Karnataka High Court
Sri D N Hadagali vs The State Of Karnataka on 4 April, 2024
Author: S Sunil Dutt Yadav
Bench: S Sunil Dutt Yadav
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WP No. 49199 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV
WRIT PETITION NO. 49199 OF 2012 (CS-RES)
BETWEEN:
1. SRI D N HADAGALI
S/O. NAGAPPA
AGED ABOUT 58 YEARS
R/O NO. 66, 1"C" CROSS,
2ND MAIN, 3RD STAGE, 4TH BLOCK,
BASAVESHWARANAGAR,
BANGALORE - 560 079
... PETITIONER
(BY SRI. PRAVEEN RAIKOTE ., ADVOCATE)
AND:
Digitally
signed by 1. THE STATE OF KARNATAKA
VIJAYA P
BY ITS HON'BLE MINISTER FOR CO-OPERATION,
Location:
High Court VIKASA SOUDHA,
of Karnataka
BANGALORE - 560 001
2. SRI VENKATESHWARA GRIHA
NIRMANA SAHAKARA SANGHA
NO.8/2, NAGAPPA STREET,
SESHADRIPURAM
(NO.9, YATHIRAJA BUILDINGS, MAHADI)
BANGALORE - 560 020,
BY ITS LIQUIDATOR
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WP No. 49199 of 2012
3. SRI N. SAMPATH KUMAR, MAJOR
S/O. N. NARAYANA MURTHY,
RESIDING AT SHANTHI HALL,
BAZAAR STAREET, NELAMANGALA,
BANGALORE RURAL DIST.
4. THE ASSISTANT REGISTRAR OF
CO-OPERATIVE SOCIETIES
BANGALORE 1ST CIRCLE AND
EXECUTION AUTHORITY,
MALLESHWARAM,
BANGALORE-03
5. THE DEPUTY REGISTRAR OF
CO-OPERATIVE SOCIETIES
BANGALORE URBAN DISTRICT-1,
MALLESHWARAM,
BANGALORE-03
... RESPONDENTS
(BY SRI. SIDHARTH BABU RAO, AGA FOR R1, R4 & R5;
SRI N. RAMACHANDRA, ADVOCATE FOR R2;
SRI N. VAGEESH, ADVOCATE FOR C/R3)
***
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
RECORDS FROM THE R1 AND QUASH THE IMPUGNED ORDER
DATED 27.11.2012 PASSED IN REVISION PETITION NO.CO
14/CAP 2011 ANNEXURE-P BY R1: HON'BLE MINISTER FOR CO-
OPERATION; AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 49199 of 2012
ORDER
Petitioner has filed the present writ petition and has
sought to challenge the order dated 27.11.2012 passed in
R.P.No. CO-14 CAP 2011 at Annexure-P.
2. It is the case of the petitioner that petitioner's
vendor had obtained a sale deed on 26.07.1990 from the
2nd respondent - Society, copy of which is produced at
Annexure-A. It is submitted that subsequently a dispute
was raised by some of the members of the Society. In the
said dispute, relief sought for was to set aside the
allotment of sites if any made in the land detailed in the
dispute and allot the same to the petitioners in the said
dispute on the principle of first come first serve. The relief
was also sought for allotment of sites if no allotment was
made.
3. The said dispute came to be disposed off as per
the order at Annexure-F declaring that certain parties had
ceased to be members of the Society and that the Society
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was to allot sites to the petitioners in the said dispute
subject to payment.
4. It is to be noticed at the outset that in the said
dispute, the other allottees who were made allotments
before the date of institution of the dispute were not made
as parties. Subsequently, the order passed in the dispute
was put into execution. During such execution
proceedings, an order of attachment is stated to have
been passed on 04.06.1999 in which it was ordered that
Site No.16 was to be attached. It is relevant to note that
in the operative portion of the order, the property attached
is referred to as property belonging to the judgment
debtor - Sree Venkateswara Gruhanirmana Sahakara
Sangha. The operative portion of the order reads as
follows:
"In view of the situation explained above, I
M.S.Ginigiri, Assistant Registrar of Co-
operative Societies, 1st Circle, Bangalore - 18
in exercise of the powers vested in the Under
Rule 38A(1)(C) of Karnataka Co-operative
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Societies Act, 1960 as conferred by the
Government under Notification
No.CMW/243/CIM/91 dated 04.05.1994,
hence I do hereby order the attachment of
immovable property belonging to the
Respondent / Judgment debtor of the Sree
Venkateswara Gruhanirmana Sahakara
Sangha, mentioned in the Schedule."
5. It is clear from the said order that the property
sought to be attached was construed to be the property
belonging to the Housing Society. However, it must be
noticed that as on such date, the vendor of the petitioner
had executed a sale deed in favour of the petitioner on
03.05.1993, copy of the said sale deed is enclosed at
Annexure-B. The order of attachment was unsuccessfully
challenged before the Assistant Registrar of Co-operative
Societies. The said order was assailed by the petitioner by
filing an application to lift the attachment which came to
be dismissed as per the order at Annexure-K. The same
was then taken up before the Appellate Authority and in
terms of the order at Annexure-M, the appeal came to be
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allowed lifting the attachment. It is this order that has
been taken up in revision petition in R.P.No. CO-14 CAP
2013. The order came to be passed by the Revisional
Authority vide Annexure-P whereby the order of the
Appellate Authority was set aside affirming the order of
attachment.
6. At the outset it is pointed out by the learned
counsel appearing for the petitioner - Sri. Praveen Raikote
that a perusal of the order at Annexure-P passed in the
revision petition and the order sheet would indicate that
the matter was adjourned on various dates from
23.07.2011 to 24.11.2012 and thereafter there was no
hearing and eventually order came to be passed 3 days
later i.e., on 27.11.2012 which is in clear violation of
principles of natural justice. It is however submitted that
even on merits the order in the revision petition is liable to
be set aside.
7. Heard both sides.
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8. Insofar as the challenge in the present writ
petition, the same is limited to order passed in Revision
Petition. The admitted fact being that sale deed came to
be executed on 26.07.1990 in favour of the vendor of the
petitioner. Subsequently, the vendor of the petitioner has
executed a sale deed in favour of the petitioner on
03.05.1993. No doubt there is a reference in the
proceedings that there was an interim order passed in the
dispute filed by the members restraining further sale,
which order was passed on 01.08.1990. However, it must
be noticed that, on 26.07.1990 itself the society had
divested its right by way of sale deed in favour of the
petitioner's vendor at Annexure-A. Subsequently, on
03.05.1993 further sale deed was executed by petitioner's
vendor in favour of petitioner. The order of attachment
came to be passed on 04.06.1999 and as is evident from
the operative portion of the order of attachment referred
to above. It is also to be noted that the order of
attachment refers to the property of the Society. The order
of attachment could not have been passed construing the
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site that was attached as being property of the society
insofar as the sale deed was executed on 26.07.1990 itself
by the Society.
9. No doubt, Sri. N. Vageesh, learned counsel
appearing for respondent No.3 would contend that there
was no allotment to the Society and accordingly, the sale
deed was null and void.
10. However, it must be noticed that once the sale
deed has been executed on 26.07.1990 and the Society
had divested its right and title, the validity of such sale
deed ought to have been challenged in appropriate
proceedings and mere assailing of the allotment which
precedes the sale deed in the dispute was not sufficient.
As on the date of order being passed in the dispute, sale
deed was already executed and the allotment is deemed to
have been merged with the sale deed.
11. The impugned order is not only passed in
violation of the principles of natural justice but perusal of
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the order would reveal that none of the facts as noticed
herein had been dealt with. Question whether the
attachment could be made of property that did not belong
to the Society has not been adverted to. When the
property itself was not available for attachment,
attachment itself is faulty and accordingly, all proceedings
commencing from attachment to the consequent order
passed against the petitioner cannot stand legal scrutiny.
The conclusion arrived at by the appellate authority lifting
the attachment requires to be supported and upheld.
Though reasoning at some point may be faulty, once the
conclusion is correct, the same ought to be upheld taking
note of the "Tipsy Coachman" doctrine referred to by this
Court in the case of C.S. Puttaraju Vs. State of Karnataka
Criminal Petition No.5305/2021 dated 31.01.2022.
12. It is also to be noticed that insofar as the order
of attachment made in the dispute with respect to sale
deed executed on 26.07.1990 to another person similarly
placed as the petitioner which is the same date on which
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sale deed was executed by the Society in favour of
petitioner's vendor, this Court in W.P.No.30665/2000 had
quashed the order of attachment. The said aspect is
required to be taken note of on the principle of parity.
13. Accordingly, this Court finds that the order
lifting the attachment requires to be affirmed and the
order of the Minister dated 27.11.2012 passed in R.P.No.
CO-14 CAP 2011 at Annexure-P requires to be set aside.
14. Insofar as respondent No.3, taking note of the
denial of relief, the genuineness of his case and his
entitlement are not disputed even by the petitioner and it
is for the said respondent to take appropriate steps
against the Society and its office bearers as may be
permissible in law to have his grievance redressed
appropriately.
15. Accordingly, petition is disposed off.
Sd/-
JUDGE
VP
