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2017 Supreme(Kar) 1298

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
JAYANT PATEL, N.K. SUDHINDRARAO, JJ.
Karnataka State Judicial Department Employees House Building Co-Operative Society (R) - Petitioner
Vs.
Sri G.P. Shivaprakash S/o Paramashivaiah & Ors. - Respondents
Review Petition No. 301 of 2016 In Writ Petition No. 7105 of 2007 (GM-KSR-PIL)
Decided On : 28-02-2017

Advocates:
Advocate Appeared:
For the Petitioner: Ms. Farah Fathima, Mr. Anil Kumar, Ms. Latha S. Shetty
For the Respondents: Sri Dhyan Chinnappa, Sri Arun Kumar K., Smt. B.V. Vidyulatha, Sri R. Devdas

Headnote:CODE OF CIVIL PROCEDURE, 1908 [C.A. No. 5/1908] - Order 47 Rule 1 - PIL - Review Petition - Wrongful admission of members in "Karnataka State Judicial Department Employees House Building Co-operative Society and allotment of sites contrary to bye-laws of the Society" -Held, Even if a person was not eligible to become member by has been admitted as a member by the Society, upon the satisfaction arrived at on the aspect of eligibility and thereafter the rights of the parties are altered inasmuch as the money a has been parted with and in exchange thereof the site is given and thereafter the construction is made, what will be the consequential aspect of the investment made with reasonable interest more particularly when the member as well as Society both acted under the mistaken belief that the member was eligible to be admitted and was also eligible for allotment of the site. Aforesaid aspect also requires to be considered keeping in view the provisions of Section 51 of the Transfer of Property Act, 1882.

        The matters required to be examined as to what will be the situation if the subsequent purchaser of the property has acted in bone fide and has altered his position by investment of the money or otherwise? And whether expulsion as member or cancellation of the site can be made in absence of any express provision for expulsion of any person who is already admitted as member or not and said aspects will go to the root of the matter. The earlier Order dated 03.06.2016 deserves to be reviewed and the main W.P. deserves to be heard afresh on merits in accordance with law.

ORDER :

The present review petition is directed for review of the order dated 03.06.2016 passed by this Court in W.P.No.7105/2007.

2. We have heard Ms. Farah Fathima, learned counsel with Mr. Anil Kumar for petitioner. We have also heard Mr. Dyan Chinnappa, learned Senior Counsel appearing along with Mr. Arun Kumar K., for respondents 2 to 5 herein. Respondents 1, 6, 7 and 8 are served, but none appears. However Mr. R. Devdas, learned Principal Government Advocate appears for respondents 10 and 11 –State authorities and Ms. B.V. Vidyulatha, learned counsel appears for respondent 9.

3. We may broadly state that the original petitioners had approached this court in Public Interest Litigation (PIL) jurisdiction contending interalia that there was wrongful admission of the members in Karnataka State Judicial Department Employees House Building Co-operative Society (hereinafter referred to as ‘the Society’) and also wrongful allotment of sites by the Society to the respective members and therefore prayers were made for independent investigation and to declare induction of certain members as illegal; to cancel the membership granted; to cancel the allotment of sites; and other related prayers were also made. This Court ultimately at paragraph 44 issued directions (a) to (j) which reads as under:

(a) names, addresses, identity, avocation, place of residence, relationship with the Directors past and present of the Society, the position held or retired in the High Court or the Courts under the jurisdiction of the High Court, of all members, associate members, and nominal members, to ascertain whether they would fall within the qualification prescribed by the bye-laws;

(b) the members, associate members and nominal members or their family own any site/house/flat/apartment within the jurisdiction of the BDA and affidavits filed in that regard as required by the bye-laws;

(c) members, associate members and nominal members/directors/family members of members, associate members and nominal members/directors/others are allotted more than one site, the procedure followed for such allotment, so as to fix the responsibility;

(d) Directors present and past, responsible for allotment of sites to land losers viz., J. Krishnappa, family of late Subbaiah and Papaiah and Muniswamappa despite their receiving the compensation;

(e) In the event of recording findings that the induction of members, associate members or nominal members are in violation of the Bye-laws, Annexures-B and C to take steps to cancel the membership, in accordance with law;

(f) In the event of recording findings that the members, associate members or nominal members were not entitled to allotment of sites in the layout formed by the Society for lack of requisite qualification, under the Bye-Laws, to cancel the allotment and take steps to recover possession of the sites;

(g) In the event the members, associate members or nominal members voluntarily surrender the sites allotted, the Society is directed to refund the amount paid with interest at 6% p.a. from the date of receipt of the payment upto the date of payment;

(h) Issue necessary directions to the Society to comply with the proviso to Section 18 of the ‘KCS Act’ within the statutory time fixed;

(i) On taking possession of the sites, pursuant to cancellation of allotment or voluntarily surrender sites allotted, the Society is directed to allot the sites to its members, in accordance with the Byelaws and based upon the seniority of the member in the Society including to those who have lost the sites on account of reservation of some sites for civic amenities, open spaces as directed in the order dated 01.06.2016 in W.P.No.40994/2002; and

(j) In the event allottees disentitled to allotment of sites by the Society have created third party interest, it is for the Society to take action in accordance with law.

4. We may, at the outset, record that when this Court considered the matter for admission on 05.01.2017 following order was passed:

We hav
























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