Writ Petition No. 18447 / 1994.

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Original Jurisdiction

BETWEEN:

The Karnataka State Judicial Employees'
House Building Co-operative Society Ltd.,

By its Secretary, N. Lingaiah,
S/o, Lingaiah, 45 years,
High Court Buildings,
Bangalore - 560 001 . Petitioner

AND

[1] The State of Karnataka, by the Secretary to Government,
Revenue Department,
M.S. Building. Dr. Ambadkar Road,
Bangalore - 560 001.

[2] The Commissioner for Registration and Stamps
in Karnataka, New Public Offices Building, K.R. Circle,
Bangalore - 560 001.

[3] The Sub-Registrar,
Bangalore North Taluk, Yelahanka,
Bangalore .. Respondents.

PETITION UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA.

The Petitioner in the above writ petition states as follows:-

[1] The Petitioner is a House Building Co-operative Society Ltd, and in this writ petition the directions issued by the 2nd respondent to the Sub-registrars in Bangalore, not to register the sale deeds executed by 32 House Building Co-operative Societies in favour of its members without a no objection certificate issued by the Registrar of Co-operative Societies and without the site being released by the Bangalore Development Authority in favour of Co-operative societies, are challenged by the petitioner. The said directions are based upon a circular issued by the Government on 11-05-1994 to the same effect. The petitioner submits that the directions so made are wholly unauthorised and are ultra-vires the provisions of the Registration Act and the Rules framed thereunder. The Government has acquired lands situated in Allasandra, Chikka Bommasandra and Jakkur Plantation villages, for the benefit of the petitioner society. The Government has acquired large areas of land for the benefit of House Building Co-operative Societies on account of the fact that the society was disabled from purchasing the land directly from the owners. The Government had constituted a three-member Committee to process the applications received from the House Building Co-operative Societies and make suitable recommendations to the Government for acquiring the land. Among other things, the said Committee was required to go into the question regarding the extent of land required by each society having regard tot he number of members who required the same. On being satisfied that the society needed the land recommended by the Committee, the Government issued instructions to the Deputy Commissioner to initiate acquisition proceedings. The enquiry under Section 5-A duly held and the Government had made declarations that the land is required for a public purpose. Before the declaration was made, the Government had called upon the Society to deposit the entire acquisition cost and the conversion fine, establishment charges, audit charges etc, The society has also entered into an agreement with the Government to utilise the land for the purpose for which it was acquired. This agreement was insisted upon by the Government in order to ensure that the society does not make use of land other than that for which it was acquired. The awards were duly made and the government took over possession of the lands from the owners.

[2] At this stage, it was brought to the notice of the Government that some of the societies had indulged in irregularities of grave nature and therefore a decision was taken at the Cabinet level that until the clearance was given by the Co-operative Department, the lands should not be handed over to the societies, though the Government and taken over the lands from its owners. Accordingly, the Co-operative Department has been asked to examine the affairs of each society and submit a report to the Government as to whether the working of the society was satisfactory or not and whether there were any irregularities in its working which would dis-entitle the society from getting the lands acquired. Having got the necessary information from the Co-operative Department which had conducted a detailed enquiry into the affairs of the society, the Government again examined the claim of the society and directed the Land Acquisition Officer to hand over possession of the lands to the societies concerned. Though there were no guidelines in these matters, this was the procedure that was being following even earlier. in fact, one of the orders issued in this connection relating to the petitioner society is herewith produced and marked Annexure - A. However, when the new Government took over, series of orders were passed against 32 co-operative societies to whom the lands had been delivered during the regime of the previous ministry and it was threatened that he Bangalore Development Authority would be asked to take over the lands from the co-operative societies and would be asked to distribute the sites in accordance with the recommendations made by a Sub-Committee formed for that purpose. It was clearly stated that sites would be given to the members only if the member was eligible for being granted a site under the Rules of Allotment applicable to the Bangalroe Development Authority. One such orders dated 16-02-1993 is produced herewith and marked Annexure - B.

[3] In the meantime, the societies had approached the Bangalore Development Authority for approval of the layouts and in most cases the layout had been approved. The development works in some cases had also been carried out and the sites were ready for being allotted. It is necessary to state at this stage that the acquisitions were started way back in 1985 or so and the members of the society had deposited huge amounts from 1985 onwards. There was also no reason for the Government to restrict the application of the Government Order only to 32 co-operative societies except perhaps for the reason that possession of the lands was given to these societies in October November 1992. The order of the Government was challenged by all the societies in which the said Government Order was stayed. Thereafter, an Ordinance was issued called "The Bangalore Development Authority [Amendment ] Ordinance, 1993" which was published in the Karnataka Gazette on 16-061993 as Ordinance No. 7 of 1993 which provided that the lands acquired by the government for the 32 co-operative societies should be received by the Bangalore Development Authority for formation of a layout and for distribution of sites tot he genuine members of the society and a High Power committee was constituted to decide to decide as to who were the genuine members of the co-operative society. It is necessary to state that it is for the co-operative society to distribute the sites among its members and that power which is vested in the Committee cannot be entrusted to an outside agency and the ordinance was in effect a serious encroachment on the powers of the committee. This Ordinance was again challenged by all the co-operative societies and the operation of the Ordinance was stayed. It was contended in the writ petition that the Ordinance infringed the right of the societies and was violative of Article 300-A of the Constitution of India and also Article 14 of the Constitution of India. Only 32 co-operative societies could not be singled out for discrimination when there was no rationale behind picking up only these 32 co-operative societies for discriminatory treatment. The Ordinance lapsed in the course of time and not even an application has been made by the State Government to get the order of stay vacated. Thus, the effort made by the Government to take over the lands from the societies and entrust the distribution of sites to outside agencies had been thwarted. There after he Registrar of Co-operative Societies issued an order purporting to be under Section 30-B of the Karnataka Co-operative Societies Act restraining 32 co-operative societies from making any allotment of sites and getting the sale registered unless the genuine members were identified by the Committee constituted for that purpose . These orders which were issued by the Government were again challenged by all the Societies, including the Petitioner. The operation of the order dated 22-02-1994 passed by the Registrar of Co-operative Societies was stayed.

[4] In view of the stay order passed in the above writ petition, the societies concerned were free to make allotment of sites to their members according to the norms which had already been adopted by the societies for distribution of sites among its members. The only thing that remains to be done is the registration of the sale deed. The Society cannot expect to get money for meeting the cost of acquisition and development works unless the members are assured of the sites. Most of the members had deposited a major portion of the sale price even as early as in the year 1984-85 and the members are accordingly looking forward to get possession of the sites after the sale deeds are executed. In these circumstance, in order to circumvent the stay orders issued by the High Court in the several writ petitions referred to above, a direction has been issued to the sub-registrars not to register the sale deeds to be executed by 32 co-operative societies, unless certain conditions were satisfied. The said direction is a serious inroad into the powers of a co-operative society and such a direction cannot be issued by the Government curtailing the powers of the Registrar to perform his statutory duties.

[5] Under the provisions of the Registration Act, the Registrar in registering a document, performs a statutory duty and his action can be controlled only if the law permits and not otherwise. Under Section 22-A of the Registration Act, the State Government may by notification in the official gazette declare that the registration of any document or classes of documents, is opposed to public policy and in such cases the registering officer shall refuse to register any documents, to which a notification issued under Sub-Section [1] is applicable . The notification issued by the Government on 30-10-1990 enumerates 12 classes of documents which the registering authority may refuse to register on account of the fact that these transactions have been declared by the Government to be against public policy. The registering authority may also refuse to register a document presented before him in certain other circumstances, which are all set out in the Registration Act. Apart from these two classes of cases, the statutory functions performed by the Registrar cannot be controlled or curtailed by the Government by any executive instructions issued either by the State Government or by any other authority. The Sub-Registrars or the Registrar are authorities under the statute and they draw their authority there from. Further, the State Government has no power to declare a transaction as opposed to public policy on considerations extraneous to the object with which that power has been conferred upon by the Government. Therefore, in order to brand a transaction as opposed to public policy, the transaction in reality, must be one which is prohibited by law and therefore opposed to public policy. It is not any and every transaction that can be declared as one opposed to public policy by the Government. In the first place, a society ahs every right to allot a site to its member and get it registered in accordance with law. If there is any irregularity in the distribution of sites among the members of the co-operative societies it is up to a person aggrieved to challenge the same in a proceeding under Section 70 of the Karnataka Co-operative Societies Act. The Government has, therefore, no power to invent a new head of a public policy only to frustrate a normal transaction which under no circumstances can be regarded as one which is prohibited by law. A true copy of the circular instructions issued by the Registrar-General of Registration and Stamps dated 17-051994 is produced herewith and marked Annexure-C. The petitioner submits that the instructions issued are without authority of law and are not in public interest. Further, it is a male-fide exercise of power, since the only reason for selecting 32 co-operative societies out of nearly 200 co-operative societies registered in Bangalore, is that possession of the lands acquired by the Government for these societies was handed over to the societies in was handed over to the societies in October-November 1992 and no other. The transaction in question does not come within any of the categories of case enumerated in the Government notification dated 10-12-1990 and therefore the Government had no authority to issue any instructions to the Sub-registrar not to register the sale deeds presented for registration by these societies unless certain conditions are complied with . Having regard to the stay orders issued earlier to which reference has already been made supra. The question of identifying genuine members of a co-operative society by an authority constituted by the Government is impermissible and it was not within the power of the Government also to stipulate that for any allotment to be made by the society, the said site should have been released by the Bangalore Development Authority . In fact, this Hon'ble Court, has held that no such release order by the Bangalore Development Authority is necessary in the case of co-operative societies. The said view has been confirmed in a writ appeal and therefore the Government in imposing a condition that there should be a release order from the Bangalore Development Authority is actually committing an act of contempt in as much as the Government has shown scant respect of the law declared by the High Court .

[6] A writ as prayed for may be issued on the following:-

G R O U N D S.

[i] The Circular instructions issued by the Government regarding registration of documents between the society and its members are without authority of law and the issue of these instructions amount to the Government attempting to circumvent the stay orders issued by the High Court, the only difference being that the earlier order was issued by the Registrar in the exercise of his power under Section 30-B of the Co-operative Societies Act and the Government issuing these instructions without being empowered to do so in any statute or otherwise.

[ii] The Circular instructions issued confining the application of the same only to 32 co-operative societies are discriminatory. The only reason for selecting these 32 co-operative societies for discriminatory treatment is that the possession of the lands acquired by the Government for the befit of the society was handed over tot he society in October 1992, when the Ministry was different.

[iii] The Registrar in registering a document performs a statutory duty and his power can be curtailed only if the law empowers the Government to do so. Under the Registration Act, the Registrar may refuse to register a document which has been declared as a document opposed to public policy. The transaction in question does not come within any of the 12 categories mentioned in the Government notification dated 10-12-1990. The Sub-Registrar or the Registrar may also refuse to registrar a document in certain other circumstances which are all set out in the Registration Act.

[iv] This Hon'ble Court has held that no release order from the Bangalore Development Authority is necessary before the society makes any allotment. The said view has been confirmed in a writ appeal also. The Government was a party to these proceedings and is as much bound by the law as laid down by any other. The condition No. 2 in the circular ignores the law laid down by this Hon'ble Court.

[v] Grounds in support of the prayer for interim orders:

Before forming a layout and for carrying out the development works, the society has spent huge amount and this can be reimbursed only if the sale deeds are executed by the society in favour of its members. It is at this stage, that these circular instructions which are without authority of law have been issued and unless an order of stay is passed, the society will be put to irreparable loss and injury. Therefore, an interim order as prayed for by the petitioner may be issued in the interest of justice.

[7] The petitioner has no other remedy at law than to approach this Hon'ble Court in the exercise of its writ Jurisdiction under Articles 226 and 227 of the Constitution of India. The petitioner has not presented any writ petition in this Hon'ble Court or has taken any other proceedings to challenge the order impugned. The petitioner has not filed any proceedings in this Hon'ble Court or in any other court claiming similar relief.

[8] WHEREFORE, the petitioner prays that this Hon'ble Court may be pleased :-

[i] issue a writ of certiorari or any other writ, order or direction to quash Annexure - C, the circular No. RCS 28/94-95 dated 17-05-1994 issued by the Commissioner for stamps and Registration in Karnataka, Bangalore.

[ii] declare that the Government has no authority to issue any order directing the Sub-registrar not to register the document unless the clearance is obtained from the Registrar of Co-operative Societies and unless a release order is passed by the Bangalore Development Authority.

[iii] pass such other order or orders as may be just and necessary in the circumstances of the case.

[iv] pending disposal of the above writ petition be pleased to stay the operation of Annexure - C, the Circular No. RCS: 28/94-95 dated 17-05-1994 issued by the Commissioner for Registration and Stamps in Karnataka, Bangalore, in the interest of Justice.

Bangalore,
Dated: 29-06-1994 Advocate for Petitioner.

Address for service:

Shri. T. S. Ramachandra,
Advocate, No. 4, Srikantan
Layout, High Grounds,
Bangalore - 560 001.