Prabha Wamanrao Raut vs Panchwati Sahakari Grih Niman ...
2017 Latest Caselaw 1713 Bom

 Judgment                                            1                                wp1795.08.odt




                  
                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               NAGPUR BENCH, NAGPUR.


                           WRIT PETITION NO. 1795 OF 2008


 Sau. Prabha Wamanrao Raut,
 Aged about 83 years,  
 R/o. Plot No.74 Old Subhedar Layout,
 Nagpur, Tah. & Distt. Nagpur. 
                                                                         ....  PETITIONER.


                                      //  VERSUS //


 1. Panchwati Sahakari Grih Nirman Sanstha Ltd.
    Amravati, through its President Shri Devidas
    S/o. Sadashivrao Papadkar, aged about 53 years,
    R/o. Panchwati Colony, Near Harshraj Colony,
    V.M.V. Road, Nawasari, Amravati, Tq. and 
    District : Amravati. 

 2. Sandeep S/o. Ramkrushna Vaidya,
    Aged about 32 years, R/o. Antora,
    Tq. and Dist. Amravati. 

 3. Dadarao S/o. Namdeorao Pachghare,
    aged about 55 years, Ex-President of
    Respondent Society, R/o. Zilla Parishad
    Vasahat, Opp. Maltekadi, Amravati,
    Tq. and Distt. Amravati.  
                                                           .... RESPONDENTS
                                                                           . 
  ___________________________________________________________________
 Shri Rohit Vaidya, Adv. h/f. Shri A. Parchure, Advocate for Petitioner. 
 Ms R.D.Raskar, Advocate for Respondent No.1.  
 None for Respondent Nos. 2 & 3. 
 ___________________________________________________________________

                              CORAM : Z.A.HAQ, J.

DATED : APRIL 13, 2017.

ORAL JUDGMENT :

Judgment 2 wp1795.08.odt

1. Heard learned advocate for the petitioner and learned advocate

for the respondent No.1. None appears for the respondent Nos. 2 and 3.

2. The petitioner/original disputant had filed dispute under

Section 91 of the Maharashtra Co-operative Societies Act, 1960 praying for

an award in the following terms :

"1) It be declared that the disputant is validly and legally admitted member of opponent no.1 society and plot No.34 in opponent no.1 society has been allotted to the disputant and she is legally entitled to have and retain the possession of the plot no.34 admeasuring 2000 sq.ft. in opponent No.1 society. (sic.)

2) Direct the opponent no.1 society alongwith the opponent no.2 not to disturb possession of disputant over the plot no.34 in the society and further declare that the opponent no.2 has no right or authority to enter upon plot No.34 in the society either himself or through other person.

                  (sic.)
                  3)                 Declare   that   the   sale-deed   executed   by  

opponent no.3 on 14.10.97 in favour of opponent no.2 is nullity and not binding upon the disputant and which is against the disputant.

3A) To restore the possession of plot No.34 alongwith construction standing thereon to the Disputant and Opponent No.2 be directed to put the disputant in possession of the premise.

3B) Without prejudice to the above property in case it is not possible or desirable to put the disputant in possession of plot no.34 in the event the Opponent No.1 Society be directed to allot any other plot admeasuring 2000 sq.ft. to the Disputant in the Opponent Society.

4) To grant mandatory injunction in the mandatory form restraining the opponent no.1 and 2 from restraining the opponent no.1 and 2 from disturbing the possession of the disputant in future over plot no.34 in the opponent no.1 society.(sic)

5) An award to the tune of Rs.25,000/- be passed in favour of the disputant as against opponent no.3 for mentally harassing and torching to the disputant.

  Judgment                                                3                                 wp1795.08.odt




                  6)            The   cost   of   the   present   dispute   be   saddled  
                  upon opponent no.1 and 3.
                  7)            To grant any other suitable relief which this  

Hon'ble Court deems fit and proper in the circumstances of the case and in the interest of justice."

The present respondents (opponents) opposed the claim of the

disputant. After trial, the Co-operative Court recorded finding that the

disputant proved that she was member of the opponent No.1-Society and

Plot No. 34 was allotted to her, the disputant proved that the opponent No.2

had no right or authority to hold possession of Plot No.34 and the disputant

proved that the sale-deed executed by opponent No.3 in favour of opponent

No.2 on 14th October, 1997 was null and void. The Co-operative Court

directed the opponent Nos. 1 and 3 to allot a plot admeasuring 2000 sq.ft. to

the disputant and in case the plot was not available the opponent Nos. 1 and

3 were directed to pay to the disputant the value of Plot No.34 as on 1 st

March, 2006 i.e. the date on which the award was passed.

3. The opponent No.1-Society challenged the above award by

filing appeal under Section 97 of the Maharashtra Co-operative Societies Act,

1960. The Co-operative Appellate Court recorded that the disputant failed to

produce the material to show that other vacant plot was available with the

society and it can be allotted to the disputant and for want of sufficient

evidence in that regard, the Co-operative Court could not have directed the

society to allot some other plot to the disputant. With these conclusions, the

Co-operative Court modified the award passed by the Co-operative Court, set

Judgment 4 wp1795.08.odt

aside the directions given by the Co-operative Court to the society to allot

some other plot admeasuring 2000 sq.ft. or to pay its value to the disputant

and directed the society to refund the amount of Rs.13,400/- which was paid

by the disputant to the society along with interest @ 6% per annum from 4 th

December, 1989 i.e. the date on which the amount was paid till realization of

the amount.

The petitioner, being aggrieved by the award passed by the Co-

operative appellate Court has filed this petition.

4. The learned advocate for the respondent No.1-Society has

supported the conclusions of the Co-operative Appellate Court.

5. After going through the documents placed on the record of the

petition, I find that the conclusions of the Co-operative Appellate Court and

the reasons recorded by it for reversing the findings of the Co-operative

Court which led to the directions to the society to allot plot admeasuring

2000 sq.ft. to the disputant, are unsustainable. The disputant had amended

the dispute and vide paragraph No. 5(b) pleaded that if Plot No.34 could not

be allotted to the disputant for some reason, the disputant is entitled for plot

admeasuring 2000 sq.ft. available with the opponent No.1-society. The

disputant accordingly incorporated prayer clause 3(b) seeking directions

against the opponent No.1-society to allot any other plot admeasuring 2000

sq.ft. to the disputant.

Judgment 5 wp1795.08.odt

6. The Co-operative Court as well as Co-operative appellate Court

have concurrently found that the disputant had paid an amount of

Rs.13,400/- to the opponent No.1-society for the plot. The Co-operative

appellate Court has directed the society to refund the amount of Rs.13,400/-

alongwith interest, which is not challenged by the society. Thus, the fact that

the disputant had paid an amount of Rs.13,400/- to the society for plot

cannot be disputed by the society.

The Co-operative Court rightly recorded that the disputant was

entitled for the plot admeasuring 2000 sq.ft. and consciously passed an

equitable order directing the society to allot another plot admeasuring 2000

sq.ft. to the disputant and in case the plot was not available then to pay the

value of Plot No.34 as on 1st March, 2006. The award passed by the Co-

operative Court was challenged by the society in appeal mainly on the

ground that the disputant had not placed evidence on record to show that

another plot admeasuring 2000 sq.ft. was available with the society and that

the other part of the directions to pay value of Plot No. 34 as on 1st March,

2006 was challenged on the ground that the disputant had not prayed for

such relief. As far as the challenge to the alternative directions to the society

to pay the amount equal to the value of plot admeasuring 2000 sq.ft., I find

that the prayer clause (7) of the dispute is sufficient to grant the equitable

relief.

Judgment 6 wp1795.08.odt

Be that as it may, the question of grant of alternate relief to the

disputant would arise if it is not established on record that the vacant plot is

available with the society to be allotted to the petitioner/ disputant as per the

award passed by the Co-operative Court.

7. The petitioner/ disputant had filed an additional affidavit on

9th March, 2016 stating that in the same layout Plot No.40 admeasuring

3000 sq.ft. and Plot No.41, admeasuring 3000 sq.ft. were vacant, Shri A.G.

Patel is allotted Plot No.41 and in addition 500 sq.ft. from Plot No.40 and

now, remaining part of Plot No.40 admeasuring 2500 of Mouza : Navasari is

still vacant. In response, the respondent No.1-society had filed affidavit on

2nd September, 2016 making a vague and general statement that the

assertion made by the petitioner on oath is not correct. The respondent No.1

society filed additional affidavit sworn by its President on 30th March, 2017

stating that in the annual meeting of general body of the society held on 9th

November, 2003 vide resolution No.10A it was resolved that out of Plot

Nos.39, 40 and 41 admeasuring 1963 sq.ft., 3015 sq.ft. and 2858 sq.ft.

respectively (total 7836 sq.ft.)about 3500 sq.ft. be given to Shri D.G. Patil

and vide resolution No.11 it was resolved that the remaining land shall be

used for office and utility of the society and this land will not be allotted to

anybody. It is stated that the managing body of the society passed resolution

No.6 on 25th February, 2004 that steps be taken for construction on the

above mentioned land for office of the society. In paragraph 5 of this

Judgment 7 wp1795.08.odt

additional affidavit it is stated that this land admeasuring 4336 sq.ft. is

utilized for office of the respondent No.1-Society.

After petition was heard for some time on 3rd April, 2017 a

query was put to the learned advocate for the respondent No.1-society asking

for the details of the construction on the plot admeasruing 4336 sq.ft. which

according to the respondent No.1-society is utilized for its office. It transpired

that the respondent No.1-society should file the sanctioned plan and the

other documents to show when the construction is completed. Today, the

learned advocate for the respondent No.1 has conveyed regret showing

inability to produce the sanctioned plan or any other document like tax

receipt to show when the construction is completed. Though an attempt is

made to argue that because of financial constraints the construction cannot

be undertaken, fact remains that as per the material on record it is clear that

plot admeasuring 4336 sq.ft. is available with the respondent No.1-society

and is lying vacant.

8. I find that the Co-operative Appellate Court committed an error in

setting aside the directions given by the Co-operative Court to the society to

allot alternate plot admeasuring 2000 sq.ft. The Co-operative Appellate Court

has set aside the above directions accepting the submissions made on behalf

of the society that alternate plot was not available with it and there was

nothing on record to show that alternate plot was available with it. The Co-

Judgment 8 wp1795.08.odt

operative Appellate Court overlooked the fact that the Co-operative Court

consciously issued alternate directions to the society to pay an amount equal

to the value of 2000 sq.ft. plot. The Co-operative Appellate Court should not

have set aside the directions given by the Co-operative Court without

considering that the society had not placed sufficient material on record to

show that the alternate plot was not available with it. In any case, now, the

facts on record show beyond doubt that the plot admeasuring 4336 sq.ft. is

available with the society and it is lying vacant. I find that the society has

tried to misrepresent by making submission that the plot available with it is

required for construction of its office. It goes unexplained why the alleged

resolution dated 9th November, 2003 and the alleged resolution dated 25th

February, 2004 were not pointed out to the Co-operative Court and the Co-

operative Appellate Court and why copies of the above resolutions were not

placed on record of the Co-operative Court and evidence was not led to prove

the resolutions. Because of failure on the part of the society to produce

copies of above resolutions on the record of the Co-operative Court and to

lead evidence to show that alternate plot was not available with it, doubt is

created about genuineness of the resolutions, copies of which are produced

before this Court for the first time. And even if the resolutions are accepted,

for last more than 13 years they are not acted upon and the plot is lying

vacant.

Judgment 9 wp1795.08.odt

9. In view of the above, I find that the order passed by the Co-

operative Appellate Court is unsustainable and is required to be set aside and

the award passed by the Co-operative Court has to be restored.

Hence, the following order :

i) The judgment passed by the Co-operative Appellate Court on

1st March, 2008 is set aside and Appeal No. 71 of 2007 filed by

the respondent No.1-society is dismissed.

ii) The award passed by the Co-operative Court on 1st March,

2006 is restored.

iii) By the award dated 1st March, 2006, the Co-operative Court

directed the society to allot alternate plot admeasuring 2000

sq.ft. to the disputant and in case the plot is not available then

to pay the value of Plot No.34 as on 1st March, 2006. As it is

found that the plot admeasuring 4336 sq.ft. is available, the

respondent No.1-society is directed to allot 2000 sq.ft. of land

by carving out the proper plot with dimensions similar to the

dimensions of adjoining or other plots of the society so that the

plot is viable and can be put to optimum utility. It is clarified

that the society shall not attempt to play any mischief while

Judgment 10 wp1795.08.odt

carving out 2000 sq.ft. of plot from the vacant land

admeausring 4336 sq.ft. The allotment shall be made to the

disputant till 30th June, 2017.

The petitioner/ disputant is illegally deprived of his legitimate

claim for more than 18 years and though vacant land is

available with the respondent No.1-society it attempted to

misrepresent the facts. Because of the unwarranted delay in

allotment of the land, the petitioner will have to suffer extra

burden for construction because of the escalation in price.

In these facts, the respondent No.1-society shall pay costs

quantified at Rs.50,000/- to the petitioner till 30th June, 2017.

Rule is made absolute in the above terms.

JUDGE

RRaut..