Bombay High Court
Nandakumar Narayanrao vs Tirupati S.Gruih Nirman Sanstha & ... on 16 August, 2016
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5004 OF 1995
Nandkumar S/o Narayanrao Sakhrekar,
Age-Major, Occu-Agriculturist,
PETITIONER
R/o Nanded, Dist. Nanded
VERSUS
1. Tirupati Sahakari Graha Nirman Sanstha
Limited, Dhanegaon,
Tal. and Dist. Nanded,
2. Jagdish Laxman Botalwar,
Age-Major, R/o Cidco,
New Nanded, ND-41, House No.12-A,
CIDCO, New Nanded RESPONDENTS
Mr.A.S.Deshmukh, Advocate for the petitioner.
Mr.A.R.Tapse h/f Mr.D.N.Suryawanshi, Advocate for respondent No.2.
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 16/08/2016
ORAL JUDGMENT :
1. I have heard the learned Advocates for the petitioner and
respondent No.2. Respondent No.1 has chosen to remain absent.
2. Respondent No.1 is a Registered Co-operative Housing Society.
A dispute was raised by the petitioner before the Co-operative Court,
Nanded alleging that Plot No.278 in S.No.112, situated at Dhanegaon,
Tal. and Dist. Nanded was allotted to him. Respondent No.2 has
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encroached upon the said plot and has illegally erected a
construction of his house on the said plot.
3. He alleged that he had paid Rs.51/- on 28/10/1980 and was
therefore made a member of the Society. He had paid Rs.1,200/- on
21/01/1981 and by virtue of the receipt issued by the Chairman of
the Society on 07/02/1981, he was allotted the disputed Plot No.278.
It is based on these contentions that the petitioner prayed for
possession of Plot No.278.
4. By the impugned judgment dated 29/06/1991 delivered by the
Co-operative Court, Nanded, the dispute raised by the petitioner was
dismissed as against respondent No.2. However, a direction has been
issued to respondent No.1 / Society to allot a plot of the same size as
like 278 and if the plot is not available, the Society shall repay an
amount of Rs.1,251/- with 15% interest from 28/10/1980.
5. The petitioner preferred Appeal No.112 of 1991 before the State
Co-operative Appellate Court. Respondent No.2 filed a cross Appeal
No.3/1993. By the impugned judgment dated 09/08/1995, both the
appeals were disallowed. However, interest granted by the Co-
operative Court was raised to 19% p.a. by the Appellate Court.
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6. I have gone through the impugned judgments of the Courts
below. It is apparent that Rs.51/- was paid by the petitioner to the
Chief Promoter of the Society. Pursuant to such payment, his name
was not entered in the list of members of the Society. After he
deposited Rs.1,200/- towards the price of the plot to the Chairman of
the Society on 07/02/1981, the Society issued an ownership
certificate on 29/04/1981 to the petitioner. It was based on these
facts that both the Courts below concluded that the Chief Promoter
failed to register the petitioner as a Member of the Society. However,
as the ownership certificate was issued, he was presumed to be a
member of the Society.
7. It was also concluded on the basis of evidence that only one
person from the members of one family could be inducted as a
member of the Society and hence the petitioner's name was removed
since there were more than one members of his family inducted in
the Society. Both the Courts concluded that the Society is guilty of
playing mischief and hence the said Society should either allot a plot
to the petitioner or repay the amount of Rs.1,251/- alongwith 19%
interest.
8. It has been proved through oral and documentary evidence
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that respondent No.2 was inducted as a Member of the Society on
payment of Rs.51/-, he paid the price of the plot and by a Resolution
passed by the Society, he was allotted Plot No.278. He obtained
permission from the Gram Panchayat, Dhanegaon after paying taxes
and was granted permission to erect a construction of his house. He
also was allotted an electricity connection by the Gram Panchayat
and thereafter he has erected a house on the said plot. It was also
proved that the possession of Plot No.278 was handed over to
respondent No.2 herein. He is presently in possession of the plot as
well as his constructed portion.
9. Considering the fact situation as above, I do not deem it proper
to consider the case of the petitioner only on the basis of the
deposition of Rs.1,200/- with the Chair Person of the Society, moreso,
in the light of the fact that the dispute is 36 years old and respondent
No.2 is already occupying the said construction on the concerned
plot. Merely because a second view could be possible, would not
mean that this Court could exercise its supervisory jurisdiction and
upset the concurrent findings of the Courts below.
10. This petition, being devoid of merit, is therefore dismissed.
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11. Rule is discharged. No costs.
( RAVINDRA V. GHUGE, J.)
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