THE HON'BLE SRI JUSTICE T.AMARNATH GOUD
WRIT PETITION Nos.32256 AND 32273 of 2014
AND
W.P.No.7228 of 2015
COMMON ORDER:
1 This is a case of checkered litigation. The seed for the
multifarious litigation was laid first by the first respondent
herein i.e. Capt. GGK Raju and after his death his legal heirs are fighting the legal battle with the petitioner Society. 2 The first petitioner society herein purchased land in an extent of Ac.35.00 in Sy.No.157/8 situated at Tokatta Village, Secunderabad, made a layout of 144 house plots and obtained permission from the authorities. The first respondent is member of the first petitioner society and he was allotted Plot No.190. But, due to mistakenly instead of Plot No.190 in favour of GGK Raju, Plot No.56 was registered to him. In fact, Plot No.56 was allotted to one Capt. Ms. Uma Raju. The said fact was later rectified by cancelling the sale deed of Capt. GGK Raju for Plot No.56. The said cancellation deed dated 31.3.1984 has not been challenged and the same became final. It also came to light that Mr. GGK Raju is having dual membership in other Cooperative Housing Society also, which is a disqualification to be a member of the petitioner society. Accordingly his membership has been terminated.
3 However, the petitioner society addressed a letter dated 16.12.1983 to the first respondent stating that an error was crept in i.e. instead of plot No.190, it was mentioned as plot No.56 and requested the first respondent to get it rectified as per 2 procedure. However, as the first respondent refused it, the Society cancelled the registration on 31.3.1984 and allotted plot No.56 to the original allottee Capt. Ms Uma Raju. 4 The emphatical statement of the petitioners was that the Society registered plot No.56 in favour of Smt. Janakidevi Minocha and her son Pradeep Minocha on 09.7.1984 after Capt.Ms Uma Raju transferred her share to the purchasers which was ratified by the Society resolution. As the first respondent GGK Raju was a defaulter, the petitioner society refunded the allotment charges paid by him on 20.9.1984 and he received it. Hence there is no obligation as the first respondent has not paid any sale consideration for plot No.56. 5 Not being satisfied, Mr. GGK Raju preferred ARC No.92 of 1984 before the Deputy Registrar/Arbitrator and the same was allowed by order dated 26.4.1990 in favour of the first respondent herein striking down the contention of the petitioners that plot No.56 was erroneously registered in favour of the first respondent and thus it was cancelled. The Deputy Registrar directed the Society to restore Plot No.56 in favour of the first respondent after payment of dues. Mr. GGK Raju did not choose to pay sale consideration at that point of time also. The second petitioner herein executed a cancellation deed dated 21.8.2000 cancelling the cancellation deed executed by the person-in-charge dated 05.6.2000. The said cancellation was again cancelled when the person-in-charge appointment was cancelled by the Court on complaint by the society. Hence Mr. GGK Raju is not conferred with title for plot No.56. 3 6 Be that as it may, Capt. Ms. Uma Raju filed ARC No.1 of 2007 which was allowed, directing the Society to register sale deed in her favour in respect of Plot No.56 and deliver possession thereof. The same has been complied with by the society. Later Capt. Ms. Uma Raju alienated the plot No.56 by way of a registered sale deed Doc.No.425 of 2009 dated 21.4.2009 in favour of Gummadi Jhansi Lakshmi and since then she is in peaceful and vacant possession and enjoyment of the plot and also obtained house construction permission from local body and constructed rooms and people are living therein. 7 The first respondent herein Mr.GGK Raju filed Writ Petition No.3415 of 2003 before the erstwhile High Court of Andhra Pradesh seeking to direct the Sub-Registrar, Bowenpally and the President of the Society to abide by the direction of the ARC No.92 of 1984, to direct the Sub-Registrar to cancel all entries of cancellation of the sale deed dated 28.3.1983 and to abstain from making any further entries of cancellation at the instance of the petitioner society herein and to direct the Deputy Registrar of Cooperative Societies, Secunderabad to take action for prosecution against the Society and its President for violating the judicial orders dated 26.4.1990 passed in ARC No.92 of 1984.
8 A division Bench of the erstwhile High Court of Andhra Pradesh, Hyderabad, comprising The Chief Justice G.S.Singhvi and Justice C.V.Nagarjuna Reddy by order dated 13.7.2007 dismissed the said Writ Petition holding that without challenging the cancellation deed dated 21.8.2000 before competent civil 4 Court, the first respondent herein Mr. GGK Raju is not entitled to seek the reliefs. The Division Bench further observed that when the first respondent herein has an effective remedy available before the Tribunal he cannot seek relief under Article 226 of the Constitution of India. The order of the Division Bench became final. The first respondent Mr. GGK Raju has not paid the sale consideration in the light of above orders also. 9 More or less with the same set of facts pleaded and the reliefs prayed for in W.P.No.3415 of 2003, the first respondent filed ARC No.18 of 2009 before the Deputy Registrar of Cooperative Societies. The petitioners herein and Capt. Ms. Uma Raju contested the said ARC. However, the said ARC No.18 of 2009 was dismissed by order dated 09.12.2011 with an observation that the Deputy Registrar has no jurisdiction to entertain the case under Section 61 of the APCS Act. 10 Aggrieved thereby the first respondent Mr. GGK Raju filed CTA No.6 of 2012 on the file of the Cooperative Tribunal at Hyderabad. The Tribunal by judgment dated 19.9.2014 allowed the CTA and set aside the award in ARC No.18 of 2009. The Tribunal observed that the President of the Society i.e. 2nd petitioner herein is liable for punishment under Section 81 r/w Section 83 of the APCS Act and directed the Deputy Registrar to initiate necessary criminal action against the President of the Society. The Tribunal further directed the President of the Society to pay Rs.1.00 lakh to the first respondent Mr. GGK Raju. The Tribunal also held that the Award passed in ARC No.1 of 2007 filed by Capt. Ms. Uma Raju is collusive, it is void 5 ab initio and the sale deeds executed in pursuance of the award in that ARC in favour of Capt. Ms. Uma Raju on 07.4.2009 and the subsequent sale deed executed in favour of Jhansi Lakshmi Gummadi on 09.4.2009 are invalid and liable to be cancelled. 11 The Tribunal further held that the sale deed executed in favour of the first respondent on 28.3.1983 is valid and holds good and directed the Sub-Registrar, Bowenpally to cancel all the entries regarding the cancellation of the sale deed dated 28.3.1983 in the relevant books. It is relevant to mention here that in pursuance of the order of the Tribunal, FIR No.30 of 2015 dated 14.02.2015 has been registered against the second petitioner herein on the file of Karkhana Police Station upon the complaint of the Cooperative Department.
12 Aggrieved by the judgment dated 19.9.2014 in CTA No.6 of 2012, Gun Rock Enclave Co-operative Society and its President being first and second petitioners filed present W.P.No.32256 of 2014.
13 The contention of the petitioners in the above Writ Petition is that the Tribunal has committed jurisdictional error and the relief sought cannot be granted; the same has to be agitated before competent civil Court. He relied on the judgment M.Venkataramana v. A.P.Cooperative Tribunal, Hyderabad and Others1.
14 It is further contended that the first respondent was allotted plot No.190 and he cannot claim right to have plot No.56 1 2010 (4) ALD 500 (D.B) 6 without consideration of the right of another member who was allotted the said plot and who was not made a party to any of the proceedings which is contrary to all cannons of equity. 15 The Tribunal failed to see that the award in ARC No.1 of 2007, which was in favour of the original allottee, cannot be termed as collusive. If the same yardstick is applied, the entire proceedings initiated by the first respondent without making her a party and without hearing her, are all in violation of principles of natural justice and even otherwise, without challenging the said proceedings in ARC No.1 of 2009, they cannot be held to be collusive.
16 In fact all the proceedings initiated by the first respondent are non-est as the affected party was never made a party to any of the proceedings and all the proceedings took place behind her (Capt. Ms. Uma Raju) back.
17 The jurisdiction of the Tribunal is to resolve the dispute but has no power to award compensation which is beyond its power. It is further contended that the first respondent Mr.GGK Raju obtained plot without disclosing that he was a member of a similarly placed another Army Welfare Cooperative Society bearing registered No.TAB600 and got allotment of plot No.175 in AWHO and as such he is not even entitled either to be a member of the petitioner society or to get allotment of any plot in another society leave alone the petitioner society. First respondent- Mr.GGK Raju faces disqualification on the ground of dual membership. In pursuance of the order dated 25.4.2019 7 in W.P.No.9030/2019, an enquiry to determine dual membership of Mr. GGK Raju resulted adverse to him. It was opined that he is not entitled to dual membership. In this context CTA No.12 of 2020 has been filed by Mr.GGK Raju. To reject the CTA as not maintainable, I.A.No.49 of 2020 has been filed by Dr. Jhansi Lakshmi and the same was allowed dismissing the CTA, by order dated 01.02.2021. 18 Respondent Nos.2 to 5 who are legal heirs of the deceased first respondent filed counter contending that unilateral cancellation of the sale deed is erroneous, that Capt. Ms. Uma Raju suppressing the civil proceedings filed ARC No.1 of 2007 and obtained an Award and got sale deed executed in her favour. The subsequent sale deed dated 09.4.2009 in favour of Dr.Jhansi Lakshmi Gummadi is also non-est in the eye of law. That awarding the costs by the Tribunal is within its power as the powers of the civil courts are vested in the Tribunal. The first respondent was not a member of any other society by the time he was allotted plot by the petitioner society. 19 Aggrieved by the very same judgment in CTA No.6 of 1992, dated 19.9.2014, the 6th respondent in the CTA filed W.P.No.32273 of 2014 contending that the Deputy Registrar has rightly dismissed the ARC No.18 of 2009 filed by the deceased first respondent Mr.GGK Raju as the relief sought for in ARC No.18 of 2009 i.e. to direct the respondents Nos.1 and 2 therein i.e. the petitioners herein to abide by the decision rendered in ARC No.92 of 1984 dated 26.4.1990 by executing a cancellation deed cancelling the cancellation deed dated 24.8.2000 by 8 restoring the original sale deed dated 28.3.1983 and deliver the title deed for pot No.56 in Sy.No.157/8 of Thokatta Village, Secunderabad and consequently issue direction to the third respondent therein to cancel all entries of cancellation of the sale deed dated 28.3.1983 in Book-I, Vol.6 Doc.No.611/83 and to restrain him from making any further entries of cancellation without any judicial orders and to direct the respondent Nos.1 and 2 to pay compensation of Rs.10,000/- to the petitioner i.e. GGK Raju in preventing him from enjoying the property for the last 25 years and unnecessarily harassing to approaching the Court incurring huge amount for causing mental and physical agony and to declare the award passed in ARC No.1 of 2007 dated 06.9.2007 on the file of the Deputy Registrar / The Divisional Cooperative Officer, Secunderabad Division, M. J. Road, Hyderabad as null and void and not binding on the petitioner (GGK Raju) and consequently issue directions to the third respondent (Sub-Registrar, Bowenpally) to cancel the registered sale deed dated 07.4.2009 (Doc.No.376/2009) is beyond the jurisdiction of the Deputy Registrar and such reliefs which are declaratory in nature can only be sought by invoking the provisions of the Specific Relief Act before the competent civil Court but not before the Deputy Registrar as the sale deed was executed in favour of Capt. Ms. Uma Raju in respect of the same property bearing plot No.56 by following due process of law and hence the impugned judgment is liable to be set aside. 20 It is contended that the first respondent was already member of Army Welfare Cooperative Society and got allocation of Plot No.175, therefore he is not entitled to claim plot No.56 again in the present society as per 4 (2) of the bye laws of the 9 society. Dual membership in similarly placed societies is a disqualification to be a member.
21 It is further contended that the Tribunal below without giving any finding on the maintainability of ARC No.18 of 2009, simply set aside the orders passed by the Arbitrator / Deputy Registrar, Cooperative Societies.
22 It is further contended that Capt. Ms. Uma Raju in turn sold the same to the Petitioner in this Writ Petition i.e. Dr. Gummadi Jhansi Lakshmi and hence without invoking the provisions of the Specific Relief Act seeking cancellation of the sale deed, the ARC filed by the respondents shall not be entertained.
23 It is further contended that the petitioner in this Writ Petition is in possession of Plot No.56 and hence the judgment in CTA No.6 of 2012 in favour of the first respondent and his L.Rs is erroneous. That the Tribunal below failed to see that when once an Award is passed, the authority becomes functus officio and for implementation of the Award, filing another ARC is not maintainable. The Cooperative Societies Act does not empower to do so.
24 The respondent Nos.2 to 6 being the L.Rs of the deceased first respondent filed their counter with the same set of facts pleaded in Writ Petition No.32256 of 2014.
25 Aggrieved by the order of the Tribunal in CTA No.6 of 2012 directing the Deputy Registrar of Cooperative Societies to initiate 10 necessary action against the President of the Society by lodging a complaint with police, the President of the petitioner society filed W.P.No.7228 of 2015 seeking to quash FIR No.30 of 2015 on the file of Karkhana police station registered for the offences punishable under Sections 406, 420, 468 and 467 of IPC. 26 Heard the learned counsel for all the parties in all the Writ Petitions and perused the entire material available on record. 27 The Tribunal failed to observe that the first respondent filed the CTA aggrieved by the decision rendered in ARC No.18 of 2009, which itself is not maintainable because the ARC No.18 of 2009 was filed seeking a direction to direct the petitioners to abide by the decision rendered in ARC No.92 of 1984. The prayer in the ARC No.18 of 2009 to abide by the decision in ARC No.92 of 1984 is not maintainable since the authority becomes functus officio and that the first respondent cannot file another ARC for implementation of earlier award. The Cooperative Societies Act does not empower to do so. Award passed in first ARC cannot be executed by filing second ARC. It is not E.P. proceedings. The power to cancel the registered documents vests with the civil courts only and the arbitrator lacks jurisdiction thereon. The Cooperative Tribunal in its judgment has given findings and passed orders with regard to the cancellation of the sale deeds and went into the aspect of title which the Tribunal is having no jurisdiction. As per Section 70 of the Act, only the civil Court has jurisdiction. Accordingly, on this point the judgment of the Tribunal is liable to be set aside since the issue of title has to be decided by a competent civil Court.
1128 In M.Venkataramana v. A.P.Cooperative Tribunal, Hyderabad and Others2 it was categorically held that the civil Court alone has jurisdiction but not Cooperative Tribunal to decide the issue. Therefore, the impugned judgment of the Tribunal is liable to be set aside for want of jurisdiction to entertain or adjudicate upon the dispute referred to above. 29 Further, it is to be seen that plot No.56 was initially allotted to Capt.Ms.Uma Raju, she paid the entire sale consideration and since the society did not execute the conveyance deed in her favour she filed an Arbitration Case and got award in her favour and subsequently she filed E.P.No.20 of 2008 and got registered the plot No.56 through the competent civil Court. The said proceedings have not been challenged and they became final.
30 Right from the threshold the case of the petitioner society is that plot No.56 was mistakenly registered in favour of the first respondent Mr. GGK Raju instead of Plot No.190 and that fact was intimated to said GGK Raju by way of letter dated 16.12.1983. The said letter was also not challenged by Mr. GGK Raju.
31 In those circumstances there is justification on the part of the petitioner society in cancelling the sale deed executed in favour of said Mr. GGK Raju - first respondent in respect of plot No.56. The Division Bench also observed in W.P.No.3415 of 2003 that the said cancellation deed has also not been 2 2010 (4) ALD 500 (D.B) 12 challenged by Mr. GGK Raju before competent civil Court. The fact was that the said GGK Raju was never allotted plot No.56. Hence the said registration through court of law in favour of Capt. Ms. Uma Raju has become final and binding on all parties. 32 Therefore, on facts of the case also, the first respondent has no right to seek a direction to the petitioner society to register plot No.56 in his favour and for that purpose he cannot file another ARC. One ARC cannot be filed (as an EP) to execute the orders of earlier ARC. This is not recognized under the statute. The Tribunal failed to appreciate the issues on factual and legal domain. The Tribunal has erred and overstepped its jurisdiction in directing the Sub-Registrar, Stamps and Registration Department to delete the entries in the registers in so far as the sale deeds.
33 The first respondent Mr. GGK Raju filed W.P.No.3415 of 2003 which was dismissed by a Division Bench. The Court gave adverse findings against said Mr. GGK Raju with regard to his membership. The said fact and legal finding by Division Bench on the issue of cancellation deed as well as non-payment of sale consideration by him in pursuance of ARC No.92 of 1984 cannot be ignored. The adverse finding of Division Bench are facing towards him.
34 O.S.No.3122 of 1984, O.S.No.1769 of 1989 E.P.No.13 of 1990 in O.S.No.1769 of 1989 cannot bind Dr. Jhansi Lakshmi or Capt.Ms.Uma Raju as they are not party to the suit proceedings. Under Cooperative Societies Act the said suits are 13 barred under Section 121 of the Cooperative Societies Act. Since the dispute under Section 61 of the Cooperative Societies Act runs around management, business, members, election issues but not under Transfer of Property Act. The State Act cannot have an overriding effect on Central Act. 35 The petitioner in W.P.No.32273 of 2014 Dr. Gummadi Jhansi Lakshmi purchased Plot No.56 from Capt. Ms. Uma Raju under a registered sale deed and she has been in possession of the property. When that aspect was challenged by Mr. GGK Raju before the Tribunal, the Tribunal set aside the sale deed, which is without jurisdiction of the Cooperative Tribunal since a competent civil Court alone has to look into the aspect. More so, when Plot No.56 was registered by a competent civil Court, in favour of Capt. Ms. Uma Raju in E.P. proceedings as stated supra, the said registration remained unchallenged. Without challenging the registration in favour of Capt. Ms. Uma Raju, challenging the registration of sale deed of the petitioner/Dr. Jhansi Lakshmi Gummadi is erroneous. The Tribunal cannot act as a civil Court in relation to Transfer of Property Act. 36 The contention of the petitioners in both the Writ Petitions is that Mr. GGK Raju was allotted a plot in Army Welfare Cooperative Society and that presently he is residing in that plot. There is no specific denial from Mr. GGK Raju or his legal heirs that he was not allotted any plot in Army Welfare Cooperative Society bearing Reg.No.TAB 600 and got allocation of Plot No.175. Therefore, the judgment of the Cooperative Tribunal is liable to be set aside.
1437 The learned counsel for the respondents by relying on the judgment of the Hon'ble apex Court in Thota Ganga Laxmi v. Government of Andhra Pradesh3 submitted that notice before cancellation of the document to the effected party is necessary. However, this Court completely agrees with the legal position. But the facts of the above case are not applicable to the facts of the present case since Mr. GGK Raju has not challenged the cancellation deed before any competent court of law. 38 As far as W.P.No.7228 of 2015 is concerned, the Cooperative Tribunal went to an extent of fixing the criminal liability against the second petitioner and directed the concerned Deputy Registrar to initiate criminal action against the President of the Society. The Cooperative Tribunal has no jurisdiction under Transfer of Properties Act. It can only decide upon issues relating to Cooperative Societies Act. The Cooperative Tribunal has travelled beyond the scope of its appellate jurisdiction and has gone to the extent of passing orders which is ultra vires and the said observation is liable to be set aside. The Tribunal travelled beyond the scope of appeal and it cannot decide ARC No.1 of 2007, which is not the subject matter in CTA No.6 of 2012. The CTA 6 of 2012 was filed challenging the award passed in ARC No.18 of 2009. The President of the society cannot be personally held liable. It will be the decision of the Managing Committee or the Board of Directors. Unless it is held in an enquiry against the President, liability cannot be fixed against him and it cannot be said that the President is guilty. More so, 3 2012 (3) ALT 50 (SC) 15 in the light of court orders against Mr. GGK Raju, the sudden twist by the Tribunal holding the President as guilty is unjust. The penal provision under the Act and Rules provides for imposition of penalty of fine of Rs.500/- only in the event it is found that the person in the Society is guilty of committing any irregularity. But the Cooperative Tribunal has gone to the extent of imposing penalty of Rs.1.00 lakh which is disproportionate and contrary to the Section 81 itself. Unless dispute under Section 61 of the Act is resolved and an order under Section 62 became final and unless accountability is fixed for noncompliance against Society or individual, powers invoking under Section 81 of the Act is ultra vires. The Tribunal is not vested with power to impose penalty of Rs.1.00 lakh under Section 81 r/w Section 83 of the Act. The jurisdiction of the Tribunal is to resolve the dispute and has no power to award compensation. Accordingly, that finding of the Tribunal is set aside.
39 Further, in the light of the findings given in the other two Writ Petitions, it can be held that it is not a case of cheating or forgery to attract the provisions of Section 420 or 467 or 468 of IPC. Here, the facts of the case reveal that the President and the society have not forged any document and not cheated the first respondent Mr. GGK Raju for delivery of any valuable property. Therefore, the finding of the Cooperative Tribunal on this point is liable to be set aside.
40 Accordingly the issues involved in these Writ Petitions relating to cancellation of sale deed, cancellation of entries in the 16 books in Sub-Registrar's Office, filing of second ARC, dual membership, registration of criminal cases are answered against the respondents i.e. Mr. GGK Raju and his legal heirs. 41 In the result, Writ Petitions W.P.No.32256 of 2014 and W.P.No.32273 of 2014 are allowed, by setting aside the judgment of the Cooperative Tribunal in CTA No.6 of 2012 dated 19.9.2014. In consequence thereof, W.P.No.7228 of 2015 is also allowed quashing the FIR No.30 of 2015 dated 14.02.2015 on the file of Karkhana Police Station.
42 This Court is of the opinion that this is only a vexatious litigation by the respondents before wrong forum seeking inappropriate reliefs and wasting valuable time of the Court. Hence the Writ Petitions are allowed with costs of Rs.10,000/- (Rupees Ten Thousand only) in each Writ Petition to be paid in favour of Telangana High Court Advocates Association, Hyderabad. Miscellaneous petitions if any pending in all these Writ Petitions shall stand closed.
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T.AMARNATH GOUD, J.
Date:09-4-2021 Kvsn