY ITS SECRETARY, SMT. SARASWATHIKESARKAR.

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…PETITIONER

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(BY SRI. B.L. SANJEEV, ADVOCATE)

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AND:

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Digitally signed by SHWETHA RAGHAVENDRA

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Location: HIGH COURT OF KARNATAKA

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SRI. T.N. THIMMARAJACHAR, S/O NARASIMHACHAR, NO.491, 14TH MAIN, 1ST CROSS, BSK IST STAGE, SRINIVASA NAGARA, BENGALURU - 560 050.

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JOINT REGISTRAR OF CO-OPERATIVE SOCIETY, PAMPA MAHAKAVI ROAD, BENGALURU DIVISION, CHAMARAJAPET, BENGALURU - 560 018.

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…RESPONDENTS

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(BY SRI. K.S. MALLIKARJUNAIAH, ADVOCATE FOR R1; SRI. YOGESH D. NAIK, AGA FOR R2)

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2 - NC: 2024:KHC:47157 WP No. 19400 of 2019

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THIS W.P IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS QUASH THE ORDER DATED 31.12.2018 PASSED BY KARNATAKA APPELLATE TRIBUNAL, BENGALURU IN APPEAL NO.93/2016 VIDE ANNEXURE-H AND ETC.,

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ

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ORAL ORDER

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The petitioner is before this Court seeking for the following reliefs:

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"WHEREFORE, the petitioner respectfully prays that this

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Hon'ble Court, after calling for the records, may be pleased to: a) issue a writ in the nature certiorari or any other appropriate writ, order or direction quashing the order dated 31/12/2018 passed by Karnataka Appellate Tribunal, Bengaluru in Appeal No.93/2016, vide Annexure-H;

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b) grant such other relief/s that this Hon'ble Court deems fit to grant under the facts and circumstances of the case, in the interest of justice and equity."

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The grievance of the petitioner is that the order dated 31.12.2018 passed in Appeal No.93/2016, by Karnataka Appellate Tribunal, Bengaluru is an Exparte order. The petitioner could not appear in the said matter and as such, it is submitted by the learned counsel for the petitioner that an opportunity

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3 - NC: 2024:KHC:47157 WP No. 19400 of 2019

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if provided to the petitioner to contest the matter, the petitioner who is having a good case on merits is likely to succeed in the same.

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On merits, he submits that what was the subject matter of challenge before the Appellate Tribunal was the order passed by the Joint Registrar of Societies in Dispute No.JRB/MD/89/2007-08 dated 14.03.2016 where the dispute raised by respondent No.1 herein, who was the claimant therein had been partly allowed.

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The dispute therein being the cancellation of site No.986, which had been allotted to respondent No.1 herein on the ground that another site No.1370/K had been allotted to the wife of respondent No.1 and the family therefore, could not be allotted two sites.

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The Joint Registrar came to the conclusion on the basis of documents that there was a site allotted to the wife as also the husband and therefore, directed the petitioner to allot only one site instead of two.

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4 - NC: 2024:KHC:47157 WP No. 19400 of 2019

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This came to be challenged by respondent No.1 before the Karnataka Appellate Tribunal.

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The Karnataka Appellate Tribunal unfortunately has come to the conclusion that since there is allotment already made and payment already made, the allotment of the site No.986 in favour of respondent No.1 cannot be cancelled and set aside the order passed by the Deputy Registrar Co-operative Society.

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The submission of Sri. B.L Sanjeev, learned counsel for the petitioner in this regard is that the Karnataka Appellate Tribunal ought to have taken into consideration that there were two sites allotted to the same family by the House Building Co-operative Society, which was on the basis of affidavit of undertaking filed by respondent No.1 that apart from them, there were no other family members, who are the members of the Co-operative Society and that either himself or family members do not possess any

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5 - NC: 2024:KHC:47157 WP No. 19400 of 2019

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site, house, land or flat/apartment within the limits of BBMP/BDA.

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His submission is that since there was violation of this undertaking and site had been allotted in favour of the wife of respondent No.1, the petitioner had cancelled the site which resulted in dispute before the Deputy Registrar Co-operative Society. These facts could not be placed by the petitioner before the Karnataka Appellate Tribunal on account of the fact that petitioner has not appeared and he has been placed as Ex-parte .

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The submission of the Sri. K.S. Mallikarjunaiah, learned counsel for respondent No.1 is that there are several illegalities committed by the petitionerSociety, the petitioner-Society has allotted multiple sites to multiple persons and the petitioner has been singled out for action to be taken.

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On repeated enquiry as to whether site No.1370/K has been allotted to the wife of respondent No.1 or not, he confirms the said site has been allotted to his

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wife and house has been already built thereon. If that be so, this fact ought to have been taken into consideration by the Karnataka Appellate Tribunal. Since two sites could not been allotted to the same family members in the layout formed by the Society and house has been constructed mere fact that a site has been allotted by the House Building Co-operative Society and has been sold to the third party would not take away, the fact that the wife of respondent No.1 was a member of petitioner-Society.

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In that view of the matter, I am of the considered opinion that the opportunity would have to be provided to the petitioner to place the true facts before the Karnataka Appellate Tribunal by setting aside the order by the Karnataka Appellate Tribunal.

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Insofar as the allegation made by learned counsel for respondent No.1 that there are multiple allotments made he is directed to furnish all the details to the learned Additional Government Advocate. Learned Additional Government Advocate is directed to

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furnish the same to the Registrar Co-operative Societies, who inturn is directed to enquire and investigate and submit a report within a period of three months from today.

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In view of the above I pass the following:

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Order

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i. Writ petition is allowed.

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ii. Certiorari issued by order dated 31.12.2018 passed in Appeal No.93/2016 on the file of Karnataka Appellate Tribunal, Bengaluru, at Annexure-H is quashed.

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iii. The matter is remitted to the Karnataka Appellate Tribunal, the petitioner and respondent No.1 shall appear before the Karnataka Appellate Tribunal without requirement of any fresh notice at 11.00 a.m. on 04.12.2024.

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iv. The petitioner is permitted to file statement of objections along with documents within a

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period of two weeks thereafter i.e., on or before 18.12.2024.

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v. The Karnataka Appellate Tribunal is requested to take up the matter and proceed with and pass the orders on merits in accordance with law as expeditiously as possible.

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vi. The report of the Registrar of Co-operative Society to be filed on or before 15.04.2025.

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vii. Re-list on 15.04.2025.

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Sd/(SURAJ GOVINDARAJ) JUDGE

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TMP List No.: 1 Sl No.: 31

Vishwabharathi House Building v. Sri T N Thimmarajachar

Case brief

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Vishwabharathi House Building v. Sri T N Thimmarajachar

Case brief

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