Karnataka High Court

Sri B Srinivas Rao vs The Bangalore Development ... on 16 March, 2022

Bench: P.Krishna Bhat

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 16TH DAY OF MARCH, 2022

                            BEFORE

          THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

            WRIT PETITION NO.51982 OF 2015 (GM-RES)

BETWEEN:

1.     SRI B. SRINIVAS RAO
       S/O. SRI S. BHEEMASEN RAO,
       AGED ABOUT 76 YEARS,
       RESIDING AT NO.392, GROUND FLOOR,
       2ND CROSS, B. S. K. 3RD PHASE,
       3RD STAGE, 5TH BLOCK,
       BENGALURU-560 085.

2.     SMT. R. L. RAMAMANI
       D/O. SRI LAKSHMI NARASIMHAIAH,
       AGED ABOUT 67 YEARS,
       RESIDING AT NO.104, 3RD CROSS,
       2ND MAIN, AREHALLI,
       SUBRAMANYAPURA POST,
       BENGALURU-560 061.

3.     SRI B. BADRINATH
       S/O. SRI S. BHEEMASEN RAO,
       AGED ABOUT 59 YEARS,
       RESIDING AT NO.56/2, MOUDGALYA,
       PUTTANNA ROAD, BASAVANAGUDI,
       BENGALURU-560 004.
                                               ... PETITIONERS
       (BY SRI K.S. ARUN, ADVOCATE)

AND:

1.     THE BANGALORE DEVELOPMENT AUTHORITY
       T. CHOWDAIAH ROAD,
       KUMAR PARK WEST,
       BENGALURU-560 020,
       BY ITS SECRETARY.
                            2




2.   ADMINISTRATOR
     VISHWABHARATHI HOUSE BUILDING
     CO-OPERATIVE SOCIETY LTD.,
     NO.34, RATHNA VILAS ROAD,
     BASAVANAGUDI,
     BENGALURU-560 004.

3.   ADDITIONAL CHIEF SECRETARY
     TO GOVT. OF KARNATAKA,
     HOUSING AND URBAN DEVELOPMENT
     DEPARTMENT (REVENUE DEPARTMENT),
     KARNATAKA GOVT. SECRETARIAT,
     M.S. BUILDING,
     BENGALURU-560 001.

4.   THE SECRETARY
     VISHWABHARATHI HOUSE BUILDING
     CO-OPERATIVE SOCIETY LIMITED,
     NO.34, RATHNA VILAS ROAD,
     BASAVANAGUDI,
     BENGALURU-560 004.
                                           ... RESPONDENTS

     (BY SRI K. KRISHNA, ADVOCATE, FOR R-1;
         SRI B.V. KRISHNA, A.G.A., FOR R-3;
         SRI B.L. SANJEEV, ADVOCATE, FOR R-4;
         NOTICE TO R-2 IS HELD SUFFICIENT VIDE ORDER
           DATED 25-7-2016)

                           ***

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE
RESPONDENTS TO INITIATE APPOPRIATE ACTION TO RECOVER
POSSESSION IN RESPECT OF FOUR SITES REFERRED TO ABOVE
FROM THE PERSONS IN UNAUTHORISED OCCUPATION WITH A
DIRECTION TO PUT THE PETITIONERS IN POSSESSION AFTER
TAKING POSSESSION, AND ETC.

    THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR  ORDERS     ON   8-3-2022  AND   COMING   ON  FOR
PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
                                     3



                              ORDER

The petitioners claiming to be owners of house sites in the

layout formed by respondent No.4-Society have approached this

Court seeking the following reliefs:

     a.    A writ of mandamus or a writ or order or
     direction     of    appropriate     nature   directing   the

respondents to initiate action to recover possession in respect of 4 sites referred to above from the persons in unauthorized occupation with a direction to put the petitioners in possession after taking possession.

b. xxx xxx

c. Direct the respondents to put the petitioner No.1 in possession of {{

[i] site Nos.3270 and 3271 carved in Survey Nos.16 to 19 of Gerehally and Survey Nos.103/1, 103/2, 104/2, 105 and 106 of Hosakerehally Village, Uttarahalli Hobli, Bangalore South Taluk by Vishwabharathi House Building Co-operative Society Ltd., in IV phase of Girinagar, Bangalore-560 085, bounded on the east by: road, west by: portion of site Nos.3309 and 3308, north by: site No.3269 and south by: site No.3272 measuring 40' x 40', all measuring 1600 sq. ft., after evicting the person in unauthorized occupation.

[ii] direct the respondents to put the petitioner No.2 in possession of site No.3269 carved in Survey Nos.16 to 19 of Gerehally and Survey Nos.103/1, 103/2, 104/2, 105 and 106 of Hosakerehally Village, Uttarahalli Hobli, Bangalore South Taluk by Vishwabharathi House Building Co-operative Society Ltd., in IV phase of Girinagar, Bangalore-560 085, bounded on the east by: road, west by: portion of site Nos.3309 and 3310, north by: site No.3268 and south by: site No.3270, measuring 40' x 20', all measuring 800 sq. ft., after evicting the person in unauthorized occupation.

[iii] direct the respondents to put the petitioner No.3 in possession of site No.3282 carved in Survey Nos.16 to 19 of Gerehally and Survey Nos.103/1, 103/2, 104/2, 105 and 106 of Hosakerehally Village, Uttarahalli Hobli, Bangalore South Taluk by Vishwabharathi House Building Co-operative Society Ltd., in IV phase of Girinagar, Bangalore-560 085, bounded on the east by: road, west by: site No.3301, north by: site No.3281 and south by: site No.3283 measuring 40' x 20', all measuring 800 sq. ft., after evicting the person in unauthorized occupation.

2. Petitioner No.1 claims that he has purchased site

Nos.3270 and 3271, petitioner No.2 claims that she has

purchased site No.3269 and petitioner No.3 claims that he has

purchased site No.3282 in the said layout. They further averred

that in spite of specific direction issued by a learned Division

Bench of this Court in Writ Petition No.18496 of 2007 (LA-BDA)

and connected matters disposed of 16-11-2010 (Annexure-D),

the respondents have not cleared the encroachment and

unauthorised occupants and handed over the vacant possession

of house sites to the petitioners and thereby, they have failed in

discharging their duties.

3. In support of their prayers, the petitioners have also

produced title deeds as per Annexures-A, B and C.

4. Respondent No.1-Bangalore Development Authority (for

short, 'BDA') has filed its detailed statement of objections. It has

contended that the petitioners are claiming that they are the

members of respondent No.4-Society. The Society has formed

the layout and therefore, the petitioners should seek their

redressal under Section 70 of the Karnataka Co-operative

Societies Act, 1959. Respondent No.1 has stated that

respondent No.4-Society has allotted the same sites to different

persons and such persons are already in possession of the

house sites and they have constructed houses therein, after

obtaining sale deeds from the Society. It has also stated that

BDA has issued acquisition notification to acquire the land in

Survey Nos.16 to 19 of Gerehally and Survey Nos.103/1, 103/2,

104/2, 105 and 106 of Hosakerehalli Village along with certain

other lands for the purpose of formation of Banashakari 3rd

Stage layout as per preliminary notification dated 9-5-1968 and

final notification dated 28-10-1971. Thereafter, award was

passed and possession of the lands were taken on 17-6-1977,

9-1-1978 and 7-10-1995. Respondent No.4-Society filed several

writ petitions, writ appeals and other proceedings including

special leave petitions before the Hon'ble Supreme Court

questioning the acquisition proceedings in respect of above land

contending that respondent No.4-Society had purchased the

said lands from its earlier land owners by entering into

Agreement of Sale and formed the layout and allotted the sites to

its members and executed the sale deeds to allottees. Since it

became unsuccessful, respondent No.4-Society and some of its

members filed Writ Petition No.18496 of 2007 and connected

matters and the order was passed thereon by the learned

Division Bench of this Court on 16-11-2010 (Annexure-D).

Respondent No.1-BDA has particularly referred to observation of

the learned Division Bench in the said order at Paragraph

No.44(n), which is as follows:

"(n) It is made clear that no one who is a party to these proceedings shall put up any construction in the land in question after pronouncement of this order. If any attempt is made to put up any construction, BDA is at liberty to take immediate steps to demolish such construction."

5. Respondent No.1-BDA has also stated in the statement

of objections that it has complied with all the directions issued

in the said writ petition and in spite of the same, respondent

No.4-Society issued notice dated 10-2-2014 claiming that there

were 117 unauthorised persons occupying the sites allotted to

its members and sought for their eviction. However, respondent

No.4-Society had not furnished the list of names of such 117

persons to respondent No.1-BDA. Thereafter, respondent No.4-

Society filed contempt petition in CCC No.578 of 2014 (Civil)

complaining that BDA had not complied with the directions

issued by order dated 16-11-2010 by the learned Division

Bench. The same came to be dismissed by order dated

18-6-2014. BDA had issued notices to the occupants of those

117 sites on 31-5-2014 and some of the sites were vacant and

notices were affixed on the said sites. Respondent No.4-Society

had formed unauthorised layout before allotment of lands under

bulk allotment and allotted the sites to its members by collecting

sale consideration and also executed necessary documents and

registered sale deeds to them. Respondent No.4 had issued

notice dated 10-2-2014 to BDA (Annexure-E) mentioning the

sites numbers stating that unauthorised occupants were in

possession of the sites. Thereafter, BDA had issued notices to

the said occupants on 31-5-2014 calling upon them to reply to

the same. After receiving notice, such persons had sent replies

to BDA and they specifically contended that they were the

members of respondent No.4-Society; the Society had allotted

sites to them; and it had executed sale deeds in their favour

after collecting sale consideration amount. They also produced

copies of sale deeds executed by respondent No.4-Society in

their favour. BDA has filed the list containing the particulars of

notice issued and reply received (Annexure-R4). BDA has

further stated that it had received information that some of them

have filed Suits and obtained interim orders. Some persons to

whom BDA had issued notice had replied stating that

respondent No.4-Socieity had allotted such sites to them in lieu

of land which was taken over by the Society by adjusting the

cost of site to the cost of the land they had parted in favour of

the Society. BDA has specifically mentioned in the statement of

objections that in so far as site Nos.3270 and 3271 claimed by

petitioner No.1 is concerned, Smt. Geetha Shankar had replied

on 21-6-2014 to BDA stating that the said sites were earlier

assigned site No.832 and respondent No.4-Society had allotted

the said site to her and executed registered sale deed on

30-7-2003 and possession certificate was also issued to her.

Similarly, in respect of site No.3282 claimed by petitioner No.3,

Smt. Kempamma sent a reply to BDA that previously the site

was numbered as 835 and it was allotted to her by respondent

No.4-Society and after collecting sale consideration, respondent

No.4-Society had executed sale deed dated 19-9-2003 in her

favour and possession certificate was also issued in her favour.

It is further stated by BDA that alleged unauthorised occupants

are none other than earlier allottees of respondent No.4-Society

and they were also having registered sale deeds from respondent

No.4-Society in respect of said sites. Respondent No.1-BDA has

further stated in its statement of objections that it is for

respondent No.4-Society to disclose whether such occupants are

its genuine members and thereafter take necessary steps to take

back possession of the sites, after canceling the sale deeds.

6. Respondent No.4-Society has also filed detailed

statement of objections referring to various Court proceedings

and the contempt petition filed by it against BDA.

7. Learned counsel for the petitioners contended that in

view of the directions issued by a learned Division Bench of this

Court in Writ Petition No.18496 of 2007 (LA-BDA) and connected

matters disposed of on 16-11-2010, respondent No.1-BDA and

respondent No.4-Society are under obligation to evict all the

unauthorised occupants in the layout formed by respondent

No.4-Society and thereafter, put the petitioners in possession of

sites, namely 3270, 3271, 3269 and 3282. Respondent No.1-

BDA has taken a specific contention that it has made the bulk

allotment under Section 38-B of the Bangalore Development

Authority Act, 1976, with prior approval of the Government.

8. Section 38-B of the Bangalore Development Authority

Act, 1976, reads as follows:

"38-B. Power of authority to make bulk allotment. -

Notwithstanding anything contained in this Act or Development Scheme sanctioned under this Act, the authority may, subject to any restriction, condition and limitation as may be prescribed, make bulk allotment by way of sale, lease or otherwise of any land which belongs to it or is vested in it or acquired by it for the purpose of any development scheme.-

(i) to the State Government; or

(ii) to the Central Government; or

(iii) to any Corporation, Body or Organisation owned or controlled by the Central Government or the State Government; or

(iv) to any Housing Co-operative Society registered under the Karnataka Co-operative Societies Act, 1959 (Karnataka Act 11 of 1959); or

(v) to any society registered under the Karnataka Societies Registration Act, 1960 (Karnataka Act 17 of 1960); or

(vi) to a trust created wholly for charitable, educational or religious purpose:

Provided that prior approval of the Government shall be obtained for allotment of land to any category listed above."

9. It is the contention of the learned counsel for

respondent No.1-BDA that with prior approval of the

Government under Section 38-B(iv) of the Bangalore

Development Authority Act, 1976, it has made the bulk

allotment of sites to respondent No.4-Society. In regard to

directions issued by a learned Division Bench of this Court, it is

necessary for the facility of understanding to refer to the same

as learned counsel on both sides have placed reliance on the

same in support of their respective contentions. Paragraph

No.44 of the said order contains directions issued by the learned

Division Bench, which reads as follows:

"44. In the light of what is stated above, we pass the following order:

(a) The BDA is directed to calculate the total amount payable by the society for bulk allotment in terms of the Government Order dated 4-10-2007 passed by the Government and thereafter inform the society in writing calling upon them to pay the said amount within 90 days from the date of receipt of the said notice.

(b) Though the land in question is in possession of the society and some of its members and others, the BDA shall formally handover possession of the land in question on receipt of the payment referred to clause (a).

(c) The society shall prepare the list of genuine members and the members who had applied for a site according to the seniority and submit the same to the BDA;

(d) In the seniority list prepared, membership number, date of membership, the date on which application was filed for allotment of site, the dates on which amounts were paid by the society shall be clearly mentioned;

(e) In the event of non availability of the list, the society shall give paper publication both in Kannada and English vernacular in local and South Indian editions calling upon the members of the society to furnish their membership number, the date on which they applied for the site, payments made if any, in respect of the said site along with receipts and other acknowledgments and the documents in support of the same within a period of 30 days from the date of publication of the notice;

(f) Thereafter, the society shall prepare

i. the seniority list of genuine members in terms of para 39 of the judgment.

ii. a list of members who are eligible for allotment of site in accordance with paras 40 and 41 of the judgment.

iii. Thereafter, they shall publish both the lists in their office, in the newspaper and handover copies of the same in the BDA as well as to the Registrar of Co-

operative Societies;

The society shall also open web site and host all these information on the web site for information of the members and public at large.

(g) All such members who have any objection for such genuine/seniority list are at liberty to approach the Registrar of Co-operative Societies for adjudication of their seniority.

(h) The Registrar of Co-operative Societies while adjudicating genuine and seniority of members, shall hear the society as well as the BDA and also take consideration the observations made in this order as well as the order made in Writ Appeal No.1454 of 2008 at para 14 and eschew the observations in the order dated 11.10.2007 passed in Writ Petition No.12236 of 2006, as directed in the said appeal. The decision of the Registrar of Co- operative Societies is subject to the remedies provided under the Registration of Society's Act and other

provisions of law. However, the said finding if it attains finality, is binding both on the society as well on the BDA.

(i) In the meanwhile, the society shall prepare a layout plan, submit the same to the BDA for its approval and also list out number of sites for allotment to its members according to the seniority list.

(j) Already a private layout is formed in the said land and number of persons have put up constructions and are living there. If those persons are eligible for allotment of site according to seniority list, the allotment and sale deeds had been executed in their favour, such sale deeds shall be confirmed by the society, if there is no dispute regarding seniority in the matter of allotment of sites.

(k) Similarly, all those persons to whom sites have been allotted, who have not put up construction or who have enclosed their sites with compound walls, if they are also eligible for allotment of sites in terms of the seniority, which is not disputed by anyone and such sale deeds have been executed, such sale deeds shall be confirmed by the society.

(l) If the persons who are not eligible for allotment of sites according to seniority or not even members, if they are in possession of the sites and have put up constructions, the said sale deeds and allotment orders shall have no legal effect and if such persons are parties to these proceedings, no further steps need be taken against

them. If they are not parties to these proceedings who are in possession by virtue of such allotment or sale deeds, appropriate proceedings have to be initiated against them in accordance with law for cancellation of their allotment and sale deed and for recovery of possession.

(m) Till this process is completed, BDA and the society are directed to maintain status quo and no demolition of structure shall take place.

(n) It is made clear that no one who is a party to these proceedings put up any construction in the land in question after pronouncement of this order. If any attempt is made to put up any construction, BDA is at liberty to take immediate steps to demolish such construction.

(o) If any person has put up construction after Government Order till today under the cover of any interim orders granted by this Court in various petitions, such persons cannot plead equity in their favour and the validity of such construction depends upon their eligibility to get the site allotted based on their seniority. Otherwise, those constructions are liable to be demolished.

(p) It is only after being satisfied that the sites have been allotted to genuine members and according to seniority,

BDA/BBMP shall make out khata in their respective names and BDA/BBMP shall sanction the plan.

(q) The process of bulk allotment by the BDA shall be completed within a period of five months from today if payment is made by the society.

(r) The Registrar of Co-operative Society shall ensure that these disputes regarding genuineness of the membership or the seniority of such members for allotment of site, if necessary, be entrusted to one official who shall take up these matters on day-to-day basis and try to dispose it of expeditiously as some of them have already invested huge amount for acquiring site, put up construction and living with their family and also in order to give effect to the Government Order where the only consideration was the human suffering."

10. A careful perusal of the above shows that the learned

Division Bench has directed respondent No.4-Society to prepare

a seniority list of its genuine members, who are eligible for

allotment of sites in accordance with paragraph Nos.41 and 42

of the order. Direction (h) of paragraph No.44 shows that the

Registrar of Co-operative Societies was directed to adjudicate the

matter regarding genuine members and seniority of members,

after affording opportunity to respondent No.4-Society and

respondent No.1-BDA. Direction (j) of paragraph No.44 also

requires ascertainment of the disputed fact, whether the persons

who have put up constructions are members of the Society and

whether they are eligible for site allotment as per seniority list.

Direction (n) of paragraph No.44 shows that the learned Division

Bench has made it clear that no one who was a party to the

proceedings shall put up any construction in the subject

property after 16-11-2010. Direction (r) of paragraph No.44

issued by the learned Division Bench shows that Registrar of Co-

operative Societies should ensure that the disputes regarding

genuineness of the membership or seniority of the members for

allotment of sites should be entrusted to one official, who should

proceed with the matter on day-to-day basis and to dispose it of

expeditiously.

11. Unfortunately, the petitioners have not arrayed the

Registrar of Co-operative Societies as a party to these

proceedings. This Court has not been informed of the further

proceedings taken before the Registrar of Co-operative Societies

pursuant to the direction issued by the learned Division Bench

in order dated 16-11-2010. Similarly, the statement of

objections filed by respondent No.1-BDA shows that in respect of

site Nos.3270 and 3271 claimed by petitioner No.1, Smt. Geetha

Shankar is in possession and she has already constructed a

house. Similarly, site No.3282 claimed by petitioner No.3,

Smt. Kempanna is in possession of the said site. Relevant

portion of the statement of objections of respondent No.1 is

extracted herein in tabular form:

Statement showing the particulars of notice issued and replied in respect of the sites allotted by Vishwabharathi House Building Co-operative Society, Girinagar, Bangalore Present Name of the Site Site Date of Sl. Date of Sale PC Issued Owners of Date of Case occupants No. No. Notice Remarks No. Deed (old) (Date) Site as per replied No. (old) (old) (New) Issued Society list 5 Geetha 832 30.07.2003 30.04.2003 3270, B. 31.05.2014 21.06.2014 - Old Shankar 3271 Srinivasa allottee in Rao possession 24 Kempamma 835 19.09.2003 10.07.2003 3282 B. 31.05.2014 21.06.2014 - Old Badrinath allottee in possession 53 524 3269 R.L. 31.05.2014 - - Vacant Ramamani

12. Statement of objections filed by respondent No.1-BDA

clearly shows that Smt. Geetha Shankar and Smt. Kempamma

were members of respondent No.4-Society and they were allotted

with said sites and they have registered sale deeds in their

favour from respondent No.4-Society. Smt. Geetha Shankar and

Smt. Kempamma are persons who are interested in the said

sites. However, the petitioners have not made them as parties to

these proceedings. As already noticed, the learned Division

Bench in its order dated 16-11-2010 has directed the Registrar

of Co-operative Societies to hold adjudication regarding

genuineness of the membership of respondent No.4-Society and

further determine eligibility for allotment of sites in the layout

formed by respondent No.4-Society.

13. The reliefs sought by the petitioners in this petition

involves determining disputed question of facts and such

adjudication cannot be undertaken in proceedings under Article

226 of the Constitution of India. On the other hand, since the

relief sought for by the petitioners is in the nature of "dispute"

within the meaning of Section 70 of the Karnataka Co-operative

Societies Act, 1959, the petitioners should approach the

Registrar of Co-operative Societies for adjudication of the

dispute. Section 70 of the Karnataka Co-operative Societies Act,

1959, reads as follows:

"70. Disputes which may be referred to Registrar for decision.-

(1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the

constitution, management, or the business of a co- operative society [xxxx] arises,--

      (a)   among   members,      past   members    and
      persons   claiming    through      members,   past
      members and deceased members, or

(b) between a member, past member or person claiming through a member, past member or deceased member and the society, its [board] or any officer, agent or employee of the society, or

(c) between the society or its [board] and any past [board], any officer, agent or employee, or any past officer, past agent or past employee or the nominee, heirs, or legal representatives of any deceased officer, deceased agent, or deceased employee of the society, or

(d) between the society and any other co-

operative society, [or a credit agency].

such dispute shall be referred to the Registrar for decision and [no Civil or Labour or Revenue Court or Industrial Tribunal] shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute.

(2) For the purposes of sub-section (1), the following shall

be deemed to be disputes touching the constitution, management or the business of a co-operative society, namely.--

(a) a claim by the society for any debt or demand due to it from a member or the nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not;

(b) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor, as a result of the default of the principal debtor whether such debt or demand is admitted or not;

[(c) any dispute arising in connection with the election of a President, Vice- President or any office-bearer or Member of board of the society;]

[(d) any dispute between a co-operative society and its employees or past employees or heirs or legal representatives of a deceased employee, including a dispute regarding the terms of employment, working conditions and disciplinary action taken by a co-operative

society [notwithstanding anything contrary contained in the Industrial Disputes Act, 1947 (Central Act 14 of 1947)];

(e) a claim by a co-operative society for any deficiency caused in the assets of the co- operative society by a member, past member, deceased member or deceased officer, past agent or deceased agent or by any servant, past servant or deceased servant or by its [board], past or present whether such loss be admitted or not.]

(3) If any question arises whether a dispute referred to the Registrar under this section is a dispute touching the constitution, management or the business of a co- operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any Court

[(4) xxxxxxx

(5) xxxxxxx]."

14. In view of the direction issued by the learned Division

Bench in its order dated 16-11-2010 and also because the

matter in controversy touches the business of respondent No.4-

Society and it is between the members and the Society, the

petitioners should approach the Registrar of Co-operative

Societies under Section 70 of the Karnataka Co-operative

Societies Act, 1959, for adjudication of their dispute. Under

such circumstances, since the adjudication of the dispute

brought before this Court involves determination of disputed

question of facts, this petition cannot be entertained and

accordingly, the writ petition is dismissed.

However, it is open to the petitioners to approach the