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2003 DIGILAW 689 (JHR)

Indu Builders v. State Of Jharkhand

2003-06-18

SUDHANSU JYOTI MUKHOPADHAYA

body2003
ORDER S.J. Mukhopadhaya, J. 1. This writ petition has been preferred by the petitioner, Indu Builders through its Partner Sujit Lahiri, for issuance of appropriate writ, order or direction, particularly, a writ in the nature of certiorari for quashing the order dated 14th December, 2002 passed in Misc. Case No. 14 (AAJ 2002 by the Joint Registrar, Cooperative Societies, South Chhotanagpur Division, Ranchi, whereby and whereunder, the application filed by Respondent Nos. 4 and 5 has been allowed and the petitioner has been directed to hand over the flats measuring 911 Sft. and 1200 Sft. to the Respondent Nos. 4 and 5 respectively. 2. The main plea taken by the petitioner is that the entire order dated 14th December, 2002 passed by the Respondent No. 2 against the petitioner is absolutely illegal and without jurisdiction. 3. According to the petitioner, it is a partnership firm having its office at Jamshedpur and carries out business as consultant, architect, builders, interior designer and valuer. The Jay Prabha Sahakari Grih Nirman Samiti Limited, Kadma, Jam-shedpur (for short-Housing Cooperative Society) of which the Respondent No. 3 is the Administrator is a registered Cooperative Society. The said Housing Cooperative Society being desirious to construct a Housing Colony for its members, acquired lands measuring 3.1 acres together with small huts, pucca building and little part of agricultural lands in Plot No. 1515, Khata No. 6 corresponding to new Plot Nos. 2713; 2715; 2716; 2718; 2719; 2710; 2721 and 2722 recorded in Ward No. 2, Jamshedpur Notified Area in Mouza and P.S. Kadma, Thana No. 1160 in Jamshedpur. The Respondent No. 3 being interested in construction of a Housing Colony, approached the petitioner to plan a suitable lay out of a Housing Complex of the said land, carve out plots as specific and to construct flats. An agreement was reached between the petitioner and the Respondent No. 3 and it was agreed that after construction of flats, the petitioner would hand over eight flats of 1600 Sft; four flats of 1250 Sft. and 13 flats of 1100 Sft to the Respondent No. 3 and further some plots to them. The agreement is a simple building construction agreement and the petitioner has no concern with the members of the Housing Cooperative Society. There is no brevity of contract between the petitioner and the members of the Respondent No. 3, Housing Cooperative Society. and 13 flats of 1100 Sft to the Respondent No. 3 and further some plots to them. The agreement is a simple building construction agreement and the petitioner has no concern with the members of the Housing Cooperative Society. There is no brevity of contract between the petitioner and the members of the Respondent No. 3, Housing Cooperative Society. It is alleged that on the complaint/ application filed on behalf of Respondent Nos. 4 and 5 before the Respondent No. 2 alleging, inter alia, that they were entitled to get flats, free of cost, but the same having not been given to them, a Misc. Case No. 14 (AA)/ 2002 was registered wherein direction was issued to hand over flats to Respondent Nos. 4 and 5, vide order dated 14th December, 2002. 4. The counsel for the petitioner relied on a Division bench decision of this Court dated 3rd March, 2003 passed in W.P. (C) No. 4375 of 2002, [See Ashiana Housing and Finance (India) Ltd. v. State of Jharkhand, 2003 (2) JCR 188 (Jhr)], wherein taking into consideration the relevant facts of the said case, the Court held that the Registrar, Cooperative Societies, as far as Section 48 of the Bihar Cooperative Societies Act, 1935 is concerned, has no jurisdiction whatever to deal with respect to the sell of land to a third party, nor has jurisdiction to pass order against such third party to whom land was sold. 5. According to the counsel for the State, there being alternative remedy of appeal, the writ petition should not be entertained. But the counsel for the petitioner requested the Court to decide the case on merit, the jurisdiction of the authority having been challenged. 6. From the submissions made by the counsel for the State and the counsel appearing on behalf of Respondent Nos 4 and 5, the following fact emerges. An agreement was reached between the petitioner and the third Respondent on 23rd August, 1991 for construction of a Housing Colony for the members of the Respondent No. 3, Housing Cooperative Society over the land of the members. The petitioner who was the second party, agreed to perform the following job : "1. That the second party has agreed to : (a) construct such number of Flats measuring area 1600 sq. ft. The petitioner who was the second party, agreed to perform the following job : "1. That the second party has agreed to : (a) construct such number of Flats measuring area 1600 sq. ft. out of which 8 Flats shall be made over to the society free of cost for allotment to the members having surrendered their plots. (b) Construct such number of Flats measuring 1250 sq.ft. out of which 4 Flats shall be made over to the Society free of cost for allotment to the members having surrendered their plots. (c) Construct such number of Flats measuring area 1100 sq. ft. out of which 13 flats shall be made over to the Socity free of cost for allotment to the members having surrendered their plots. (d) Set apart 6 number of 5 Katha plots-, 5 number of 4 Katha plots and 5 number of 3 Katha. plots for disposal by the first party in favour of members who have not surrendered their plots. (e) Incorporate any marginal change in the number of Flats to be made over to the Society free of cost as per a, b and c above and number of plots as per d above. 2. (A) The Flats constructed over and above the number to be handed over to the Society free of cost as per 1 a, b and c above shall be offered to the members of the Society at an agreed rate of Rs. 301/- Sq. ft. inclusive of all common services provided in the complex and money thus received shall be retained by the second party, subject to escalations of materials, labour etc. (B) Whereas 10% of the total cost of the flat shall have to be deposited by the members along with the booking, the remaining amount shall be payable by members in suitable instalments as mutually determined, depending upon progress of work. (C) Out of the money received as per 2 (B) above an amount equivalent to 5% of the total value of Flats constructed as per 2 (A) shall be retained by the society to be cleared only on satisfactory completion of the project." 7. From Clause (10) of memorandum of understanding dated 17th July, 2002 reached between the petitioner and the Respondent No. 3, it will be evident that the parties agreed upon to approach the Registrar, Cooperative Societies, Ranchi in case of any dispute. From Clause (10) of memorandum of understanding dated 17th July, 2002 reached between the petitioner and the Respondent No. 3, it will be evident that the parties agreed upon to approach the Registrar, Cooperative Societies, Ranchi in case of any dispute. In the aforesaid background, it was desirable for the petitioner to prefer appeal before the competent authority. 8. So far as jurisdiction of the Registrar, Cooperative Societies to decide the issue under Section 48 of the Bihar Cooperative Societies Act, 1935 is concerned, the petitioner cannot derive any advantage of the Unreported judgment dated 3rd March, 2003 passed in W.P. (C) No. 4375 of 2002 Reported in 2003 (2) JCR 188 (Jhr). 9. In the present case, apart from the fact that Sujit Lahiri through whom the petitioner had approached this Court, is a member of the Housing Cooperative Society, the present dispute touches the business of the Society. Under Section 48 (1) of the Bihar Cooperative Societies Act, 1935, if any dispute touching the business of a registered Society between the Society or its Managing Committee and any past or present Member, Agent or Servant of the Society arises, the Registrar Cooperative Society has jurisdiction to decide the dispute. In the present case, the petitioner is working as an Agent of the Cooperative Society to construct houses for its members over the land which belongs to the members. In view of the aforesaid provisions of law i.e. Section 48 (1) of the Cooperative Societies Act, 1935 as also the Clause (10) of the memorandum of understanding dated 17th July, 2002, it is always open for the Registrar, Cooperative Societies to take up the matter and decide the dispute. Similar was the view expressed by the Supreme Court in the case of D.M. Cooperative Bank v. Dalichand, reported in AIR 1969 SC 1320 . 10. In view of the aforesaid finding, this Court is not inclined to interfere with the order in question. 11. The writ petition is dismissed.