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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4th DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
W.A. NO.1678/2008 (CS-RES)
BETWEEN:
SRI. N.SATHYANARAYANA RAO
SON OF G.NANJUNDA RAO,
AGED ABOUT 67 YEARS,
RESIDING AT NO.69/1,
2ND CROSS, 2ND MAIN,
3RD BLOCK, 3RD STAGE,
BASAVESHWARNAGAR,
BENGALURU-560079
...APPELLANT
(BY SRI.ABHINAY Y.T., ADVOCATE)
AND:
1. THE JOINT REGISTRAR OF
CO-OPERATIVE SOCIETIES,
REGION-1, PAMPAMAHAKAVI ROAD,
CHAMARAJPET,
BENALURU-560 001
2. THE ACCOUNTANT GENERAL'S
OFFICE HOUSING CO-OPERATIVE
SOCIETY LIMITED,
RESIDENCY PARK ROAD,
BENGALURU-560 001
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3. SMT.A.ANDALAMMA
SINCE DEAD BY HER LR'S
3(a) SRI.SANJAY
S/O.K.S.SUNDAR RAJAN
AGED ABOUT 40 YEARS,
RESIDING AT NO.1812,
31ST CROSS, 12TH MAIN,
BSK 2ND STAGE,
BENGALURU-560 070
3(b) SMT.SAHANA
S/O.K.S.SUNDAR RAJAN
AGED ABOUT 30 YEARS,
RESIDING AT NO.1812,
31ST CROSS, 12TH MAIN,
BSK 2ND STAGE,
BENGALURU -560 070
...RESPONDENTS
THIS WRIT APPEAL IS FILED UNDER SECTION 4
OF KARNATAKA HIGH COURT ACT, PRAYING TO SET
ASIDE THE ORDER PASSED IN THE WRIT PETITION
NO.13490/2006 DATED 29.08.2008.
THIS APPEAL COMING ON FOR ORDERS THIS
DAY, ARAVIND KUMAR J, DELIVERED THE
FOLLOWING:
JUDGMENT
This intra-court appeal has been preferred by writ petitioner by challenging the order dated 29.08.2008 passed in W.P.No.13490/2006 whereunder writ petition came to be dismissed by affirming the order of the tribunal dated 31.05.2005 passed in Appeal 3 No.616/2003 by which tribunal had dismissed the appeal filed by writ petitioner and affirmed the order passed by Assistant Registrar of Co-operative Societies, Circle-1, Bengaluru, dated 05.05.2003 under which dispute raised by the writ petitioner for directing second respondent - Account General's Housing Co-operative Society Limited (for short 'Society') to allot adjacent site No.105-A, came to be rejected and prayer came to be moulded directing the Society to refund the excess amount paid by the appellant with interest @ 8% p.a.
2. Appellant is a member of second respondent- Society and in the lands situated in Chikkamaranahalli a residential layout came to be formed for allotment of sites to its members. Appellant being member of the Society sought for an allotment of site in the said layout and paid initial deposit of Rs.37,647/- on 09.07.1983 for allotment of site measuring 50'X80'. Site No.105 measuring 613.34 sq. yards, which was said to be odd- shape was allotted to the appellant. Further sum of Rs.17,397/- was deposited by the appellant on 4 26.08.1983 and 02.09.1983 for allotment of said site. On account of there being a marginal vacant land measuring 169.00 sq. yards appellant made a request to allot the said land and it was agreed to be transferred to the petitioner on 17.12.1983 by the Society. However, by resolution dated 18.03.1987 site measuring 50'X80' was only ordered to be allotted to the appellant though resolution had been passed on 17.12.1983 for allotment of marginal land also. The fact remains that appellant accepted the site measuring 50'X80' and it was duly registered in his name on 27.03.1987. However, on account of marginal land/site measuring 37'X80' which had been received to be allotted in favour of the appellant by the Society having not been allotted, appellant raised a dispute under Section 70 of Karnataka Co-operative Societies Act before the Registrar of Co-operative Societies in JRB:1:MD:49:1992-93 and said authority adjudicated the dispute and by award dated 05.05.2003 rejected the claim for allotment of adjacent site/marginal land and directed the Society to 5 refund the amount received in excess of the value of site allotted along with interest @ 8% p.a.
3. Being aggrieved by the said order an appeal came to be filed before the tribunal in Appeal No.616/2003, which came to be adjudicated by the tribunal and by order dated 31.05.2005 (Annexure-L) said appeal came to be dismissed. Writ petition filed challenging this order in W.P.No.13490/2006 also did not yield result. Hence, this intra-court appeal.
4. It is the contention of Sri.Abhinay Y.T., learned counsel appearing for the appellant that Assistant Registrar of Co-operative Societies committed a serious error in rejecting the claim of the appellant on the ground of allotment if being made in favour of the appellant by the Society, it would amount to allotment of 2 sites to one (1) member by ignoring Bye-Law No.42 of second respondent-Society, which provided for allotment of more than one (1) site to a member. He would also contend that with the fond hope of odd-site which has 6 been allotted to the appellant would be rectified as assured by the Society, amount covering the value of the adjacent site/marginal land had also been paid and this has not been properly appreciated by the authorities below and learned Single Judge also committed an error in not interfering with the erroneous findings recorded by the Assistant Registrar of Co-operative Societies and the tribunal.
5. Per contra, Sri.N.Balaji, learned AGA appearing for respondent No.1 and Sri.Jayakumar S. Patil, learned Senior Counsel appearing on behalf of respondent Nos.3(a) and 3(b) would support the order passed by the authorities and have prayed for dismissal of the appeal. Though respondent No.2 is served and represented by the counsel-Sri.A.K.Lakshmanan, he has remained absent. Since this appeal is of the year 2008 and it has been pending before this court for last 12 years, by special order dated 13.11.2020 this appeal having been assigned to this bench, we do not find any good ground to adjourn this matter to any other date 7 particularly in the background of records indicating that this appeal has been dismissed on more than 6 occasions and restored conditionally. As such we have heard the learned Advocates appearing for the parties.
6. It is an undisputed fact that appellant being the member of the Society and he having been allotted a site measuring 50'X80' on 09.07.1983 in the layout formed by the said society. Though Society informed the appellant about allotment of site measuring 613.34 sq. yards on account of there being certain differences between the present Society and adjacent Society namely, ITI Co-operative Society, same was said to have been resolved and as a result a revised plan came to be submitted by the second respondent-Society, upon which BDA has approved the revised plan and site bearing No.105 measuring 50'X80' ft. was retained in the revised plan and remaining area, which was in the ownership of second respondent-Society, was assigned a new site No.105-A. It is this adjacent site which is the subject matter of dispute between petitioner and Society. 8
7. Though appellant would contend that it is a marginal land as could be seen from the pleadings laid before various authorities, his right to the said marginal or extra land owned by the Society had not crystallized by way of allotment and by virtue of allotment of site No.105 by itself had not created any right to seek allotment of additional site or the marginal land. In fact, Society had made it expressly clear that allotment of site No.105 would be subject to plan sanctioned by the statutory authority namely, Bangalore Development Authority (for short 'BDA'). It is thereafter BDA had approved the revised plan on 21.11.1986, copy of which was produced before the Assistant Registrar of Co- operative Societies and marked as Ex.R-14. This plan as observed by the tribunal would also indicate that sites bearing Nos.105 and 105-A were bifurcated, which fact was also intimated by the second respondent-Society vide communication dated 18.03.1987. Execution of original lease cum sale deed dated 27.08.1993 has been admitted by the appellant in his cross-examination and 9 same has been confirmed by registered sale deed dated 07.11.1996, under which the site which was allotted and sold to the appellant was only 50'X80' ft. On the revised plan being approved, disputed land, which the appellant claimed as a marginal land for allotment had been carved out as site No.105-A and allotted to third respondent herein. Though Sri.Abhinay, learned counsel appearing for appellant would contend that same is to be treated as an independent site and has placed reliance on Bye-Law No.42, to contend that it enables the Society to allot more than one (1) plot to a member, we are not impressed by the said arguments or inclined to accept the said contention, for reasons more than one; firstly, the claim of appellant through-out has been for allotment of the marginal land abutting site No.105, which was allotted to him on the ground that site allotted to him is odd-shape and he is unable to construct the house; secondly, bye-law which has been pressed into service was inapplicable to the claim of petitioner, inasmuch as, initially registered sale deed which came to be executed by the society in favour of 10 appellant was on 27.03.1987, by which time model bye- laws propounded by the Registrar of Co-operative Societies was already in vogue, which prevented the management of a Co-operative Society to allot more than one (1) site to a member. Even if said contention is considered, claim of appellant requires to be rejected at the outset, inasmuch as, appellant had already sold the site allotted to him on 27.08.1993, which fact was also admitted by him during the course of cross-examination before the Assistant Registrar of Co-operative Societies in the dispute raised by him. In other words, he had no subsisting right or interest to claim disputed site as marginal land for being allotted for his beneficial enjoyment of site allotted to him. That apart, BDA in its revised plan has already approved the site allotted to the petitioner as site No.105, which measures 50'X80' ft. and disputed land has been assigned with No.105-A and has been allotted and registered in favour of third respondent herein. As such findings recorded by the authorities below including the findings recorded by learned Single Judge is based on a proper appreciation of facts and law, 11 which would not call for interference, insofar as, claim of petitioner for allotment of site No.105-A or marginal land is concerned.
8. Though award made by the Registrar of Co- operative Societies dated 05.05.2003 has enabled the appellant to recover the excess amount paid to the Society with interest @ 8% p.a., we are of the considered view that it cannot be from the date of award, inasmuch as, petitioner has been claiming said site after making payment and did not accept the offer made by the Society by communication dated 18.03.1987 (Annexure- H), under which they agreed to refund the excess amount with interest 8% p.a. from 06.09.1982. In that view of the matter, petitioner would be entitled for refund of excess amount paid with interest @ 8% p.a. from the date of said amount was paid by him to the Society. To that extent the award dated 05.05.2003 passed by the Assistant Registrar of Co-operative Societies requires to be modified.
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For the reasons aforestated, we proceed to pass the following:
JUDGMENT
(i) Writ appeal is allowed in part.
(ii) Award dated 05.05.1993 passed by Joint Registrar of Co-operative Societies in Dispute No.DRF:1:MD:49/1992-93 (Annexure-K) is hereby modified and it is hereby ordered that appellant would be entitled to recover the excess amount.
(iii) Second respondent-Society is directed to refund the excess amount, if any, from the date it was paid by petitioner along with interest @ 8% p.a. till the date of payment.
(iii) It is made clear that findings recorded by the Joint Registrar of Co-operative Societies, Appellate Tribunal and learned Single Judge with reference to 13 allotment of marginal land/site bearing No.105-A, stands undisturbed.
(iv) No order as to costs.
SD/-
JUDGE SD/-
JUDGE DR