Shiva Sahkari Grihnirman Samitee ... vs The State Of Jharkhand
2021 Latest Caselaw 880 Jhar

                                    1


 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   L.P.A No. 65 of 2018


 Shiva Sahkari Grihnirman Samitee Ltd., Ranchi through its Secretary, Braj
 Bhushan Sinha aged about 65 years, son of Late Dineshwar Lal, having its
 office at Kishore Ganj, Road No.6, Harmu Road, Ranchi, P.O. GPO, P.S.
 Kotwali, District Ranchi.                            ...... Appellant
                           Versus
 1.The State of Jharkhand.
 2.The Secretary, Co-operative Department, Ranchi., P.O. + P.S. + District-
 Ranchi.
 3.The Registrar, Co-operative Societies, Jharkhand, Ranchi, P.O. Dhurwa,
 P.S. Hatia, District-Ranchi.
 4.The Assistant Registrar, Co-operative Societies, Ranchi Circle, P.O. and
 P.S and District-Ranchi.
 5.Shri Shyamnandan Prasad son of Shri Radha Prasad, Qtr. No.T-9/4, P & T
 Colony, P.O. and P.S. Lalpur, District Ranchi.         ...... Respondents
                           ---------
 CORAM: HON'BLE THE CHIEF JUSTICE
              HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                           ----------
 For the Appellant         : Mr. Ritu Kumar, Adv.
 For the Respondent-State : Mr. Sachin Kumar, AAG-II
 For the Respondent no.5 : Mr. Mrinal Kanti Roy, Advocate

                          -----------
CAV on:24.09.2020                             Delivered on: 23/02/2021
Per: Sujit Narayan Prasad, J.

1. The matter has been heard through video conferencing with the

consent of the learned counsel for the parties. None of the parties has raised

any complaint regarding audio and visual quality.

2. The instant intra-court appeal is against the order dated 13.12.2017

passed by the learned Single Judge of this Court in W.P.(C) No.1995 of

2015, whereby and whereunder the writ Court was declined to interfere with

the order as contained in Memo no.970/Ranchi dated 30.03.2013 passed by

the Registrar, Co-operative Society, Jharkhand, whereby the letter

No.SSGNS-7 dated 25.03.2012 had been set aside and the petitioner was

directed to execute the sale deed as per the terms and conditions mentioned in

the allotment letter dated 05.11.1988, as also declined to interfere with the

order dated 10.01.2014 corresponding to Memo No.160/Ranchi dated

15.01.2014, whereby the review petition of the petitioner under Section 48(7)

of the Jharkhand Co-operative Society Act, 1935 (hereinafter referred to as

'the Act', 1935) was dismissed.

3. The brief facts of the case, as per the pleadings made in this appeal,

read as under:

The respondent no.5 namely, Shri Shyamnandan Prasad became the

member of the society. On 28.11.1988, the appellant entered into an

agreement with Smt. Mundrika Devi wife of Sri Dashrath Lal for purchasing

land situated at village Ranchi, Thana Ranchi, Thana no.205, Pargana

Khukra, Municipal Survey 1932-33, Ward no.III, Khata No.9, Plot No.MS

307 and RS 707.

The Plot no.307/F was provisionally allotted to the respondent no.5

after receiving an amount of Rs.25,541/-. The appellant has claimed that the

respondent no.5 did not pay installment in time and as such, the Secretary of

the appellant-society namely, Braj Bhushan Sinha wrote letter to the

respondent no.5 on 17.01.1989 indicating that in spite of repeated requests,

respondent no.5 did not comply the terms and conditions of the allotment

letter. The appellant-society again wrote a letter to the respondent no.5 on

07.05.1990 requesting therein to make payment of the rest amount by

20.05.1990. The appellant-society, thereafter issued second allotment letter

dated 06.09.1990 in favour of the respondent no.5 cancelling the previous

allotment letter. On 28.11.1991, the respondent no.5 issued authorization

letter to one Chandrama Singh to recover the amount from Braj Bhushan

Sinha paid by him earlier. The appellant also issued legal notice on

06.05.1997 to the respondent no.5 and directed to comply with all necessary

formalities in order to execute the sale deed effectively. The appellant had

issued letter dated 08.09.2011 addressed to the respondent no.5, calling

explanation from him, which was replied by the respondent no.5 on

11.11.2011. However, vide letter dated 25.03.2012, the appellant in exercise

of power conferred under section 41(A) of the Bye-Laws of the society and

Rule 14 (2) of Jharkhand Co-operative Societies Rules, 1959 cancelled his

membership as also the allotment of the plot, and further the amount so

deposited by way of advance in lieu of allotment had been decided to be

adjusted and rest of the amount, if any, was recovered by way of loan. Sri

Shyamnandan Prasad, respondent no.5 to this appeal had preferred an

application before the Registrar, Co-operative Societies, Jharkhand, Ranchi,

invoking the jurisdiction conferred to him under Section 48(1) of the Bihar

Co-operative Societies Act, 1935 registered as Miscellaneous Case No.10 of

2012. The appellant had appeared before the Registrar, Co-operative Society

being called upon and contested the case and thereafter, the Registrar, Co-

operative Societies, Ranchi had passed order on 30.03.2013, against which a

review petition had been filed under the provision of Section 48(7) of the

Jharkhand Societies Act, 1935 on 14.05.2013 being Review Case No.14 of

2013 but the same was also dismissed vide order dated 10.01.2014, against

which the writ petitioner-appellant preferred a writ petition before this Court

under Article 226 of the Constitution of India which was contested by the

writ petitioner-appellant but the learned Single Judge of this Court dismissed

the writ petition with a direction to the Jharkhand Co-operative Societies,

which is the subject matter of the intra-court appeal.

4. Mr. Ritu Kumar, learned counsel appearing for the appellant

submitted that there is no laches on the part of the appellant-society, rather

laches is on the part of the respondent no.5 since in spite of provisional

allotment letter dated 05.11.1988 of Plot no.307/F although part of the

amount was paid but rest of the amount was not paid and as such, having no

option allotment of the Plot No.307/F was cancelled and a decision was taken

to allot another plot being Plot No.707/A vide second allotment letter dated

06.09.1990. It has further been contended that since respondent no.5 had not

complied with the terms and conditions of the letter of allotment, therefore,

the Co-operative Society cancelled the allotment as also the membership

taking into consideration his conduct also since he had instituted F.I.R

against the Secretary of the Society. However, in the criminal case there was

an order of acquittal but due to the activities of the respondent no.5, the

functioning of the Co-operative Society was being disturbed, therefore, in the

meeting of the Board of Directors, decision was taken to cancel his

membership from the Co-operative Society as also the order of allotment of

loan in question.

5. Mr. Mrinal Kanti Roy, learned counsel for the respondent no.5 has

submitted that the learned Single Judge has committed no error in passing the

order as because the respondent no.5 had deposited the entire amount as per

the terms and conditions of the letter of allotment but it is due to mala fide

intention of the Co-operative Society the Plot no.307/F having an area of 2

Kathas and 8 Chataks, unilaterally it was decided not to hand over the

possession of the aforesaid plot in favour of the respondent no.5 and decided

to handover the possession of the Plot no.707/A which is having no approach

road and also lesser in area in comparison to the Plot no.307/F is based upon

no reason and by changing Plot no.307/F by another Plot no.707/A, no

option had been given to the respondent no.5 and since the entire amount had

already been deposited, therefore, it was wrong on the part of the Co-

operative Society not to handover the possession of the Plot No.307/F and

unilaterally decision was taken to allot Plot no.707/A having no approach

road and lesser in area and not only that, the Co-operative Society had taken

decision on 25.03.2012 for cancellation of his membership.

The respondent no.5, thereafter had preferred an application before the

Registrar, Co-operative Society invoking the jurisdiction conferred under

Section 48(1) of the Bihar Co-operative Societies Act, 1935 being

Miscellaneous Case No.10 of 2012. However, the Registrar, Co-operative

Society had quashed the decision of the authority dated 25.03.2012 to hand

over the possession of the plot no.307/F by executing the sale deed as per the

terms and conditions mentioned in the allotment letter dated 05.11.1988,

against which the writ petitioner-appellant had preferred review petition

being Review Case No.14 of 2013 but the same was also dismissed.

It is further contended by the learned counsel appearing for the

respondent no.5 that cancellation of his membership as also the allotment of

the another plot, is without providing any opportunity since the decision was

taken behind the back of the respondent no.5 and as such, the said action of

the Co-operative Society was held illegal by the Registrar, Co-operative

Society as well as the writ Court.

6. In response, Mr. Ritu Kumar, learned counsel for the appellant has

submitted that the dismissal of the writ petition by the learned Single Judge is

absolutely improper, as because even accepting the contention of the learned

counsel for the respondent no.5 that the provisional allotment of Plot

No.307/F was made in his favour on 05.11.1988 but the allotment of the

aforesaid plot was not done rather another plot was allotted being Plot

No.707/A on 06.09.1990 and the writ petition has been filed in the year 2015

and therefore, the writ petition is barred by delay and laches but this fact has

not been appreciated by the learned Single Judge.

7. In response to such statement, Mr. Mrinal Kanti Roy, learned counsel

for the respondent no.5 has submitted that the cause of action begins on

25.03.2012 i.e. the order passed by the Co-operative Society and immediately

thereafter the respondent no.5 approached before the Registrar, Co-operative

Society in Misc. Case No.10 of 2012 by filing application under Section

48(1) and as such, there is no delay on the part of the respondent no.5.

8. Mr. Sachin Kumar, learned AAG-II has submitted that there is no

infirmity in the order passed by the Registrar, Co-operative Society rather the

Registrar, Co-operative Society in exercise of the authority conferred under

the statute 48(1) of the Act, 1935, has rightly passed the said order taking into

consideration the conduct of the Co-operative Society, the cancellation of the

plot vide order dated 25.03.2012 without providing an opportunity of hearing

and as such, the learned Single Judge is right in not interfering with the said

order, therefore, the order passed by the learned Single Judge requires no

interference.

9. Having heard learned counsel for the parties, after perusing the

document on record as also the finding given by the learned Single Judge,

this Court has found therefrom some relevant facts:

The respondent no.5 had decided to purchase a plot of Shiv Sahkari

Grihnirman Samitee Ltd., Ranchi, the appellant-society herein for the

purpose of construction of residential house and as such, he approached to

the competent authority of the Society and on the demand a sum of

Rs.25,541/ was deposited for allotment of the plot. In consequence thereof,

an allotment letter was issued on 05.11.1988 wherein the reference of the plot

has been made as Khata No.9, Khesra No.19, 117, 139 bearing Plot No.MS

307 corresponding to RS 707, Sub Plot No.307/F measuring an area of 2

Kathas 8 Chataks. The Clause-I of the allotment letter indicates that the

estimated cost of the plot is Rs.20,000/ per 720 square feet including

construction of road and levelling of the surface. The allotment letter issued

in favour of the respondent no.5 was accompanied with a card that Plot

No.307/F is having 15 feet wide road having area 2,8;0. The respondent no.5

had entered into an agreement with the Society for purchase of the land on

28.11.1988 in which the name of the respondent no.5 appears at Serial no.21

as one of the members of the Society for the said plot. The Society had

purchased the aforesaid land on 28.11.1988 from Mundrika Devi in the name

of Shiv Sahkari Grihnirman Samitee Ltd., the appellant herein. The Secretary

of the Co-operative Society had also issued letter regarding payment of

balance money on 17.01.1989 and 07.05.1990, upon which the entire money

had been paid, in lieu thereof, the money receipt had also been issued but the

Co-operative Society in the meanwhile, issued second allotment letter dated

06.09.1990 which makes a reference to make payment of Rs.34,511/- to be

paid by the respondent no.5 wherein the land bearing Khata No.9 MS 307 RS

707, Sub Plot No.707/A, Thana No.205 has been issued to the appellant with

a foot note that this allotment letter cancels all previous allotment.

It appears from the record that the respondent no.5 had deposited the

entire amount which in the rejoinder affidavit has not been disputed by the

Co-operative Society. Subsequently on 25.03.2012, the membership of the

respondent no.5 was cancelled and the allotment of the plot against which

the application was filed before the Registrar, Co-operative Society who had

passed the order on contest with a direction to the appellant society to

execute the sale deed 307/F, against which review application was filed but

the same was also dismissed, which has been questioned by the appellant-

writ petitioner before the writ Court, however, the writ Court also declined

to interfere with the aforesaid decision of the Registrar, Co-operative Society

which is the subject matter of the present intra-court appeal.

On the basis of the relevant fact that the provisional allotment order

for Plot No.307/F was issued on 05.11.1988 in pursuance to the terms and

conditions of the order of allotment, the amount had been deposited and

thereafter, an agreement was entered into in between the Co-operative

Society and the appellant on 28.11.1988. The Plot No.307/F is having an area

of 2 Kathas 8 Chataks but the sale deed was not executed.

10. We have not got from the pleadings made in the writ petition, as to

what is the reason for not executing the sale deed of Plot No.307/F, however,

it has been contended therein that the rest of the amount was not deposited,

but the said fact has been disputed by the respondent no.5. But the question

is, even accepting the amount so agreed for provisional allotment of Plot

No.307/F has not been deposited by the respondent no.5, why an appropriate

proceeding for cancellation of the said plot has not been initiated in terms and

conditions of the Bye-laws i.e. by providing an opportunity of hearing to the

respondent no.5 and further, if the respondent no.5 has not deposited the

amount so agreed then why another land was allotted by virtue of another

allotment letter issued on 06.09.1990. No explanation has been furnished by

the appellant-society which makes the thing very clear that the conduct of the

Co-operative Society is not fair enough.

It is also admitted that the Plot No.307/F cannot be compared with the

Plot No.707/A both in location and area since as has been admitted that there

is no approach road to Plot no.707/A and the area of the said plot is lesser in

comparison to the Plot no.307/F. Further, it appears from the materials

available on record that the respondent no.5 had instituted a criminal case

being Kotwali P.S. Case No.289 of 2017 against the society, however, there

was an order of acquittal, but it is evident from the decision of the Board of

Directors whereby and whereunder it has been decided to cancel the

membership of the respondent no.5, the allotment as per the decision dated

25.03.2012 and the reference of criminal case has also been made therein, is

the suggestive of the fact that the authorities of the Co-operative Society

acted by way of grudge since respondent no.5 had instituted a criminal case

against the Secretary of the Society.

Further, the decision dated 25.03.2012 reflects that due to conduct of

the respondent no.5 the work of the society was being hindered as he was

ousted from the society, but the question is when the respondent no.5 was

member of the society, should he unilaterally be ousted from the

membership of the society without providing proper opportunity of hearing

but without resorting to the principle of natural justice, the membership of

the respondent no.5 was cancelled. Further question has been raised that

second allotment letter dated 06.09.1990 was issued by allotting Plot

No.707/A but there is no such explanation made by the writ petitioner-

appellant in the writ petition, which shows the mala fide of the Co-operative

Society.

The respondent no.5 approached before the Co-operative Society

under the provisions of Section 48(1) of the Act, 1935 against the order

dated 25.03.2012 and the Registrar, Co-operative Society taking into

consideration the fact that the cancellation of membership as also the

allotment of the plot is arbitrary and in violation of principles of natural

justice and as such, quashed the aforesaid decision with a direction to

execute the sale deed of the Plot No.307/F for which an agreement was

executed on 28.11.1988. The review was filed against the said order which

was dismissed and when the matter was brought before this Court under its

extraordinary jurisdiction conferred to this Court under Article 226 of the

Constitution of India, the writ Court considered the entire aspects of the

matter and taking into consideration the fact in detail uphold the order

passed by the Registrar, Co-operative Society by giving a finding to the

effect that the writ petitioner has failed to show any cogent reason in not

executing the sale deed in favour of the respondent no.5, as also the question

of violation of principles of natural justice is one of the consideration made

by the learned Single Judge and considering the fact that before passing the

order dated 25.03.2012, no opportunity of hearing has been provided and

further before making fresh allotment of plot having no approach road and

lesser in area comparison to that of other plot being Plot No.307/F, is also

not found to be based on valid reason which have been considered by the

Registrar, Co-operative Society and thereafter, the order has been passed,

therefore, the learned Single Judge has declined to interfere with the same

under the jurisdiction of issuance of writ of certiorari.

It has been contended by the learned counsel appearing for the

appellant that the respondent no.5 had approached before the authority,

Registrar, Co-operative Society under the power under Section 48(1) of the

Act, 1935 after delay of reasonable period but the aforesaid ground is not

found to be acceptable to this Court, for the reason that the cause of action of

the respondent no.5 will be commenced with effect from 25.03.2012, the

date when the Board of Director of the appellant-society took decision for

cancellation of his membership as also the allotment order and immediately

thereafter, in the year 2012 itself, the respondent no.5 approached before the

Co-operative Society as would be evident from the case instituted before the

Registrar, Co-operative Society being Misc. Case No.10/2012, therefore,

according to our considered view, it cannot be said that the respondent no.5

approached to the authority after considerable delay.

11. It needs to refer herein that the scope of interference of the High Court

to issue writ of certiorari sitting under Article 226 of the Constitution of India

is very limited, as has been discussed by Hon'ble Supreme Court in the case

of Syed Yakoob Vrs. Radhakrishnan reported in A.I.R. 1964 477 Supreme

Court wherein at paragraph no.7 their Lordships have held as follows:-

"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the

Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104 : ((S) AIR 1955 SC 233); Nagendra Nath v. Commr. Of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168.

In another judgment of Hon'ble Apex Court in the Case of Sawarn

Singh Vrs. State of Punjab reported in (1976) 2 SCC 868 their Lordships

while discussing the power of writ under Article 226 for issuance of writ of

certiorari has been please to hold at paragraph nos.12 and 13 as under:

"12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra).

13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or

improperly in the exercise of their jurisdiction causing grave miscarriage of justice."

In another judgment rendered by Hon'ble Apex Court in the case of

Pepsico India Holding (P) Ltd. Vrs. Krishna Kant Pandey reported in

(2015) 4 SCC 270 their Lordships while discussing the scope of Article 226

and 227 of the Constitution of India in the matter of interference with the

finding of the tribunal has been please to hold by placing reliance upon the

judgment rendered in the case of Chandavarkar Sita Ratna Rao Vrs.

Ashalata S. Guram reported in (1986) 4 SCC 447 at para 17 has held as

under:-

"17. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal V. Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J, as the learned Chief Justice then was, observed at page 1301 of the report as follows:

......... power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors.

This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose V. Commr. Of Hills Division and it was pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case:

It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the

Constitution. Under Article 226 the power of interference may extent to quashing an impugned order on the ground of mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeking that the tribunal functions within the limits of its authority."

12. It is evident from the aforesaid judgment that the interference by

issuing writ of certiorari conferred under Article 226 is very limited and the

same can only be issued on the ground of jurisdictional error or perversity in

finding or the decision is flagrant violation of law but by way of going

through the materials on record the order passed by the Registrar, Co-

operative Society as also the finding recorded by the learned Single Judge in

the order impugned, no such ground is available warranting this Court for

making interference by issuing writ of certiorari in exercise of power

conferred under Article 226 of the Constitution of India.

13. Accordingly, we are of the view that the learned Single Judge has

committed no error, warranting any interference by this Court.

14. In view thereof, the appeal fails and is dismissed.

(Dr. Ravi Ranjan, C.J.) I agree.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Saket/-

A.F.R.