Karnataka High Court
The Touheed Co-Operative Housing ... vs Chandrashekar S/O Gurusiddappa Sullad on 20 March, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2024:KHC-D:5578
WP No. 65396 of 2012
C/W WP No. 68399 of 2011, WP No. 14629
of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 65396 OF 2012 (ULC)
C/W
WRIT PETITION NO. 68399 OF 2011 (KLR - RES)
WRIT PETITION NO. 14629 OF 2012 (ULC)
IN W.P.No.65396/2012
BETWEEN:
THE TOUHEED CO-OPERATIVE
HOUSING SOCIETY,
SHANTINIKETAN BHAIRIDEVARAKOPPA,
HUBLI, REPRESENTED BY SECRETARY,
GUDUKHAN,
S/O GUDAKHAN KARALAHALLI,
AGE: 69 YEARS,
OCC: SECRETARY,
THE TOUHEED CO-OPERATIVE
HOUSING SOCIETY,
SHANTINIKETAN BHAIRIDEVARAKOPPA,
HUBLI DISTRICT, DHARWAD.
Digitally signed
by R ...PETITIONER
HEMALATHA (BY SRI.ASHOK HARANAHALLI, SENIOR COUNSEL FOR
Location: HIGH SRI.VISHWANATH HEGDE, ADVOCATE)
COURT OF
KARNATAKA
AND:
1. CHANDRASHEKAR,
S/O GURUSIDDAPPA SULLAD,
AGE: 63 YEARS,
OCC: R/O GANESHPET,
BINDARAGI ONI, HUBLI,
DIST: DHARWAD.
2. MANOHAR,
S/O GURUSIDDAPPA SULLAD,
AGE: 60 YEARS,
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WP No. 65396 of 2012
C/W WP No. 68399 of 2011, WP No. 14629
of 2012
OCC. R/O GANESHPET,
BINDARAGI ONI, HUBLI,
DIST: DHARWAD.
3. PRAKASH,
S/O GURUSIDDAPPA SULLAD,
AGE: 57 YEARS,
DECEASED
REPRESENTED BY LRS.,
3a. SHOBHA,
W/O LATE PRAKASH SULLAD,
AGED 52 YEARS,
OCC: HOUSEWIFE,
R/O GANESHPET, BINDARAGI ONI,
HUBLI.
3b. NIRMALA H PATIL,
D/O LATE PRAKASH SULLAD,
AGED 32 YEARS,
OCC: HOUSEWIFE,
R/O GANESHPET, BINDARAGI ONI,
HUBLI.
3c. SHILPA P SULLAD,
AGED 29 YEARS,
OCC: BUSINESS,
R/O GANESHPET, BINDARAGI ONI,
HUBLI.
3d. PAVAN P SULLAD,
AGED 25 YEARS,
OCC: BUSINESS,
R/O GANESHPET, BINDARAGI ONI,
HUBLI.
4. NIJALINGAPPA,
S/O GURUSIDDAPPA SULLAD,
AGE: 55 YEARS,
R/O GANESHPET, BINDARAGI ONI,
HUBLI, DIST: DHARWAD.
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WP No. 65396 of 2012
C/W WP No. 68399 of 2011, WP No. 14629
of 2012
5. SHANMUKAPPA,
S/O GURUSIDDAPPA SULLAD,
AGE: 51 YEARS,
R/O GANESHPET, BINDARAGI ONI,
HUBLI, DIST: DHARWAD.
6. STATE OF KARNATAKA,
REPRESENTED BY SECRETARY,
DEPARTMENT OF URBAN DEVELOPMENT,
VIDHANA SOUDHA,
BANGALORE - 01.
...RESPONDENTS
(BY SRI.UMASHANKAR M.N., ADVOCATE FOR R1 - R5;
SRI.ASHOK T KATTIMANI, AGA FOR R6)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO: A] QUASHING THE
IMPUGNED ORDER PASSED BY RESPONDENT NO.6 DATED
03.04.2012 PRODUCED AT ANNEXURE - M IN SO FAR AS IMPLIED
REFUSAL TO ALLOT THE LANDS MEASURING 27 ACRES AND 5
GUNTAS COMPRISED IN SY.NO.7, 5A/3B1 AND 5A/3B/2 OF
BOMMAPURA VILLAGE TQ.HUBLI COVERED BY THE EXEMPTION
ORDER DATED 17.08.87 VIDE ANNEXURE-A AND ETC.,
IN W.P.No.68399/2011
BETWEEN:
1. CHANDRASHEKHAR GURUSIDDAPPA SULLAD,
AGE: 63 YEARS,
OCC: AGRICULTURE,
R/O GANESHPETH,
BINDARAGI ONI, HUBLI,
2. MANOHAR GURUSIDDAPPA SULLAD,
AGE: 60 YEARS,
OCC.:AGRICULTURE,
R/O GANESHPETH,
BINDARAGI ONI, HUBLI,
HUBLI.
3. PRAKASH GURUSIDDAPPA SULLAD,
AGE: 57 YEARS,
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WP No. 65396 of 2012
C/W WP No. 68399 of 2011, WP No. 14629
of 2012
DECEASED
REPRESENTED BY LRS.,
3a. SHOBA,
W/O PRAKASH SULLAD,
AGED 52 YEARS,
OCC: HOUSEWIFE AND AGRICULTURE,
3b. SMT. NIRMALA H PATIL,
AGED 32 YEARS,
OCC: HOUSEWIFE (DAUGHTER),
3c. SHILPA,
D/O PRAKASH SULLAD,
AGED 29 YEARS,
OCC: STUDENT,
3d. PAVAN,
S/O PRAKASH SULLAD,
AGED 25 YEARS,
OCC: AGRICULTURE,
ALL ARE R/O GANESHPET, BINDARAGI ONI,
HUBLI - 580 020.
4. NIJALINGAPPA GURUSIDDAPPA SULLAD,
S/O GURUSIDDAPPA SULLAD,
AGE: 55 YEARS,
OCC: AGRICULTURE,
R/O GANESHPET, BINDARAGI ONI,
HUBLI.
5. SHANMUKHAPPA GURUSIDDAPPA SULLAD,
S/O GURUSIDDAPPA SULLAD,
AGE: 52 YEARS,
OCC: AGRICULTURE,
R/O GANESHPET, BINDARAGI ONI,
HUBLI.
...PETITIONERS
(BY SRI.S.K.KAYAKAMATH, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY
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WP No. 65396 of 2012
C/W WP No. 68399 of 2011, WP No. 14629
of 2012
TO REVENUE DEPARTMENT
(SURVEY SETTLEMENT AND LAND RECORDS),
VIDHANA SOUDHA,
BANGALORE.
2. THE JOINT DIRECTOR OF
LAND RECORDS,
BELGAUM DIVISION,
D.C.OFFICE COMPOUND,
BELGAUM.
3. TECHNICAL ASSISTANT TO THE
DEPUTY COMMISSIONER,
LAND SURVEY AND DESIGNATED
DEPUTY DIRECTOR OF LAND RECORDS,
DDLR OFFICE, K.C.PARK,
DHARWAD.
4. ASSISTANT DIRECTOR OF LAND RECORDS,
CITY SURVEY OFFICE,
MINI VIDHAN SOUDHA,
HUBLI.
5. THE TOHEED CO-OP. SOCIETY LTD.,
TABIB LAND, KULKARNI HAKKAL,
NEAR MADANI MASJID,
REPRESENTED BY ITS SECRETARY,
SRI.G.G.KORLAHALLI,
AGE: MAJOR,
OCC:BUSINESS,
R/O HUBLI.
...RESPONDENTS
(BY SRI.MALLIKARJUNSWAMY B HIREMATH AND
SRI.VISHWANATH HEGDE, ADVOCATES FOR R5;
SRI.ASHOK T KATTIMANI, AGA FOR R1 TO R3;
PETITION AGAINST R4 IS DISMISSED VIDE
ORDER DATED 21.08.2012)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO: A. SET ASIDE THE ORDER
DATED 24.11.2011 PASSED BY THE TECHNICAL ASSISTANT TO
THE DEPUTY COMMISSIONER, LAND SURVEY AND DESIGNATED
DEPUTY DIRECTOR OF LAND RECORDS, DHARWAD I.E., 3RD
RESPONDENT VIDE ANNEXURE - J AND ETC.,
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NC: 2024:KHC-D:5578
WP No. 65396 of 2012
C/W WP No. 68399 of 2011, WP No. 14629
of 2012
IN W.P.No.14629/2012
BETWEEN:
1. SRI.CHANDRASHEKHAR GURUSIDDAPPA SULLAD,
S/O GURUSIDDAPPA SULLAD,
AGE: 59 YEARS,
2. MANOHAR GURUSIDDAPPA SULLAD,
S/O GURUSIDDAPPA SULLAD,
AGE: 53 YEARS,
3. PRAKASH GURUSIDDAPPA SULLAD,
S/O GURUSIDDAPPA SULLAD,
SINCE DECEASED BY HIS LRS.,
3(i). SMT. SHOBA,
W/O LATE PRAKASH GURUSIDDAPPA SULLAD,
AGED 52 YEARS,
OCC: HOUSEWIFE,
3(ii). SMT. NIRMALA H PATIL,
AGED 32 YEARS,
D/O LATE PRAKASH GURUSIDDAPPA SULLAD,
OCC: HOUSEWIFE,
3(iii). KUMARI SHILPA P SULLAD,
D/O LATE PRAKASH GURUSIDDAPPA SULLAD,
AGED 29 YEARS,
STUDENT,
3(iv). SRI. PAVAN P SULLAD,
S/O LATE PRAKASH GURUSIDDAPPA SULLAD,
AGED 25 YEARS,
AGRICULTURIST,
4. NIJALINGAPPA GURUSIDDAPPA SULLAD,
S/O GURUSIDDAPPA SULLAD,
AGE: 53 YEARS,
5. SHANMUKHAPPA GURUSIDDAPPA SULLAD,
S/O GURUSIDDAPPA SULLAD,
AGE: 51 YEARS,
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NC: 2024:KHC-D:5578
WP No. 65396 of 2012
C/W WP No. 68399 of 2011, WP No. 14629
of 2012
(PETITIONERS 1 TO 5 ARE
R/AT GANESHPET, BINDARAGI ONI,
HUBLI - 580 020.
...PETITIONERS
(BY SRI.UMASHANKAR M.N., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY ITS UNDER SECRETARY
TO GOVERNMENT OF KARNATAKA,
URBAN DEVELOPMENT DEPARTMENT,
M.S.BUILDING,
DR.AMBEDKAR VEEDHI,
BANGALORE - 560 001.
2. THE DEPUTY COMMISSIONER,
DHARWAD,
DHARWAD DISTRICT - 580 018.
3. THE THASHILDHAR,
HUBLI TALUK,
HUBLI - 580 020.
4. THE TOUHEED CO-OPERATIVE
HOUSING SOCIETY,
SHANTINIKETAN,
BAIRIDEVARAKOPPA, HUBLI.
BY ITS SECRETARY.
...RESPONDENTS
(BY SRI.ASHOK T KATTIMANI, AGA FOR R1 TO R3;
SRI.K.S.PATIL, ADVOCATE FOR R4)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS
OF THE PROCEEDINGS OF THE 1ST RESPONDENT IN
GOVERNMENT ORDER DATED 03.04.2012 AND AFTER EXAMINING
THE SAME, QUASH AND SET ASIDE THE ORDER DATED 03.04.2012
IN GOVERNMENT ORDER PASSED BY THE 1ST RESPONDENT AT
ANNEXURE - A AND ETC.,
THESE PETITIONS, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 65396 of 2012
C/W WP No. 68399 of 2011, WP No. 14629
of 2012
ORDER
The parties are referred to the respective rankings in WP No.68399/2011.
2. The petitioners who are the owners of the land bearing Sy.Nos.07, 5A/3B1 and 5A/3B/2, totally measuring 27 acres 5 guntas both situated at Bommapura Village, Hubballi Taluk, Hubballi had filed an application under Section 20(1)(a) of the Urban Land (Ceiling and Regulation) Act, 1976 (for short 'the Act, 1976') for exempting the subject land from the provisions of Chapter 3 of the Act, 1976.
3. Then the Competent Authority, by order dated 17.09.1987, acceded to the request of the petitioners, and exempted the applicability of the provisions of Chapter-3 of the Act, 1976, subject to following conditions:
"(i) That the land should be sold to the said society within six months;
(ii) That the land should be got converted for non-agriculture purposes before it is being sold;
(iii) That the land should be got converted into residential sites and be allotted to the members of the society only;
(iv) That the approval of Hubli-Dharwad Development Authority and that the land use be made strictly in accordance with the comprehensive plan etc.,"
4. Thereafter, on the request of the petitioners, the competent authority permitted the change of usage of the land from agricultural purpose to residential purpose on 06.02.1992 as stated under Section 14- A of the Karnataka Town and Country Planning Act.
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5. The respondent No.5 i.e. The Touheed Co-operative Housing Society filed a suit in O.S.No.55/1993 for specific performance of the agreement of the sale executed by the petitioner in favour of the society, and the suit was decreed on 06.03.1995 directing the petitioners to execute the sale deed in favor of the society in respect of the subject land.
6. Respondent Nos.1 to 5 filed regular appeal in RFA No.265/1995 before this Court, and this Court by judgment dated 20.12.2007 allowed the appeal, and set aside the decree passed by the Trial Court and the same was up-held by the Hon'ble Supreme Court by order dated 15.04.2008 in SLP.No.5363/2008, and the petitioner was directed to return the advance sale consideration.
7. In pursuance of the decree, the petitioners assert that they have deposited entire advance sale consideration before the Trial Court.
8. Given the circumstances, the Government of Karnataka by impugned order dated 03.04.2012 directed the Deputy Commissioner, Dharwad to initiate acquisition of land under Section 10 of the ULC Act, 1976, by resorting to Section 6 of the General Clauses Act. Taking exception of the same, this petition is filed.
9. Learned counsel for the petitioners submits that the ULC, Act, 1976 was repealed by Repeal Act, 1999 with effect from 18.03.1999 and the lawful possession of the subject land having not been taken under Section 10(6) of the ULC Act, 1976, the respondent No.1 has committed an error in passing the impugned order by resorting to Section 6 of the General Clauses Act. He further submits that, as on the date when the ULC Act was repealed, the order passed under Section 20 of the Act, 1976 was not in subsistence. Therefore, in the absence of any provisions to initiate acquisition under Section 10 of the Act, 1976 which
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NC: 2024:KHC-D:5578 WP No. 65396 of 2012 C/W WP No. 68399 of 2011, WP No. 14629 of 2012 has been repealed with effect from 18.03.1999, the impugned order passed by the State Government lacks authority.
10. Sri. Ashok Haranahalli, learned Senior Counsel representing petitioner argues that the order was passed under Section 20 of the ULC Act 1976 with a condition that the subject land which is a excess land was to be conveyed in favour of the Society for formation of the sites and the sites to be allotted in favour of the members. He further submits that the power to grant exemption carries the power to withdraw the exemption and the order of granting exemption under Section 20 of the ULC Act is saved under Section 3(1)(b) of the Repeal Act, 1999. Therefore, the Government in exercise of the power under Section 20 of the ULC Act has rightly forfeited the subject land free from all encumbrances. He further submits that the petitioners are entitled for allotment of the subject land under Section 20 of the ULC Act. He further submits that the petitioners by playing fraud have obtained an order of exemption and as such are not entitled for any relief from this Court under Article 226 of the Constitution of India. In support he places reliance on the decision of the Hon'ble Apex Court in the case of Hamza Haji Bs. State of Kerala and Another reported in (2006) 7 SCC 416.
11. Learned AGA reiterates the submission made by learned Senior Counsel representing the respondent-Society.
12. The submissions made by the learned counsels for the parties are considered.
13. The then competent authority in exercise of the power conferred under Section 20 of the ULC Act exempted the applicability of the provisions contained in Chapter-3 of the Act 1976 subject to the condition that the petitioners shall convey the subject land in favour of the society for formation of the sites and also distribute the sites in favour
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NC: 2024:KHC-D:5578 WP No. 65396 of 2012 C/W WP No. 68399 of 2011, WP No. 14629 of 2012 of the members of the society. The order was passed on 17.09.1987 and the exemption was valid for a period of one year and it was extended from time to time and finally by order dated 31.03.1992 the exemption was extended for a period of two years from thereafter. Subsequently, the exemption order has not been extended.
14. An agreement of sale was executed in favour of the respondent-Society, and the petitioners having not come forward to perform their part of contract prompted the respondent-Society to file suit in O.S.No.55/1993 for specific performance of the agreement of sale. The jurisdictional Civil Court decreed the suit by judgment and decree dated 06.01.1995 against which the petitioners filed regular first appeal in RFA No.265/1995 before this Court. The Division Bench of this Court by judgment dated 20.12.2007 allowed the appeal and set aside the decree for specific performance and consequently dismissed the suit, and the judgment passed by this Court has attained finality.
15. The petitioners in light of the direction issued by this Court in the aforesaid RFA have deposited a sum of Rs.33,16,819/- which was received towards part payment of the sale consideration including interest. Given the circumstances, the respondent-Society approached the Government for taking action for violation of the condition imposed in the order of granting exemption. The Government acting on the complaint submitted by the respondent-Society, passed an order dated 11.08.2009 forfeiting the subject land against which the petitioners filed W.P.No.26017/2009. This Court by order dated 16.06.2010 set aside the order and remanded the matter to the Government to pass appropriate order in accordance with law after notifying the petitioners.
16. The appeal in W.A.NO.6273/2010 filed by the land owner i.e., the petition was dismissed as withdrawn. Thereafter, the
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NC: 2024:KHC-D:5578 WP No. 65396 of 2012 C/W WP No. 68399 of 2011, WP No. 14629 of 2012 Government passed the impugned order forfeiting the subject land to the Government by taking recourse to Section 6 of Mysore General Clauses Act, 1899 stating that the order of granting exemption will not preclude the Government to initiate the proceedings under Section 10 of ULC Act 1976. The order granting exemption from the applicability of the provisions of Chapter-3 of the Act to the subject land was in subsistence till 1994 and thereafter it was not extended. The then Competent Authority during subsistence of the Act 1976 did not take any steps to initiate proceedings under Section 10 of the Act, 1976.
17. The ULC Act was repealed by the Repealing Act,1999 which came into effect on 18.03.1999. It is only after the Society failed in its attempt to enforce the agreement against the petitioner/land owners, the Government initiated proceedings at the instance of the Society.
18. Even accepting for a moment, that the action can be taken for violation of the condition of the order exempting the applicability of Chapter-III of the Act, 1976, the order granting exemption must be in force as on the date when the repealing act came into force. In the instant case, the order granting the exemption was not in subsistence as on the date of the commencement of the Act on 18.03.1999 and the Government during subsistence of the Act, 1976 has not taken any steps for initiating proceedings under Chapter-III, 1976. Therefore, Section 3(1)
(b) of the Act 1999 is not applicable since the order granting exemption was not in subsistence. Therefore, the impugned order passed by the State Government by taking recourse to Section 6 of Mysore General Clauses Act, 1899 is not legally sustainable.
19. The name of the Society was mutated in the property Register maintained by the City Survey Register on the basis of the agreement of sale which was executed by the petitioners in favour of the
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NC: 2024:KHC-D:5578 WP No. 65396 of 2012 C/W WP No. 68399 of 2011, WP No. 14629 of 2012 Society and the jurisdictional Civil Court having dismissed the suit of the Society for specific performance of the agreement of sale, the continuation of the name of the Society on the basis of agreement of sale is impermissible.
20. Accordingly, I pass the following:
ORDER i. Writ petition No.65396/2012 is dismissed.
ii. Writ petition Nos.68399/2011 and 14629/2012 are allowed.
iii. The order dated 24.11.2011 passed by the third respondent at Annexure-U in W.P.No.68399/2011 is hereby quashed and the fourth respondent is hereby directed to substitute the name of the petitioners in the City Survey Register/Records in respect of the subject lands after deleting the name of the respondent No.5.
It is needless to state that this order will not confer any rights on the petitioners to dispossess the Society from the subject land, if it is in possession, without following the due process of law.
the Society is entitled for protection of their alleged possession of the subject land in the manner known to law.
Sd/-
JUDGE RKA