Bombay High Court
Bhaskar Dagadu Satankar vs Amrut Sahakari Bhadekaru Malaki ... on 18 August, 2016
Bench: T.V. Nalawade
WP No. 7314/2006 & anr.
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IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO. 7314 OF 2006
WITH
CIVIL APPLICATION NO.3625 OF 2007
WITH
CIVIL APPLICATION NO. 3627 OF 2007
WITH
CIVIL APPLICATION NO. 3628 OF 2007
Shri. Bhaskar Dagadu Satankar,
Age: 61 years, R/o. Now at
Shri Vitthal Bunglow, Pumping
Station Road Corner,
Gangapur Road, Nasik City. ....Petitioner.
(Original Disputant)
Versus
1. Amrut Sahakari Bhadekaru Malaki
Gruhanirman Sanstha Maryadit,
Sangamner (Summonse to be
served on the Chairman
Madhav Kashinath Thorat)
2. Dhondiram Nanasahebn Kakade.
3. Vishwanath Bhimashankar Varpe.
4. Sampat Amarchand Dhadiwal.
5. Prabhakar Vishnupant Dhayagude.
6. Sampat Vithobda Shelake.
7. Marutrao Gangadhar Lanke.
8. Dattatraya Namdeo Khule.
9. Sampat Shreerang Godage.
10. Bhagvat Laxmat Vaidya.
11. Madhav Kashinath Thorat.
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WP No. 7314/2006 & anr.
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12. Arjunrao Karbhari Varpe.
13. Chandrakant Thakujee Ghodgar.
14. Vitthal Dhondiba Dhumal
DECEASED,Through His LRs
14-a) Sundrabai Vithal Dhumal.
14-b) Sunil Vithal Dhumal.
14-c) Anil Vithal Dhumal.
14-d) Prakash Vithal Dhumal.
15.
Vitthal Tatyaji Rahane.
16. Ramchandra Nana Kapare (Deceased)
His legal heirs:-
16-a) Smt. Ashalata Ramchandra Kapare.
16-b) Kum. Rashmi Ramchandra Kapare.
16-c) Ankush Ramchandra Kapare.
(for b & c as guardian their
mother opp. No. 16 (a) Smt.
Ashalata Ramchandra Kapare)
17. Deoram Dhondiba Mhaske.
18. Yashwant Bhagvan Jorvekar.
19. Sorabaji Govind Thorat.
20. Raghunath Maruti Bhor.
21. Smt. Kamalabai Nawnath Aher.
22. Shri Vishwanath Govind Thorat.
Respondent Nos. 2 o 21 all
Major, r/o Sangamner,
Tal. Sangamner, Dist. Ahmednagar.....Respondents.
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WP No. 7314/2006 & anr.
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WITH
WRIT PETITION NO. 7039 OF 2006
WITH
CIVIL APPLICATION NO 3621 OF 2007
WITH
CIVIL APPLICATION NO 3623 OF 2007
WITH
CIVIL APPLICATION NO 3624 OF 2007
WITH
CIVIL APPLICATION NO 8129 OF 2016
Shri. Bhaskar Dagadu Satankar,
Age: 61 years, R/o. Now at
Shri Vitthal Bunglow, Pumping
Station Road Corner,
Gangapur Road, Nasik City. ....Petitioner.
(Original Disputant)
Versus
1. Amrut Sahakari Bhadekaru Malaki
Gruhanirman Sanstha Maryadit,
Sangamner (Summonse to be
served on the Chairman
Madhav Kashinath Thorat)
Age Major,
2. Dhondiram Nanasahebn Kakade.
3. Vishwanath Bhimashankar Varpe.
4. Sampat Amarchand Dhadiwal.
5. Prabhakar Vishnupant Dhayagude.
6. Sampat Vithobda Shelake.
7. Marutrao Gangadhar Lanke.
8. Dattatraya Namdeo Khule.
9. Sampat Shreerang Godage.
10. Bhagvat Laxmat Vaidya.
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WP No. 7314/2006 & anr.
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11. Madhav Kashinath Thorat.
12. Arjunrao Karbhari Varpe.
13. Chandrakant Thakujee Ghodgar.
14. Vitthal Dhondiba Dhumal
DECEASED,Through His LRs
14-a) Sundrabai Vithal Dhumal
14-b) Sunil Vithal Dhumal
14-c) Anil Vithal Dhumal
14-d) Prakash Vithal Dhumal
15. Vitthal Tatyaji Rahane.
16. Ramchandra Nana Kapare (Deceased)
His legal heirs:-
16-a) Smt. Ashalata Ramchandra Kapare
16-b) Kum. Rashmi Ramchandra Kapare
16-c) Ankush Ramchandra Kapare
(for b & c as guardian their
mother opp. No. 16 (a) Smt.
Ashalata Ramchandra Kapare)
17. Deoram Dhondiba Mhaske.
18. Yashwant Bhagvan Jorvekar.
19. Sorabaji Govind Thorat.
20. Raghunath Maruti Bhor.
21. Smt. Kamalabai Nawnath Aher.
22. Shri Vishwanath Govind Thorat.
Respondent Nos. 2 to 21 all
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Major, r/o Sangamner,
Tal. Sangamner, Dist. Ahmednagar.....Respondents.
Mr. S.S. Wagh, Advocate for petitioner.
Mr. A.B. Nehe with Mrs. Suvarna M. Zaware, Advocate for
respondents.
CORAM : T.V. NALAWADE, J.
DATED : 18th August, 2016.
JUDGMENT :
1) The two petitions are filed to challenge the common
judgment delivered by Maharashtra State Co-operative Appellate
Court, Mumbai, Bench Aurangabad in Appeal Nos. 1/23/93 and
162/1993. These appeals were filed against the decision of ABN
Case No. 167/1988, which was pending before the Co-operative
Court No. 2, Kopargaon, District Ahmednagar. The said suit was
filed by present petitioner - Bhaskar against respondent Amrut
Sahakari Bhadekaru Malaki Gruhanirman Sanstha Maryadit,
Sangamner, Housing Society and its office bears for relief of
injunction to protect the possession over the plot allotted to
petitioner by the Society.
2) The Co-operative Court, trial Court had given relief of
injunction. As the Co-operative Court had held that there is
possibility that some consideration was not paid by the plaintiff,
this finding was challenged by the original plaintiff by filing
Appeal No. 162/1993. The other appeal was filed by the Society
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as the relief of injunction was given in favour of present
petitioner. The appeal of the Society is allowed by the Appellate
Court, appeal of the original plaintiff is dismissed, the decision of
the Co-operative Court is set aside and the suit filed by the
present petitioner is dismissed by the Appellate Court.
3) It is the case of petitioner, plaintiff that he is a
member of the Housing Society and to him, by resolution dated
13.2.1980 membership was granted and then plot No. 1 of the
lay-out plan prepared by the Society was allotted by resolution
dated 29.2.1980. It is the case of plaintiff that area of the plot
allotted to him is 5.3 R. and the price was fixed as Rs. 16,000/-.
He has given dimensions of the plot in the plaint. It is the case of
plaintiff that on 29.2.1980 itself he paid the total amount of Rs.
16,071/- to the Society and this amount includes membership
fee, amount for initial expenses and the price of the plot and so,
on 29.2.1980 itself the allotted plot was given in his possession.
It is contended that since 29.2.1980 plaintiff has been in
possession of the plot.
4) It is the case of plaintiff that he was out of station for
some time and the new Body misused the circumstance and
then they tried to obstruct the possession of plaintiff over the
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suit plot. He contended that the defendants now want to make
construction of shopping complex on the plot allotted to plaintiff.
It is contended that due to the obstruction, he could not make
construction of even compound wall and he was prevented when
he attempted to make construction on 1.10.1988. The suit was
filed under section 91 of the Maharashtra Co-operative Societies
Act (hereinafter referred to as 'the Act' for short). Relief of
injunction was claimed and alternate relief of possession was
also claimed.
5) Defendants filed written statement and contested
the matter. They denied that resolution was made to make
plaintiff member of the Society and then on 29.2.1980 resolution
was made to allot that plot to plaintiff and plaintiff deposited the
consideration on the same day and got possession. They denied
that there is cause of action for the suit.
6) It is the case of defendants that the Society was
formed for the benefit of persons resident of Sangamner and
also the persons, who were employees of Sangamner Sugar
Factory. They contended that Survey No. 372 (to the extent of 64
R.) was purchased by the defendant - Society and in this land, by
preparing lay-out plan, 21 plots were prepared. It is contended
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that eastern side open space was reserved as per the
development plan and so, there was no question of allotting
open space to any member or to the plaintiff.
7) Defendants contended that plaintiff is a building
contractor and he is resident of Nashik. They contended that
plaintiff was never resident of Sangamner. It is contended that
plaintiff was allotted the work of construction of 20 bungalows in
aforesaid 20 plots.
8) It is the case of defendants that plaintiff had
expressed to the Society, its office bearers that he wanted to
become member and he wanted to have one plot in the Society.
It is contended that the Society had then appointed committee
of three members and defendant Nos. 3, 16 and 19 were made
the members of the Committee. The defendants contended that
this Committee had recommended to give 5.3 Gunta land to
plaintiff at the rate of Rs. 16,000/- per Gunta. The defendants
contended that accordingly resolution was passed on 13.2.1980
in the Managing Committee and he was directed to deposit Rs.
85,000/-. It is contended that only after completion of formalities
and depositing the amount, plot No. 1 was to be allotted to the
plaintiff and the open space adjacent to the plot No. 1 was to be
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alloted to plaintiff.
9) After making aforesaid contentions in written
statement, the defendants again contended that it was not
possible to allot the open space which was reserved in lay-out
plan to plaintiff and only plot No. 1 could have been allotted to
plaintiff. The defendants admitted that on 29.2.1980 plaintiff
deposited Rs. 4,571/-. The defendants contended that as this
amount was not as per the resolution made, no membership was
given to him. The defendants contended that the record of
membership and allotment produced by the plaintiff with the
plaint is forged and defendant No. 2 had no such authority to
issue such letter.
10) They contended that resolution dated 13.2.1980 was
only suggesting as to what can be done and no allotment was
actually made. They also contended that no ownership rights
were given due to this allotment, resolution.
11) The defendants then made allegation against
plaintiff that he had not made the construction of 20 bungalows
as per the agreement and he had left the construction of many
bungalows incomplete and that was required to be completed
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through other agency. They contended that plaintiff owes
amount of Rs. 2,20,702/- to the Society as such amount was
required to be spent by the Society. It is the case of defendants
that as per the agreement, which was made after settlement of
dispute, the Society was to give Rs. 51,000/- in three
installments and in return the plaintiff was to give up his right in
respect of suit plot. It is contended that the necessary
correspondence was made by the Society though the agreement
was not written on any paper. It is contended that the plaintiff
then refused to act as per the agreement and he has filed the
present suit.
12) Issues were framed on the basis of aforesaid
pleadings. Both the sides gave evidence. In view of the nature of
pleadings already quoted and the record which is with the
plaintiff and original record which was taken over by the Co-
operative Court, the Court held that the disputed space including
plot No. 1 was alloted to plaintiff under resolution of the Society.
However, the Co-operative Court, Trial Court held that the some
consideration was not paid and so, made the order to see that as
per the Rules, the consideration is paid.
13) The appellate Court has held that plaintiff was not
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put in possession on 29.2.1980 and so, no relief of injunction
could have been given in his favour.
14) The submissions made in this proceeding and the
record show that till today no construction as such is made on
the disputed space. The learned counsel for Society placed
reliance on the development plan showing that as per the
approved plan, open space is left and after that there is plot No.
1 and each plot is having size of 185.8 Sq. Mtrs. The learned
counsel for Society argued much in respect of circumstance that
there is some overwriting in the resolution dated 13.2.1980.The
Society itself had issued true copy of resolution to the plaintiff
and it is produced at Exh. 15. This document shows that for total
consideration of Rs. 16,000/- the disputed space admeasuring
5.3 Gunta was allotted to plaintiff. In the resolution, it was
mentioned that he was to pay the fees in respect of application,
admission fee, price of share etc. The record is with the Society
and in the record, there is proceeding with regard to such
resolution and of the meeting dated 13.2.1980. If there is some
overwriting in the original proceeding, it was up to the Society to
explain the things and it ought to have taken steps against the
previous Chairman, if the Chairman had done something to do
favour to the present petitioner, plaintiff. This copy was issued to
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plaintiff on 6.10.1984. This Court has carefully gone through the
record like account book and receipt book of the Society and
that record is consistent with the case of plaintiff. It shows that
membership fee, admission fee, amount for initial expenditure
and the amount in respect of purchase of plot was deposited
with the Society. This receipt is of Rs. 4,571/-. It is the case of
plaintiff that he had paid more amount like amount of Rs. 8500/-
on 29.2.1980 itself. In the daily book, Rozkird, the amount of Rs.
4500/- is shown to be paid towards the price of the plot and
there is mention of making payment of additional amounts like
Rs. 50/-, Rs. 20/-, Rs.1/-. There is one entry at the bottom of this
page that amount of Rs. 8500/- was also deposited though this
amount is shown as the donation amount. The total amount
received on that day tallies with the amount shown on other
side for 29.2.1980. There is no explanation to this circumstance
from Society. This record is more than sufficient to prove that
fees of membership was accepted and the amount in respect of
allotment of plot was also accepted. There is no case of society
that all members had paid donation for any purpose.
15) It is the case of Society that Rs. 16,000/- per Gunta
was to be paid by plaintiff. To ascertain as to whether such
amount was taken from other members, this Court has gone
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through the record available. Even query was made to the
learned counsel for Society and he was asked to show any record
in respect of any other member showing that other members
had also paid the rate of Rs. 16,000/- per Gunta, but he could
not show such record. These circumstances are not at all
considered by the appellate Court and to some extent even by
the Trial Court.
16)
The learned counsel for Society argued much on the
basis of Rules that only person resident of Sangamner could
have been made member. These things are required to be
ascertained by the Society and they admit that at the relevant
time, the plaintiff had undertaken construction of atleast 20
bungalows with Society and work was going on for many years.
In view of these circumstances, it does not lie in the mouth of
the defendants that plaintiff was not fulfilling conditions which
were laid down in the Rules for becoming the member.
17) The contention of the learned counsel for Society
that the open space could not have been allotted as a plot to
plaintiff cannot be considered in a proceeding like present one. If
in the approved plan, some open space is left and somebody
including the plaintiff is trying to make encroachment, the
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proper authority can take action against such person.
18) The learned counsel for respondents - Society placed
reliance on one case reported as 2011 (2) B C J 309 (SC) [Dr.
Shehla Burney and Ors. Vs. Syed Ali Mossa Raza (Dead)
by Lrs.] and submitted that relief which was not claimed by
plaintiff was granted by the Trial Court and direction was given
to make the payment of remaining amount in respect of the
price of plot. This Court holds that such direction was not
actually relief in favour of plaintiff and it was a condition for
getting the relief. So, the observations made by the Apex Court
are of no use to the respondents in the present matters.
19) The learned counsel for respondent - Society placed
reliance on the case reported as AIR 1977 SUPREME COURT
1900 [Raj Rani and Ors. Vs. Delhi Administration and
Ors.] and submitted that the rules framed under the Act and the
rules of the Society cannot be ignored. There cannot be any
dispute over the proposition. These observations cannot help the
Society in the present matters in view of the peculiar facts and
circumstances of the present matter.
20) The learned counsel for petitioner, plaintiff placed
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reliance on some reported cases like AIR 2013 SUPREME
COURT 1241 [The Rajasthan State Industrial Development
and Investment Corporation and Anr. Vs. Diamond and
Gem Development Corporation Ltd. and Anr.], AIR 1993
SUPREME COURT 1632 [Major Geni B.M. Bhattacharjee
(Retd.) and Anr. Vs. Russel Estate Corporation and Anr.]
and 2005 (3) Mh.L.J. 297 Bombay High Court [Manohar
s/o. Rambhau ig Galghate Vs. Saraswati Co-operative
Housing Society Ltd., Dindayal Nagar, Nagpur]. In the first
case, the Apex Court has discussed the principle of 'estoppel'
and has interpreted the principle to lay down that a party cannot
be permitted to 'blow hot-blow cold', 'fast and loose' or
'approbate and reprobate' at the same time. In the second case,
the Apex Court has discussed the meaning of 'allot'. It is held
that allotment includes giving of the plot and inference of
possession can also be drawn. In the present matter, there is no
record with the Society in respect of separate record of giving of
possession to remaining members. In view of these
circumstances, it cannot be said that the possession was not
given. In the third case, this Court has laid down that when
Society allots a plot to one member, unless and until the
allotment is cancelled, Society cannot take further steps. It is not
the case of Society that the allotment made in favour of plaintiff
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was cancelled at any time.
21) In view of the aforesaid circumstances and position
of law, this Court holds that the Tribunal has committed error in
allowing the appeal of the Society and dismissing the appeal of
the plaintiff, petitioner.
22) So, both the writ petitions are allowed. The common
judgment of the appellate Court in two appeals is hereby set
aside. Appeal of the plaintiff filed against some finding given by
the Trial Court is allowed. The appeal of Society is dismissed.
Relief given in respect of other part of the decision given by the
Co-operative Court in favour of plaintiff is kept intact. Civil
Applications are disposed of.
[ T.V. NALAWADE, J. ]
ssc/
