IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR W.P.NOS.29555-29570/2010 (LA RES) c/w W.P.NO.38771/2014 (LA RES) IN W.P.NOS.29555-29570/2010 BETWEEN 1. K R ANANTH S/O K S RAJAN AGED ABOUT 49 YEARS NO 26, 6TH MAIN ROAD, MATHIKERE EXTENSION, BANGALORE 560054.
2. P S BALAJI RAO S/O P SANTHOJI RAO, AGED ABOUT 56 YEARS, R/O NO 116/110, 10TH ‘E’ MAIN ROAD, I BLOCK, JAYANAGAR BANGALORE 560 011.
3. P V MAHALAKSHMI W/O P KRISHNAMA RAJU, AGED ABOUT 59 YEARS NO 56, 3RD CROSS, VENKATAPPA LAYOUT, SANJAYANAGAR, BANGALORE 560 094 4. K SAMPATH S/O KANNAN, AGED ABOUT 40 YEARS NO 385, RAILWAY COLONY BANGALORE.
5. T BHARATEESHA S/O LATE T RANGA SHARMA AGED ABOUT 55 YEARS NO 1992, 9TH CROSS, SANJIVINI NAGAR, SAHAKARANAGAR POST, BANGALORE 560092 6. SMT MANJULAMMA V W/O SRI N SHIVASHANKAR, AGED ABOUT 42 YEARS R/O NO 904, 2ND MAIN, 2ND ‘C’ CROSS 8TH BLOCK, KORAMANGALA, BANGALORE 560 095.
7. B L BALAKRISHNA S/O B M LAKSHMAN AGED ABOUT 67 YEARS R/O NO.105, 6TH CROSS, 3RD MAIN, RMV 2ND STAGE, BANGALORE 560094.
8. BHUPATHI RAI C SHAH S/O CHUNILAL B SHAH AGED ABOUT 65 YEARS R/O NO 72/1-3, CUNNINGHAM ROAD, BANGALORE 560052 9. N.V.G.K BHAT S/O N V VASUDEVA BHAT AGED ABOUT 60 YEARS R/O NO 99, SECTOR-I, HMT COLONY, JALAHALLI, BANGALORE 560031 10. PRAKASH B ANGADI S/O BASAPPA AGED ABOUT 53 YEARS R/O NO 53, 2ND CROSS, VENUGOPAL LAYOUT GANGANAGAR, BANGALORE 560032 11. B ARUN S/O D BYATAPPA AGED ABOUT 38 YEARS R/O NO 165, 3RD BLOCK, 4TH STAGE, 7TH ‘A’ MAIN, BASAVESHWARANAGAR, BANGALORE 560079 12. M G PARASHURAM S/O Y GOPAL AGED ABOUT 68 YEARS R/O L-304, SRI RAM SAMRUDDHI APARTMENTS, VARTHUR MAIN ROAD, TUBARAHALLI, BANGALORE 560 066 13. VASANTH R KAMATH S/O LATE C R KAMATH AGED ABOUT 66 YEARS R/O NO 13/14, VENUGOPAL LAYOUT, GANGANAGAR, BANGALORE 560 032.
14. M S NANJUNDA S/O LATE M SUBBARAMAIAH, AGED ABOUT 55 YEARS NO.33, 9TH MAIN, 7TH BLOCK IV PHASE, BSK III STAGE, BANGALORE 560085 15. MEHTER MOHAMMED ALLAM S/O MEHTER M ISMAIL AGED ABOUT 61 YEARS NO 29/1, 16TH CROSS, 4TH MAIN, SAMPANGIRAMANAGAR, BANGALORE 560027 16. K LAKSHMI W/O K N M RAJU, AGED ABOUT 52 YEARS, NO 5, TAPASYA APARTMENTS, 93/1, 11TH CROSS, 4TH MAIN MALLESHWARAM BANGALORE 560 003.
(BY SRI G S BHAT, ADV.) ... PETITIONERS AND 1. STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY REVENUE DEPARTMENT M S BUILDING, DR AMBEDKAR VEEDHI BANGALORE 560 001 2. THE DEPUTY COMMISSIONER, BANGALORE URBAN DISTRICT BANGALORE 3. THE SPECIAL LAND ACQUISITION OFFICER, VISVESWARAIAH TOWER, II FLOOR BANGALORE 560 001.
4. NTI HOUSE BUILDING CO-OPERATIVE SOCIETY LTD., BY ITS SECRETARY NO 6-5, PALACE ORCHARDS APARTMENTS, 9TH MAIN, 6TH CROSS, RAJAMAHAL VILAS EXTENSION, BANGALORE 560 080 5. N VASANTHAPPA S/O NANJUNDAPPA AGED ABOUT 45 YEARS R/O KODIGEHALLI VILLAGE, YELAHANKA HOBLI, BANGALORE NORTH TALUK BANGALORE DISTRICT.
6. K V RAMANJANAPPA S/O LATE VEERAPPA AGED ABOUT 48 YEARS R/O KODIGEHALLI VILLAGE, YELAHANKA HOBLI, BANGALORE NORTH TALUK BANGALORE DISTRICT 7. SMT. MUNITHAYAMMA W/O K V RAMANJANAPPA AGED ABOUT 45 YEARS, R/O KODIGEHALLI VILLAGE, YELAHANKA HOBLI, BANGALORE NORTH TALUK, BANGALORE DISTRICT.
SINCE DECEASED BY HER LR 7(a) K V RAMANJANAPPA, S/O LATE VEERAPPA, AGED ABOUT 48 YEARS, R/O KODIGEHALLI VILLAGE, YELAHANKA HOBLI, BANGALORE NORTH TALUK, BANGALORE DISTRICT.
... RESPONDENTS (R7(a) AMENDED VIDE COURT ORDER DATED.4/7/2012).
(BY SRI S.T.NAIK, HCGP FOR R1 TO R3, M/S. LAWYERS INC., ADVS. FOR R4, SRI KESVY & CO., ADVS. FOR C/R6, R5 & R7(a)).
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH ANNEXURE J, THE ORDER/DIRECTION DATED 30.01.1999 ISSUED BY THE 1ST RESPONDENT ETC.
IN W.P.NO.38771/2014 BETWEEN SMT. RAJARAJESHWARI W/O K.RAVINDRA PRASAD, AGED ABOUT 49 YEARS R/A NO.154, 62/1, H.M.C COMPOUND, EMBASSY HERITAGE, 8TH MAIN ROAD, MALLESHWARAM, BANGALORE-560003.
(BY SRI SUBRAMANYA R, ADV.) ... PETITIONER AND 1. STATE OF KARNATAKA DEPARTMENT OF REVENUE, VIDHANA SOUDHA, DR. AMBEDKAR VEEDHI, BANGALORE-560001 REP. BY ITS PRINICIPAL SECRETARY.
2. NTI HOUSE BUILDING CO-OP SOCIETY LTD., NO.6-5, PALACE ORCHARDS APARTMENTS, 9TH MAIN, 6TH CROSS, RAJMAHAL VILAS EXTENSION, BANGALORE-560080 REP. BY ITS SECRETARY 3. SRI. N.VASANTHAPPA S/O NANJUNDAPPA, AGED ABOUT 49 YEARS, R/A KODIGEHALLI VILLAGE, YELAHANKA HOBLI, BANGALORE NORTH TALUK, BANGALORE-560064.
4. SRI K.B.RAMANJANAPPA S/O LATE VEERAPPA AGED ABOUT 49 YEARS, R/A KODIGEHALLI VILLAGE, YELAHANKA HOBLI, BANGALORE NORTH TALUK, BANGALORE-560064 ... RESPONDENTS (BY SRI S.T.NAIK, ADV. FOR R1, SRI H.N.SHASHIDHARA, ADV. FOR KESVY& CO., FOR R2-R4.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE COMMUNICATION/ORDER DTD 30.01.1999 ISSUED BY THE R-1 STATE GOVERNMENT (PRODUCED AS ANNX-A).
THESE PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. Heard the learned Counsel for the petitioners and the learned Counsel for the respondents in both the writ petitions.
2. In the first writ petition i.e., W.P.Nos.29555- 570/2010, the following reliefs are sought for:
(i) issue a writ of certiorari or any other writ, order or direction to quash Annexure-J, the order/direction dated 30.01.1999 in No.RD 88 AQB 98 issued by 1st respondent;
(ii) declare that the respondents 5 to 8 are not entitled to reconveyance of the lands bearing S.Nos.32/2, 32/3, 33/2, 33/3 of Kothihosahally village, Yelahanka Hobli, Bangalore North Taluk and S.No.165/2 of Kodigehalli village, Yelahanka Hobli, Bangalore North Taluk;
(iii) review the order Annexure-P dated 06.07.2009 passed by this Hon’ble Court in W.P.No.32461/2002;
(iv) issue a writ of mandamus directing the 4th respondent Society to submit a modified plan to the Bangalore Development Authority by incorporating the site numbers formed in S.Nos.32/2, 32/3, 33/2, 33/3 of Kothihosahally village, Yelahanka Hobli, Bangalore North Taluk and 165/2 of Kodigehalli village, Yelahanka Hobli, Bangalore North Taluk;
(v) Pass such other order or orders as may be just and necessary in the facts and circumstances of the case.
3. In the second writ petition i.e., W.P.No38771/2014, the following reliefs are prayed for:
(i) issue a writ of certiorari quashing the communication/order dated 30.01.1999 bearing No.KAM.E.88A.QT 98 issued by the Respondent No.1 State Government (produced as Annexure-A);
(ii) review and/or set aside the order passed in Writ Petition No.32641-643/2002 dated 06.07.2009 passed by this Hon’ble Court (produced as Annexure-B);
(iii) issue such other writ or order as deemed fit in the circumstances of the present case.
4. The petitioners in both the writ petitions are commonly basing their rights on the letters of allotment, lease-cum-sale deed and possession certificate issued by the NTI House Building Co-operative Society Limited (hereinafter referred to as ‘Society’, for short), which is arrayed as respondent No.4 in the first writ petition and as respondent No.2 in the second writ petition. The private respondents 5 & 6 in the first writ petition are arrayed as respondents 3 & 4 in the second writ petition.
5. The genesis for the lis is the proceedings bearing No.RD 88 AQB 98 dated 30.01.1999 said to have been issued by the Principal Secretary, Revenue Department, produced Annexure-J in the first writ petition and as Annexure-A in the second writ petition.
6. There is no dispute with regard to the fact that the Society has issued letters of allotment and subsequently followed it up with lease-cum-sale deeds and possession certificates. It is also not in dispute that the said sale deeds are of the year 1995 of the and subsequent year. It is also not in dispute that neither the sale deeds nor the possession certificates have been set aside or voided by any judicial or quasi-judicial proceedings. It is also not in dispute that the allotment of sites and the sale deeds in favour of the petitioners is pursuant to the acquisition proceedings initiated by the State for and on behalf of the Society.
7. The facts in brief which are necessary for a better appreciation of the case of the petitioners is, that on the request made by the Society to the Government, acquisition proceedings were initiated under the Land Acquisition Act and a preliminary notification came to be issued on 03.01.1985 and an extent of 323 acres was notified for acquisition. The copy of the said preliminary notification is produced as Annexure-A.
8. That pursuant to the preliminary notification, enquiry under Section 5-A came to be completed and a declaration under Section 6(1) of the Land Acquisition Act was published in respect of 210 acres and 37 guntas. The copy of the same is annexed as Annexure-B.
9. It is further relevant to note that awards came to be passed by the Land Acquisition Officer during the year 1989 and pursuant to the awards, amounts have also been deposited and the amounts have been paid to the respective land owners. Further, the notification under Section 16(2) came to be published on 15.04.1991 and was published in the Karnataka Gazette on 18.04.1991.
10. The proceedings under Section 16(2) was in respect of 108 acres and 28 guntas. Copy of the notification is produced and marked as Annexure-C to the first writ petition. That thereafter, another notification under Section 16(2) came to be published on 17.12.1992 in respect of a further extent of 68 acres and 12 guntas. The copy of the same is produced as Annexure-D. That the Government after taking over possession of the lands from the respective land owners, handed over possession of the same to the respodnent-Society on 05.11.1992. The Official Memorandum evidencing handing over of possession of the lands measuring 173 acres and 29 guntas is produced as Annexure-E.
11. That the Society prepared and submitted a layout plan on 17.04.1989 in respect of 184 acres and 1 gunta to the Bangalore Development Authority (hereinafter referred to as ‘BDA’, for brevity). That the BDA vide resolution bearing No.405/1992 in its meeting held on 19.10.1992, approved the layout plan and the same was communicated to the Society by letter dated 11.11.1992. That the Society thereafter was permitted to commence civil work and the Society thereafter started the process of allotment of sites and registration in favour of eligible members and in all, 1697 sites came to be allotted in favour of the members.
12. The petitioners have been allotted Site Nos.753, 741, 750, 754, 713, 724, 734, 738, 789, 747, 789A, 736, 731, 715, 787, 733 and 788A by the Society in the layout said to have been formed out of the survey numbers which came to be acquired in favour of the Society. The sale deeds are produced as Annexures-G to G17 and the possession certificates are produced as Annexure-H to H-15 and as Annexures-H, J & K in the second writ petition.
13. The above facts are not in dispute and the learned Counsel for the Society also does not dispute the execution of the sale deeds and the issuance of the possession certificates. Thus, prima facie, a right came to be vested in the petitioners in respect of the sites noted above. In this regard, there can be no dispute i.e., by the year 1996, the petitioners had acquired titular right in the sites allotted and handed over to them. In this background, respondent No.1-Principal Secretary, Revenue Department, without taking into consideration any of these developments or aspects of the matter, proceeded to issue the letter dated 30.01.1999. The said letter reads as under:
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14. From a bare reading of the proceedings, what one can gather or infer is that the Principal Secretary, Revenue Department, has received a representation from the owners of Sy. Nos.65, 67/7, 32/2, 32/3, 67/6, *165/2, 33/2, 33/3, canvassing that despite the completion of acquisition proceedings, the lands continued to remain in their possession and that they were carrying on their agricultural activities in the said lands and also that the BDA has not sanctioned any plan for development of the said lands and hence, the Deputy Commissioner by the *Corrected vide Court Order dated 22.01.2021.
proceedings was required to receive back the compensation amounts and hand over the above noted lands to the possession of the land owners. The communication dated 30.01.1999 came to be followed by another communication dated 20.04.1999, whereby the Secretary to Revenue Department, intimated the Deputy Commissioner and the Special Land Acquisition Officer of the cancellation of the earlier proceedings noted in the reference which included the communication dated 30.01.1999 and it was also noted that the lands had been handed back to the Society. Similar proceedings of the Principal Secretary, Revenue Department dated 24.06.2002 also came to be issued.
15. The proceedings dated 20.04.1999 came to be called in question by the erstwhile land owners before this Court in W.P.No.32641/2002. The said proceedings of the Principal Secretary was impugned on the short ground that the same could not have been passed without affording an opportunity to the affected persons i.e., erstwhile land owners. The said contention came to be accepted by a co- ordinate bench of this Court and by order dated 06.07.2009, the subsequent communication dated 20.04.1999 came to be quashed by this Court and thereby, it is alleged, restored the communication dated 30.01.1999.
16. The case of the petitioners is, that the writ petition could not have been adjudicated in their absence as they are interested parties and are necessary and aggrieved parties as the communication dated 30.01.1999 attempted to undo a completed process of acquisition and revert the land to the land owners and that the nature and character of the said lands stood altered as on that date, in view of a layout having been formed and the sites therein having been conveyed to the petitioners under the sale deeds and they have been put in possession under the possession certificates.
17. The respondent No.1 could not have acted in the manner which curtailed or abridged their rights to the property, which had vested in them, in view of the valuable consideration made over by the petitioners to the Society.
That the learned Judge ought not to have adjudicated the proceedings without affording an opportunity to the interested parties including the petitioners. It is also relevant to note that apart from seeking for a review of the order passed by the learned Single Judge while disposing of W.P.No.32641/2002, petitioners are also seeking for the relief of quashing of the communication dated 30.01.1999 as it amounts to conveyance of rights or voiding the rights acquired by the petitioners under the sale deeds which have not been voided even as on today.
18. It is contended by the learned Counsel for the petitioners that one of the ground which necessitates the review and recall of the order dated 06.07.2009 passed in W.P.No.32641/2002 is the other order of even date passed by another co-ordinate bench while disposing off W.P.No.6578/1999. The said writ petition was preferred by none other than the Society calling in question the very same communication dated 30.01.1999. When the said writ petition came up for consideration, it was disposed off by the following order:
“Learned Govt. Adv. appearing for the I respdt. has filed a memo stating that the Govt. has handed over possession of lands to the petitioner.
Petr. Submits that in view of the same, he does not press the writ petition.
Memo is taken on record.
Writ petition dismissed as not pressed.”
19. From the above, it could be safely inferred that the possession of the lands was said to have been handed over to the Society and in that view of the matter, the petition was not pursued and was concluded by recording the statement made by the Government Advocate under the Memo. It is relevant to note that the order dated 06.07.1999 has not been brought to the notice of the co- ordinate bench while disposing off the subsequent writ petition bearing W.P.No.32641/2002, even though the Society was also arrayed as party in the subsequent writ petition. There is no material to demonstrate that the said proceedings have been placed before the Court while disposing off W.P.No.32641/2002. In this background, the petitioners seek for review and recall of the order dated 06.07.2009 passed in W.P.No.32641/2002.
20. Per contra, learned Counsel for respondents 5 to 7 would contend that the writ petitions are not maintainable at the instance of the petitioners who are mere allottees and if they have any grievance, it is for them to approach the competent authority under the provisions of Section 70 of the Karnataka Co-operative Societies Act, 1959, as the Society is a Co-operative Society and all disputes inter se between the society and its members requires to be adjudicated under the provisions of Section 70 of the Act. In this regard, learned Counsel for respondents 5 to 7 places reliance on the orders passed by a co-ordinate bench of this Court in W.P.Nos.11311-97/2010 dated 17.09.2010 and the judgment of the Division Bench in W.A.Nos.3905-11/2010, wherein the Division Bench was pleased to affirm the orders passed by the learned Single Judge. Learned Counsel would invite the attention of the Court to paragraph 2 and contend that the proper venue for the petitioners to ventilate their grievance is before the Registrar of Co-operative Societies and not in a proceedings under Article 226 of the Constitution of India. He would contend that in the light of the observations made by the learned Single Judge and the affirmation of the same by the Division Bench, the instant writ petitions are not maintainable.
21. Primarily, the aforesaid contention requires to be rejected on the premise that the instant writ petitions are not in respect of any inter se dispute between the Society and the petitioners. The writ petitions are preferred calling in question the communication dated 30.01.1999 under which the lands acquired in favour of the Society, and which the Society inturn had allotted and sold the sites in favour of the petitioners was sought to be re-conveyed to respondents 5 to 7 who are the erstwhile land owners and who admittedly had received the compensation awarded to them. In the ruling over which reliance is placed on, the co- ordinate bench has noted as under:
“………But the allegation of the petitioners is that those sites are said to be non-existent according to the respondent-Society. Therefore, the lis is between the petitioners as members and the respondent-society, registered under the Karnataka Co-operative Societies Act, for short the ‘Act’ which needs to be redressed before the Registrar of Societies in a dispute under Section 70 of the said Act. Hence, these petitions are not maintainable.”
22. In the said writ petition, the Society had taken a contention that the sites said to have been allotted to the petitioners therein was non-existent. Hence, the Court construed the issue as inter se dispute between the society and the allottees, and hence, concluded that the lis requires to be adjudicated by the competent authority under the provisions of Section 70 of the Act. The said finding of the learned Single Judge came to be affirmed by the Division Bench.
23. There can be no dispute with regard to the proposition that inter se disputes between the societies and its members is required to be redressed by the competent authority under the Co-operative Societies Act. In the instant case, the lis is between the erstwhile owners of the land i.e., respondents 5 to 7 and persons claiming title in respect of the same lands, through the society, which admittedly was the beneficiary of the acquisition proceedings which have been successfully concluded and the petitioners are primarily calling in question the communication dated 30.01.1999, whereby the Government sought to convey or create certain rights in favour of the erstwhile land owners in a manner not known to law. The petitioners claiming rights over the very same lands have approached this Court. Hence, in the considered opinion of this Court, the rulings on which reliance is placed on, is inapplicable to the facts and circumstances of the instant writ petition.
24. That apart, the petitioners have also placed reliance on the sale deeds which hold good even as on today. On perusal of the recitals of the sale deed, more particularly the preamble, would demonstrate that the society has conveyed the site which was formed out of the layout approved by the BDA under the resolution bearing No.405/92 and that the layout is spread over an extent of 173 acres 29 guntas and that the said 173 acres 29 guntas have been transferred and handed over to the Society under the notifications detailed supra. Further, the possession certificates which are placed on record yet again specifically refers to the site number and the measurement of the site and categorically states that the site is formed pursuant to the resolution bearing No.405/92 dated 19.10.1992. If that be the case and if the layout plan holds good even as on the date of the writ petition, admittedly the petitioners who were vested with a right as on the date of the communication dated 30.01.1999 would necessarily fall in the category of aggrieved parties. If that be the admitted position, then the communication dated 30.01.1999 could not have been issued by the Government without affording an opportunity to the aggrieved persons. If that be the line of reasoning, then it necessarily follows that the instant petitioners were also required to be heard by the co-ordinate bench before disposing off W.P.No.32641/2002.
25. In view of the above discussions, this Court is of the consideredopinion that the order dated **06.07.2009 passed in W.P.No.32641/2002 is required to be recalled and is accordingly recalled. W.P.No.32641/2002 is restored to file. List W.P.No.32641/2002 for hearing next week. W.P.Nos.29555-70/2010 and W.P.No.38771/2014 are partly allowed in so far as the challenge to the order dated ***06.07.2009 passed in W.P.No.32641/2002 is concerned. The other prayers sought for in W.P.Nos.29555-70/2010 and W.P.No.38771/2014 are kept open for adjudication in W.P.No.32641/2002. The petitioners in W.P.No. 32641/2002 shall array the instant petitioners as party respondents in the writ petition and the same shall be heard and disposed off in accordance with law.
Sd/- JUDGE KK CT-HR **Corrected vide Chamber Order dated 08.02.2021.
***Corrected v/c/o dated 18.03.2021.