Karnataka High Court
Sri Bandugowda vs The State Of Karnataka on 5 February, 2018
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
WRIT PETITION NO.8611/2013(CS-RES)
BETWEEN
SRI BANDUGOWDA,
S/O LATE SANNEGOWDA,
AGED 70 YEARS,
R/AT: RAJEGOWDA HUNDI VILLAGE,
ANNUR P.O., KASABA HOBLI,
H.D KOTE TALUK- 571114,
MYSORE DISTRICT. ... PETITIONER
(BY SRI B S NAGARAJ, ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
REP. BY ITS SECRETARY,
DEPARTMENT OF CO-OPERATION,
M.S BUILDING,
DR. AMBEDKAR VEEDI,
BANGALORE- 560 001.
2. THE DEPUTY REGISTRAR OF
CO-OPERATIVE SOCIETIES,
MYSORE DISTRICT,
MYSORE- 570 001.
3. THE ASST. REGISTRAR OF CO-OPERATIVE SOCIETIES,
HUNSUR SUB-DIVISION,
HUNSUR- 57 1105.
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4. THE MANAGER,
RYTHA SEVA SAHAKARA SANGA LTD.,
ANNUR P.O.,
KASABA HOBLI,
H.D KOTE TALUK- 571114,
MYSORE DISTRICT.
5. SRI SHAMBULINGE GOWDA,
S/O BANDU GOWDA,
MAJOR BY AGE,
R/AT: RAJEGOWDA HUNDI VILLAGE,
ANNUR P.O.,
KASABA HOBLI,
H.D KOTE TALUK- 571114
MYSORE DISTRICT. ... RESPONDENTS
(BY SRI LAXMINARAYAN, AGA FOR R1 TO R3,
SRI P.ANAND, ADVOCATE FOR R4,
SRI H.GOPALAPPA, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER PASSED BY THE 2ND RESPONDENT THE
DY. REGISTRAR OF CO-OPERATIVE SOCIETIES MYSORE,
MADE IN APPEAL NO.D.R.M.B3:APL:4/2011-12, DATED
12.12.2012, THE TRUE COPY OF SAID ORDER IS SUBMITTED
AT ANNEXURE-A AND ORDER PASSED BY THE 3RD
RESPONDENT, ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES, HUNSUR SUB-DIVISION, HUNSUR, MADE IN
SURCHARGE CASE NO.4/2006-07 DATED 25.10.2010 &
ANOTHER ORDER PASSED ON 31.1.2011 CONFIRMING THE
EARLIER ORDER DT.25.10.2010 COPIES OF BOTH THE
ORDERS ARE SUBMITTTED AT ANNEXURES-B & C
RESPECTIVELY.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
Petitioner herein is impugning the order dated 12.12.2012 in dismissing his appeal filed under Section 106 of the Karnataka Cooperative Societies Act, 1959, which was filed by him pursuant to liberty reserved to him in WP.Nos.7953/2011 and 13288/2011, disposed of by a Coordinate Bench of this Court on 9.6.2011.
2. Brief facts leading to this writ petition are as under:
Petitioner herein is father of fifth respondent against whom surcharge proceedings under Section 69 of the Karnataka Cooperative Societies Act, 1959 ('the Act' for short) is initiated by fourth respondent before third respondent - Assistant Registrar of Cooperative Societies, wherein properties which are lands bearing Sy.No.37/P2 measuring 4 acres of Rajegowdanahundi village, Kasba Hobli, H.D.Kote Taluk, Sy.No.1/878/61/2 measuring 2 acres and Sy.No/1/39 measuring 3 acres of Padukote Kaval village, H.D.Kote Taluk is sought to be attached. -4-
3. The order passed by third respondent was initially challenged by petitioner in WP.Nos.7953/2011 and 13283- 88/2011, which came to be disposed of reserving liberty to him to challenge the same before the Deputy Registrar of Cooperative Societies within 30 days there from. It is on the basis of such liberty reserved to him in said writ petitions, he preferred an appeal before the second respondent - Deputy Registrar of Cooperative Societies in Appeal No.DRM.B3.APL.04/2011-12 under Section 106 of the Act, which came to be dismissed by judgment dated 12.12.2012 and said judgment is subject matter of this writ petition.
4. The contention of petitioner herein is that lands which are sought to be attached are his exclusive properties in which his son, fifth respondent against whom surcharge proceedings is initiated has no right. Therefore, lands in question could not have been attached in surcharge proceedings. According to him, while passing order under Section 103 of the Act, no notice was given to him and he was not made as a party. However, today learned counsel -5- for fourth respondent has filed a memo along with copy of order passed in surcharge proceedings No.4/2006-2007, wherein petitioner herein is shown as second respondent and said proceedings is disposed of by order dated 26.7.2016.
5. After hearing the learned counsel for parties and after going through the order dated 26.7.2016 passed in surcharge proceedings No.4/2006-2007 which is produced by the learned counsel for fourth respondent, this Court would observe that the judgment impugned has already fructified in a final order being passed in aforesaid surcharge proceedings in accepting the properties in question as the properties in which fifth respondent has a right and the same is required to be considered for recovery under surcharge proceedings. In that view of the matter, this Court find that the judgment which is relied upon by the petitioner in the matter of Lakshman T -vs- Assistant Registrar of Cooperative Societies & Ors., reported in 1988 (2) KLJ 384 would not enure to his benefit for two reasons. Firstly, on the premise that the facts on which said -6- order is passed is different from the facts in the present case. In the instant case, fifth respondent herein and petitioner are accepted as members of the same family and the properties that are sought to be attached in the surcharge proceedings as the properties belonging to the family in which fifth respondent has a share. Secondly, the rights of the parties were decided on the basis of succession in the aforesaid decision whereas in this case it is decided on the basis of joint possession and cultivation as they are members belonging to same family. Therefore, said decision would not have any bearing to the facts of the present case. Even otherwise, when surcharge proceedings has already resulted in final order, it is not open for the petitioner to pursue this writ petition. However, liberty is reserved to him to challenge the order passed in surcharge proceedings No.4/2006-2007 dated 26.7.2016.
Accordingly, this writ petition is disposed of.
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JUDGE nd/-