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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
N. KUMAR, J.
SCHEDULED CASTE (HARIJAN) HOUSE BUILDING CO-OPERATIVE SOCIETY LIMITED, BANGALORE AND ANOTHER
v
STATE OF KARNATAKA AND OTHERS
W.P. No. 40914 of 2003
10th February, 2006
Constitution of India -Exercise of jurisdiction under -Articles 226 & 227 -Exercise of jurisdiction under - Illegalities brought to notice of Court - Court cannot shut its eyes -One of the petitioner s claiming to be Honorary Secretary of a Co-operative society, went to sub-Registrar s office and exercised cancellation deeds cancelling registration of sites done in favour of the members of the society - Registered them in favour of his associates which is an illegality - Hence, Court interfered and ordered to cancel the cancellation deeds. [N. Kumar, J]: In Bangalore when the sital values are soaring sky high and if sites are acquired by way of registered sale deeds from a Housing Cooperative Society, such owners of sites walking into the Sub-Registrar s office and giving their consent for cancellation of such sale deeds without consideration is unimaginable., After cancelling the aforesaid sale deeds, it is alleged that the second petitioner has executed sale deeds in, respect of the very same sites to its associates. On the face of it the action of the second petitioner is illegal and opposed to law. Once a sale deed is executed, assuming, that the beneficiary of the sale deed wants to give up his lights in the ; said sale, it can only be done, by way of re-conveyance favour of the society and not by way of consenting for cancellation of sale deed. Therefore, such a cancellation deed is totally opposed to law admittedly without consideration and unbelievable. This Court cannot shut its eyes when such illegalities are brought to its notice. Therefore, in exercise of the power under Articles 226 and 227, in the interest of justice, it would be appropriate to order for cancellation of those cancellation deeds executed by the second petitioner and direct the Sub Registrar to delete those cancellation deeds. Similarly, the action of the fourth respondent also requires to be reviewed in accordance with law.
Karnataka Co-operative Societies Act, 1959 -Maintainability of dispute -Section 70 -Maintainability of dispute - Genuineness or identity of society - Parities to the dispute claiming that society in question functioning from address furnished by them is the legally functioning society and not the other - In view of the language employed in the provision, this dispute falls outside the scope of Section 70. [N. Kumar, J]: What Section 70(1)( d) provides is, any dispute by which the constitution management or the business of a co-operative society arising between the society and any other co-operative society or a credit agency, then it falls within Section 70 of the Act. The condition precedent for application of this provision is, that there must be two societies which are independent legal entities and a dispute between them is to be agitated under Section 70 of the Act.
Karnataka Co-operative Societies Act, 1959 -Non-maintainability of dispute -Section 70 -Non-maintainability of dispute - Effect -If dispute not maintainable, findings recorded by authorities would be findings recorded without jurisdiction. [N. Kumar, J]: When the dispute filed under Section 70 of the Act was maintainable at all, the finding recorded by both the authorities is one without jurisdiction. Therefore, the ultimate finding recorded by these two authorities that the society represented by a particular person is a genuine society and that he was duly elected and was validly exercising his power as an office bearer of the society and his actions as such office bearer is valid and legal is also a finding without jurisdiction and is liable to be set aside.
Karnataka Co-operative Societies Act, 1959 -Applicability of Order 7, Rule 11, Civil Procedure Code -Section 70 -Applicability of Order 7, Rule 11, Civil Procedure Code -Jurisdictional issues -To be dealt with at the threshold itself - Determination of -Averments in the dispute and not those in objections that have to be looked into - Same principles are applicable to proceedings under the provision. [N. Kumar, J]: If the petitioner avers that the respondent is not a member and the respondent avers that the petitioners is not a member of the society, unless this jurisdictional question or membership is decided first, the Registrar would not get jurisdiction to entertain the dispute. He is not the competent person to decide that issue also. It would be in the nature of declaration of status of the parties. Therefore, a dispute regarding membership of the society is outside the purview of the dispute under Section 70 of the Act.
Karnataka Co-operative Societies Act, 1959 -Application of -Section 70 -Application of - Requirements for. [N. Kumar, J]: For application of Section 70, firstly the dispute should be between persons who satisfy the requirements mentioned in Section 70(1) of the Act and the dispute should fall within the categories mentioned in Section 70(2) of the Act. A careful reading of Section 70(1) of the Act discloses that the dispute touching the constitution, management or the business of a co-operative society should arise among members, past members and persons claiming through members, past members and deceased members or between the aforesaid category of persons or between the society or its committee and any past committee, any present or past officer, agent or employee or nominees, legal representatives of the deceased officer, agent or employee or between the society and any other co-operative society. Unless a dispute is between the aforesaid category of persons, the Registrar would get no jurisdiction to entertain a dispute under Section 70 of the Act. If it is averred in the dispute that the opposite party is not a member of the society at all, the question whether the opposite party is a member of the society or not cannot be gone into in a dispute under Section 70 of the Act.
Karnataka Co-operative Societies Act, 1959 -Application of -Section 70 (1) (d) - Application of -Conditions precedent for.
Writ Petition No. 40914 of 2003 is filed by Scheduled Caste (harijan) House Building Co-operative Society Limited. represented by one Sri E. Nagalingam who claims to be the President of the said Society and also in his personal capacity. The address of the said Society is given as No. 24, Kota Complex, J.C. Road. Bangalore.
2. WP. No. 47671 of 2003 is filed by Scheduled Caste (Harijan) House Building Co-operative Society Limited, represented by one S. Pushparaj, who claims to be the Secretary of the said Society. The address of the Society is given as Dodda Bylakhana, No. 15, 25th Main Road, Annaiah Reddy Layout, J.P. Nagar, VI Phase, Bangalore-78.
3. In both these writ petitions what is challenged is the order passed by the Karnataka Appellate Tribunal made in respect of Appeal Nos. 482 and 614 of 2001 dismissing the same and affirming the order passed by the Assistant Registrar of Co-operative Societies, Bangalore in Dispute No. ARB/45/ABN/40/99-2000, dated 12-4-2001. As the questions involved in both these writ petitions as well as the impugned order is one and the same, they are taken up for consideration together and disposed of by this common order.
4. For the purpose of convenience, the parties are referred to as they are referred to in W.P. No. 40914 of 2003.
5. From the material placed on record by way of pleadings, documents, orders passed by various authorities, the facts that emerge are as under.
6. The first petitioner is a Housing Co-operative Society (for short referred to as "Society") registered under the provisions of the Karnataka Co-operative Societies Act, 1959 (for short hereinafter referred to as the 'Act') on 15-4-1964 with its registration No. DYR/350/64. A copy of the registration certificate is produced at Annexure-A. According to the averments made in the writ petition, on the date of registration, the address of the Society was Armugam Mudaliyar Street, Kalasipalyam, Bangalore-2. Later it started functioning at No. 18/6, Old Market Road, V.V. Puram, Bangalore. Subsequently, it started functioning at No. 48, Appajappa Garden, Durgamma Temple Street, Kalasipalyam, Bangalore. At present it is functioning at No. 24, Kota Complex, J.C. Road, Bangalore. This fact is disputed by respondent 4. According to him the Society was originally functioning in Jayanagar, later in 1983, it shifted its office to No. 18/6, Old Market Road, V.V. Puram, Bangalore and from 1988 to the premises No. 94, II Cross, Surveyors' Street, Gandhi Bazaar, Bangalore-4, which is the present address of the Society. The material on record do not clearly disclose from 1964 to 1983 who were the persons managing the Society. But it is not in dispute between the parties that in the year 1983 elections took place to the management of the Society and one P. Venugopal who belongs to Scheduled Caste became the Secretary of the Society and he continued to be the Secretary till 1988. There is no dispute between the parties till 1988 and none of the action of the Society till 1988 is not under challenge.
7. Sri E. Nagalingam, the second petitioner claims that he became a member of the first petitioner-Society in the year 1974, Annexure-D, dated 7-4-1974, a receipt showing the payment of subscription fee is produced. He further claims that in the elections held on 16-5-1999 he was elected as the Director of the Society, and in turn elected as the President of the Society. In the counter filed by the 4th respondent, at paragraph 3, it is specifically stated that the second petitioner, E. Nagalingam is not a member of the Society, the receipt at Annexure-D is a fabricated one, no corresponding entry in the cash book is found or any resolution accepting the membership of E. Nagalingam is found. However, he has forged a resolution copy by adding his name. It is averred in the writ petition at paragraphs 11 and 12 that the 4th respondent, T.C. Ramakrishnaiah do not belong to Scheduled Caste or Scheduled Tribe. One B. Ramakrishna, a Scheduled Cast
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