Smt. B. Savithri vs Andhra Pradesh Cooperative ...
2021 Latest Caselaw 3148 Tel

THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                         AND
     THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY

                   WRIT APPEAL No.263 OF 2018

JUDGMENT: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)

      The present Writ Appeal is arising out of an Order

dated 08.12.2017 passed in W.P.No.3035 of 2011 by the

learned Single Judge.

      The facts of the case reveal that the appellant before

this Court purchased plot Nos.683 and 684, admeasuring

280 square yards each situated in Survey No.227/1 of

Bahadurpalli       Village,   Medchal       Taluk,    Ranga       Reddy

District, under registered sale deeds bearing document

Nos.285 of 1982 and 294 of 1982, dated 21.01.1982 from

Sri Sainath Cooperative Housing Society Limited. The

undisputed facts of the case also reveal that the appellant

has    not    paid    development        charges     and     in   those

circumstances, the dispute was referred under Section 61

of the Andhra Pradesh Cooperative Societies Act, 1964

('Cooperative Societies Act', for short) and an Award was

passed under Section 62 of the Cooperative Societies Act

directing the appellant to pay a sum of Rs.28,000/-

(Rupees twenty eight thousand only) on or before

31.03.2002 and it was also observed that failing to pay

the said amount, the registration of the plots shall be

cancelled. However, the appellant did not pay the amount
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on or before 31.03.2002 and by registered document

dated 09.03.2004, the Society cancelled the sale deeds

executed in favour of the appellant and sold the said plots

by executing registered sale deeds on 23.04.2004 to other

persons waiting in the queue. The appellant preferred an

Appeal under Section 76(3) of the Cooperative Societies

Act before the Andhra Pradesh Cooperative Tribunal,

Hyderabad      and    also    preferred     an    application        for

condonation of delay as the Appeal was preferred after

expiry of 6 years 4 months and 14 days and the Tribunal

has dismissed the Application preferred under Section 5

of the Limitation Act for condonation of delay. The Order

was passed by the Tribunal on 03.06.2009 and the same

was challenged before the learned Single Judge vide

W.P.No.3035 of 2011 and the learned Single Judge has

dismissed the writ petition by Order dated 08.12.2017.

The same is reproduced as under:-

         "Before examining the submission of Smt B.Vasantha
   Lakshmi, learned counsel for the petitioner it is necessary to
   bear in mind that the jurisdiction of this Court, under
   Article 226 of the Constitution of India, has been invoked by
   the petitioner seeking a writ of certiorari to quash the
   impugned order. A writ of certiorari can be issued for
   correcting errors of jurisdiction such as in cases where
   orders are passed without jurisdiction, or is in excess of it,
   or as a result of failure to exercise jurisdiction or where, in
   exercise of the jurisdiction conferred on it, the Court or
   Tribunal acts illegally or improperly. The jurisdiction to
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       issue a writ of certiorari is supervisory and not appellate. 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. The adequacy or sufficient of
       evidence, and the inference of fact to be drawn therefrom,
       cannot be agitated in certiorari proceedings. (Syed Yakoob
       v. K.S.Radhakrishnan)1.
          If   the    tribunal   has   erroneously   refused    to    admit
       admissible and material evidence, or has erroneously
       admitted inadmissible evidence, or if a finding of fact is
       based on no evidence, it would be an error of law which can
       be corrected by a writ of certiorari. Where the conclusion of
       law     by     the   Tribunal    is   based   on    an        obvious
       misinterpretation of the relevant statutory provisions, or in
       ignorance of it or even in disregard of it or is expressly
       founded on reasons which are wrong in law, the said
       conclusion can be corrected by a writ of certiorari. Whether
       or not an error is an error of law, and an error of law which
       is apparent on the face of the record, must always depend
       upon the facts and circumstances of each case, and upon
       the nature and scope of the legal provisions which are
       alleged to have been misconstrued or contravened (Syed
       Yakoob).
          Unlike an appellate authority which can re-appreciate the
       evidence on record, the High Court, in the exercise of its
       powers of judicial review, would not substitute its view for
       that of the Tribunal nor would it re-appreciate the evidence
       on record to arrive at a conclusion different from that of the
       Tribunal whose order is impugned, in certiorari proceedings,
       before it. Even if two views are possible, and the Tribunal
       has taken one of the possible views, the High Court would
       not interfere, in the exercise of its certiorari jurisdiction,
       even if it were to be satisfied that other possible view,
       canvassed before it, is more attractive.
          Bearing these principles in mind, let us now examine
       whether the order passed by the Cooperative Tribunal


1
    AIR 1964 SC 477
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necessitates interference. It is not in dispute that the
jurisdiction of the Tribunal was invoked by the petitioner six
years four months and fourteen days after the award was
passed. The petitioner claims that she secured a copy of the
order on 14.02.2008, and filed an appeal well within the
sixty days limitation prescribed under Section 76(3) of the
Act. From the facts, as noted in the order passed by the
Tribunal, it is evident that the respondent society had sent a

notice to the petitioner at her last known address; they had, thereafter, caused publication, in Eenadu newspaper, of an award having been passed. The Tribunal has held, not without jurisdiction, that Eenadu was a largely circulated newspaper; when she changed her address, the petitioner had failed to inform the respondent-Society of the change in her address; and it is not even the petitioner's case that the society had sent notices to an address other than the one which he had furnished to them.

The Tribunal, therefore, computed the period of limitation, for preferring an appeal, from the date of the award, and not from the date on which the petitioner procured a copy thereof. The Tribunal has furnished reasons for its refusal to condone the inordinate delay of six years four months and fourteen days from the date of the award till the date on which the appeal was preferred. The findings, recorded in the impugned order, cannot be said either to be perverse or to be based on no evidence. The order under challenge in these proceedings does not also suffer from an error apparent on the face of the record necessitating interference in certiorari proceedings under Article 226 of the Constitution of India. I see no reason, therefore, to interfere with the order. It is, however, made clear that the petitioner's contention that a registered sale deed could not have been cancelled by the society or by the arbitrator, and the only recourse the society had, to have the registered sale deeds cancelled, was to file a suit before the competent Civil Court, has not been examined in these proceedings, since the only question, which arises for consideration in these writ proceedings, is whether the

Tribunal was justified in refusing to exercise its discretion to condone the delay in preferring the appeal, of six years four months and fourteen days from the date of the award. The Writ Petition fails and is, accordingly, dismissed. The miscellaneous pending, if any, shall stand closed. No costs."

The undisputed facts of the case make it clear that

the appellant did not pay the development charges in spite

of therebeing an Award passed in the matter and the

publication in respect of payment of development charges

was made in Eenadu Telugu daily newspaper and the

Award was also published in Eenadu Telugu daily

newspaper and the newspaper is a popular Telugu daily

having wide circulation. The statement of the appellant

that she was not aware of the Award does not help the

appellant as held by the Tribunal as well as by the learned

Single Judge. The appellant has also taken a stand that

because of the change of her address, she could not

receive notice issued by the Arbitrator.

In the considered opinion of this Court, in case of

change of address, the appellant should have informed

the Society about the change of address and the Society

has sent notices to the address furnished by the appellant

only. The Tribunal was justified in computing the period

of limitation for preferring the Appeal is from the date of

award, i.e., 01.12.2001 and not from the date on which

the petitioner obtained a copy of the Award,

i.e., 14.02.2008 and the petitioner obtained the certified

copy after six years of passing of the Award. The Award

was published in newspaper and undisputedly, there was

a delay of more than six years in filing the Appeal before

the Tribunal. The other important aspect of the case is

that the plots in question, which are the subject matter of

the dispute, were allotted to other persons and it has been

brought to the notice of this Court that the said other

persons have also constructed houses on the said plots

and therefore, this Court does not find any reason to

interfere with the Order passed by the Tribunal in

dismissing the application for condonation of delay as well

as the Order passed by the learned Single Judge in

dismissing the writ petition.

Resultantly, the writ appeal is dismissed.

Miscellaneous petitions, if any pending, shall stand

dismissed. There shall be no order as to costs.

__________________________________ SATISH CHANDRA SHARMA, CJ

_____________________________ A.RAJASHEKER REDDY, J

01.11.2021 Pln