Gun Rock Enclave Cooperative ... vs Capt.G.G.K.Raju Died Per Lrs
2021 Latest Caselaw 1154 Tel

      THE HON'BLE SRI JUSTICE T.AMARNATH GOUD

       WRIT PETITION Nos.32256 AND 32273 of 2014
                                AND
                      W.P.No.7228 of 2015
COMMON ORDER:

1     This is a case of checkered litigation. The seed for the

multifarious litigation was laid first by the first respondent

herein i.e. Capt. GGK Raju and after his death his legal heirs are

fighting the legal battle with the petitioner Society.

2 The first petitioner society herein purchased land in an

extent of Ac.35.00 in Sy.No.157/8 situated at Tokatta Village,

Secunderabad, made a layout of 144 house plots and obtained

permission from the authorities. The first respondent is member

of the first petitioner society and he was allotted Plot No.190.

But, due to mistakenly instead of Plot No.190 in favour of GGK

Raju, Plot No.56 was registered to him. In fact, Plot No.56 was

allotted to one Capt. Ms. Uma Raju. The said fact was later

rectified by cancelling the sale deed of Capt. GGK Raju for Plot

No.56. The said cancellation deed dated 31.3.1984 has not been

challenged and the same became final. It also came to light that

Mr. GGK Raju is having dual membership in other Cooperative

Housing Society also, which is a disqualification to be a member

of the petitioner society. Accordingly his membership has been

terminated.

3 However, the petitioner society addressed a letter dated

16.12.1983 to the first respondent stating that an error was

crept in i.e. instead of plot No.190, it was mentioned as plot

No.56 and requested the first respondent to get it rectified as per

procedure. However, as the first respondent refused it, the

Society cancelled the registration on 31.3.1984 and allotted plot

No.56 to the original allottee Capt. Ms Uma Raju.

4 The emphatical statement of the petitioners was that the

Society registered plot No.56 in favour of Smt. Janakidevi

Minocha and her son Pradeep Minocha on 09.7.1984 after

Capt.Ms Uma Raju transferred her share to the purchasers

which was ratified by the Society resolution. As the first

respondent GGK Raju was a defaulter, the petitioner society

refunded the allotment charges paid by him on 20.9.1984 and

he received it. Hence there is no obligation as the first

respondent has not paid any sale consideration for plot No.56.

5 Not being satisfied, Mr. GGK Raju preferred ARC No.92 of

1984 before the Deputy Registrar/Arbitrator and the same was

allowed by order dated 26.4.1990 in favour of the first

respondent herein striking down the contention of the

petitioners that plot No.56 was erroneously registered in favour

of the first respondent and thus it was cancelled. The Deputy

Registrar directed the Society to restore Plot No.56 in favour of

the first respondent after payment of dues. Mr. GGK Raju did

not choose to pay sale consideration at that point of time also.

The second petitioner herein executed a cancellation deed dated

21.8.2000 cancelling the cancellation deed executed by the

person-in-charge dated 05.6.2000. The said cancellation was

again cancelled when the person-in-charge appointment was

cancelled by the Court on complaint by the society. Hence Mr.

GGK Raju is not conferred with title for plot No.56.

6 Be that as it may, Capt. Ms. Uma Raju filed ARC No.1 of

2007 which was allowed, directing the Society to register sale

deed in her favour in respect of Plot No.56 and deliver

possession thereof. The same has been complied with by the

society. Later Capt. Ms. Uma Raju alienated the plot No.56 by

way of a registered sale deed Doc.No.425 of 2009 dated

21.4.2009 in favour of Gummadi Jhansi Lakshmi and since then

she is in peaceful and vacant possession and enjoyment of the

plot and also obtained house construction permission from local

body and constructed rooms and people are living therein.

7 The first respondent herein Mr.GGK Raju filed Writ

Petition No.3415 of 2003 before the erstwhile High Court of

Andhra Pradesh seeking to direct the Sub-Registrar, Bowenpally

and the President of the Society to abide by the direction of the

ARC No.92 of 1984, to direct the Sub-Registrar to cancel all

entries of cancellation of the sale deed dated 28.3.1983 and to

abstain from making any further entries of cancellation at the

instance of the petitioner society herein and to direct the Deputy

Registrar of Cooperative Societies, Secunderabad to take action

for prosecution against the Society and its President for violating

the judicial orders dated 26.4.1990 passed in ARC No.92 of

1984.

8 A division Bench of the erstwhile High Court of Andhra

Pradesh, Hyderabad, comprising The Chief Justice G.S.Singhvi

and Justice C.V.Nagarjuna Reddy by order dated 13.7.2007

dismissed the said Writ Petition holding that without challenging

the cancellation deed dated 21.8.2000 before competent civil

Court, the first respondent herein Mr. GGK Raju is not entitled

to seek the reliefs. The Division Bench further observed that

when the first respondent herein has an effective remedy

available before the Tribunal he cannot seek relief under Article

226 of the Constitution of India. The order of the Division Bench

became final. The first respondent Mr. GGK Raju has not paid

the sale consideration in the light of above orders also.

9 More or less with the same set of facts pleaded and the

reliefs prayed for in W.P.No.3415 of 2003, the first respondent

filed ARC No.18 of 2009 before the Deputy Registrar of

Cooperative Societies. The petitioners herein and Capt. Ms.

Uma Raju contested the said ARC. However, the said ARC

No.18 of 2009 was dismissed by order dated 09.12.2011 with an

observation that the Deputy Registrar has no jurisdiction to

entertain the case under Section 61 of the APCS Act.

10 Aggrieved thereby the first respondent Mr. GGK Raju filed

CTA No.6 of 2012 on the file of the Cooperative Tribunal at

Hyderabad. The Tribunal by judgment dated 19.9.2014 allowed

the CTA and set aside the award in ARC No.18 of 2009. The

Tribunal observed that the President of the Society i.e. 2nd

petitioner herein is liable for punishment under Section 81 r/w

Section 83 of the APCS Act and directed the Deputy Registrar to

initiate necessary criminal action against the President of the

Society. The Tribunal further directed the President of the

Society to pay Rs.1.00 lakh to the first respondent Mr. GGK

Raju. The Tribunal also held that the Award passed in ARC

No.1 of 2007 filed by Capt. Ms. Uma Raju is collusive, it is void

ab initio and the sale deeds executed in pursuance of the award

in that ARC in favour of Capt. Ms. Uma Raju on 07.4.2009 and

the subsequent sale deed executed in favour of Jhansi Lakshmi

Gummadi on 09.4.2009 are invalid and liable to be cancelled.

11 The Tribunal further held that the sale deed executed in

favour of the first respondent on 28.3.1983 is valid and holds

good and directed the Sub-Registrar, Bowenpally to cancel all

the entries regarding the cancellation of the sale deed dated

28.3.1983 in the relevant books. It is relevant to mention here

that in pursuance of the order of the Tribunal, FIR No.30 of

2015 dated 14.02.2015 has been registered against the second

petitioner herein on the file of Karkhana Police Station upon the

complaint of the Cooperative Department.

12 Aggrieved by the judgment dated 19.9.2014 in CTA No.6 of

2012, Gun Rock Enclave Co-operative Society and its President

being first and second petitioners filed present W.P.No.32256 of

2014.

13 The contention of the petitioners in the above Writ Petition

is that the Tribunal has committed jurisdictional error and the

relief sought cannot be granted; the same has to be agitated

before competent civil Court. He relied on the judgment

M.Venkataramana v. A.P.Cooperative Tribunal, Hyderabad and

Others1.

14 It is further contended that the first respondent was

allotted plot No.190 and he cannot claim right to have plot No.56

1 2010 (4) ALD 500 (D.B)

without consideration of the right of another member who was

allotted the said plot and who was not made a party to any of

the proceedings which is contrary to all cannons of equity.

15 The Tribunal failed to see that the award in ARC No.1 of

2007, which was in favour of the original allottee, cannot be

termed as collusive. If the same yardstick is applied, the entire

proceedings initiated by the first respondent without making her

a party and without hearing her, are all in violation of principles

of natural justice and even otherwise, without challenging the

said proceedings in ARC No.1 of 2009, they cannot be held to be

collusive.

16 In fact all the proceedings initiated by the first respondent

are non-est as the affected party was never made a party to any

of the proceedings and all the proceedings took place behind her

(Capt. Ms. Uma Raju) back.

17 The jurisdiction of the Tribunal is to resolve the dispute

but has no power to award compensation which is beyond its

power. It is further contended that the first respondent Mr.GGK

Raju obtained plot without disclosing that he was a member of a

similarly placed another Army Welfare Cooperative Society

bearing registered No.TAB600 and got allotment of plot No.175

in AWHO and as such he is not even entitled either to be a

member of the petitioner society or to get allotment of any plot in

another society leave alone the petitioner society. First

respondent- Mr.GGK Raju faces disqualification on the ground

of dual membership. In pursuance of the order dated 25.4.2019

in W.P.No.9030/2019, an enquiry to determine dual

membership of Mr. GGK Raju resulted adverse to him. It was

opined that he is not entitled to dual membership. In this

context CTA No.12 of 2020 has been filed by Mr.GGK Raju. To

reject the CTA as not maintainable, I.A.No.49 of 2020 has been

filed by Dr. Jhansi Lakshmi and the same was allowed

dismissing the CTA, by order dated 01.02.2021.

18 Respondent Nos.2 to 5 who are legal heirs of the deceased

first respondent filed counter contending that unilateral

cancellation of the sale deed is erroneous, that Capt. Ms. Uma

Raju suppressing the civil proceedings filed ARC No.1 of 2007

and obtained an Award and got sale deed executed in her

favour. The subsequent sale deed dated 09.4.2009 in favour of

Dr.Jhansi Lakshmi Gummadi is also non-est in the eye of law.

That awarding the costs by the Tribunal is within its power as

the powers of the civil courts are vested in the Tribunal. The

first respondent was not a member of any other society by the

time he was allotted plot by the petitioner society.

19 Aggrieved by the very same judgment in CTA No.6 of 1992,

dated 19.9.2014, the 6th respondent in the CTA filed

W.P.No.32273 of 2014 contending that the Deputy Registrar has

rightly dismissed the ARC No.18 of 2009 filed by the deceased

first respondent Mr.GGK Raju as the relief sought for in ARC

No.18 of 2009 i.e. to direct the respondents Nos.1 and 2 therein

i.e. the petitioners herein to abide by the decision rendered in

ARC No.92 of 1984 dated 26.4.1990 by executing a cancellation

deed cancelling the cancellation deed dated 24.8.2000 by

restoring the original sale deed dated 28.3.1983 and deliver the

title deed for pot No.56 in Sy.No.157/8 of Thokatta Village,

Secunderabad and consequently issue direction to the third

respondent therein to cancel all entries of cancellation of the

sale deed dated 28.3.1983 in Book-I, Vol.6 Doc.No.611/83 and to

restrain him from making any further entries of cancellation

without any judicial orders and to direct the respondent Nos.1

and 2 to pay compensation of Rs.10,000/- to the petitioner i.e.

GGK Raju in preventing him from enjoying the property for the

last 25 years and unnecessarily harassing to approaching the

Court incurring huge amount for causing mental and physical

agony and to declare the award passed in ARC No.1 of 2007

dated 06.9.2007 on the file of the Deputy Registrar / The

Divisional Cooperative Officer, Secunderabad Division, M. J.

Road, Hyderabad as null and void and not binding on the

petitioner (GGK Raju) and consequently issue directions to the

third respondent (Sub-Registrar, Bowenpally) to cancel the

registered sale deed dated 07.4.2009 (Doc.No.376/2009) is

beyond the jurisdiction of the Deputy Registrar and such reliefs

which are declaratory in nature can only be sought by invoking

the provisions of the Specific Relief Act before the competent civil

Court but not before the Deputy Registrar as the sale deed was

executed in favour of Capt. Ms. Uma Raju in respect of the same

property bearing plot No.56 by following due process of law and

hence the impugned judgment is liable to be set aside.

20 It is contended that the first respondent was already

member of Army Welfare Cooperative Society and got allocation

of Plot No.175, therefore he is not entitled to claim plot No.56

again in the present society as per 4 (2) of the bye laws of the

society. Dual membership in similarly placed societies is a

disqualification to be a member.

21 It is further contended that the Tribunal below without

giving any finding on the maintainability of ARC No.18 of 2009,

simply set aside the orders passed by the Arbitrator / Deputy

Registrar, Cooperative Societies.

22 It is further contended that Capt. Ms. Uma Raju in turn

sold the same to the Petitioner in this Writ Petition i.e. Dr.

Gummadi Jhansi Lakshmi and hence without invoking the

provisions of the Specific Relief Act seeking cancellation of the

sale deed, the ARC filed by the respondents shall not be

entertained.

23 It is further contended that the petitioner in this Writ

Petition is in possession of Plot No.56 and hence the judgment

in CTA No.6 of 2012 in favour of the first respondent and his

L.Rs is erroneous. That the Tribunal below failed to see that

when once an Award is passed, the authority becomes functus

officio and for implementation of the Award, filing another ARC

is not maintainable. The Cooperative Societies Act does not

empower to do so.

24 The respondent Nos.2 to 6 being the L.Rs of the deceased

first respondent filed their counter with the same set of facts

pleaded in Writ Petition No.32256 of 2014.

25 Aggrieved by the order of the Tribunal in CTA No.6 of 2012

directing the Deputy Registrar of Cooperative Societies to initiate

necessary action against the President of the Society by lodging

a complaint with police, the President of the petitioner society

filed W.P.No.7228 of 2015 seeking to quash FIR No.30 of 2015

on the file of Karkhana police station registered for the offences

punishable under Sections 406, 420, 468 and 467 of IPC.

26 Heard the learned counsel for all the parties in all the Writ

Petitions and perused the entire material available on record.

27 The Tribunal failed to observe that the first respondent

filed the CTA aggrieved by the decision rendered in ARC No.18 of

2009, which itself is not maintainable because the ARC No.18 of

2009 was filed seeking a direction to direct the petitioners to

abide by the decision rendered in ARC No.92 of 1984. The prayer

in the ARC No.18 of 2009 to abide by the decision in ARC No.92

of 1984 is not maintainable since the authority becomes functus

officio and that the first respondent cannot file another ARC for

implementation of earlier award. The Cooperative Societies Act

does not empower to do so. Award passed in first ARC cannot be

executed by filing second ARC. It is not E.P. proceedings. The

power to cancel the registered documents vests with the civil

courts only and the arbitrator lacks jurisdiction thereon. The

Cooperative Tribunal in its judgment has given findings and

passed orders with regard to the cancellation of the sale deeds

and went into the aspect of title which the Tribunal is having no

jurisdiction. As per Section 70 of the Act, only the civil Court

has jurisdiction. Accordingly, on this point the judgment of the

Tribunal is liable to be set aside since the issue of title has to be

decided by a competent civil Court.

28 In M.Venkataramana v. A.P.Cooperative Tribunal,

Hyderabad and Others2 it was categorically held that the civil

Court alone has jurisdiction but not Cooperative Tribunal to

decide the issue. Therefore, the impugned judgment of the

Tribunal is liable to be set aside for want of jurisdiction to

entertain or adjudicate upon the dispute referred to above.

29 Further, it is to be seen that plot No.56 was initially

allotted to Capt.Ms.Uma Raju, she paid the entire sale

consideration and since the society did not execute the

conveyance deed in her favour she filed an Arbitration Case and

got award in her favour and subsequently she filed E.P.No.20 of

2008 and got registered the plot No.56 through the competent

civil Court. The said proceedings have not been challenged and

they became final.

30 Right from the threshold the case of the petitioner society

is that plot No.56 was mistakenly registered in favour of the first

respondent Mr. GGK Raju instead of Plot No.190 and that fact

was intimated to said GGK Raju by way of letter dated

16.12.1983. The said letter was also not challenged by Mr. GGK

Raju.

31 In those circumstances there is justification on the part of

the petitioner society in cancelling the sale deed executed in

favour of said Mr. GGK Raju - first respondent in respect of plot

No.56. The Division Bench also observed in W.P.No.3415 of

2003 that the said cancellation deed has also not been

2 2010 (4) ALD 500 (D.B)

challenged by Mr. GGK Raju before competent civil Court. The

fact was that the said GGK Raju was never allotted plot No.56.

Hence the said registration through court of law in favour of

Capt. Ms. Uma Raju has become final and binding on all parties.

32 Therefore, on facts of the case also, the first respondent

has no right to seek a direction to the petitioner society to

register plot No.56 in his favour and for that purpose he cannot

file another ARC. One ARC cannot be filed (as an EP) to execute

the orders of earlier ARC. This is not recognized under the

statute. The Tribunal failed to appreciate the issues on factual

and legal domain. The Tribunal has erred and overstepped its

jurisdiction in directing the Sub-Registrar, Stamps and

Registration Department to delete the entries in the registers in

so far as the sale deeds.

33 The first respondent Mr. GGK Raju filed W.P.No.3415 of

2003 which was dismissed by a Division Bench. The Court gave

adverse findings against said Mr. GGK Raju with regard to his

membership. The said fact and legal finding by Division Bench

on the issue of cancellation deed as well as non-payment of sale

consideration by him in pursuance of ARC No.92 of 1984 cannot

be ignored. The adverse finding of Division Bench are facing

towards him.

34 O.S.No.3122 of 1984, O.S.No.1769 of 1989 E.P.No.13 of

1990 in O.S.No.1769 of 1989 cannot bind Dr. Jhansi Lakshmi

or Capt.Ms.Uma Raju as they are not party to the suit

proceedings. Under Cooperative Societies Act the said suits are

barred under Section 121 of the Cooperative Societies Act.

Since the dispute under Section 61 of the Cooperative Societies

Act runs around management, business, members, election

issues but not under Transfer of Property Act. The State Act

cannot have an overriding effect on Central Act.

35 The petitioner in W.P.No.32273 of 2014 Dr. Gummadi

Jhansi Lakshmi purchased Plot No.56 from Capt. Ms. Uma Raju

under a registered sale deed and she has been in possession of

the property. When that aspect was challenged by Mr. GGK

Raju before the Tribunal, the Tribunal set aside the sale deed,

which is without jurisdiction of the Cooperative Tribunal since a

competent civil Court alone has to look into the aspect. More so,

when Plot No.56 was registered by a competent civil Court, in

favour of Capt. Ms. Uma Raju in E.P. proceedings as stated

supra, the said registration remained unchallenged. Without

challenging the registration in favour of Capt. Ms. Uma Raju,

challenging the registration of sale deed of the petitioner/Dr.

Jhansi Lakshmi Gummadi is erroneous. The Tribunal cannot

act as a civil Court in relation to Transfer of Property Act.

36 The contention of the petitioners in both the Writ Petitions

is that Mr. GGK Raju was allotted a plot in Army Welfare

Cooperative Society and that presently he is residing in that

plot. There is no specific denial from Mr. GGK Raju or his legal

heirs that he was not allotted any plot in Army Welfare

Cooperative Society bearing Reg.No.TAB 600 and got allocation

of Plot No.175. Therefore, the judgment of the Cooperative

Tribunal is liable to be set aside.

37 The learned counsel for the respondents by relying on the

judgment of the Hon'ble apex Court in Thota Ganga Laxmi v.

Government of Andhra Pradesh3 submitted that notice before

cancellation of the document to the effected party is necessary.

However, this Court completely agrees with the legal position.

But the facts of the above case are not applicable to the facts of

the present case since Mr. GGK Raju has not challenged the

cancellation deed before any competent court of law.

38 As far as W.P.No.7228 of 2015 is concerned, the

Cooperative Tribunal went to an extent of fixing the criminal

liability against the second petitioner and directed the concerned

Deputy Registrar to initiate criminal action against the President

of the Society. The Cooperative Tribunal has no jurisdiction

under Transfer of Properties Act. It can only decide upon issues

relating to Cooperative Societies Act. The Cooperative Tribunal

has travelled beyond the scope of its appellate jurisdiction and

has gone to the extent of passing orders which is ultra vires and

the said observation is liable to be set aside. The Tribunal

travelled beyond the scope of appeal and it cannot decide ARC

No.1 of 2007, which is not the subject matter in CTA No.6 of

2012. The CTA 6 of 2012 was filed challenging the award passed

in ARC No.18 of 2009. The President of the society cannot be

personally held liable. It will be the decision of the Managing

Committee or the Board of Directors. Unless it is held in an

enquiry against the President, liability cannot be fixed against

him and it cannot be said that the President is guilty. More so,

3 2012 (3) ALT 50 (SC)

in the light of court orders against Mr. GGK Raju, the sudden

twist by the Tribunal holding the President as guilty is unjust.

The penal provision under the Act and Rules provides for

imposition of penalty of fine of Rs.500/- only in the event it is

found that the person in the Society is guilty of committing any

irregularity. But the Cooperative Tribunal has gone to the extent

of imposing penalty of Rs.1.00 lakh which is disproportionate

and contrary to the Section 81 itself. Unless dispute under

Section 61 of the Act is resolved and an order under Section 62

became final and unless accountability is fixed for

noncompliance against Society or individual, powers invoking

under Section 81 of the Act is ultra vires. The Tribunal is not

vested with power to impose penalty of Rs.1.00 lakh under

Section 81 r/w Section 83 of the Act. The jurisdiction of the

Tribunal is to resolve the dispute and has no power to award

compensation. Accordingly, that finding of the Tribunal is set

aside.

39 Further, in the light of the findings given in the other two

Writ Petitions, it can be held that it is not a case of cheating or

forgery to attract the provisions of Section 420 or 467 or 468 of

IPC. Here, the facts of the case reveal that the President and the

society have not forged any document and not cheated the first

respondent Mr. GGK Raju for delivery of any valuable property.

Therefore, the finding of the Cooperative Tribunal on this point

is liable to be set aside.

40 Accordingly the issues involved in these Writ Petitions

relating to cancellation of sale deed, cancellation of entries in the

books in Sub-Registrar's Office, filing of second ARC, dual

membership, registration of criminal cases are answered against

the respondents i.e. Mr. GGK Raju and his legal heirs.

41 In the result, Writ Petitions W.P.No.32256 of 2014 and

W.P.No.32273 of 2014 are allowed, by setting aside the

judgment of the Cooperative Tribunal in CTA No.6 of 2012 dated

19.9.2014. In consequence thereof, W.P.No.7228 of 2015 is also

allowed quashing the FIR No.30 of 2015 dated 14.02.2015 on

the file of Karkhana Police Station.

42 This Court is of the opinion that this is only a vexatious

litigation by the respondents before wrong forum seeking

inappropriate reliefs and wasting valuable time of the Court.

Hence the Writ Petitions are allowed with costs of Rs.10,000/-

(Rupees Ten Thousand only) in each Writ Petition to be paid in

favour of Telangana High Court Advocates Association,

Hyderabad. Miscellaneous petitions if any pending in all these

Writ Petitions shall stand closed.

-----------------------------------

T.AMARNATH GOUD, J.

Date:09-4-2021 Kvsn