IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 3 RD JUNE, 2016 PRESENT THE HON'BLE MR.JUSTICE RAM MOHAN REDDY AND

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1 1 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 3 RD JUNE, 2016 PRESENT THE HON'BLE MR.JUSTICE RAM MOHAN REDDY AND THE HON'BLE MR.JUSTICE H.BILLAPPA WRIT PETITION NO OF 2007(GM-KSR-PIL) BETWEEN: 1. MR. KEDAMBADI JAGANNATHA SHETTY SON OF K.P.N. SHETTY AGED ABOUT 73 YEARS R/AT NO.654, 10 TH CROSS, II STAGE, W.C ROAD, BANGALORE-86. (PETITIONER NO.1 DELETED VIDE ORDER DATED ) 2. MR. G.P. SHIVAPRAKASH SON OF PARAMASHIVAIAH FORMER JUDGE, HIGH COURT OF KARNATAKA AGED ABOUT 70 YEARS NO.1420, 8 TH MAIN, JUDICIAL LAYOUT OPP.JAKKUR FLYING SCHOOL, GKVK POST, BANGALORE-65.

2 2 3. MR M.P. CHINNAPPA SON OF PONNAPPA AGED ABOUT 65 YEARS FORMER JUDGE, HIGH COURT OF KARNATAKA NO.1419, 8 TH MAIN, JUDICIAL LAYOUT OPP.JAKKUR FLYING SCHOOL, GKVK POST, BANGALORE MR C CHANDRA MULESHWARACHARI SON OF CHENNACHARI.G AGED ABOUT 57 YEARS R/AT NO.5, 14 TH MAIN, JUDICIAL LAYOUT OPP, JAKKUR FLYING SCHOOL GKVK POST, BANGALORE MR G.R SACHIDANANDA SON OF G.L. RAMASIVAIAH AGED ABOUT 54 YEARS R/AT NO.1446, I MAIN, JUDICIAL LAYOUT OPP, JAKKUR FLYING SCHOOL GKVK POST, BANGALORE-65. (DELETED VIDE ORDER DATED ) 6. MR. CHANDRASHEKAR RODNAVAR S/O OF NEELAGIRIYAPPA AGED ABOUT 45 YEARS R/AT NO.1824,6 TH CROSS, JUDICIAL LAYOUT OPP, JAKKUR FLYING SCHOOL GKVK POST, BANGALORE MR N.A NARAYANAPPA SON OF LATE ANJANAPPA AGED ABOUT 64 YEARS R/AT NO.1734, 6 TH MAIN, JUDICIAL LAYOUT OPP, JAKKUR FLYING SCHOOL GKVK POST, BANGALORE MR T.S VIJAYA SON OF SIDDAPPA AGED ABOUT 60 YEARS

3 3 R/AT NO.1728, 6 TH MAIN, JUDICIAL LAYOUT OPP, JAKKUR FLYING SCHOOL GKVK POST, BANGALORE PETITIONERS (By Sri. DHYAN CHINNAPPA, SR. ADV.,) AND 1. KARNATAKA STATE JUDICIAL DEPARTMENT EMPLOYEES HOUSE BUILDING CO-OPERATIVE SOCIETY, REPRESENTED BY ITS SECRETARY 2. C SHIVALINGAIAH MAJOR FATHERS NAME NOT KNOWN TO PETITIONERS PRESIDENT (PETITION AGAINST R-2 STANDS ABATED VIDE ORDER DATED 10/10/2014) 3. C.M BASAVARYA MAJOR FATHERS NAME NOT KNOWN TO PETITIONERS HONORARY PRESIDENT AND DIRECTOR 4. M RUDRAIAH MAJOR, FATHERS NAME NOT KNOWN TO PETITIONERS VICE PRESIDENT AND DIRECTOR 5. KEMPA THIMMAIAH MAJOR, FATHERS NAME NOT KNOWN TO PETITIONERS TREASURER ALL AT SOCIETY BUILDING, NO.1018A,8 TH MAIN, JUDICIAL LAYOUT, OPP. JAKKUR FLYING SCHOOL, GKVK POST, BANGALORE-65.

4 4 6. THE REGISTRAR CO-OPERATIVE SOCIETIES ALI ASKAR ROAD, BANGALORE 7. STATE OF KARNATAKA REPRESENTED BY THE CHIEF SECRETARY VIDHANA SOUDHA, VIDHANA VEEDHI, BANGALORE.... RESPONDENTS (By SRI. SUBRAMANYA JOIS, SR. ADV., A/W SRI ANIL KUMAR, ADV., FOR R1 AND R3 TO R5; SRI. R. DEVDAS, PRL. GA, FOR R6 AND R7 PETITION AGAINST R2 STANDS ABATED V/O DATED ) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE CENTRAL BUREAU OF INVESTIGATION OR ANY OTHER INDEPENDENT INVESTIGATING AGENCY TO INVESTIGATE INTO THE IRREGULARITY AND ILLEGALITIES COMMITTED BY THE RESPONDENTS AND TO TAKE APPROPRIATE ACTION IN ACCORDANCE WITH LAW AND APPOINT AN ADMINISTRATOR OR ANY OTHER OFFICIAL TO MANAGE AND RUN THE AFFAIRS OF THE SOCIETY UNTIL A COMPLETE INVESTIGATION IS MADE OF THE AFFAIRS OF THE SOCIETY AND ETC. THIS PETITION HAVING HEARD AND RESERVED FOR ORDERS AND COMING ON FOR DICTATING ORDERS THIS DAY, RAM MOHAN REDDY, J., MADE THE FOLLOWING:

5 5 ORDER Petitioners, members of the 1st Respondent Karnataka State Judicial Department Employees House Building Co-operative Society, for short 'SOCIETY', some of whom have constructed houses in the sites allotted to them in the layout formed by the Society known as 'Judicial Layout'. Society is registered on under the Karnataka Co-operative Societies Act, and the Rules framed thereunder. The object of the Society is to acquire lands for formation of residential layout and allot residential sites to its members who are the employees of the Karnataka State Judicial Department and the High Court of Karnataka in accordance with the rules/regulations of the Bangalore Development Authority. At the request of the Society, the Government of Karnataka initiated acquisition proceedings to acquire 191 acres 31 guntas in various Survey numbers by Notification dated , under Section 4(1) of the Land Acquisition

6 6 Act, 1894, for short 'LA Act' and acquired 169 Acres and 12 Guntas of land in various Survey Numbers of Allalasandra, Chikka Bommasandra and Jakkur Plantation of Yelahanka Hobli, Bangalore North Taluk, pursuant to final notification dated , Annexure-'A' issued under Section 6(1) of the LA Act'. 2. Petitioners 1 to 3, former judges of the High Court of Karnataka and other petitioners also claim to be residents of the said layout having constructed houses in the sites allotted to them by the Society. 3. Petitioners are aggrieved by the omissions and commissions of the respondents, more particularly by the 1st respondent Society in committing various illegalities and irregularities as under: a) In inducting persons who are not the employees of the judicial department or Judges of the High Court of Karnataka as Associate members to the society and allotting sites to such associate members contrary to Bye law 10 of the Byelaws of the Society.

7 7 b) Releasing a portion of the land to the owners even though the lands were acquired and compensation was received by them, disobeying the order of the Division Bench of the High court. c) Selling corner sites contrary to the provisions of the Bye-Law of the society without following the Bangalore Development Act and allotment Rules made hereunder, Karnataka Co-operative Societies Act and Rules, provisions of Town and Country Planning Act etc., d) Allotting number of sites to the kith and kin of the present and past Directors, office bearers of the Society and other members of the Society. e) Allotting sites in Talgatpura Layout formed by the Society to the members who have been allotted sites in Judicial Layout and also outsiders depriving sites to other genuine members who do not have sites in any of the layouts. f) Selling the civic amenity sites adjacent to National High Way to various persons without prior approval of the general body clandestinely without even calling for sealed tenders etc., thereby causing heavy loss to the Society. g) Not utilizing the two storied building constructed for the purposes of housing the society office at Site No.1018, 8 th Main, Judicial Layout and for attempting to transfer/shift the same to another location.

8 8 h) Allotment of sites to the members ignoring the seniority of the genuine members. 4. Petitioners further state that various important issues which have come to light requires to be addressed and the illegalities committed by the Society for the benefit of its office bearers to the detriment of the members of the Society requires redressal. 5. According to the petitioners the Society when registered on having made representations to the State of Karnataka to acquire lands led to proceedings of the Special Deputy Commissioner under the 'LA Act', whence a few land owners by name Papaiah and Muniswamappa filed W.P.3995/1989 and 6156/1989 challenging the acquisition proceedings which was dismissed by Order dated of a learned Single Judge. The Society framed Byelaws Annexure- B duly certified by the Registrar of Co-

9 9 operative Societies. The State Government having prepared model byelaws for House Building Cooperative Societies, the Society adopted the same Annexure-C, whereunder a new class of membership known as 'Associate Members' was included and clause (10) of the Byelaws provided for a member to be entitled to a site if he or she is an employee of the Judicial Department and has put in a minimum of five years of service in Karnataka. The model Byelaws were deemed to be adopted by the Society during the year Legal representatives of Muniswamappa filed a Writ Appeal No.4283/1995 which was dismissed by a Co-ordinate Division Bench by order dated That matter when taken in Special Leave Petition, the proceeding was remitted to the Division Bench for consideration afresh. On a compromise petition though filed proposing to allot certain sites to the legal representatives of Muniswamappa, in the

10 10 Judicial Layout, was not accepted by the Division Bench as recorded in the Order dated , on the premise that such a compromise is not in the interest of the Society. The appellants thereafterwards filed a memo to withdraw W.A. 4283/1995 which was allowed by order dated It is asserted that the Society when arraigned as a party respondent in W.P.40994/2002 filed an affidavit disclosing the list of Associate Members and individuals to whom sites were allotted. 7. It is in the backdrop of aforesaid facts the petitioners have presented this petition broadly classifying the grounds thus: 1) Regarding inducting Members of the Society: According to the petitioners, the Society cannot create another class of members, namely Associate Members, and allot sites to such members, who are not part of the higher or subordinate judiciary and Byelaws have been illegally modified to include another class of membership. The Byelaws of the Society,

11 11 Annexure-B provides for only two classes of members viz., members and nominal members, whereas the model Byelaws Annexure-C included 'Associate Members'. The membership as available in the Byelaw Annexure-B and as provided in clause (7) reads thus: (7) Resident of Bangalore and having interest in the development of this Society, being the employee of the High Court of Karnataka, Bangalore, or the employee of any Court which is subordinate to the High Court and within the jurisdiction of the Society. The employees who had retired from service of judicial department and the Judges of High Court are also entitled to become members of Society. 8. In the model byelaws the qualification for membership at Byelaw No.6, it is said, states thus: any person who is above age of 18 years and who is competent under Section 11 of the Indian Contract Act, 1872 (Central Act 2/1872) and Byelaw No.20-A relating to Associate Member reads thus: An associate member may hold shares but shall not be entitled to become an officer

12 12 of the Society. He shall hold atleast one share. He shall have all the rights and privileges of member in the society except voting power. 9. Byelaw (10), it is said, reads thus: Right of members: All members shall be entitled to avail the benefits as per the objectives under byelaw No.4 subject to the condition, that a member shall be eligible for allotment of site/flat/house only if he fulfils the following requirements: a. He/she does not already own a site or a plot or house/flat/apartment in his/her own name or in the name of any other member his/her family in the corporation limits/development authority limits/municipality limits in whose limit the Society is situated (explanation: family means and includes husband, wife, sons having no independent source of income, unmarried daughters and person/persons dependent on the members). b. He/she is an employee of the Judicial Department and has put in a minimum continuous or intermittent service of five years in Karnataka.

13 It is the allegation that the office bearers of the Society inducted more than 400 persons as Associate members who were neither employees of the Judicial Department nor had the requisite qualification to become a member of the Society and in the process provided membership to the kith and kin of Directors and persons of their choice denying bonafide members of allotment of sites. It is the further allegation that the Associate Members having failed to comply with the eligibility norm under Byelaw No.4 were allotted sites. Petitioners support their claim on the basis of the affidavit and enclosures therein Annexure-D of Suresh Kumar, the Secretary which affidavit was filed in W.P.40994/ In addition it is alleged that most of the Associate Members or their spouse were owners of houses or sites in other House Building Cooperative Societies being members as such which fact was

14 14 suppressed and in respect of which no enquiry was conducted by the Society. Hence gross mismanagement caused grave harm to public interest, more so, since the sites were formed in the land acquired by the State Government for a public purpose for and on behalf of the Society. 2) Regarding allotment of Certain areas of Acquired property to the Owners: A) Property of J.M.Krishnappa: Land measuring 2 acres in Sy.No.4/P; 1 acre and 5½ guntas in Sy.No.3 belonging to J.M.Krishnappa situated in between Bangalore-Hyderabad National Highway and the Railway track when acquired, the owner questioned the acquisition in writ proceeding which was withdrawn. The Society, it is said, metalled approach road in the middle of the land leaving two portions on the either side and described the same in the layout plan as meant for future development. It is

15 15 the allegation of the petitioner that J.M.Krishnappa was put in possession of land measuring 500 ft x 60 ft although he had received the compensation and in which some person is carrying on commercial activity. Hence the action of the Society is mischievous. As regards the balance portion of the land, it is alleged that the Directors of the Society illegally disposed of the sites by way of sale although the General Body did not authorise the selling of sites to outsiders. The transactions, it is said, are illegal. B) Property belonging to late Subbaiah: Land measuring 12 acres comprised in Sy.No.90, 103/3 and 3/2 belonging to late Subbaiah when acquired and compensation paid, the Society, it is said, passed an illegal resolution to allot 34 sites of different dimensions in favour of Subbaiah and his legal representatives although the allottees were neither ordinary members nor associate members since the bye-law Annexure-B was not amended as on the date of

16 16 allotments. According to the petitioners, Annexure-E is a pamphlet enumerating the names of allottees and the dimensions of the sites so allotted. C) Property belonging to Papaiah and Muniswamappa: Land measuring 2 acre 30 guntas in Sy.No.91/5; 2 acres 39 guntas in Sy.No.92/2A belonging to Papaiah and Muniswamappa when acquired, Papaiah filed W.P.3995/1989, while Muniswamappa filed W.P.6156/1989 calling in question the acquisition proceedings. A learned Single Judge Sri.C.Shivappa J., by order dated Annexure-F dismissed the writ petition, while Writ Appeal 4283/1995 was dismissed by Coordinate Division Bench by order dated Papaiah did not question the order of the learned Single Judge and therefore, it is said, attained finality. Muniswamappa carried the order of the Division Bench to the Supreme Court in SLP (C) 398/1998, whence the petition was allowed and the

17 17 proceeding remitted to the Division Bench. On remand, it is stated that the appellants and the Society filed a compromise petition reporting settlement whereunder 13 sites were allotted to the family of Muniswamappa in addition to compensation paid for land acquired and therefore, a Division Bench by order dated Annexure-G declined to accept the compromise since it was not in the interest of Society and directed the same be placed for discussion and deliberation before the Executive Committee as well as General Body Meeting of the Society. That Appeal when listed on , a memo was filed to withdraw the appeal and an order was passed permitting the same although the deliberations of the General Body and that of the Executive Committee of the Society were not placed before the Court. C) Auction of corner sites: According to the petitioners Byelaw No.3 of Annexure-C, Model byelaws provides for jurisdiction

18 18 and area of operation to be confined to the territorial jurisdiction of Bangalore Development Authority, for short 'BDA'. It is asserted that in the absence of Rules relating to allotment of corner sites in the byelaws of the Society, it is the rules framed by the BDA in that regard that was to be followed. It is alleged that the Society issued pamphlets Annexure-K inviting bidders to purchase corner sites with a condition that the bidder should be a member of the Society who has not been allotted any site. It is the further allegation of the petitioner that the bids were not accepted and the auction cancelled. D) Allotting several sites to kith and kin: Society comprising of several Directors who have been allotted sites measuring 80 ft x 120 ft or 60 ft x 90 ft have got sites allotted to their children, close relatives etc., under the guise of Associate Members though these allottees are not employees of either the High Court of Karnataka or of lower judiciary. Some allotments made

19 19 in favour of the kith and kin and relatives of the Directors are tabulated in a statement and marked as ANNEXURE-L. E) Allotment of sites in the Kanakapura Layout to members already holding sites in Judicial Layout: Society formed a layout in Talaghatpura on Kanakapura Road, Bangalore to provide sites to various members of the Society who have not been allotted sites in Judicial Layout. It is the allegation that the Society clandestinely allotted or is making hurried attempts to allot sites to members who have already been allotted sites in Judicial Layout. F) Giving up land over which the Society was in possession: It is stated that Society with an intention to acquire the land bearing Sy.No.104/3 measuring 3 Acres and 20 Guntas situated in between the land acquired by the Government for the benefit of the members, after taking possession of the land filled up

20 20 the vast ditch and the same was included in the layout plan by forming road etc., It is further stated that since some persons attempted to trespass, the Society issued paper publication and instead of taking action to acquire the land delivered possession to the owners accepting a certain sum of money towards filling of ditch and allowed them to make use of the Road formed by the Society and the amount so paid was not accounted for. G) Use of Civic Amenity Sites in the Judicial Layout and absence of basic amenities: It is the allegation of the petitioners that some allottees have made use of the portion of the open place meant for park despite certain preliminary orders in the Writ Petition No.40994/2002 filed by the Judicial Layout Residents and Site Holders Association questioning preservation, protection and maintenance of parks, civic amenity sites and other open space in the Judicial Layout among other reliefs; and though a

21 21 Criminal Contempt case was instituted as CCC No.87/2004, allottees constructed the houses and some are attempting to complete the same and have made use of the portion of the open place meant for park for using it as their dumping ground, and have encroached storm water drain block the same. H) Failure of the Registrar of Co-operative Societies to take action: It is stated that the Society having adopted the model bye laws has failed to adhere to the same and not complied with the requirements of law, while the executive committee committed serious irregularities and illegalities, despite which the Registrar of Cooperative Societies has not taken action though brought to his notice by various member of the society on several occasions. 12. The reliefs in the petition read thus: a) Direct the Central Bureau of Investigation or any other independent investigating agency to investigate into the irregularity and illegalities

22 22 committed by the Respondents and to take appropriate action in accordance with law. b) Appoint an administrator or any other official to manage and run the affairs of the Society until a complete investigation is made of the affairs of the Society; c) Call for records in relation to the allotment of sites to Associate Members and details of individuals who have been inducted into the membership of the Society as Associate Members and a true and correct record of the sums of money collected from such Associate Members; d) Declare that the Bye Law No.5 (c) and Bye Law No.20 (A) of the Respondent No.1 Society as null and void being inconsistent with the object and purpose of the establishment of the Respondent No.1 Society and the Constitution of India; e) Declare the induction of all the associate members by the Respondent No.1 as illegal and cancel all the sites allotted to such associate members and issue a writ in the nature of mandamus directing the Respondent No.1 from inducting or permitting any allotment of sites to any person apart from a member of the Judicial

23 23 Department of the State in accordance with the objects of the Respondent No.1 and in terms of Bye Law No.10 of the Model Bye Laws of the Respondent No.1. f) Issue appropriate writ, order or directions prohibiting the society from allotting sites to any member who were allotted sites in the Judicial Layout in the new layout formed which is popularly known as Talagatpura Layout, and Kanakapura Road Layout, Bangalore or in any layout formed or proposed to be formed in future. g) Declare that the corner sites allotted to the various persons is against the bye law and the same may be directed to be cancelled and allotment of corner sites to be made by conducting public auction; h) Declare that sale deeds executed in respect of sites formed in the northern portion of Sy.No.4(p) are illegal and appropriate directions be issued to cancel the transactions as null and void. Further the allotment made to Krishnappa and his legal representatives be declared void and appropriate directions be issued to deliver vacant possession of the land in Sy.No.4(p) on the southern side of the road formed by the society connecting National High Way No.7 and the judicial layout.

24 24 i) Direct the Government to acquire the land bearing Sy.No.104/3 A-2 measuring 3 Acres 20 Guntas by following the procedure under Land Acquisition Act and Rules framed there under and deliver possession of the same to the Society. j) Pass any such other order(s) as this Hon ble Court deems fit and proper in the facts and circumstances of the case, with costs, in the interest of justice and equity. 12. Petition is opposed by filing statement of objections interalia denying the allegations while admitting the fact that Associate Members were admitted to the Society in terms of model byelaws. It is stated that the petition in the garb of public interest is not maintainable and is not filed probono publico. According to the Society, petitioners being beneficiaries of allotment of sites have no bonafides and have sought for the reliefs in the garb of public interest. In addition it is stated that without arraigning as respondents members who have been allotted sites and in whose

25 25 favour sale deeds conveying the sites are executed some twelve years in the past cannot maintain the petition. It is further stated that Byelaw 5(C) and 20(A) provide for induction of Associate Members and since majority of members are accepted the model byelaws since adopted by a resolution of the Society, same cannot be questioned. It is next stated that the grievances of the petitioners are more in the nature of disputes between the members and the society and hence, have an alternative and efficacious remedy of dispute resolution under Section 70 of the 'KCS Act'. The Society, it is said, is not a State within the meaning of Article 12 of the Constitution of India, hence no writ lies against the Society. It is asserted that in SUBRAMANI -vs- UNION OF INDIA 1, it is observed that allotments made contrary to Byelaws, cannot be called in question by invoking the writ jurisdiction under Article 226 of the Constitution 1 (AIR 1995 KAR 3139 paragraph 31)

26 26 and if two views are possible on the construction of the Byelaws, it is only guidelines of the Cooperative Societies and not a law that the Court can set-aside the allotment. 13. The allegations set out in the memorandum of writ petition are specifically denied. According to the respondent the order dated of the State Government Annexure-R1 directs the adoption of new model byelaws, while the Society by resolution Annexure-R2 adopted the model byelaws. It is stated that Annexure-R4 contains the details of the membership of the petitioners, the sites allotted, dates of registration of the sale deeds and the amount paid. As regards J.M.Krishnappa's land, Annexure-R5 is said to be the order dated in LAC No.221/1999 and the calculation of the compensation amount in Execution case No.1/2005 is at Annexure-R6. The RTC pahani Annexure-R7, in respect of Sy.No.4/P1 and

27 27 4/P2 measuring 2 acres for the year , it is said, was certified to stand in the name of the Society. It is further stated that the Registrar of Cooperative Societies issued a notice followed by an enquiry and a report dated Annexure-R8 pursuant to which the Society filed representations for cancellation of the sale deeds and therefore, the allegation that 35 sites were left over in favour of late Subbaiah was not true. The Society further states thus: It is true that the resolution has been passed to leave 34 sites but as a matter of fact 42 sites have been left. 14. The Registrar of Cooperative Societies, it is said, by order dated directed the Society not to alienate the sites Annexure-R As regards allotment of kith and kin, it is stated that the allegation was subject matter of enquiry under Section 64 of 'KCS Act', which, on enquiry, was

28 28 rejected. It is further stated that the Committee of Management of the Society was superseded pursuant to the enquiry dated and a report Annexure-R As regards the allegation over land in Sy.No.104/3A2 belonging to H.R.Hanumantha Raju, was not subject matter of acquisition by the State and that it remained agricultural land as evident from the RTC extract, Annexure-R11. It appears that the order of the State Government appointing an Administrator when called in question in W.P.2081/2008 was quashed by order dated Annexure-R In the Additional Statement of Objections of the Society filed on 11/11/2009, it is further contended that the Bye Laws registered on 11/8/1983 were altered and the Model Bye Law were adopted by the Society vide Amendment No.JRB/AMENDMENT/139/ dated

29 29 9/2/1994 which included Bye-Law No.5(c) and 29 (A). The Registrar of Co-operative Societies in exercise of his power U/S.30 of the Act vide order dated 22/3/1994 in No.HSG:258:HRS:92-93 ANNEXURE R-13 directed all the Housing Building Co-operative Societies to adopt this Model Bye-law so amended vide GO No.hud 29 MNJ 93 (P) ANNEXURE R-14. This order was challenged by Housing Co-operative Societies including 1 st Respondent Society in WP /1994 which came to be dismissed on 4/8/1997 ANNEXURE R-15. Since the Petitioners having knowledge of the adoption of the model bye-law have not challenged it, the said Amendment has attained finality, hence the delay of 15 years in filing the writ petition is fatal. 18. Petitioners filed on 5/2/2010 a rejoinder to the Statement of objections filed by the 1 st Respondent Society stating that the Judicial layout located at Bellary road was formed pursuant to acquisition

30 30 proceedings initiated by the Government for the public purpose of providing sites to the employees of the Karnataka Judicial Department, making the position clear that the public purpose behind the acquisition of lands was to ensure that the employees of the Judicial Department are allotted sites. The Division Bench in NARAYANA REDDY vs- STATE OF KARNATAKA 2 after considering the various illegalities committed by several societies concluded that where in the guise of allotment, sites are sold to either bogus members or in favour of intending purchasers by enrolling them as Associate Members for the purpose, and making money by those in-charge of the Societies is illegal. The Division Bench Judgment was upheld by the Supreme Court in HMT HOUSE BUILDING CO-OPERATIVE SOCIETY vs- SYED KHADER 3. The Bye Laws are 2 ILR 1991 KAR ILR 1995 KAR 1962

31 31 binding between the society and it members as stated in the dicta of the Supreme Court in CO-OPERATIVE CREDIT BANK vs- ADDITIONAL INDUSTRIAL TRIBUNAL 4 and therefore the contention that they are merely guidelines is completely without any legal foundation. With regard to the Maintainability, the Petitioners state that owing to the frittering away of assets of the Society to persons unconnected with the Judicial Department of the State, bonafide members who have satisfied all the requirements of the Bye Laws have been disentitled to sites and that there cannot be any greater public interest than in ensuring that the interests of all other persons are protected from the illegalities of the Society and its officer bearers. In determining the question of public interest, it is trite to consider the issues raised and the relative importance of the said issues. In ALL INDIA MANUFACTURERS 4 AIR 1970 SC 245

32 32 ORGANISATION vs- STATE OF KARNATAKA, it is said, this Court accepted an extreme position that even where a person has been put up by one of the interested parties as a public interest litigant, if there was larger public interest, a court could interfere in a public interest petition, which was approved by the Supreme Court in STATE OF KARNATAKA vs- ALL INDIA MANUFACTURERS ORGANISATION With regard to the alternative remedy under 'KCS Act', the petitioners state that they are the representatives of public seeking redressal of obvious illegalities. Section 70 of the Act can be resorted to in specific cases by a person who is aggrieved and hence petition is initiated in public interest, which is not merely a question involving the management of the Society but of frittering away land acquired for a public purpose. It is settled law that the alternate remedy is 5 (2006)4 SCC 683 Para 64

33 33 a rule of convenience and not a rule of law, and the extraordinary jurisdiction of this court is never whittled by the existence of an alternate remedy. 20. Having heard the learned Senior counsel for the parties, perused the pleadings, the first submission of the learned Senior counsel for the Society that the writ petition is not maintainable as a public interest litigation and since no writ lies against a Cooperative Society is far from acceptance. The Apex Court in VIPULBHAI M.CHAUDHARY -vs- GUJARAT COOPERATIVE MILK MARKETING FEDERATION LIMITED AND OTHERS 6 having considered the definition of 'Co-operative' in the International cooperative Alliance Statement on the Cooperative Identity adopted in Manchester, United Kingdom on coupled with the constitutional aspirations on the concept of cooperative Societies after the 97 th 6 (2015) 8 SCC 1

34 34 amendment to the Constitution of India w.e.f , has set out in the statement of objects and reasons when read in conjunction with Part-IX-B of the Constitution and Articles 243ZH, 243-ZJ and 243-ZT observed at paragraph 14 thus: 14. The cooperative societies having been conferred a constitutional status by the 97 th amendment, the whole concept of cooperatives has undergone a major change. In 1993, the local self governments, viz., Panchayats and Municipalities were also given constitutional status under part IX and IX-A of Constitution of India by the 73 rd and 74 th amendments. The statement of objects and reasons would show that the Constitution wanted the local bodies to function as vibrant democratic units of self government. After two decades, cooperative societies were given the constitutional status by including them under part IX-B. The main object for the said amendment was also to ensure 'they are autonomy, democratic functioning and professional management'. At paragraph 42, it was observed thus: 42. It may be seen that all these decisions

35 35 dealt with the pre-ninety-seventh amendment status of the cooperative societies. The amendment providing constitutional status to the societies has brought out radical changes in the concept of cooperative societies. Democratic functioning and autonomy have now become the core constitutional values of a cooperative society. Such societies are to be registered only if they are founded on cooperative principles of democracy, equality, equity and solidarity. 21. In the light of the aforesaid decision of the Apex Court, the submission that a writ petition against a cooperative society is not maintainable, deserves rejection. 22. Although it is argued that the decision in Subramani s case (supra 1 ), at paragraph 15 of the

36 36 Judgment that there were two sets of Bye-laws but was accepted by the learned counsel, as applicable to the facts of the case was the Byelaws framed in 1983 since the Model Bye-laws were stayed by the Court, coupled with the finding at paragraph 26 that there is a public purpose in acquiring lands for providing house sites to employees of the Judicial Department, nevertheless declined to accept the plea that allotment of 39 sites to Judges by the Society would not vitiate the entire acquisition proceedings. At paragraph 31, it is observed that Clause (7) of the Bye-laws by no stretch of imagination could include the Judges of the High Court or Supreme Court (sitting, transferred or retired) and assuming for a moment certain Judges have been allowed to become members of the Society, it may be an irregularity in the conduct of the business of the Society. It is further observed that while exercising jurisdiction under Article 226 of the Constitution the Court cannot go into the question of allotment of sites to

37 37 Judges since no writ lies against a Co-operative Society as it is not a State under Article 12 of the Constitution. It is in this backdrop that the Division Bench did not exercise jurisdiction under Article 226 of the Constitution. 23. Regard being had to the decision of the Apex Court in Vipulbhai s case (supra 6 ) and the changed circumstances of amendment of the Constitution of India, in our opinion, the decision in Subramani s case (supra 1 )to decline interference by exercise of Article 226 of the Constitution is inapplicable. 24. A feeble attempt is made that the petitioners having asserted to be persons aggrieved hence not probono publico, coupled with the nature of omnibus reliefs, petition is not maintainable. It must be noticed that the first three petitioners were Judges of the Court holding constitutional positions, would have a duty cast

38 38 to bring to fore illegalities committed by the Committee of Management of the Society in the matter of allotment of sites and induction of Associate members contrary to the KCS Act and Model Bye-laws framed by the State. In CO-OPERATIVE CREDIT BANK S CASE (supra 4 ), the Supreme Court noticing that the Bye-laws are binding between the Society and its members, declined to accept the contention that they are merely guidelines. The fritting away of valuable assets of the Society to persons unconnected with Judicial Department of the State while bonafide members satisfying all the requirements of Bye-laws when not allotted sites, as alleged in the petition, it cannot be said that there is no greater public interest which required to be protected. The lis brought before Court, raises relative importance in public interest. In ALL INDIA MANUFACTURING ORGANISATION S case (supra 5 ), an extreme position was accepted that even where a person has been put up by one of the interested parties as a public interest

39 39 litigant, if there was larger public interest, Court could interfere in a Public Interest Litigation. In that view of the matter, it cannot be said that the petitioners were not acting probono publico. The further submission that the petitioners having not made a demand and there being no refusal of the Society having no legal right, a writ of mandamus cannot ensue, and further an alternative remedy is available, cannot be countenanced having regard to the fact that the Office bearers of the Society having violated the rule of law cannot be heard to contend that they should have been notified before hand. As regards alternative remedy, it is well established law that it cannot be an embargo for the exercise of extraordinary writ jurisdiction if illegality is palpable from the pleadings, particularly in the light of admissions by the Society in its pleadings. 25. Learned counsel for the parties submit that the substantial disputes between the parties are as set out in the comparative statement of averments in the

40 40 petition and response in the statement of objections which reads thus: COMPARATIVE STATEMENT OF AVERMENTS IN THE PETITION AND RESPONSE IN THE STATEMENT OF OBJECTIONS Property allotted to J.M. Krishnappa: 9.1. Under the acquisition proceedings among other areas, as stated earlier, the Land Acquisition officer also delivered possession of Sy.Nos 4 (p) admeasuring about 2 acres, Sy No.3 measuring about 1 acre and 5 ½ guntas and Sy.No.4 (p) measuring about l acre 12 guntas of land. One J.M. Krishnappa, the owner of the land bearing Sy.No 4 (p) measuring 2 acres situated in between the Bangalore and Hyderabad National High way and the railway track, filed a writ petition questioning the acquisition of his land but the writ petition was subsequently withdrawn. Thus acquisition of this land had become perfectly valid. The Society has formed a metalled approach road leading to the layout from the National High Way No 7 almost on the middle of this land leaving two portions on either side of this approach road as shown in the layout plan for Paragraph 14: It is submitted that 2 acres of Mr. J.M. Krishnappa's land has been acquired out of which 25 guntas has been utilised for the formation of the road. It is submitted that the balance is still vacant. It is submitted that the balance is still vacant. It is submitted that LAC No. 221/1999 was filed by him for grant of compensation under Section 30 and 31(2) of the Land Acquisition Act. It is submitted that the reference court was pleased to hold that he is entitled for a compensation of Rs. 1,96,800/- with an interest of 9% from the date of taking possession of the acquired land for a period of one year and thereafter entitled for 15% interest per annum till deposit. The copy of the order dated passed in LAC No. 221/1999 is enclosed herewith as Annexure R-5. It is submitted that subsequently

41 41 future development. It is reliably learnt that a portion of the land lying on the left side of this road as one enters the layout from the National High Way i.e., on the southern side, approximately measuring 500 feet x 60 feet is said to have been handed over to the said J.M. Krishnappa. The said Mr. Krishnappa has already received compensation. That being the position, the society could not have allowed the said Krishnappa to occupy the land and the Society had no jurisdiction to release the same in his favour. The said portion of land has been now given to some other person to run a Dhaba in that land by Krishnappa. This was done obviously for favour and consideration. Execution Case No. 1/2005 came to be filed for recovery of a sum of Rs. 1.38,500/- pursuant to which the society deposited the said amount before the Court of City Civil Judge at Bangalore in execution case No. 1/2005. The copy of the memo for having paid the said amount is enclosed herewith as Annexure R6. It is submitted that the RTC of Sy. No. 4P to an extent of 2 acres is standing in the name of the respondent society. The copy of the RTC extracts of Sy No. 4/p1 and 4/p2 measuring 2 acres for the period is enclosed herewith as Annexure R It is further submitted that the other portion in Survey No 4 (P) lying on the right hand side as one enters the layout from the National highway i.e. Northern side of the land has been in possession of the society till recently. The society has made this portion into sites and some sites were sold to the public without even calling for tenders or publishing the proposed sale in the news papers and other media for the information of the general public. These sale transactions were clandestinely done by some of the Directors of the Society

42 42 which action is contrary to the provisions of the Land Acquisition Act. The land is extremely valuable as it abuts National Highway No.7. However, transactions on paper show the subsidized value at which members are allotted sites. This route is adopted to make money at the cost of the interests of the Society and its members. It is learnt that the general body has not even been authorized to sell the site to outsiders the entire transaction is illegal, opposed to bye laws of the society and the sales are liable to be set aside as void ab initio. Property belonging to Late Subbaiah: 9.3 The lands bearing Survey Numbers 90 Sy No,103/3, SyNo 3/2 and another Survey number in all measuring about 12 acres belonging to one Late Subbaiah and his sons of Allalasandara and Iakkur plantation Village were acquired by the Government for formation of judicial layout in accordance with law. After completing the acquisition proceedings compensation was paid to the owners. Thereafter the Society illegally passed a resolution to allot 34 sites in favor of Subbaiah and his legal representatives of different dimension as detailed hereinafter. With regard to the averments mentioned in para 9.3 the Registrar of Cooperative Societies was pleased to issue notice pursuant to which enquiry was done and a report under Section 68 was submitted on The copy of the report dated of the Joint Registrar of Cooperative Societies Bangalore is enclosed herewith as Annexure R-8. Pursuant to the same the Respondent herein filed for cancellation of the sale deeds.

43 43 These allottees are neither ordinary member nor they are even associate members of the society. Even the bye law was not amended when these sites were given to them. In this connection a pamphlet was published during the election indicating the names of the allottees and dimension of the sites allotted which is hereby produced and marked as Annexure E. 8 sites, measuring 80' x 120 feet. 2 sites, measuring 50' x 80 feet 24 sites, measuring 40' x 60 feet. From this it is clear that these allottees are enriched by securing large number of well developed sites at the cost of the society and they are now millionaires at the cost of the other valid members of the Society and such approach is contrary to well established principles of acquisition. Needless to say that the said erstwhile owners of land have also taken compensation for the entire land as such they are not entitled for any site from the society since they are not its members. It is also not known whether they paid the value of the sites allotted to these persons. All this has resulted in colossal loss to the Society and to its members. It is submitted that the Registrar of Co-operative Societies was pleased to pass the order directing not to alienate the sites in question. It is not correct to state that 35 sites have been left in favour of Late Subbaiah. It is true that the resolution has been passed to leave 34 sites but as a matter of fact, 42 sites have been left. It is submitted that subsequently the society has taken steps not to do the same as the same was not in the interest of the members of the Society. The copy of the order passed by the Additional Registrar of Co-operative Societies dated is enclosed herewith as Annexure R9. Property belonging to Papaiah and Muniswamappa:

44 The Government acquired among other properties, Survey No 91/5 measuring 2 acres 30 guntas and Sy.No. 92/2A measuring 2 acres 39 guntas, 5 guntas of kharab and 3 guntas out of which 1 gunta kharab and 1 acre 22 guntas out of which 3 guntas are kharab belonged to one Papaiah and one Muniswamappa. Subsequently Papaiah filed a writ petition bearing No.3995/1989 and Munswamappa filed W.P. No 6156/1989 questioning the acquisition of their properties referred to above raising the contention that Section 6(1) notification was beyond one year of the Section 4(1) notification and that the award was passed beyond 2 years after the Section 6(1) notification and therefore in view of Section 11 of the Land Acquisition Act, the entire proceedings of acquisition of the land stood lapsed. In the petition the said Papaiah and Munswarnappa arrayed the State Government, Deputy Commissioner, Land Acquisition Officer and the Society herein as parties. During pendency of the writ petition Munswarnappa expired and hence his legal representatives were brought on record. It is submitted that with regard to the property belonging to Papaiah the lands which have been acquired by the Government have not been left in his favour. As there were certain disputes. Out of the total extent of 4 acres 2 acres of unacquired land which was south to be purchased by way of agreement has been left out in his favour in order to amicably settle the matter. With regard to the property of Muniswamappa it is true that 13 sites have been left to him in order to amicably resolve the dispute and in order to avoid future litigation/ The motive attributed to the Society and the averments in paragraph 9(8) of the writ petition is totally baseless and the same is hereby denied. The order dated which has been referred to in Annexure J to the writ petition cannot be questioned in the present petition. The statements contained in paragraph 9(8) of the petition that "both the parties to the Writ Appeal No. 4283/1995 committed criminal contempt of this Hon'ble Court and "they are liable to be proceeded for contempt of the court" it is regretted, cannot also be

45 The learned single Judge of the Hon'ble Court vide order dated was pleased to reject both the grounds raised by the petitioners therein and consequently dismissed both the petitions by a common order. Copy of the order is marked as Annexure F. The said order was questioned by the legal representatives of the deceased Muniswamappa in W.A.4283/1995 and the said writ appeal was dismissed by the Division bench vide order dated: on the ground of delay. At this stage it is relevant to mention that Papaiah did not question the order of the Learned Single Judge dated Therefore the order of the learned Single Judge has attained finality so-far as Papaiah was concerned. countenanced, in as much as the professed public interest writ petition cannot be converted into a criminal contempt petition for which even a period of limitation is prescribed under the Contempt of Court Act, Therefore at this distance of time, the petitions cannot, in a collateral proceeding question an order passed on However the order of the Division Bench dated was thereafter questioned before the Supreme Court in SLP No (c) 398/1998 and the Hon'ble Supreme Court was pleased to set aside the impugned order and directed this Hon'ble Division Bench to decide the W.A.4283/95 on merits 9.7 It is submitted that the W.A.4283/95 was hence restored on the file of Hon'ble Court and the case was posted for hearing on merits. At that stage the

46 46 Appellants and the Society, filed a compromise application reporting settlement of the dispute and sought leave of the Court for disposal of the matter in terms of the compromise application. On this compromise application the Division bench passed an order on , the operative portion of which reads as under. "There are 9 legal representatives and they could be allotted only one Site in lieu of the land acquired from Muniswamappa. We fail to understand as to how 13 sites are being allotted in lieu of the claim made by Muniswappa in addition to the compensation paid for the land acquired. We decline to record the compromise as it is not in the interest of the Society. Copy of this order be placed for discussion and deliberation before the executive committee as well as before the General Body meeting of the Society. " The order of the division bench dated is produced herewith as Annexure G It is pertinent to mention that the said direction was not complied with and the matter was not posted before this Hon'ble Court for some time. On , the case was posted before the division bench of this Hon'ble Court wherein one of the appellants, Shri Marigowda filed a memo of withdrawal of the appeal

47 47 reporting that the matter was settled out of Court and requesting the Court to dismiss the appeal as withdrawn. The copy of the said memo dated is produced herewith as Annexure H. This Hon'ble court was pleased to take the memo on record and dismissed the writ Appeals as withdrawn. The said order dated is produced as Annexure J. This order came to be passed by the division bench as the earlier order was not brought to the notice of the division bench where the said appellant also was a party to the compromise application and there is nothing to indicate that the order dated was complied with. On the other hand the Petitioners have come to know that the earlier compromise was given effect to by allotting 13 sites to the legal representatives of Muniswamappa which was declined to be recorded by the Division bench as referred to above. This was done deliberately with a view to avoid the directions of the Division Bench. Thereby both the parties to the W.A.4283/95 committed criminal contempt of this Hon'ble High Court. They are liable to be proceeded for contempt of the Court. This shows the conduct of the President, Secretary and other Directors of the Society in suppressing the material

48 48 particulars from the Court. 11. Allotting several sites to the kith and kin of Directors: 11.1 The Society is comprised of several directors who are in charge of the day to day management of the affairs of the Society. Each of the directors have been allotted sites measuring 80x 120' or 60x90' dimensions in the Judicial Layout. In addition to the sites allotted to the President, Vice President, Secretary / Clerk and some of the Directors got allotted sites to their children and close relatives of different dimensions in the Judicial Layout under the guise of Associate members, though these allottees are not employees either of the High Court or of the lower judiciary. Some of the members got allotted sites in their names, sold the same for higher price and got allotted sites in the name of their kith and kin thereby depriving the benefits to other needy members. Some of the allotments which is believed to have been made in favour of the kith and kin and relatives of the Directors are tabulated in a statement which is produced herewith as Annexure- K. These allotments are against bye-law of the society and the Co- Operative Societies Act & rules which deserve to be set aside. 16. Regarding Para 11.1 The statements contained in paragraph 11.1 being too vague to be either countenanced or dwelt upon undelivered by the Society for want of details and particulars thereof it is respectfully submitted that the Society is unable to deal with the said contents for want of the required particulars. Such an allegation of allotment to kith and kin was also the subject matter of the enquiry under Section 64 of the Act, and has been rejected as unfounded. The petitioners are fully aware of the same. It is submitted that a detailed enquiry has been conducted against the respondent society and various aspects including the alleged allotment of sites to kith and kin of the members of the respondent society and the respondent society was superceded pursuant to the enquiry dated The copy of the enquiry report dated is enclosed herewith as Annexure R-10. As can be seen from page no. 23, allegation No.6 of the report dated , it has been