Dattaprasad Co-operative Housing Society Limited and ors. Vs. State of Karnataka - Court Judgment

H.L. Dattu, J.

1. The appellants before us are all House Building Co-operative Societies and they are registered under the provisions of the Karnataka Co-operative Societies Act 1959, read with Karnataka Co-operative Societies Rules, 1960. They are calling in question the correctness or otherwise of the order passed by the learned Single Judge in W.P. Nos. 23564 to 23567 of 2001, dated 17-3-2003 Dattaprasad Co-operative Housing Society Limited, Bangalore and Others v. State of Karnataka 2004 (3) Kar. L.J. 310.

2. The appellants in the writ petitions had sought for the following-relief. It is as under:

to issue a writ in the nature of certiorari to quash Section 5 of the Karnataka Act 6 of 2001, amending Section 38 of the Karnataka Co-operative Societies Act, 1959 (Karnataka Act 11 of 1959), by inserting proviso at the end as unconstitutional.

3. The learned Single Judge after considering the rival contentions of the parties to the lis, has rejected the writ petitions by his order dated 17-3-2003. It is that order which is called in question in the present appeal.

4. At the time of hearing of this appeal, the parties to the appeal have filed memos before this Court. The memo filed by the State Government dated 17-11-2005, which is signed by the Secretary to the Government, Revenue Department and also by Sri Shivanna, learned Additional Government Advocate, reads as under:

MEMO

In the above writ appeals the appellants have challenged the order of the learned Single Judge upholding the validity of insertion of proviso to Section 38 of the Karnataka Co-operative Societies Act, 1959 withdrawing the exemptions from the compulsory registration of instruments which are intended to transfer or in effect transfer the right, title or interest in immovable property executed by or in favour of House Building Co-operative Societies registered under the Co-operative Societies Act. The above said insertion was effected by Act No. 6 of 2001, with effect from 1-4-2001. The object and reasons to introduce the amendment are clearly reflected in the budget speech by the then Chief Minister/Finance Minister as excerpted below.--

213. To encourage co-operative activities in the State, registration of documents executed by or in favour of Co-operative Societies are exempted under Section 38 of the Karnataka Co-operative Societies Act, 1959. It has been observed that of late some House Building Co-operative Societies are misusing this provision. A person who buys property is not given title deed, but is made a shareholder of the Society, due to which the Government is losing huge revenue. Therefore, it is proposed to amend Section 38 of the Co-operative Societies Act, 1959, to make all such instruments compulsorily registerable under Section 17(1) of the Registration Act, 1908.Therefore, from the date of amendment, the registration of documents is made compulsory in respect of instruments which are intended to transfer or in effect, transfer the right, title or interest in the immovable property executed by or in favour of House Building Co-operative Societies registered under the Co-operative Societies Act.

5. In view of the memo filed by the State Government, the appellants also have filed a memo signed by the learned Senior Counsel for the appellants dated 17-11-2005. It reads as under:

Memo on behalf of appellants

(1) In the. writ petitions appellant-societies challenged the amendment to Section 38 of Karnataka Co-operative Societies Act, 1959 by Section 5 of Karnataka Act 6 of 2001 which came into force on 1-4-2001.

(2) During the pendency of the writ petitions and the writ appeals there was no interim order and the appellant-societies and their members have accepted the amendments for transactions subsequent to 1-4-2001.

(3) At the time of hearing of the above appeals on behalf of the respondents it was submitted that the amendment is prospective with effect from 1-4-2001 and also that Section 38 of Karnataka Co-operative Societies Act is a valid legislation and governed the appellant-societies till the amendment came into force.

(4) In view of the submission made by the respondent, appellant-societies may kindly be permitted to withdraw both the writ appeals and so also writ petitions setting aside the order of the learned Single Judge dated 17-3-2003 in the interest of justice.

6. In view of the memos so filed by the parties to the lis, in our opinion, it may not be necessary to go into the correctness or otherwise of the impugned order passed by the learned Single Judge in W.P. Nos. 23564 to 23567 of 2001, dated 17-3-2003. Accordingly, the following.--

ORDER

I. Memos filed by the learned Counsels for the parties to the lis are placed on record.

II. The writ appeal is disposed off as withdrawn.

III. As requested by the appellants, they are permitted to withdraw the writ petitions.

IV. Consequently, the order passed by the learned Single Judge in W.P. Nos. 23564 to 23567 of 2001, dated 17-3-2003 is also set aside. Ordered accordingly.