Karnataka High Court
The Bangalore District And Bangalore … vs State Of Karnataka, By Its Principal … on 3 January, 2005
Equivalent citations: ILR2005KAR377, 2005(2)KARLJ81, 2005 AIR – KANT. H. C. R. 322, (2005) 27 ALLINDCAS 878 (KAR), (2005) 2 ICC 614, (2005) 2 KANT LJ 81, (2005) 1 KCCR 505, (2006) 1 BANKCLR 565
Author: K. Bhakthavatsala
Bench: K. Bhakthavatsala
ORDER
K. Bhakthavatsala, J.
1. In this batch of Writ Petitions the Petitioner/Co-operative Bank seeks direction to Respondent No. 4 to effect entries as to charge in the revenue records in respect of the properties mentioned in the schedule as per Sections 127 to 129 of the Karnataka Land Revenue Act, 1964.
2. The Respondent Nos. 1 to 4 are represented by Sri. Shashidhar Karamadi, learned Government Pleader, The Respondent No. 5 is represented by Sri K. Suman.
3. With the consent of the learned Counsels for the parties, heard arguments for final disposal.
4. The brief facts of the case leading to the filing of the batch of Writ Petitions may be stated as under;-
The Petitioner/Co-Operative bank raised a dispute in No. JRB.DIS/912/93-94 against the 5th Respondent viz, Vyalikaval House Building Co-operative Society (in short, ‘the society’)as the Society did not repay loan of Rs. 15.50 crores, before the Joint Registrar of Co-operative Societies, Bangalore Division, and also obtained orders dated 27.10.1994, 23.11,1999, 23.11.2002 and 5.2.2003 as per Annexures-A, A1, A2 and A3, respectively, for attachment of the immovable properties of the Society. The petitioner/Bank has given public notice in Deccan Herald Daily Newspaper dated 26.2.2004 bringing to the notice of the general public and the third parties regarding lien/charge of the Bank over the lands in question and cautioning the general public not to enter into any negotiation with reference to the schedule properties. Further, the Petitioner/Bank requested the Respondent No. 4/ Tahasildar to effect entries as to charge over the lands in the revenue records based on the orders of attachment of the properties of the Society passed by the Joint Registrar of Co-operative Societies as per Annexures-C and D dated 6.2.2003 and 30.9.2004, respectively. It is averred in the Writ-Petitions that the lands in question were notified the acquisition of lands by the State Government by issuing preliminary notification under Section 4(1) of the Land Acquisition Act, 1894 dated 22.12.1984 published in the Gazette on 3.1.1985 and after preliminary hearing and complying with the legal formalities, the Land Acquisition Officer has handed over the lands in question to the beneficiary viz., the Society herein on 6.8.1988 and thus, the Society is in possession of the schedule properties over which the petitioner/Bank has got lien and charge. But, the 4th Respondent has failed to record the order of attachment in the revenue record in the name of the Petitioner/Bank. Therefore, the petitioner/Bank is before this Court seeking direction to the Respondent No. 4/Tahasildar to effect entries as to charge in the revenue record in the name of the Petitioner/ Bank in respect of the schedule lands.
5. During the course of argument, Sri S.N Murthy, learned Senior Counsel, submitted his argument with reference to Sections 127 to 129 of the Karnataka Land Revenue Act, 1964, Section 103 of the Karnataka co-operative Societies Act, 1959 and Section 100 of the Transfer of Property Act, 1882. He also cited a decision reported in HOLIYAPPA v. THE DEPUTY TAHASILDAR, GULEDGUD AND ORS., 2000(4) Kar.L.J. 449
6. Sri Shashidar Karamadi, learned Government Pleader, submitted that an order of attachment of the lands made in favour of the Petitioner/Bank does not give any right to the Petitioner to seek registration of alleged charge by way of mutation as per Sections 127 to 129 of the Karnataka Land Revenue Act, and therefore the Writ Petitions may be rejected.
7. Sri Suman, learned Counsel appearing for the Respondent No. 5 viz., the society, submitted that he has no objection to allow the Writ Petitions.
8. In view of the submissions made by Sri S.N Murthy, it is useful to refer to Section 100 of the Transfer of Property Act, which reads as under;-
“100. Charges-Where immovable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge.
Nothing in this section applies to the charge of a trustee on the trust property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge”.
9. In this regard, I refer to the decision reported in V.S.V. THANGAVELU MUDALIAR v. G. THIRUMALSWAMI MUDALIAR AND ANR., AIR 1956 Mad 67 The Madras High Court, after referring to various decisions has held in para-20 of the judgment as under;-
“20. On a consideration of the conflicting decisions that we have referred to above, we do not think that we shall be justified in holding that the charge created by a decree is one that comes within the scope of Section 100, Transfer of Property Act. In our view, it cannot be a charge created either by act of parties or by operation of law. It is altogether a different category not contemplated by Section 100, Transfer of Property Act, and, the respondent, therefore, cannot take advantage of his purchase of the property sold in enforcement of the charge created by the decree to the detriment of the other charge created by the same decree but which is still subsisting and which is yet to be enforced by the party in whose favour it was created.
I respectfully agree with above decision, which is applicable on all the fours to the case on hand. Therefore, I am of the opinion that the orders of attachment made by the Joint Registrar of Cooperative Societies cannot be held as ‘charge’ by operation of law within the scope of Section 100 of Transfer of Property Act. Therefore, the Petitioner/Bank does not get any such right under Sections 127 to 129 of the Karnataka Land Revenue Act, 1964. The decision cited by the learned Counsel for the petitioner reported in 2000(4) Kar. L.J. 449 with reference to Section 128 of the Karnataka Land Revenue Act, 1964, on the point that the Revenue Authorities cannot refuse the vardhi is not applicable to the case on hand.
10. For the reasons said supra, I pass the following order;-
The Writ Petitions fail and they are hereby dismissed. In the circ*mstances of the case, I pass no order as to costs.
The learned Government Pleader is permitted to file memo of appearance within three weeks.
Counsel for Respondent No. 5/Society is granted 3 week’s time to file power for Respondent No. 5.
