The Scheduled Caste (Harijan), House Building Co-operative Society Limited vs State of Karnataka, Department of Co-operation and Others

Anand Byrareddy, J.—1. Heard the learned Senior Advocates, Shri Vivek Reddy appearing for the Counsel for the petitioner and Shri Jayakumar S. Patil, appearing for the Counsel for the respondent.

The learned Senior Advocate Shri Reddy is pressing an application seeking to implead an applicant as a party to the present petition.

Having heard the learned Senior Advocate, appearing for the Counsel for the petitioner, this court is of the opinion that the application does not merit consideration and the petition would have to be allowed summarily.

It is the case of the petitioner that it is a Building Co-operative Society, registered under the provisions of the Karnataka Co-operative Societies Act, 1959 (Hereinafter referred to as the ''KCR Act'', for brevity) and the Rules thereof. It was registered in the year 1964 with an object to provide residential sites to its members. It had applied to the Government and the BDA for allotment of land and in consideration of which, the Government had permitted the BDA to change the land user in respect of the land bearing survey No. 32 situated at No. 24, Sarakki, J.P. Nagar II phase, measuring 4 acres and 23 guntas from civic amenity site to residential area and thereby enabled allotment of land in favour of the petitioner -society for distribution of sites.

The BDA by order dated 30.10.1984, is said to have ordered bulk allotment of the aforesaid land in favour of the petitioner - society and the petitioner - society had deposited the requisite amount and an agreement was executed in favour of the petitioner society and physical possession was said to have been delivered.

Subsequent to such allotment, the petitioner had submitted an application for approval of a layout plan and issuance of work order, which was approved in the year 1985 and the petitioner had submitted a list of its members and allottees belonging to the Schedule Castes (SCs) and Schedule Tribes (STs) and other communities. The BDA had released 35 sites and confirmed occupation out of 65 sites formed by the petitioner - society.

The legality and correctness of the Release Memorandum of the BDA was said to have been challenged by one M. Puttaswamy and 29 others in writ petitions in WP 21753-82/1995 before this court and this court had disposed of the petitions by order dated 21.9.1995 quashing the Release Memorandum dated 6.5.1995 and directing the BDA to consider release of sites with reference to its resolutions dated 22.5.1982, 23.7.1984 and 18.1.1985 and decide whether the condition that sites should be allotted only to members of the SC and ST community and if the BDA had any doubt as to who were the members of the society then clarification ought to have been sought from the Registrar of Co-operative Societies or his delegate, under the KCS Act and that the BDA shall not release sites in favour of the society unless there was compliance with the above directions and that liberty was granted to the petitioners therein to representations before the Registrar of Co-operative Societies and the BDA as regards the dispute regarding membership and allotment of sites.

Being aggrieved by the said order, the petitioner had preferred an appeal in WA 4240-69/1995 before the division bench of this court and the division bench had allowed the writ appeal on 5.11.1997 and set aside the order under appeal reserving liberty to the respondents therein to seek interim order in their disputes, which were pending before the Registrar of Societies as regards determination of their membership.

In compliance with the said order, the Assistant Registrar had adjudicated the dispute and passed an order dated 28.2.2005 dismissing the disputes filed by M. Puttaswamy, Doddamma and others seeking determination of their membership.

It is further stated that one Manujath and others claiming to be residents of J.P. Nagar II Phase, had filed public interest petitions before this court in WP 8570-73/1999 seeking quashing of the order passed by the Government dated 18.10.1984, permitting the BDA to change the land user from civic amenity site to residential area. The petitioner - society had challenged the aforesaid Government Order on the ground that the same was passed in contravention of section 38A of the Bangalore Development Authority Act, 1976 and those petitions were dismissed with costs, on a preliminary point that they were barred by the doctrine of constructive res judicata and that has attained finality.

It is stated that on obtaining bulk allotment and approval of the layout plan, the petitioner - society had formed 65 sites in the aforesaid land and allotted the same in favour of its members and had received entire sale consideration and has executed sale deeds in favour of its respective eligible allottees and physical possession was also handed over to them. It is at that stage that one Govindaiah, Nagalingam and others had filed a writ petition in WP 20264/2007, wherein they had sought quashing the list of allottees and registration of khata in favour of allottees of the petitioner-society. That petition was dismissed by order dated 2.7.2010 saving the rights and privileges of the existing members irrespective of their caste and religion and allotment of sites in their favour. Writ appeals in WA 3419-23/2010 having been filed against that order, were dismissed on 19.3.2014 and it was held that the registration of khata would be based on the order of allotment and conveyance which was 22 years ago and that the same could not be unsettled.

Thereafter, the petitioner''s bye-laws were amended, whereby the membership of the petitioner - society was restricted to persons belonging to SCs while preserving rights and privileges of existing members, irrespective of their caste.

The order dated 2.1.1997 passed by the Registrar of Co-operative Societies was unsuccessfully challenged in a writ appeal. It is thereafter found that the controversy of two sets of office bearers seeking to claim the management of the society was ultimately resolved by a division bench in WA 2245/2006 dated 29.1.2007 whereby it was permitted to withdraw the appeal with liberty to seek removal for non-SCs before the appropriate authority.

It is the petitioner''s case that in any event there have been allotments made in favour of its members 22 years prior to the filing of this petition and there have been further transfer of those sites which were allotted to other third-parties, some of whom have also constructed their houses.

In this background it is stated that one Venkatesh, who is not a member and a stranger to the petitioner - society is said to have made a representation to the Minister of Social Welfare and Backward Classes, Government of Karnataka, making allegations of irregularities on the part of the society in having allotted sites to non-SC members and various other communities, thereby depriving the benefits to the members. The said Minister, in turn, had directed the Civil Rights Enforcement Cell (CREC) to hold an inquiry and submit a report within a period of one month and it is that order referring the matter to the CREC which is sought to be challenged in the present petition.

The learned Senior Advocate Shri Jayakumar S. Patil would submit that the order, on the face of it, is without jurisdiction. Even if there are serious allegations against the petitioner - society the remedy of any aggrieved member is to either raise a dispute or file a complaint as regards such irregularities, which would be subject matter of appropriate inquiry by the competent authority under the provisions of the KCS Act. And seeking enforcement through CREC insofar as the violation of the human rights or the rights of SCs, is totally out of place and is not warranted given the circumstances of the case, where conversion of land for non-agricultural user and formation of sites and allotment of sites to third-parties having run over almost two and half decades, the challenge being made to such allotment at this remote point of time and that being treated as violation of civil rights of the SC Community and action being initiated is totally out of place and is without jurisdiction and would submit that the petition itself would have to be allowed.

Insofar as the impleading application is concerned, the learned Senior Advocate Shri Vivek Reddy would vehemently canvass that there is a Circular issued by the State Government dated 27.12.1975 wherein sanction was accorded to a scheme of setting up a special cell in the State CID for the enforcement of untouchability (Offences) Act, 1955 and taking effective action in cases of harassment of SCs and STs. The Government of India and the State of Karnataka have extended several benefits to weaker sections, especially SCs and STs, by incorporating such benefits in the various statutes and executive order in pursuance of the protection and safeguards contemplated under the provisions of the Constitution of India in general and Article 46 in particular.

The Government Order also states that the Bonded Labour System (Abolition) Ordinance 1975 was promulgated by the President of India, to provide for the abolition of bonded labour system with a view to preventing the economic and physical exploitation of the weaker sections of, the people and for matters connected herewith and incidental thereto. The Karnataka Debt Relief Ordinance 1975 was also promulgated to provide relief from indebtedness to small farmers, landless agricultural labourers and weaker sections of the people in the State of Karnataka. Under the provisions of these ordinances, it was felt necessary to keep an eye on the number of offences of which cognizance out to be taken. Therefore, it was considered necessary to have an effective machinery to collect intelligence and to investigate into instances of contravention of the provisions of the ordinances and to submit reports to Government. Insofar as the landless and insufficient holders among the weaker sections especially SCs and STs were not to be evicted from the encroachments they had made on the government or gomal lands.

It is in this background that the Government had passed an order that if there is violation, the CREC would be empowered to investigate into various circumstances, particularly in respect of violation of the Rules pertaining to the grant of sites insofar as it relates to the claims of SCs and STs and that it is generally issued to ensure that CREC is empowered to investigate into any matters pertaining to violation of constitutional safeguards and protection extended to SCs and STs and any matter pertaining to contravention or violation of any law or rule or executive order aimed at the socio-economic upliftment and welfare of the SCs and STs.

It is this, the learned counsel would submit, is the basis for the action having been taken by the respondents and since it was initiated at the instance of the present applicant, the applicant is a proper and necessary party in ensuring that the complaint made by him is taken to its logical conclusion and seeks to urge that the very object of the State Government would be defeated if the present petition is entertained and if the applicant is not permitted to come on record. Whereas there are instances where a large number of sites were granted to single individuals who did not belong to the SC community. It is to address these serious irregularities, which has directly violated the rights of SC community, the learned Senior Advocate would submit, the petition be entertained.

From the reading of the order dated 27.12.1975, which according to the learned Senior advocate Shri Reddy, is the basis on which the impugned order has been passed by the Minister concerned, cannot be readily accepted. Apparently, the order refers to several legislations or such other rules and statutory provisions under which any rights or benefits are conferred on the SCs and STs and which does not reach the concerned. In the present case on hand, it is not under any statutory benefit that the sites have been allotted depriving any member belonging to a SC, his due. The sites according to the society have been allotted to its members. If there is any irregularity or violation of the law, it is open for the member of the society to raise a dispute in that regard before the appropriate forum under the KCS Act and it cannot be generally termed as violation of the civil rights of a member belonging to a SC or a ST. Reliance sought to be placed on a Government Order is, therefore, misplaced. It cannot be said that circumstances warranted any such action on the part of the Minister in having directed CREC to investigate or report at the instance of the impleading applicant.

Accordingly, the action initiated is beyond the jurisdiction of the authorities and beyond the scope of the order dated 27.12.1975 as it pertains to private affairs of a society notwithstanding that it is a society meant exclusively for the SCs and STs. Though other members have been admitted and their rights however have been reserved in any challenges made earlier, which are referred to hereinabove, this court is of the opinion that the impugned order is bad in law and is accordingly quashed.

Insofar as the claim of the impleading applicant that he is necessary and proper party is concerned, even if he is a necessary and proper party, in view of the petition having now been allowed, there is no warrant to implead the applicant. The application stand disposed of as having become infructuous.

The petition is allowed.