Sri T Raghushankar Vs the Amarjyothi House Building Co-Operative Society

(BY SMT. LAXMI IYENGAR, SENIOR ADVOCATE FOR SRI. K.S. VENKATRAMAN, ADVOCATE FOR R1; SRI. YOGESH D. NAIK, AGA FOR R2; SRI. K. KRISHNA, ADVOCATE FOR R3; SRI. N.R. JAGADEESWARA, ADVOCATE FOR R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION FOR QUASHING OF THE IMPUGNED ORDER ONE PASSED BY THE KARNATAKA APPELLATE TRIBUNAL, BANGALORE, DATED 23.05.2007 IN APPEAL NO.32/2002 FOUND AT ANNEXURE-D & ALSO THE ORDER DATED 13.8.2010 ONE PASSED BY THE KARNATAKA APPELLATE TRIBUNAL IN REVIEW PETITION NO.12/2007 FOUND AT ANNEXURE-G TO THE WRIT PETITION; TO UPHOLD THE ORDER PASSED BY THE RESPONDENT NO.2 DATED 12.11.2001 IN CASE NO.JRK MT 45/98-99 FOUND AT ANNEXURE-C.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 20.12.2024, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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CAV ORDER

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1. The Petitioner is before this Court seeking for the

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following reliefs:

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“(i) To issue a writ of certiorari or any other appropriate writ, order, or direction for quashing of the impugned order one passed by the Karnataka Appellate Tribunal, Bangalore, dated 23.05.2007 in Appeal No.32/2022 found at Annexure-D and also the order dated 13.08.2010 one passed by the Karnataka Appellate Tribunal in Review Petition No.12/2007 found at Annexure-G to the writ petition.

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(ii) To uphold the order passed by the respondent No.2 dated 12.11.2001 in Case No.JRK MT 45/98-99 found at Annexure-C;

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(iii) To grant such other relief/reliefs as this Hon’ble Court deems just and necessary in the circumstances of the case and to award cost of the petition, to meet the ends of justice.”

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The Petitioner claims to be a member of Respondent No.1-Amarjyothi House Building Co-operative Society Ltd., (for short, ‘the Society’) with effect from 06.05.1988. The said society being registered under the Karnataka Co-operative Housing Societies Act, is empowered to acquire land and form layouts, containing sites and house sites, which will be released to its members.

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The petitioner claims that the society assured the petitioner that it would allot a site measuring 40 X 60 feet at Domlur Ist stage, in furtherance of which, the petitioner is stated to have deposited Rs.40,000/-, (Rs.5,000/- on 14.07.1988, Rs.5,000/on 29.09.1988 and Rs.30,000/- on 15.03.1999). The Petitioner alleges that in the year 1995-1996, the society assured its members that they would

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prepare a seniority list of its members eligible for sites and allot the same accordingly.

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The petitioner, however on 11.03.1997 received an intimation from the society stating that out of the proposal for 88 acres of land for the layout, the Government has only handed over 29 acres, 39 guntas and as such, the sites were being formed only to that extent and that members who would not be allotted sites in Domlur Ist stage, would be allotted sites in Domlur IInd stage which is to be formed in Challaghatta village.

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The petitioner alleges that under the guise of transferring the incumbent allotment of sites to Domlur IInd stage, sites in Domlur Ist stage have been allotted to junior members of the society ignoring the seniority of several persons including the Petitioner. Apart there from, it is alleged that sites have been allotted to multiple members of a single family which is against the bye-laws which

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mandates that only one site is to be allotted to each family, if more than one site is owned by a family, an applicant would not be entitled to an allotment of a site.

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In view of the petitioner being deprived of an allotment, he raised a dispute before the Registrar of Co-operative Societies. The Assistant Registrar of Co-operative Societies to whom the matter was referred to registered the same as Case No.JRK MT 45/98-99 and passed an order on 12.11.2001 in favour of the petitioner, directing the society to allot a site in favour of the petitioner, measuring 40 X 60 feet in Domlur Ist stage itself.

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The society challenged the said order in an appeal before the Karnataka Appellate Tribunal (for short ‘KAT’) in Appeal No.32 of 2002. The KAT allowed the appeal setting aside the order passed by Respondent No.2, but however directed the society to consider

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the case of the petitioner, keeping in view his seniority and allot a site accordingly.

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The petitioner challenged the said order dated 23.05.2007 of the KAT before this Court in W.P. No.11379 of 2007. The petitioner withdrew the said writ petition with liberty to file a review petition before the KAT as recorded in the order dated 10.09.2007. A Review petition in RP.No.12 of 2007 having been filed, the KAT vide its order dated 13.08.2010 dismissed the review petition and it is in that background the petitioner is once again before this Court, this time challenging both the order of review petition as well as the order in Appeal No.32 of 2002.

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Sri Sunil S. Rao, learned counsel for the petitioner would submit that the KAT ought not to have set aside the order passed by the 2^nd respondent. He contends that the petitioner having made an application for allotment of a site in Domlur Ist

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stage, the KAT has come to a wrong conclusion that the petitioner had made an application for a site in Domlur IInd stage.

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His submission is that when the application was made, Domlur IInd stage was not even under contemplation. There was no land which had been acquired for formation of Domlur IInd stage layout. Hence, the question of the petitioner making an application in the year 1988 for the allotment of a site in Domlur IInd stage did not at all arise.

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He makes a categorical submission that the application of the petitioner was for allotment of a site in Domlur Ist stage only. His further submission is that the other contentions raised by the petitioner as regards wrongful allotment having been made to junior members to that of the petitioner has not been taken into consideration by the KAT. The KAT order therefore is required to be set aside.

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The petitioner has been deprived of a site for more than 20 years on account of illegal actions on part of the society. The KAT ought to have held in favour of the petitioner rather than setting aside the order of the 2^nd respondent. The payments made by the petitioner being way back in the year 1988. His further submission is that the society not having formed any other layout thereafter, the order passed by the KAT is redundant inasmuch as no layout being formed, no sites being available, there would be no site which would be allotted to the petitioner either considering the seniority or otherwise. Thus, he submits that the order of the KAT does not protect the interest of the petitioner but to the contrary negates the rights of the petitioner.

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Smt. Lakshmi Iyengar learned senior counsel for Sri K.S. Venkataramana learned counsel for the 1^st respondent-Society would submit that the petitioner is a son of Police Inspector, who had assisted in

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formation of the layout and it is in that background the petitioner though initially not a member of the society was later granted membership and given an opportunity to apply for a site.

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Her further submission is that the petitioner had made an application for allotment of a site in Domlur IInd stage and in this regard, she relies upon the receipts which have been placed on record, where the words Domlur II have been written, and in this regard she submits that the petitioner is not entitled for a site in Domlur Ist stage. The project in Domlur IInd stage has been given up, there are no sites in Domlur IInd stage, which are available for allotment. As such, she submits that no site could have been claimed by the petitioner in Domlur I stage, nor could the society allot any site in the non existent Domlur IInd stage.

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In view of the various submissions, which have been made by the counsel for the petitioner and the

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society, the BDA and the BBMP were also included as parties, more so on account of an allegation being made that in some portion of the land, an apartment complex had been constructed with the connivance of the society depriving the members of the society from sites being allotted. Reports having been received from the BDA and the BBMP, it was seen that these apartments were constructed outside the layout and as such, the question of any misdeeds on part of the society did not arise.

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Insofar as the allegation made as regards some of the lands being transferred by a society to 3^rd parties, the said allegation was also not established by the petitioner. Records and details being called for from the BDA and BBMP, it was seen that the proposed lands which had been proposed to be acquired and acquisition completed, had been handed over to the society, in which, the layout had been formed.

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In that view of the matter, two issues which remain to be considered by this Court are,

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(i) Whether the petitioner had applied for a site in Domlur Ist stage or Domlur IInd stage?

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(ii) Whether the society has allotted sites disregarding the seniority of the petitioner to junior members.

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Though various vehement contentions and arguments were advanced by learned counsel Mr. Sunil S. Rao on behalf of the petitioner that the application made by the petitioner was for Domlur Ist stage and not for Domlur IInd stage and in that regard it was contended that Domlur IInd stage was not even under contemplation, when the petitioner had made an application.

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The original ‘members register’ of the society having been produced, it was seen that the name of the petitioner was found to be in the register for Domlur IInd stage and not in Domlur Ist stage. Even the

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receipt issued to the petitioner reflects ‘Domlur II ’ to have been mentioned and not Domlur Ist stage.

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Thus, ex facie it can be seen that the application filed by the petitioner was for a site in Domlur IInd stage and not in Domlur Ist stage. The dispute having arisen and the petitioner having approached the Registrar, Co-operative Societies only after the society had indicated that it would not be implementing the Domlur IInd stage project, until which time no dispute was raised by the petitioner as regards the allotment of sites or otherwise.

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Inasmuch as the payments having been made by the petitioner in the year 1988, the proceedings were taken up before the Registrar only in the year 19981999. The project in Domlur-IInd stage was given up in the year 1995.

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In that view of the matter, I am of the considered opinion that the claim of the petitioner is that he had applied for a site in Domlur-Ist stage and not in

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Domlur-IInd stage has been negatived by the original documents which have been produced. Hence, the petitioner's contention that he had applied for a site in Domlur Ist stage stands rejected.

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Insofar as the 2^nd issue as regards allotment of sites to junior members disregarding the seniority of the petitioner is concerned, the petitioner has made various averments as regards the names of the persons in whose favour sites have been allotted. But details as regards when they became members and how the petitioner contends that they were junior to the petitioner have not been placed on record before the Registrar or before the KAT, let alone before this Court. Thus, the allegation of the petitioner is not substantiated and remains a bald allegation without any basis.

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However, since serious allegations in this regard

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have been made, respondent No.2 is directed to

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cause an enquiry into the same. Respondent No.1 being directed to place all the relevant documents before respondent No.2 for such enquiry. Enquiry report to be filed within 90 days from the date of receipt of a copy of this order.

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Consequently, in terms of the order passed by the KAT, the society would have to allot a site to the petitioner in any other layout formed by the society within a period of 90 days from the date of receipt of copy of this order.

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In the event of the society being unable to allot any site to the petitioner, the society would have to refund the amount deposited by the petitioner along with interest at the rate of 18% per annum calculated from the date of receipt of payment, till date of payment to the petitioner, the said amount to be paid within 60 days after above mentioned period of 90 days if a site is not allotted to the petitioner.

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