Shidhu Khashaba Mule & Anr vs Sharmishta Ramesh Deshpande & Anr
2016 Latest Caselaw 6710 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION




                                                                               
                            WRIT PETITION NO. 6882 OF 2004




                                                       
            Shri Shidhu Khashaba Mule & Anr.            ..      Petitioners
                  vs.
            Sharmishta Ramesh Deshpande & Anr.          ..      Respondents




                                                      
            Mr. A. B. Tajane for Petitioners.
            Mr. Ketan Parekh for Respondent No. 1.




                                             
                                    ig   CORAM : M. S. SONAK, J.

Date of Reserving the Judgment : 22 November 2016 Date of Pronouncing the Judgment : 28 November 2016

JUDGMENT :-

1] This petition challenges judgment and order dated 5 February

2004 made by the Maharashtra State Co-operative Appellate Court,

Pune (Appeal Court) in appeal no. 42 of 2002 instituted by

respondent no. 1 herein against the judgment and award dated 28

March 2002 made by the Co-operative Court, Satara, in dispute No.

726 of 1992.

2] In the aforesaid dispute as well as in the appeal, respondent

no. 1 Sharmishta Ramesh Deshpande (Deshpande) was the

disputant / appellant. The respondent no. 2 i.e. Anand Co-operative

Housing Society (Society) was the opponent / respondent no. 1.

The present petitioners were opponents / respondent nos. 2 and 3.

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It is significant to note, at the outset, that the Society (respondent

no. 2 herein) has not instituted any petition to challenge the

impugned judgment and order dated 5 February 2004 made by the

Appeal Court.

3] The dispute concerns plot no. 14 (suit plot) owned by the

Society. Originally the suit plot was allotted to one Bhore. In 1985-

1986 Bhore, transferred the suit plot to Deshpande by means of a

registered document and for valuable consideration. Resolutions

were also passed by the Society, with regard to such transfer. There

is however, serious dispute as to whether such resolutions were

legal and proper. In 1991, further set of resolutions were passed

by the Society in supersession of the earlier resolutions and the suit

plot was allotted to the petitioners herein, who were stated to be on

the waiting list for allotment. Thereupon, Deshpande raised dispute

no. 726 of 1992 under Section 91 of the Maharashtra Co-operative

Societies Act, 1960 (said Act) seeking annulment of such

resolutions by impleading the Society and the present petitioners as

opponents / respondents. By judgment and award dated 28 March

2002, the Co-operative Court rejected Deshpande's contentions

and further directed her to handover the possession of the suit plot

to the petitioner herein. Deshpande instituted appeal no. 42 of 2002

before the Appeal Court, which has, vide impugned judgment and

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order dated 5 February 2004, allowed the appeal, set aside the Co-

operative Court's judgment and award dated 28 March 2002 and

further, substantially granted Deshpande the reliefs prayed for by

her in the dispute raised. The petitioners aggrieved by the impugned

judgment and order dated 5 February 2004 made by the Appeal

Court, have therefore instituted the present petition.

4] Mr. Tajane, learned counsel for the petitioners has submitted

that in terms of the bye-laws of the Society only government

servants residing at Wai were eligible to be members of the Society

and since, Deshpande did not fulfil such qualifications, her

enrollment as member of the Society or allotment of suit plot in her

favour was ex facie illegal and ultra vires. Mr. Tajane, in fact submits

that there were no meetings held or resolutions passed in the years

1985-1986 enrolling Deshpande as member or in the matter of

allotment of the suit plot in her favour. The so-called resolutions are

fabricated and in any case, illegal and ultra vires. In this regard, Mr.

Tajane relies upon the audit report dated 7 September 1990 which

categorically states that there were no meetings held for last eight

years and that the constitution of the managing committee since the

year 1984 is illegal.

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            5]      Mr. Tajane submits that Bhore was the              chairman of the

Society at the relevant time and since he has taken part in the

meetings relating to the transfer of the suit plot by him to

Deshpande, such alleged meetings are clearly illegal and the

resolutions allegedly passed thereat have no legal force. In

contrast, Mr. Tajane submits that the petitioners herein are

qualified members of the Society, who were in fact placed on wait

list for allotment of plots as and when, the same became available.

Mr. Tajane submits that the Co-operative Court, upon due

appreciation of the material on record had very rightly dismissed the

claim of Deshpande and the Appeal Court, has exceeded

jurisdiction in setting aside the Co-operative Court's judgment and

award. Mr. Tajane submits that the Appeal Court has failed to

consider that Deshpande was ineligible to be enrolled as member of

the Society and consequently so-called allotment of the suit plot in

her favour was a nullity. Mr. Tajane also submitted that the decisions

upon which the Appeal Court has placed reliance were not at all

attracted to the facts and circumstances of the present case and the

Appeal Court was therefore, not right in placing any reliance upon

them. For these reasons, Mr. Tajane submitted that the impugned

judgment and order dated 5 February 2004 made by the Appeal

Court deserves to be set aside and the judgment and award dated

28 March 2002 made by the Co-operative Court deserves to be

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restored.

6] Mr. Ketan Parekh appears for respondent no. 1 - Deshpande.

He submits that the Appeal Court, upon due consideration of the

material on record has quite rightly granted reliefs to Deshpande.

He submits that there is neither any jurisdictional error in the making

of the impugned order nor could it be said that the findings of fact

recorded in the impugned order are affected by perversity. He

submits that the petitioner no. 1 has already been allotted another

plot by the Society and further, the petitioner no. 1 is engaged in the

business of buying and selling plots, which is evident from the

cross-examination, to which reference has been made by the

Appeal Court. For all these reasons, he submitted that the present

petition be dismissed.

7] As noted earlier, the Society has not chosen to challenge the

impugned judgment and order dated 5 February 2004. The

petitioners, claim to be the allottees of the suit plot, which allotment,

was made some time in the year 1991, in super-cession of the

allotment made in favour of Deshpande in the year 1985-1986. In

respect of such allotment, the petitioners claim to have paid an

amount of Rs.1,350/- each i.e. total amount of Rs.2,700/-. The suit

plot, admeasuring 27.1/2 feet x 110 ft. and there is reference to a

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constructed foundation thereon. The suit plot is stated to be located

within the jurisdiction of Wai Municipal Council.

8] In contrast, there is no dispute that Deshpande, by means of

a registered document has paid an amount of Rs.35,000/-, towards

acquisition of the suit plot. The suit plot was initially allotted to

Bhore, who, it appears, had mortgaged the same to a financial

institution as security for loan obtained by him for the purposes of

construction upon the suit plot. There is reference that Deshpande,

has cleared such loan and secured the release of the suit plot from

the financial institution. Deshpande, along with the dispute

application instituted by her has produced on record receipts with

regard to the membership fees paid by her and other documents

evidencing her enrollment as member of the Society. Deshpande

has also produced on record resolutions in the matter of allotment /

transfer of the suit plot in her favour. The resolutions indicate that

certain officials like Mr. Pawar and others were also present at the

meetings whereat, such resolutions came to be adopted. In

pursuance of the allotment and transfer of shares, there is material

on record to indicate that Deshpande has effected necessary

changes in public records i.e. revenue records etc. for inclusion of

her name in place of Bhore. All these records relate mainly to the

period 1985-1987. From the tenure of the defence of the Society as

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also the petitioners herein serious challenge is not really to the non

holding of the meeting or non adoption of resolutions, but rather,

serious challenge is to the legality of such meetings and resolutions.

No doubt, relying upon certain observations in the audit report dated

7 September 1990, the petitioners do contend there were no

general body meetings held for last eight years and the constitution

of the managing committee since the year 1984 was quite illegal.

9]

The petitioners, claim rights in respect of the suit plot on basis

of resolutions made in the year 1991. These resolutions also purport

to revoke or annul the previous resolutions of 1985-1986 and

consequently, the allotment / transfer of the suit plot in favour of

Deshpande. If, the Society or the petitioners were indeed serious in

their contention that no such meetings were ever held in the year

1985-1986 or that no such resolutions in the matter of allotment /

transfer of the suit plot in favour of Deshpande were ever passed,

it is unlikely that the Society or its members in the year 1991 would

pass resolutions to supersede or annul until such earlier resolutions.

The composition of the managing committee has changed by the

year 1991. For a considerable period, there was an Administrator

appointed to govern the affairs of the Society. In this changed

scenario, attempt appears to have been made to revoke allotments

in favour of Deshpande and make allotments in favour of the

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petitioners herein. This offered cause of action to Deshpande to

raise dispute no. 726 of 1992 and seek a declaration that 1991

resolutions are illegal and need to be struck down.

10] Although, it was contended by Mr. Tajane that it is the

petitioners who have always been in possession of the suit plot, the

material on record, does not support such contention. In fact, the

judgment and award dated 28 March 2002 made by the Co-

operative Court in the dispute raised by Deshpande, directs

Deshpande to 'hand over the possession of suit plot to opp. Nos. 2

& 3 within 15 days from the date of this order.' This indicates that it

is the Deshpande, who was possessed of the suit plot. Besides,

the material on record does indicate some construction undertaken

by Deshpande upon the suit plot. The material on record also

establishes that Deshpande, in pursuance of the transfer of the suit

plot in her favour has entered her name in the public records way

back in the year 1985-1987. Therefore, the claim of the petitioners

that they are possessed of the suit plot, lacks credence.

11] If the case of the petitioners is that they were entitled to the

allotment of the plot in preference to Deshpande or that they were

entitled to some kind of a right of preemption, when, Bhore sold and

transferred the suit plot to Deshpande in the year 1985-1986, then,

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it was for the petitioners, who claim to be on the wait list, raise a

dispute before the Co-operative Court at the earliest and apply for

reliefs in the matter of allotment / transfer of the suit plot in favour of

Deshpande. Instead, it appears that the petitioners for the period

between 1985-1986 and 1991 took no steps whatsoever to assert

their alleged claim by taking out appropriate proceedings before the

appropriate authorities. In the year 1991 however, possibly when

the composition of the managing committee changed, the

petitioners managed to secure resolution dated 17 June 1991,

annulling the allotment in favour of Deshpande and securing the

allotment in their favour. The managing committee of the Society in

the year 1991, without even minimum compliance with the

principles of natural justice and fair play was obviously disentitled to

nullify or revoke the allotment / transfer of the suit plot in favour of

Deshpande and proceed to allot the suit plot in favour of the

petitioners. The Appeal Court has rightly interfered with the said

resolution and struck down the same.

12] Appeal Court has quite rightly, taken cognizance of the oral

evidence on record, which, unfortunately was ignored by the

cooperative court whilst making the judgment and award dated 28

March 2002. The oral evidence indicates that the petitioner no. 1

(original opponent no. 2) in his cross-examination has admitted that

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he has already acquired plot no. 8 in the Society and further

admitted that it is his business to purchase the plots and sell the

same. In paragraph 14 of the impugned judgment and order dated

5 February 2004, the Appeal Court has stated thus : "..... Opponent

No. 2 in his cross admitted he acquired plot No. 8 in the said

Society on confronting with Index extract, he further admitted it is

his business to purchase plot on sale the same....".

13]

Besides, the material on record also establishes that the

petitioners have purported to acquire the suit plot upon payment of

total amount of Rs.2,700/- in the year 1991, when, in fact, in respect

of the same plot, Deshpande, has paid an amount of Rs.35,000/-, in

addition to other amounts like membership fee, share transfer fees,

etc. in 1985-86. The petitioner no. 1, on his own saying,

undertakes the business of sale and purchase of plots. At the

behest of such petitioner therefore, there is no case made out to

interfere with the allotment / transfer made in favour of Deshpande

way back in the year 1985-1986. The Appeal Court has rightly taken

into consideration this aspect of the matter and determined the

equities correctly.

14] In so far as the audit report is concerned, at the outset, it

must be made clear that auditor is hardly the authority competent

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to rule upon legality or otherwise of meetings of the Society or the

resolutions passed thereat. In any case, the auditor seems to have

stated that there was no general body meeting held for last eight

years or that there was no election held since 1984. Issues like

allotment of plot or permission to transfer the allotted plot are not

normally required to be taken up by the general body. In any case, if

the petitioners were indeed aggrieved by the resolutions and the

allotments made thereby in the year 1985-1986, then, the

petitioners should have taken prompt steps and not wait until year

1991, when the composition of the managing committee changed

and was perhaps, favourable to the petitioners. The petitioners,

without, raising dispute under Section 91 of the said Act, which is,

the proper mode of redressal of their grievances, chose to do

nothing for a period of 7-8 years and only after the composition of

the managing committee of the Society changed, have managed to

secure resolution in their favour, which has the effect of taking away

the rights vested in Deshpande way back in the year 1985-1986,

even without minimum compliance with principles of natural justice

and fair play. In this context, it is quite significant to note that the

Society, has now, rightly not deemed it appropriate to question the

impugned judgment and order made by the Appeal Court and left it

only to the petitioners to question the same. At the behest of the

petitioners therefore, there is really no case made out to interfere

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with the impugned judgment and order.

15] On the aspect of Deshpande lacking qualification for being

member of the Society, it must be noted that there is not even a

ground raised in the present writ petition to this effect. Issue as to

whether Deshpande possess the necessary qualifications, is really

an issue of fact. There is also the question of whether the

transferee from eligible member is also expected to have such

qualifications. In the absence of even a ground in the present

petition, it is not possible to go into such issue at this belated stage.

It is not even the case of the petitioners that Bhore, who has

transferred the suit plot in favour of Deshpande was not qualified to

be a member of the Society. Bye-laws of the Society are not quite

categoric on this aspect and admit of more than one interpretations.

Even the Co-operative Court, declined to go into this issue by

observing that adjudication upon such issue is not within the

jurisdictional limits of the Co-operative Court. Some observations

made by the Co-operative Court thereafter, are therefore, not any

observations that can be given credence, considering the

jurisdictional limits of the Co-operative Court acknowledged by the

Co-operative Court itself. In any case, neither the Co-operative

Court nor the Appeal Court have really determined this issue

against Deshpande. It appears that such issue was neither

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categorically raised or in any case not pressed with any

seriousness. Some statements and the pleadings to this effect are

by no means sufficient to make out that such an issue was indeed

pressed before two authorities. The circumstance that there is not

even a ground raised in the present petition on this issue, supports

inference that such an issue was never raised or, if raised, was

never pressed. At this stage, the petitioners cannot claim any

reliefs on the basis of such vague contention.

16] For all these reasons, there is no case made out to interfere

with the impugned order. The impugned order is well within

jurisdictional limits of the Appeal Court, which has evaluated and

appreciated the oral and documentary evidence on record. The

findings of fact recorded by the Appeal Court are quite consistent

with the material on record and there is no case of any perversity in

the record of findings of fact or unreasonability in the approach

adopted by the Appeal Court. The view taken by the Appeal Court

is consistent with the legal position and the petitioners were unable

to point out any illegality or jurisdictional errors in the impugned

judgment and order.

17] Accordingly this petition is dismissed. There shall be no order

as to costs.

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            18]       Mr. Tajane at the conclusion of his submissions, had




                                                                                  

requested that in case this petition is to be dismissed, the interim

order made by this Court on 27 June 2006 may be continued for

some additional period. By order dated 27 June 2006, interim relief

had in fact been refused. However, respondent no. 1 was directed

not to create any third party interest in any form in the suit plot

without leave of this Court. Such limited interim relief is now

extended by a period of six weeks from today.

19] Rule is discharged. There shall be no order as to costs.

20] All concerned to act on basis of authenticated copy of this

order.

(M. S. SONAK, J.)

Chandka