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Judgment
Anand Byrareddy, J.—1. Heard the learned Senior Advocate Shri Jayakumar S Patil appearing for the petitioner and the learned Government Advocate who was directed to take notice for the respondents No. 1 to 4.
It is stated that the petitioner is a house building cooperative society and it had formed a layout known as Vishwabharathi Housing Complex Layout and when the 4th Phase of the layout was yet to be completed, it transpires that Registrar of Cooperative Societies had initiated proceedings against the erstwhile President, one, B Krishna Bhat alleging misappropriation of funds and mismanagement of the Society and he was even disqualified by an order dated 23.03.2009, pending enquiry. Pursuant thereto the Registrar of Cooperative Societies had initiated an enquiry under Section 64 of the Karnataka Co-operative Societies Act, 1959 (herein after referred to as the ''Act'', for brevity) with regard to 11 charges, including a charge of misappropriation of the funds of the Society by Krishna Bhat. At the enquiry the Krishna Bhat was found guilty of the charges and the second respondent had passed an order dated 03.05.2012 to enforce the findings of the Enquiry Officer and consequently various properties belonging to Krishna Bhat and his family members were also said to have been attached.
On disqualification of Krishna Bhat an ad hoc committee was said to have been constituted by the petitioner and thereafter on election of the new management committee under the Presidentship of one Jayaram, was elected. Due to resignation of some directors in the year 2013, there was no quorum in the managing committee and the Government promptly appointed a Special Officer who was said to be in charge from December, 2013 to October, 2014. During the said period the accounts of the petitioner Society for the year 2014-15 was audited and there were no irregularities found in the functioning or administration of the petitioner''s society at that point of time. However, a new elected committee having taken over the management from the said officer on 09.11.2015 the third respondent has now passed the impugned order directing that an enquiry to be conducted into the affairs of the Society.
The learned Senior Advocate would point out that this is wholly unfair and in the face of the earlier proceedings before this Court as for instance in the writ petition in W.P. No. 18496/2007 connected with other matters, which involved the affairs of the Society and in order to put a quietus to the controversies a Division Bench of this Court, by its order dated 16.11.2010, had issued the following directions.
"44. In the light of what is stated above, we pass the following order:
(a) The BDA is directed to calculate the total amount payable by the society for bulk allotment in terms of the Government Order dated 4-10-2007 passed by the Government and thereafter inform the society in writing calling upon them to pay the said amount within 90 days from the date of receipt of the said notice.
(b) Though the land in question is in possession of the society and some of its members and others, the BDA shall formally handover possession of the land in question on receipt of the payment referred to clause (a).
(c) The society shall prepare the list of genuine members and the members who had applied for a site according to the seniority and submit the same to the BDA;
(d) In the seniority list prepared, membership number, date of membership, the date on which application was filed for allotment of site, the dates on which amounts were paid by the society shall be clearly mentioned;
(e) In the event of non availability of the list, the society shall give paper publication both in Kannada and English vernacular in local and South Indian editions calling upon the members of the society to furnish their membership number, the date on which they applied for the site, payments made if any, in respect of the said site along with receipts and other acknowledgments and the documents in support of the same within a period of 30 days from the date of publication of the notice:
(f) Thereafter, the society shall prepare:
(i) the seniority list of genuine members in terms of para 39 of the judgment.
(ii) a list of members who are eligible for allotment of site in accordance with paras 40 and 41 of the judgment.
(iii) Thereafter, they shall publish both the lists in their office, in the newspaper and handover copies of the same to the BDA as well as to the Registrar of Co-operative Societies.
The society shall also open web site and host all these information on the web site for information of the members and public at large.
(g) All such members who have any objections for such genuine/seniority lists are at liberty to approach the Registrar of Cooperative Societies for adjudication of their seniority.
(h) The Registrar of Co-operative Societies while adjudicating genuine and seniority of members, shall hear the society as well as the BDA and also take into consideration the observations made in this order as well as the order made in Writ Appeal No. 1454 of 2008 at Para 14 and eschew the observations in the order dated 11-10-2007 passed in Writ Petition No. 12236 of 2006, as directed in the said appeal. The decision of the Registrar of Co-operative Societies is subject to the remedies provided under the Registration of Society''s Act and other provisions of law. However, the said finding if it attains finality, is binding both on the society as well on the BDA.
(i) In the meanwhile, the society shall prepare a layout plan, submit the same to the BDA for its approval and also list out number of sites for allotment to its members according to the seniority list.
(j) Already a private layout is formed in the said land and number of persons have put up constructions and are living there. If those persons are eligible for allotment of site according to seniority list and the allotment and sale deeds had already been executed in their favour, such sale deeds shall be confirmed by the society, if there is no dispute regarding seniority in the matter of allotment of sites.
(k) Similarly, all those persons to whom sites have been allotted, who have not put up construction or who have enclosed their sites with compound walls, if they are eligible for allotment of sites in terms of the seniority, which is not disputed by anyone and such sale deeds have been executed, such sale deeds shall be confirmed by the society.
(l) If the persons who are not eligible for allotment of sites according to seniority or not even members, if they are in possession of the sites and have put up constructions, the said sale deeds and allotment orders shall have no legal effect and if such persons are parties to these proceedings, no further steps need be taken against them. If they are not parties to these proceedings who are in possession by virtue of such allotment or sale deeds, appropriate proceedings have to be initiated against them in accordance with law for cancellation of their allotment and sale deed and for recovery of possession.
(m) Till this process is completed, BDA and the society are directed to maintain status quo and no demolition of structure shall take place.
(n) It is made clear that no one who is a party to these proceedings shall put up any construction in the land in question after pronouncement of this order. If any attempt is made to put up any construction, BDA is at liberty to take immediate steps to demolish such construction.
(o) If any person has put up construction after Government Order till today under the cover of any interim orders granted by this Court in various petitions, such persons cannot plead equity in their favour and the validity of such construction depends upon their eligibility to get the site allotted based on their seniority. Otherwise, those constructions are liable to be demolished.
(p) It is only after being satisfied that the sites have been allotted to genuine members and according to seniority, BDA/BBMP shall make out khata in their respective names and BDA/BBMP shall sanction the plan.
(q) The process of bulk allotment by the BDA shall be completed within a period of five months from today if payment is made by the society.
(r) The Registrar of Co-operative Society shall ensure that these disputes regarding genuineness of the membership or the seniority of such members for allotment of site, if necessary, be entrusted to one official who shall take up these matters on day-to-day basis and try to dispose it of expeditiously as some of them have already invested huge amount for acquiring site, put up construction and living with their family and also in order to give effect to the Government Order where the only consideration was the human suffering.
(s) Writ Petition No. 18496 of 2007 is dismissed.
(t) All other writ petitions are disposed of in the above terms."
Pursuant to the above said direction contempt proceedings were initiated alleging that there is non compliance with the directions issued by the above said order and in the contempt proceedings in CCC No. 667/2013 and connected cases a Division Bench of this Court by its order dated 04.06.2013 has specifically found as follows:
"Therefore the question whether seniority list is prepared in terms of the court order, whether the members seniority is in accordance with their seniority, whether their objections to seniority list has properly been considered by the Society are all matters which falls with in the jurisdiction of Registrar of CoOperative Societies. In that view of the matter these contempt proceedings are misconceived.
Accordingly contempt proceedings are dropped, reserving liberty to the complainants to approach the Registrar of Co-Operative Societies. If they approached the Registrar of Co-Operative Societies, he shall consider the same and pass appropriate orders in accordance with law keeping in mind the observations made by this Court in aforesaid writ petitions as well as this order."
Therefore, the learned Senior Advocate would submit that the only point that could have been held to be in controversy was as to whether the seniority list of members who were eligible for inter-se allotment was properly made and this was left open for the Registrar of Cooperative Societies to decide as such matters fell squarely within his jurisdiction. Beyond this there were no other irregularities nor could any non compliance be pointed out in so far as directions issued by this Court dated 16.11.2010 is concerned. It is also pointed out that it is only since November, 2015 that the new management is in place. The allegations did not relate to any irregularities or illegalities during the period subsequent to November, 2015. The impugned order would indicate that the entire gamut of controversies are thrown upon for a fresh enquiry in the face of three earlier proceedings and those proceedings having culminated against the erstwhile President and his family members. There would be no scope for any further enquiry in this regard and hence the present impugned order is clearly biased and is with an intention to scuttle the management of the society by its elected body and the attempt is clearly to have a Special Officer in place and which would be clearly illegal and contrary to the object and interest of the members of the Society and therefore seeks that the petition be allowed summarily.
Given the above circumstance that the authority of the respondents in conducting an enquiry under Section 64 cannot be nipped in the bud as such power is indeed available. Given the circumstances of the present case on hand it would be prudent for the respondents even if they are acting on the basis of complaints lodged by several persons before the Lokayuktha, there shall be a preliminary enquiry, to address first of all, whether there has been non compliance with any of the directions issued by this Court in the first instance as per its order dated 16.11.2010 in WP No. 18496/2007 and further as regards the irregularities if any in the seniority list. Beyond which there ought not to be scope for reopening the closed issues. If there are allegations pertaining to the period prior to November, 2015 there would be no scope for holding an enquiry against the present managing committee. With those observations the petition stands disposed of with liberty to the petitioner to reopen these proceedings if there is any aberration in the manner in which respondent would proceed further.
The learned Government Advocate is permitted to file her memo of appearance within two weeks.