Andhra Pradesh High Court - Amravati
Khumbhagiri Chennakesavulu, vs State Of Andhra Pradesh on 19 August, 2024
APHC010754932012
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3330]
(Special Original Jurisdiction)
MONDAY, THE NINETEENTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO
WRIT PETITION No: 23889/2012
Between:
Khumbhagiri Chennakesavulu, ...PETITIONER
AND
State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. SITA RAM CHAPARLA
Counsel for the Respondent(S):
1. K V RAGHU VEER
2. V PADMANABHA RAO
3. GP FOR COOPERATION
The Court made the following:
2
ORDER:
The present Writ Petition is filed under Article 226 of the
Constitution of India for the following relief/s:
"... to issue a WRIT OF CERTIORARI calling for entire records
connected to order in claim No.1 of 2011, dt.30.01.2012
passed by 3rd respondent, examine the same and set it aside,
after declaring the same as illegal, irregular, irrational, without
jurisdiction, violative of provisions of Andhra Pradesh
Cooperative Societies Act, 1964 and rules framed thereunder
and offends Articles 14 and 21 of Constitution of India and
consequently direct the respondents not to interfere in any
manner with plot No.10 admeasuring 400 sq. yds. in Survey
Number 404 of Markapur Town and pass such other order....."
2. The present writ of certiorari is being submitted before this Court
to call for records and to quash the proceedings of the Assistant
Registrar of Cooperative Societies-cum-Arbitrator, in Claim No.1 of
2011 dated 30.01.2012 who is arrayed as 3rd respondent herein.
3. The 5th respondent in the present Writ Petition, by name Smt.
Devanaboina Ramalakshmi, originally filed the said Claim No.1 of 2011
before the 2nd respondent herein, i.e., the Deputy Registrar of
Cooperative Societies, Markapur, to adjudicate upon the claim
made by her (i.e., 5th respondent).
4. The case of the 5th respondent herein is that she is the daughter
of Malasani Chenna Kesavulu, who is the member of Markapur Public
Servants Cooperative Society, and the plot No.8 was allotted to her
father and her father executed a gift deed in her favour, which is an
extent of 400 square yards in Sy.No.404 in Markapur town and the 5th
respondent herein raised a compound wall to the height of 9 feet and
the writ petitioner along with his agents came to their plot and
trespassed into the site and dismantled the said compound wall and the
writ petitioner along with his agents tried to raise constructions in the
said plot without being any right or title over the said property.
Therefore, the 5th respondent herein implored to adjudicate upon the
dispute and to direct the writ petitioner not to interfere with her peaceful
possession and enjoyment of plot No.8 in an extent of 400 square yards
in Sy.No.404 in Markapur town.
5. As the 2nd respondent herein has not pursued the said
representation/application, the 5th respondent herein filed
W.P.No.18478 of 2008 before the composite High Court for resolution of
the dispute by way of Arbitration under Section 61 of the Andhra
Pradesh Cooperative Societies Act, 1964 (for short, 'the
Act of 1964') and the said Writ Petition was disposed by the
composite High Court, vide order dated 30.06.2011, observing that "this
Court has no doubt that the dispute will be entertained for arbitration
under Section 61 of the Act of 1964 and will be adjudicated in terms
thereof".
6. Basing upon the said observation, the 2nd respondent herein has
transferred the said dispute to the 3rd respondent herein, i.e., the
Assistant Registrar of Cooperative Societies-cum-Arbitrator,
Markapuram (hereinafter called, 'the Arbitrator') for adjudication and for
decision.
7. The sum and substance of the case of the 5th respondent herein
is that her father is the member of Markapur Public Servants
Cooperative Society and a plot was allotted to her father and the same
was gifted to her and the writ petitioner herein is interfering with the
peaceful possession and enjoyment over the said plot. The specific
prayer of the 5th respondent in the claim application reads thus:
"The petitioner therefore prays that this Honourable Authority
may be pleased to pass an interim order as well as final order
directing the respondents not to interfere with the peaceful
possession and enjoyment of the Plot No.8 admeasuring 72' x
50' of an extent of 400 sq. yards in Sy.No.404 situated at
Markapur, Prakasam District."
8. The 3rd respondent-Assistant Registrar of Cooperative Societies-
cum-Arbitrator has disposed of the Claim No.1 of 2011 by an order
dated 30.01.2012, observing thus:
"The Arbitrator came to the conclusion that the respondents 1 to
3 in the Claim application (writ petitioner and respondents 6 and
7 in the present writ petition) have no manner of right or
possession either plot No.8 or plot No.10. Hence it is order that
the respondents are restrained by means of injunction
restraining that the respondents 1 to 3 from entering into plot
No.8 and plot No.10. If the respondents failed to produce any
reliable evidence that the plot No.10 belongs to them. Further it
is clear from the society record that plot No.10 was allotted to
Sri B.Arthor that there is no evidence that Sri B.Arthor allayed
the property to others."
9. The said order dated 30.01.2012 in Claim No.1 of 2011 is
assailed in the present Writ Petition by the respondent No.1 in Claim
No.1 of 2011, who is the writ petitioner herein, on the grounds that plot
No.10 ad-measuring 400 square yards was allotted to one B.Arthur who
is the members of the 4th respondent society and the said B.Arthur sold
plot under registered sale deed dated 03.06.1985 in favour of one
S.Mahaboo Piran and after his demise, the said plot was sold in favour
of the writ petitioner by executing a regular sale deed dated 29.12.2006,
vide document No.1342 of 2007 and the writ petitioner was inducted
into possession on 29.12.2006 and ever since, he had been in exclusive
possession and enjoyment of the said plot till the writ petitioner sold 200
square yards therefrom vide registered sale deed dated 25.04.2007 to
third party.
10. And the 2nd respondent i.e., the Deputy Registrar of Cooperative
Societies, does not have power or authority or has jurisdiction to receive
and forward any claim petition of 5th respondent herein to 3rd
respondent-Arbitrator and the Arbitrator does not have power, authority
or jurisdiction to entertain, enquire into and decide any claim of the 5th
respondent herein by name Smt. Devanaboina Ramalakshmi. And
further contended that either, the Deputy Registrar of Cooperative
Societies or, the Arbitrator cannot grant the relief of declaration of title
and perpetual injunction in respect of immovable property and such
reliefs could be granted only by a Court of competent civil jurisdiction
established under the provisions of the Andhra Pradesh Civil Courts Act
and the claim of the 5th respondent has to be confined to plot No.8 but
not over plot No.10, and she should have approached a competent civil
court, but not before the Arbitrator. And it is also stated that petitioner is
having no other efficacious remedy except to approach this Court under
Article 226 of the Constitution of India.
11. And also contended that the dispute which, from its very nature,
is incapable of being resolved by the Registrar, ought to have
been eschewed by the Arbitrator and relied on the judgment of the
Hon'ble Apex Court in Velagacharla Jayaram Reddy and others v.
M.Venkata Ramana and others1.
12. Before discussing with the judgment of the Hon'ble Apex Court
in Velagacharla Jayaram Reddy's case (1 supra), it is appropriate to
mention that this court's judgment in M.Venkata Ramana v. A.P.Co-
operative Tribunal, Hyderabad and others2 and others is the basis for
the petitioner's judgment, wherein it was held by the composite High
Court in the following manner:
"As rightly contended by the learned counsel for the
petitioners that the genuineness or otherwise of the sale
deeds, the identity and nature of the land in dispute, whether
the alienations are liable to be set aside and the sale deeds
are liable for cancellation, and whether the constructions
(2022) 4 SCC 129
2010 SCC Online AP 313 = (2010) 4 ALD 500
made by the petitioners on the disputed land are liable to be
demolished or not, are all matters, which are outside the
scope of Section 61 of the Act, as they do not relate to
business of the society, which can be referred to and
adjudicated upon by the Arbitrator. When once, the sale
deeds are executed and registered, title in the property
covered by the sale deeds gets legally transferred in favour
of the vendees and even the vendor cannot unilaterally
cancel the same. In case the trans- action is found to be
illegal and beyond the authority of the society, necessary
recourse has to be taken to the provisions of the Specific
Relief Act, which provides for cancellation of documents and
decrees."
From the said judgment, it appears that the Arbitrator lacks jurisdiction
to resolve the dispute.
13. The said findings have been approved by the Hon'ble Apex Court
in Velagacharla Jayaram Reddy's case (1 supra), arising out of the
same judgment in M.Venkata Ramana's case (2 supra).
14. Learned counsel for the petitioner filed a memo dated
24.07.2024, vide W.P. USR No.64481 of 2024 dated 25.072024,
enclosing a copy of the order in I.A.No.470 of 2012 in O.S.No.130 of
2012 and also a copy of the order in I.A.No.781 of 2015 in O.S.No.130
of 2012 on the file of the Court of Senior Civil Judge, Markapur. On
perusal of the order it discloses that the 5th respondent herein filed suit
for declaration of title and I.A.No.470 of 2012 for permanent injunction
pending disposal of the suit, under Order XXXIX Rules 1 and 2 read
with Section 151 of C.P.C. on the file of the Court of Senior Civil Judge,
Markapur. And the leaned Senior Civil Judge, while denying the
injunction to the 5th respondent herein, observed that "the petitioner (5th
respondent herein) cannot succeed to prove her title basing on the
unregistered and insufficiently stamped notarized gift deed. Therefore, it
can be said that there is no prima facie case in favour of the petitioner.
Further the petitioner failed to prove that the first two plots were
submerged in the water canal and the petitioner wrongly claiming plot
No.10 as of her. The respondent started construction over his plot
No.10. After shifting the material from the facets, the Court is of the
considered opinion that there is no prima facie case in favour of the
petitioner. The respondent is owner of plot No.10 and he started
construction over his plot and the petitioner is no way concerned with
plot No.10. If injunction is granted much inconvenience will be caused
to the respondent."
15. Now basing upon the order in I.A.No.470 of 2012 in O.S.No.130
of 2012 on the file of the Senior Civil Judge, Markapur, the writ
petitioner claims that the 5th respondent has no connection to the
property and that her property was submerged in a canal. And also
contended that the Arbitrator has no jurisdiction to entertain the dispute
and it is beyond the scope of the Arbitrator by relying on the judgment of
the Hon'ble Apex Court (referred supra), prayed to set aside the order
passed in Claim No.1 of 2011 dated 30.01.2012.
16. As per the claim application, the counsel representing the 5th
respondent herein claims that the arbitrator has jurisdiction to decide the
issue, the prayer of the 5th respondent is to direct the writ petitioner
herein not to interfere with the peaceful possession and enjoyment of
the 5th respondent over the plot No.8. And it is also contended that the
petitioner has not made any case to adjudicate the matter before this
Court, thereby enforcing the jurisdiction of this Court under Article 226
of the Constitution, and the Arbitrator has passed an award after giving
ample opportunity of hearing to the writ petitioner and the 5th respondent
herein and therefore, learned counsel for the 5th respondent would urge
this Court to dismiss the Writ Petition on the aforesaid grounds.
17. And also relied on the judgment of the composite High Court
in Ashish Kumar Bhaumik and another v. Pramila and others 3, wherein
a learned Single Judge of the composite High Court held that an
Arbitrator is having jurisdiction to decide the title and despite the
judgment of the composite High Court in M.Venkata Ramana's case (2
supra), observing that the judgment is not applicable because the
alienation was made for a stranger who is not a member of society.
18. Now the point for consideration is, whether the Arbitrator is having
jurisdiction to entertain a title dispute and the Claim No.1 of 2011 is
liable to be set aside?
19. Before going into factual aspects pleaded by the respective
parties, this Court proposes to deal with the legal submissions
advanced by learned counsel for the respective parties.
20. As seen from the prayer of the 5th respondent raised before the
Arbitrator is to direct the writ petitioner not to interfere with her
possession and enjoyment over plot No.8.
2013 SCC Online AP 677 = (2013) 5 ALD 634
21. The Arbitrator, while passing the award, has adjudicated the
dispute and held in the following manner that: "The Arbitrator came to
the conclusion that the respondents 1 to 3 (the writ petitioner herein and
two other) have no manner of right, title or possession either plot No.8
or plot No.10".
22. In the present case, the Arbitrator has acted beyond its powers in
granting relief that was beyond the subject matter of the reference under
section 61 of Act and Rule 1964 as there were no prayer and pleadings
for the same. The Arbitrator has to be strictly bound by the terms of
reference or if there are no specific terms of reference, by the dispute or
controversy raised under Section 61 of the Act of 1964 by a member
against the concerned member or the society, as the case may be. It is
only with respect to the disputed matters that the Arbitrator can proceed
to give his award and he cannot go beyond the scope of dispute that
could be said to arise out of the application filed before the Registrar.
23. The Hon'ble Supreme Court in Bachhaj Nahar v. Nilima Mandal
and another4, has held that the relief cannot be granted beyond the
pleadings. The relevant portion of the said judgment, reads as under:-
(2008) 17 SCC 491
"16. The observation of the High Court that when a plaintiff
sets forth the facts and makes a prayer for a particular relief in
the suit, he is merely suggesting what the relief should be, and
that it is for the court, as a matter of law, to decide upon the
relief that should be granted, is not sound. Such an
observation may be appropriate with reference to a writ
proceeding. It may even be appropriate in a civil suit while
proposing to grant as relief, a lesser or smaller version of what
is claimed. But the said observation is misconceived if it is
meant to hold that a civil court may grant any relief it deems fit,
ignoring the prayer. It is fundamental that in a civil suit, relief to
be granted can be only with reference to the prayers made in
the pleadings. That apart, in civil suits, grant of relief is
circumscribed by various factors like court fee, limitation,
parties to the suits, as also grounds barring relief, like res
judicata, estoppel, acquiescence, non-joinder of causes of
action or parties etc., which require pleading and proof.
Therefore, it would be hazardous to hold that in a civil suit
whatever be the relief that is prayed, the court can on
examination of facts grant any relief as it thinks fit. In a suit for
recovery of Rs.one lakh, the court cannot grant a decree for
Rs.Ten lakhs. In a suit for recovery possession of property 'A',
court cannot grant possession of property 'B'. In a suit praying
for permanent injunction, court grant a relief of declaration or
possession. The jurisdiction to grant relief in a civil suit
necessarily depends on the pleadings, prayer, court fee paid,
evidence let in, etc."
24. In the present case, the Arbitrator has exceeded his jurisdiction
and granted relief of title in favour of the 5th respondent herein and the
Arbitrator has exercised his jurisdiction not voluntarily and it is beyond
the provisions of the Act of 1964. The said finding of the Arbitrator is
liable to be set aside. Therefore, the award passed by the 3rd
respondent-Arbitrator is hereby set aside and the matter is remanded
back to the Arbitrator to adjudicate the matter afresh keeping in view of
the judgment in M.Venkata Ramana's case (2 supra) and which
affirmed by Supreme Court in a reported judgment in Velagacharla
Jayaram Reddy's case (1 supra).
25. The Arbitrator's registration of the dispute as claim No.1/2011 and
decision on it is in accordance with the High Court's direction in
W.P.No.18478 of 2008, so it cannot be concluded that he has no
jurisdiction.
26. Additional document i.e., an order in I.A.No.470 of 2012 in
O.S.No.130 of 2012 on the file of the Senior Civil Judge, Markapur, was
filed by the petitioner during the course of hearing in the writ petition.
The order that it pertains to an interlocutory application in a suit was
filed by the 5th respondent seeking the declaration and consequential
injunction. In the order, the Judge stated that the 5th respondent has no
right to the property. Which document sought to be brought on record
supports the petitioner's stand that the said additional document which
may have a vital bearing on the merits of the case and it goes to the
very root of the matter and that it is absolutely necessary for
pronouncing judgment and if it is not allowed to be produced, the
eventual order passed by the Arbitrator would be leading to injustice to
the petitioner.
27. It is to observed that, if additional documents are filed then the
concerned parties likely to be affected should be put on notice on such
additional documents to satisfy the principle of natural justice. The
matter requires fresh consideration by the Arbitrator. Parties are given
liberty to supplement their respective pleadings if they so choose and
file additional documents, if any, which shall be received by the
Arbitration for its consideration.
28. Accordingly, the Writ Petition is allowed and the impugned order
dated 30.01.2012 in Claim No.1 of 2011 is hereby set aside and both
parties are relegated to the Arbitrator and the Arbitrator is hereby
directed to settle the dispute between the writ petitioner and the 5th
respondent herein and pass appropriate orders afresh including the
jurisdiction of the Arbitrator to entertain the dispute keeping in view of
the division bench judgment of the common high court in M.Venkata
Ramana's case (2 supra), after giving opportunity to both the parties
and permitting both parties to file additional material papers. Needless
to say that this Court has not expressed any opinion on the merits of the
case. There shall be no order as to costs.
As a sequel, interlocutory applications pending, if any, in this Writ
Petition, shall stand closed.
__________________________________
JUSTICE TARLADA RAJASEKHAR RAO
Date:19.08.2024
siva
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
WRIT PETITION No.23889 OF 2012
Date: 19.08.2024
siva
