Andhra Pradesh High Court - Amravati

M.Lakshminarayana, Died Per Lrs 2 ... vs The A.P.Cooperative Tribunal, ... on 16 November, 2022

Bench: R Raghunandan Rao

     THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

               WRIT PETITION No.7716 of 2016


ORDER:

The petitioner herein had purchased a plot bearing No.31,

admeasuring 5 cents, in survey Nos.625/1, 625/2, 625/3,

252/7 & 626/8, situated in Rayachoty Grampanchayat, Kadapa

District, on 17.10.1989, by way of a registered deed of sale from

the 3rd respondent-society. It is the case of the petitioner that he

was a member of the 3rd respondent-society, and had been

allotted this plot on 17.10.1987, much prior to the execution of

the deed of sale.

2. In the year 2006, the 2nd respondent approached the

4th respondent-Arbitrator by filing A.R.C.No.1/2007-08 under

Section 61(1) of the Andhra Pradesh Cooperative Societies Act

on the ground that the said plot was originally allotted to the 2nd

respondent and he should be declared as the owner of the

property. The 4th respondent, dismissed this application.

Aggrieved by the said order, the 2nd respondent had approached

the Cooperative Tribunal, Warangal by way of CTA.No.39 of

2009. The Tribunal after hearing both sides had remanded the

matter to the 4th respondent, for fresh adjudication. The 4th

respondent took up the case again as ARC.No.2/2010-11 and

dismissed the Arbitration Case by an order dated 22.10.2010.

The 2nd respondent again filed an appeal against this order

before the Cooperative Tribunal, Warangal and the same was

numbered as CTA.No.1 of 2011. This appeal was transferred to

the Cooperative Tribunal, Hyderabad and was renumbered as

CTA.No.116 of 2011. The matter was transferred to the Andhra

Pradesh Cooperative Tribunal, Vijayawada after the bifurcation

of the State and renumbered as O.A.No.43 of 2014.

3. The Andhra Pradesh Cooperative Tribunal,

Vijayawada allowed the appeal of the 2nd respondent against the

petitioner, by way of an order dated 05.10.2015. Being aggrieved

by the said order, the petitioner had approached this Court, by

way of the present writ petition.

4. Before adverting to the respective contentions, it

would be necessary to notice a few facts. The 2nd respondent had

not challenged the execution of the deed of sale in favour of the

petitioner dated 17.10.1989 while the matter was pending before

the Arbitrator. However, this relief was sought in CTA.No.1 of

2011. Further, the petitioner had executed a registered deed of

gift in favor of his son, who is arrayed as 5th respondent herein.

However, this registered deed of gift was not challenged before

the Arbitrator but the said deed was challenged in the appeal

filed in CTA.No.1 of 2011.

5. The case of the 2nd respondent was that plot No.31

was originally allotted to the 2nd respondent and he had

continued to pay the installments to the 3rd respondent society,

as and when he was called upon to pay these installments. He

further states that he was transferred out of the area and was

working elsewhere in the United State of Andhra Pradesh on

account of his job and was unaware of the allotment of the plot

to the petitioner and the subsequent deed of sale until the year

2006. He would further submit that the land in which plot

No.31 is situated was the subject matter of litigation with a third

party and he had assumed that further installments were not

being demanded from him on account of the pending litigation.

The Arbitrator had initially dismissed the Arbitration case in

ATC.No.1 of 2007-08 against which an appeal has been filed. In

the appeal, the Cooperative Tribunal is said to have taken the

view that matter of limitation does not bar the present case as

the date of knowledge would have to be taken into account. The

matter was then remanded to the Arbitrator who dismissed the

case again.

6. In the 2nd round of appeals, the Tribunal took the

view that there were no proceedings available to show that the

allotment of the plot in favour of the 2nd respondent had been

cancelled and that the said plot was re-allotted to the petitioner.

The Tribunal also held that in view of the earlier finding of the

Tribunal relating to the question of limitation, the claim of the

2nd respondent is not barred by limitation and would be taken

up for adjudication.

7. On the basis of these findings, the Tribunal set-aside

the deed of sale dated 17.10.1989 as well as the gift deed

executed in favour of the 5th respondent who is the son of the

petitioner herein.

8. The contention of the petitioner, in the present case,

apart from the contentions on facts, are that the tribunal could

not have granted a relief larger than the relief sought before in

the original proceedings; the 2nd respondent could not have

expanded the scope of relief in the appeal, without having

sought such reliefs in the primary proceedings; neither the

arbitrator nor the Tribunal in appeal, would have the power to

cancel the registered deed of sale or registered deed of gift and

the same is only permissible by way of proceedings before a

competent Court of civil jurisdiction. The learned counsel for the

petitioner had relied upon the judgments of this Court reported

in V.Shravan Kumar vs. Lt.Col.S.B. Sharma and Others.,1 and

2011(1) ALD 385

M.Venkata Ramana Vs.A.P.Co-operative Tribunal, Hyderabad

and Others2.

9. The learned counsel for the 2nd respondent

contended that, on the facts of the case, it is apparent that the

President of the 3rd respondent society had unauthorisedly

executed a deed of sale in favour of the petitioner and such a

deed of sale is invalid on account of the fact that the original

allotment made in favour of the 2nd respondent had not been

cancelled or altered and that the deposition of the witnesses

established the fact that the society itself was unaware of the

execution of the deed of sale in favour of the petitioner by the

President of the 3rd respondent society.

[

10. The question of whether the Tribunal could have

permitted the petitioner to file an appeal containing reliefs which

are not sought before the Arbitrator may not require any

adjudication in view of the manner in which the present writ

petition is being disposed of by this Court.

11. The Division Bench of the erstwhile High Court of

Andhra Pradesh in the case of M.Venkata Ramana Vs.A.P.Co-

operative Tribunal, Hyderabad and Others., had held that the

provisions of Section 61 of the Act could not be applicable to

decide the genuineness or otherwise of sale deeds and for

2010 (4) ALD 500

cancellation of such deeds of sale as recourse would have to be

taken, in such a situation, only to provisions of the Specific

Relief Act and the Arbitrator cannot usurp the jurisdiction of the

Civil Court. In the case before the Division Bench, certain

allotment of sites and consequential deeds of sale registered in

favour of the said allottees by a society were sought to be

cancelled on the ground that the said allotments and sales were

not in accordance with the layout prepared by the society and

certain common areas and roads were also sold away by an

office bearer who was not elected by the General Body of the

Society. The Division Bench, after considering the objection of

the respondents therein that such issue cannot be raised before

an Arbitrator under Section 61, had held as follows:

24."A perusal of the above provision would show that any dispute touching the constitution, management or the business of a society, other than a dispute regarding disciplinary action taken by the society or its committee against a paid employee of the society, can be referred to the Registrar. Such a dispute can be referred when it arises inter-alia among the members, past members and persons claiming through members, past members and deceased members or when it arises between a member, past member or person claiming through a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society etc., or between the society and any other society.

25. "Though sub-section (1) of Section 61 used expression 'any dispute', the provision when read in its entirety shows that only certain classes or types of dispute and that too arising between certain classes of persons alone are to be referred to the Registrar. Firstly, the dispute shall be one touching the constitutional management or the business of the society. Secondly, such a dispute touching upon the constitution, management or business of the society, must have been between the members or past members or persons claiming through them inter se or between a member, past member or persons claiming through them and the society or between the society and its officers or employees, agents, nominees or between the subject society or some other society. Under Section 62 of the Act, the Registrar may, on receipt of the reference of a dispute under Section 61 either elect to decide the dispute himself; or transfer it for disposal to any person who has been invested by the Government with powers in that behalf; or refer it for disposal to an Arbitrator.

29. "It can be seen from the above provision that among other things, actions taken in accordance with the Act or Rules made there under shall be final subject to the provisions of the appeal, revision and review and no such action taken shall be liable to be called in question in any Court or forum. In order to attract immunity from being questioned in a civil Court, action taken must be one, which is in accordance with the Act or Rules made there under. Before a dispute can be referred to Arbitration under Section 61(1), it must be shown that the said dispute is one touching the constitution, management or business of the society. Admittedly, the present dispute regarding the alienation of an extent of 3.2 cents in favour of M.Venkataramana and 3 cents in favour of RCS Raju,

are not disputes touching the constitution or management of the society.

12. Subsequently, a learned Single Judge of the

erstwhile High Court of Andhra Pradesh in the case of

V.Shravan Kumar vs. Lt.Col.S.B. Sharma and Others.,

following the aforesaid judgment had also held that such

matters cannot be raised before the Arbitrators and it would

have to be raised only by way of a civil proceeding. In the

circumstances, it must be held that neither the arbitrator nor

the Cooperative Tribunal had the jurisdiction to set aside a

registered deed of sale or a registered deed of gift. Consequently,

this writ petition is allowed setting aside the orders of the

Cooperative Tribunal, Vijayawada in O.A.No.43 of 2014 dated