Karnataka High Court
Sri N Sathyanarayana Rao vs The Joint Registrar Of ... on 4 January, 2021
Author: Aravind Kumar Yerur
1
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
2
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
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
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
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
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
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.
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
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
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,
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.
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
allotment of marginal land/site bearing
No.105-A, stands undisturbed.
(iv) No order as to costs.
SD/-
JUDGE
SD/-
JUDGE
DR
