IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 28546 OF 2019 (GM-CPC) BETWEEN:
SMT. M S BHARGAVI, W/O K S NARAYAN, AGED ABOUT 60 YEARS, R/AT RASHTROTTANA PARISHAT, KESHAVA SHILPA, KEMPEGOWDANAGAR, BANGALORE – 560 019.
… PETITIONER (BY SRI. ASHOK HARANAHALLI, SENIOR COUNSEL FOR SRI. H R DURGAPRASAD, ADVOCATE) AND:
1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, BANGALORE REGION, BANGALORE GMC BANK BUILDING, PAMPA MAHAKAVI ROAD, CHAMARAJPET, BANGALORE – 560 018.
2. VISHWABHARATHI HOUSE BUILDING, CO-OPERATIVE SOCIETY LTD., REPRESENTED BY ITS SECRETARY, NO.35, RATHNAVILAS ROAD, BASAVANAGUDI, BANGALORE – 560 004.
… RESPONDENTS (BY SMT. H R ANITHA, HCGP FOR R1;
SRI. B L SANJEEV, ADVOCATE FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO MODIFICATION OF THE ORDER BY REJECTING THE PORTION OF THE ORDER DATED 15.06.2019 PASSED BY THE TRIAL COURT HOLDING THE PETITIONER LIABLE TO PAY ADDITIONAL SALE CONSIDERATION AND CALLING UPON HIM TO PAY A SUM OF RS.4259/- PER SQ. FEET FOR THE EXCESS LAND MEASURING 900 SQ. FEET, BY A WRIT IN THE NATURE OF CERTIORARI QUASHING THE PORTION OF ANNEXURE-F PASSED BY THE LIX ADDL. CITY CIVIL AND SESSIONS JUDGE BANGALORE ON IA UNDER SECTION 151 OF CODE OF CIVIL PROCEDURE FILED BY THE DECREE HOLDER/PETITIONER DTD:1.12.2018 IN EX.PETITION NO.2483/2017.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the decree holder in Execution No. 2483/2017 is knocking at the doors of Writ Court for assailing a portion of the impugned order dated 15.06.2019, a copy whereof is at Annexure-F, whereby the learned LIX Additional City Civil Judge, Bengaluru, having favoured her application under Section 151 of CPC, 1908, has issued the following direction:
“ (a) the decree holder is entitled to get sale deed of site No.3958 measuring 40 X 60’, subject payment of price of exceeding extent of 900 sq. ft. @ Rs.4,250/- per Sq. ft. or the valuation available with Sub-Registrar, concerned;
(b) If the decree holder is ready to pay such price, then she can move application for appointment of Commissioner for execution of the sale deed after deposit of excess amount;”
2. After service of notice, the first respondent has entered appearance through the learned Government Pleader Smt. H R Anitha and the second respondent – Housing Society has entered appearance through its Sr. Panel Counsel. Both the Government Pleader and the Panel Counsel resist the writ petition.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court grants indulgence in the matter because:
(i) admittedly, petitioner is entitled to grant of a site admeasuring 30 x 60 Sft at the price fixed by the respondent – Housing Society for its member – allottees; because of the mistake of the Housing Society, the allotment is delayed since, sites were not available in the subject Layout; and, (ii) the executing Court is justified in directing the allotment of subject site that measures 40 x 60 Sft; but there is no justification for requiring the petitioner to pay the price as fixed by the Housing Society in respect of 1500 Sft and to pay the current guideline value fixed by the Government for the remaining 900 Sft since it virtually amounts to compelling the citizen to accept a larger cake at a higher rate when as a matter of right he is entitled to take only a smaller one and at a lesser rate; such a compulsion is not justified in any law or ruling especially when even now, the petitioner having already paid the entire allotment price long back, is ready & willing to take allotment of a site admeasuring 30 x 40 Sft., in any approved layout of the second respondent – Housing Society; to that extent, impugned order being infected with legal infirmity is liable to be quashed.
In the above circumstances, this writ petition succeeds;
(a) the impugned order to the extent it requires the petitioner to pay the price at Guideline value for the subject 900 Sft is set at naught;
(b) the second respondent – Housing Society shall allot the any site admeasuring 30 x 50 Sft in any of its approved layouts and execute & register the sale deed within two months, the price admittedly having been already received by it, in favour of the petitioner; and, (c) in the alternative, the second respondent – Housing Society shall allot the subject site admeasuring 40 x 60 Sft after accepting the price for the 900 Sft at the rate that was admissible to the member – allottees when petitioner was first allotted the site, years ago and further, execute & register the conveyance without brooking any delay.
Time for compliance, three months.
Sd/- JUDGE Bsv