IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 8TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL No.634 OF 2012 (S-RES) BETWEEN:
SRI VISHWANATH SON OF V.M. NAGARAJ AGED ABOUT 40 YEARS NO. 73, 5TH MAIN ROAD CHBS 1ST STAGE (OPPOSITE VIJAYANAGAR SAMUDAYA BHAVAN) VIJAYA NAGAR BENGALURU-560 040 REPRESENTED BY GPA HOLDER MR V M NAGARAJ AGED ABOUT 75 YEARS RESIDING AT No. 73, 5TH MAIN ROAD CHBS 1ST STAGE (OPPOSITE VIJAYANAGAR SAMUDAYA BHAVAN) VIJAYA NAGAR BENGALURU-560 040.
……APPELLANT (BY SRI. H H SHETTY, ADVOCATE) AND:
1. THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES BANGALORE DISTRICT BENGALURU.
2. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES II CIRCLE, MALLESHWARAM BENGALURU-560 003.
3. BAPUJI HOUSE BUILDING CO-OPERATIVE SOCIETY LIMITED NO. 41, ATHIGUPPE VIJAYANAGAR BENGALURU BY ITS PRESIDENT.
4. SRI B MUNI MAREGOWDA SON OF BOLEGOWEDA AGED ABOUT 62 YEARS No.106, 1ST STAGE SARASWATHI NAGAR VIJAYANAGAR BENGALURU- 560 040 REPRESENTED BY HIS GPA HOLDER SRI VIJENDRA S D …….RESPONDENTS ] (BY SRI. KIRAN KUMAR, HCGP FOR R-1 AND R-2 SRI. K.M. PRAKASH, ADVOCATE FOR R-3 SRI. RITHISH D NAIK, ADVOCATE FOR SRI T.P. VIVEKANANDA, ADVOCATE FOR R-4) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No. 16763 OF 2007 DATED 15.09.2011.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 22.10.2019, COMING ON FOR PRONOUNCEMENT THIS DAY, ASHOK S. KINAGI J, DELIVERED THE FOLLOWING:
JUDGMENT The appellant herein is the petitioner and respondents herein are the respondents in the writ petition. The parties are referred to as per their rank in the writ petition.
2. Brief facts of the case are as follows:
The respondent No.4 is the member of respondent No.3-Society. He applied for a site measuring 30’ x 40’ at Kempapura Agrahara, Chandra Layout, Bengaluru. The respondent No.4 deposited a sum of Rs.1.85 lakhs being the value of the site and Rs.31,000/- towards the cost of registration of the sale deed. The respondent No.3 failed to allot the site in favour of respondent No.4. The respondent No.4 raised a dispute under Section 70 of the Karnataka Co-operative Societies Act, 1959 (‘the Act’ for short), before the respondent No.2. The said dispute was adjudicated by the respondent No.2 vide order dated 20.04.2001 and directed the respondent No.3-Society to register the site in favour of respondent No.4. The respondent No.3, neither challenged the award dated 20.04.2001, passed by the respondent No.2, nor complied with the order. The respondent No.4 filed Execution petition before the respondent No.2 who was empowered to execute the award under Section 101 read with Rule 34 of the Act and Rules made thereunder. The respondent No.2 did not execute the award inspite of several requests made by respondent No.4. The respondent No.4 challenged the action of respondent No.2 in not enforcing the award, the respondent No.4 filed Writ petition No.45221/2001 before this court. This court vide order dated 18.03.2002, disposed off the said petition reserving the liberty to the respondent No.4 to pursue the execution proceedings and directed the respondent No.2 to take up the execution proceedings and pass orders as expeditiously as possible after hearing the petitioner therein and respondent No.2 therein, if there is no impediment in the form of appeal filed by the respondent No.2.
The respondent No.2 passed an order directing respondent No.3 to execute a registered sale deed, but respondent No.3 did not execute the registered sale deed in favour of respondent No.4. The respondent No.2 dismissed the execution petition on the ground that respondent No.3 is not complying with the award passed by respondent No.2. The respondent No.4 aggrieved by the said order, preferred an appeal before respondent No.1. During the pendency of the appeal before respondent No.1, respondent No.3 has announced sale of site No.295 by public auction. The respondent No.2 directed respondent No.3 not to conduct a public auction in respect of the above said site. During the pendency of the aforesaid appeal, respondent No.3 auctioned the said site on 05.06.2005, and the petitioner purchased the said site in the public auction. The respondent No.4 issued a public notice in the newspaper dated 27.6.05 cautioning the public not to purchase the site because of pending litigation. Inspite of the public notice, the petitioner purchased the said site in collusion with the respondent No.3. The respondent No.4 impleaded the petitioner in the aforesaid appeal. The respondent No.1, by order dated 03.10.2007, allowed the appeal filed by respondent No.4 and set aside the auction and cancelled the sale and directed respondent No.3- Society to execute a registered sale deed in favour of respondent No.4.
The petitioner aggrieved by the order dated 03.10.2007 passed in appeal No.DRB-2/Appeal.03/ 2005-06 passed by respondent No.1, filed Writ Petition No.16763 of 2007. The learned Single Judge after hearing the parties and after perusing the records, dismissed the writ petition vide order dated 15.09.2011. The petitioner aggrieved by the said order, has filed the present writ appeal.
3. Heard the arguments of learned counsels.
4. Respondent No.4 being a member of the respondent No.3-Society, has applied for allotment of site and deposited the cost of the site and also the cost of registration charges. Inspite of depositing the amount, respondent No.3 did not execute a registered sale deed in favour of respondent No.4. Respondent No.4 raised a dispute before respondent No.2 and respondent No.2 passed an award against respondent No.3 and directed to execute a registered sale deed in favour of respondent No.4 in respect of site No.295. Inspite of the award passed against respondent No.3, respondent No.3 did not execute the registered sale deed. Respondent No.4 filed an execution petition for enforcing the award. Respondent No.2 vide order dated 16.12.2004 directed respondent No.3 to execute a registered sale deed, but respondent No.3 did not comply the said order, and respondent No.2 dismissed the execution petition. Respondent No.4, challenging the dismissal of the execution petition, filed an appeal before respondent No.1. During the pendency of the said appeal, respondent No.3 has announced the sale of site No.295 by public auction in order to overcome the award passed against it and with an ulterior motive to involve respondent No.4 in further litigation. The petitioner purchased the said site in the public auction held on 05.06.2005 i.e., during the pendency of the appeal. Meanwhile, the respondent No.4 issued a public notice in the newspaper dated 27.06.2005, cautioning the public not to purchase site No.295. Inspite of the public notice, the petitioner got executed registered sale deed dated 15.07.2005, from respondent No.3. The said transaction took place during the pendency of the appeal and the same is hit by principles of lis pendence and since the petitioner has got executed a registered sale deed after paper publication, he is not a bonafide purchaser.
5. Respondent No.3 has not challenged the award passed in favour of respondent No.4. The award passed by respondent No.2 binds on the petitioner, as he steps into the shoes of respondent No.3-Society. The said award has attended finality. The petitioner has no right to challenge the order dated 03.10.2007, passed by respondent No.1, unless and until the award is challenged.
6. That during the pendency of the appeal, this court granted an interim order on 25.03.2013 and subsequently vacated the stay order vide order dated 06.09.2013. Meanwhile, respondent No.4 got entered his name in the khatha and the said site was assessed for payment of property tax and obtained a license for construction of a building. Respondent No.4 has constructed a building on site No.295. Respondent No.4 has filed an application for production of additional documents like khatha extract, khatha certificate, ‘NIL’ encumbrance certificate and approved building plan. This court vide order dated 22.10.2019, allowed the said application and additional documents are taken on record. The additional documents produced by respondent No.4 clearly reveals that he has constructed a building on the said site.
7. The respondent No.1 has rightly allowed the appeal filed by respondent No.4. The learned Single Judge, after considering the material on record, has dismissed the writ petition, confirming the order passed by respondent No.1. Hence, we do not find any grounds to interfere with the impugned order.
8. In this view of the matter, we proceed to pass the following:
Order The writ appeal is dismissed without cost.
Sd/- Sd/-
JUDGE JUDGE RD