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Patna High Court · body

2007 DIGILAW 673 (PAT)

Swati Pande v. Registrar, Co Operative Societies

2007-04-03

S.N.HUSSAIN

body2007
Judgment 1. Heard learned counsel for the petitioners, learned counsel for the State representing the Registrar Co-operative Societies, learned counsel for the Patliputra House Construction Co-operative Society Ltd. and learned counsel for private respondent no. 4. 2. The original sole petitioner Gauri Shankar Pande died during pendency of this writ petition and his heirs and legal representatives mentioned in I.A.No. 2305 of 2006 were substituted in his place as petitioners by order of this court dated 12.10.2006. 3. This Writ petition has been filed for issuance of a writ of certiorari quashing order dated 28.11.2000 (annexure-20) passed in Misc. Case No. 186 of 1996 by which the learned Registrar Co-operative Societies, Bihar, Patna upheld the earlier resolution of the Board of Directors of Patliputra House Construction Co-operative Society Ltd. (hereinafter referred to as the Society for the sake of brevity) dated 24.7.1990 communicated to the original petitioner vide memo no. 695 dated 28.11.1995 (annexur.e-5A) cancelling the allotment of plot in question bearing plot no. 252 measuring six kathas, three dhurs, three kanwan in the Society which was made in favour of the original petitioner as far back as on 8.1.1978 vide resolution no. 10 of the Society. The impugned order was passed on the basis of a finding that the petitioner had not acquired any title by virtue of a non-est sale deed dated 14.3.1989 for which no sanction or authorisation was granted by the Board of Directors and no construction of house was made and hence the requirements of Clause 26 and 47 of the Bye laws of the Society were not fulfilled. The said order dated 28.11.2000 (annexure-20) was passed by the learned Registrar, Co-operative Societies after the matter was remanded by this court vide order dated 25.4.2000 (annexure-14) passed in CWJC No. 6621 of 1998. 4. The admitted facts of this case are that the Patliputra House Construction Co-operative Society Ltd. is governed by its Board of directors and is duly registered before the Registrar, Co-operative Societies, Bihar, Patna under the Bihar Co-operative Societies Act, 1935 (hereinafter referred to as the Act for the sake of brevity). The plot in question bearing plot no. 252 was initially allotted on 13.5.1965 by the Society to Late R.N.Pande, who was an I.A.S. and was the father of the original petitioner Gauri Shankar Pande. The plot in question bearing plot no. 252 was initially allotted on 13.5.1965 by the Society to Late R.N.Pande, who was an I.A.S. and was the father of the original petitioner Gauri Shankar Pande. After his death in September, 1965 the plot membership was transferred in favour, of his wife Smt. Rajmuni Devi, who also died in November, 1966, whereafter on his application of the year 1967 membership of the Society was transferred in favour of the original petitioner Gauri Shankar Pande vide Boards Resolution no. 10 dated 8.1.1978. In 1979 the petitioner submitted a building construction plan for the said plot before the Society which was returned to the petitioner for modification, whereafter it was re-submitted after modification on 18.12.1980, which according to the Society, was approved on 15.2.1981 with a condition that construction should be completed within one year, failing which allotment shall be cancelled. 5. However, the petitioner claimed that neither a copy of the said resolution was communicated to the petitioner, nor the approved plan was sent to him and it was only in the year 1996 when the matter was before the Registrar Co-operative Societies that the petitioner was given information thereof, but inspite of that the petitioner much earlier made construction of boundary wall, six garages and rooms as per the plan submitted by him in anticipation of its sanction, whereafter a reminder was sent by the petitioner to the Society on 1.3.1990. It is submitted by the petitioner that the said plot was situated at the extreme end of the Society adjacent to the village Gosaitola due to which anti-social elements of the said village started creating trouble which resulted in a proceeding under Sec.144 of the Code of Criminal Procedure between one Ajab Narayan Singh and the Society which was subsequently converted into a proceeding under Sec.145 of the Code and was finally decided in favour of the said Ajab Narayan Singh and in addition to that anti-social element of Village Gosaitola also damaged constructions made by the petitioner over the plot in question and occupied the portion of green belt area of the same plot, but since the sale deed was not executed by the Society in favour of the petitioner, he was not in a position to initiate any appropriate proceeding for defending his rights and interest and hence he filed representations before the Society on 25.2.1989 and 8.3.1989 for execution of the sale deed in his favour. 6. The petitioner also submitted that in similar situation the Society had executed sale deeds in respect of plot nos. 163 and 323 in favour of their respective allottees before any constructions were made by them except boundary wall and one garage. The society considered the said- representations of the original petitioner and discussed the said matter in the meeting dated 25.1.1989, 28.2.1989, 8.3.1989 and 10.3.1989 (annexure-6 series), whereafter the President and Honorary Secretary of the Society authorised the Manager to execute the sale deed of the plot in question in favour of the petitioner and accordingly the sale deed was executed by the Manager in favour of the original sole petitioner on 14.3.1989 as the Manager had earlier executed sale deeds in favour of other allottees in similar circumstances. Thereafter the Society noticed the petitioner in the year 1993 for payment of municipal dues also. 7. Much thereafter the Society sent memo no. 695 dated 28.11.1995 (annexure-5A) informing the original sole petitioner that allotment of Plot no. 252 in favour of the original petitioner had been cancelled by the Board of Society vide its Resolution no. 09 dated 24.7.1990. Against the said order the petitioner filed Misc. 7. Much thereafter the Society sent memo no. 695 dated 28.11.1995 (annexure-5A) informing the original sole petitioner that allotment of Plot no. 252 in favour of the original petitioner had been cancelled by the Board of Society vide its Resolution no. 09 dated 24.7.1990. Against the said order the petitioner filed Misc. Case No. 186 of 1996 before the Registrar, Co-operative Societies on 3.7.1996 in which order of status quo was passed on 3.7.1996 (annexure-7), but inspite of the aforesaid order of status quo the Society allotted half portion of the said plot no. 252 to respondent no. 4 and the remaining portion thereof to another person by its Resolution dated 7.7.1996 (annexure-8), whereafter the said respondent no. 4 was impleaded as a party to the said Miscellaneous case, and a fresh order of status quo was passed on 20.8.1996 (annexure-10). It appears that thereafter the case was transferred to the court of Joint Registrar, Co-operative Societies who by order dated 22.4.1998 directed issuance of notice to the parties fixing 22.5.1998 for hearing whereafter the final hearing was postponed to 2.7.1998, but before that date respondent no. 4 filed a petition on 22.6.1998 before the Addl. Registrar for early disposal of the case and the said Addl. Registrar on the same date recalled the case from the file of the Joint Registrar for deciding the same himself exercising the power of the Registrar, Cooperative Societies which post was vacant and after finally hearing the case himself dismissed the case by his order dated 29.6.1998 (annexure-11), although on that date, counsel for the original petitioner appeared and prayed for time for raising objection to the jurisdiction of the Addl. Registrar and did not participate in the hearing of the Miscellaneous Case on merit. 8. Against the said orders dated 22.6.1998 and 29.6.1998, the original sole petitioner filed CWJC No. 6621 of 1998 and this court after considering the matter in detail found that there were serious doubts as to the bonafide and merits of the said orders and accordingly by order dated 25.4.2000 (annexure-14) the writ petition was allowed and the Registrar, Co-operative Societies was directed to give reasonable opportunity of hearing to the parties and decide the Miscellaneous Case No. 186 of 1996 afresh within three months from the date of receipt of a copy of that order. However, liberty was given to challenge the said decision of the Registrar before the High Court by any party who was aggrieved by that order. Accordingly, the Registrar, Co-operative Societies heard the matter again, whereafter he dismissed the said Miscellaneous Case no. 186 by his order dated 28.11.2000 (annexure-20) which is under challenge in the instant writ petition. 9. From the submissions of the learned counsel for the parties and the materials on record including the impugned order, it is quite apparent that the parties to this case do not dispute that the plot in question was initially allotted to the father of the original petitioner by the Society on 13.5.1965 and on his death the plot membership was transferred in favour of the mother of the original petitioner in 1965, whereafter she also died and the plot membership of the Society was transferred in favour of the original petitioner vide Boards Resolution no. 10 dated 8.1.1978, whereafter the petitioner submitted a building construction plan for the said plot in the year 1979. 10. The claim of the respondents is that the said plan submitted by the original petitioner was approved by the society on 15.2.1981 with a condition that construction should be completed within one year, failing which the allotment of the plot shall be cancelled. But the respondent-Society and its authorities completely failed to show that the said approval dated 15.2.1981 was ever communicated by the Society to the petitioner or any notice or information to that effect was ever sent to the petitioner and no chit of paper with respect thereto has been produced by them, whereas the petitioner has specifically stated that neither the said approval letter was ever sent to the petitioner, nor any information or notice to that effect was given to him and hence he had no knowledge at all about the same. The petitioner has also been able to show that it was only in the year 1996 that the petitioner was given information about the said approval dated 15.2.1981 during the pendency of Miscellaneous Case No. 186 of 1996 which was filed before the Registrar, Co-operative Society by the petitioner against the said cancellation of the petitioners allotment of the plot in question by the Society on 24.7.1990 information of which was given to the petitioner by Societys memo dated 28.11.1995 (Annexure 5-A). 11. 11. It is also an admitted fact that registered deed of transfer of the said plot was executed by the Manager of the Society in favour of the original petitioner on 14.3.1989. According to Bye-Law no. 35 of the Society its Manager has the authority to exercise such power as may be delegated to him by the Board of Directors from time to time, whereas Bye-law no. 35(a) of the Society authorises the President of the Society to act as Chief Executive of the Society and to exercise the power of general control over all the affairs of the Society in such capacity subject to the resolution as may be passed by the Board. 12. Here in the instant case, the record shows that there were proceedings under Sec.144 and 145 of the Code of Criminal Procedure between the outsiders and the Society with respect to adjacent plots, which had been encroached by the third persons and the instant plot in question had a clear threat of being encroached as it was adjacent to the village Gosaitola and also to the plots encroached upon. Hence, in the aforesaid exceptional circumstances, the original petitioner required a deed of conveyance to be executed in his favour to enable him to defend his right, title and interest in the plot in question and make further constructions. In the aforesaid exceptional circumstances which threatened the land of the Society itself, the President of the Society after consultations with the other authorities of the Society in the meetings held on 25.1.1989, 28.2.1989, 8.3.1989 and 10.3.1989, authorised the Manager of the Society to execute a registered deed of conveyance dated 14.3.1989 in favour of the original petitioner. 13. So far the question of post facto sanction from the Board of Directors with respect to the aforesaid authorisation is concerned, in exactly similar circumstances, the Board of Directors granted post facto sanction for execution of the sale deed by the Manager of the Society in favour of allottees of other plots, including plots no. 13. So far the question of post facto sanction from the Board of Directors with respect to the aforesaid authorisation is concerned, in exactly similar circumstances, the Board of Directors granted post facto sanction for execution of the sale deed by the Manager of the Society in favour of allottees of other plots, including plots no. 163 and 323 of the Society, which were also under the threat of encroachments, but it is very strange that the Board of the Society kept silent about the plot in question and the representations of the original petitioner with respect thereto, and hence considering the exigency and urgency of the matter, the President of the Society in consultation with other authorities of the Society authorised the Manager to execute the sale deed of the present plot in question in favour of the original petitioner and accordingly the sale deed in question was executed. Considering the aforesaid facts and circumstances, as well as the provisions of law, it is quite apparent that due to the dire urgency, necessity and exigency to the matter and also due to the strange, unexplained dubious silence of the Board of the Society, the President of the Society rightly exercised his powers and accordingly the sale deed was executed in favour of the original petitioner which, thus, cannot be said to be illegal or unwarranted. 14. So far the cancellation of the sale deed is concerned, it is admitted fact that the sale deed in question was executed by the Manager of the Society on 14.3.1989, whereafter it was duly registered, whereas the deed of annulment of the said sale deed was executed by the Society on 26.5.1990, although the allotment of the plot in question in favour of the original petitioner is said to have been cancelled by the Board on 24.7.1990. Thus, it is apparent that the deed of annulment of sale deed was executed at a time when the allotment of the plot in question in favour of the original petitioner was continuing and was not even cancelled by the Board and the said order of cancellation of allotment was obtained about two months after the execution of the deed of annulment of the sale deed. Hence there was no occasion at all on 26.5.1990 for the Society to cancel the sale deed of the original petitioner at a time when the plot in question was running in the name of the original petitioner himself and neither there was any post facto sanction for the cancellation of the sale deed, nor any exigency, necessity and urgency was even shown to be present at the said time. It, thus, clearly shows that the Society had made up its mind before hand to cancel the allotment of the plot in favour of the petitioner without even giving any show cause notice to the original petitioner or giving any opportunity of hearing to him before executing the deed of cancellation of petitioners sale deed. 15. Bye Law no. 46 (v) of the Society specifically provides that before cancelling any allotment, the Society should issue a show cause notice to the allottee member in order to afford him an opportunity of being heard, but in the instant case the Society grossly violated the said provision by not issuing any such show cause notice. So far the Reliance of the respondents upon letter dated 31.3.1990 (Annexure-A series) sent by the Society to the petitioner is concerned, it is clear from its reading that it is definitely not a show cause notice, rather it is a mere communication about the decision of the Board to cancel the allotment made in favour of the petitioner. It is nowhere stated in that letter that the petitioner is required to submit any show cause nor any time for submission of any such show cause has been given therein and the content is clearly a mere communication about the decision of the Board regarding annulment of allotment. The above facts as well as the undue haste shown by the respondent-Society in the matter of execution of a deed of annulment of the sale deed even prior to cancellation of allotment of the plot in question show that the respondents did not act legally and in an unbiased manner. 16. The above facts as well as the undue haste shown by the respondent-Society in the matter of execution of a deed of annulment of the sale deed even prior to cancellation of allotment of the plot in question show that the respondents did not act legally and in an unbiased manner. 16. The original petitioner had come up with clear and unambiguous facts stating that although he did not receive any communication from the Society with respect to approval dated 15.2.1981 granted by the society to his plan, but he made construction of boundary wall and garage according to the plan submitted by him in anticipation of its approval, but the said constructions were subsequently demolished by the encroachers in clear terms. The petitioner had throughout specifically claimed that he got knowledge and information about the approval of his plan by the Society in the year 1996 during the pendency of the Miscellaneous Case, but the said fact could also not be disproved by the respondents by any valid chit of paper. Hence the ground taken by the authorities concerned for cancellation of allotment is absolutely non-est and baseless as neither the petitioner had made any misrepresentation of facts, nor he ever committed any fraud for getting the deed of sale executed and registered in his favour. 17. Although the Registration Act, 1908 , does not specifically provide any mode or manner in which a deed of transfer earlier registered before the Registrar of Document could be cancelled by a subsequent deed of annulment, but even if the Registrar of Document had the power to admit such a deed of annulment for registration, it had to be done as per the requirements of principles of natural justice and cannot be done to the detriment of the person in whose favour the earlier deed of transfer was registered. Furthermore, once a property is transferred by a registered, document, a vested civil right devolves upon the transferee and to nullify such vested right only a Civil Court of competent jurisdiction has the authority and the Registrar has no such power or authority of a Civil Court to decide right and title of a party. 18. Furthermore, once a property is transferred by a registered, document, a vested civil right devolves upon the transferee and to nullify such vested right only a Civil Court of competent jurisdiction has the authority and the Registrar has no such power or authority of a Civil Court to decide right and title of a party. 18. From the impugned order passed by the Registrar, Co-operative Societies, it is quite apparent that he has dealt with the question of determination of title of the parties on the basis of Sec. 48 of the Act which provides that Registrar acts as a Court in respect of disputes between the parties, but the said provision cannot be extended beyond the limits of the Act, nor the Registrar has been authorised to exercise the jurisdiction vested in a Civil Court of competent jurisdiction for the determination of right and title of a person with respect to a property. 19. It also appears to be undisputed fact that by notification of the State Government dated 20.11.2000 (See annexure-15), the Registrar of the Co-operative Societies was transferred to the State of Jharkhand on the bifurcation of the State of Bihar, whereas the impugned order had been passed by the Registrar, Co-operative Societies on 28.11.2000 and on that date itself he handed over the charge of his office. The matter in issue was very serious and complicated involving several points which were to be decided with specific care and caution in view of the specific- order of this court dated 25.4.2000 passed in CWJC No. 6621 of 1998. It is also apparent from the said order dated 25.4.2000 itself that this court directed the Registrar, Co-operative Societies to decide the miscellaneous case within three months, but the Registrar, Co-operative Societies did not pay any heed to the time plan and kept the matter pending for a much longer period and only after notification dated 20.11.2000 regarding his transfer by 28.11.2000, he suddenly became eager to decide the mater on 28.11.2000 itself, This creates a genuine and serious doubt about the bonafide of the impugned order as justice should not only be done, but should also be shown to have been done, in which the authority concerned has miserably failed by passing the order on the date of relinquishment of his office, although his transfer was notified much earlier. 20. Respondent no. 20. Respondent no. 4 has claimed that after the cancellation of the petitioners allotment a portion of the plot in question was allotted to him by the Society on 7.7.1996, whereafter he had made some constructions over the same. It is quite apparent from the records of the case that much prior to 7.7.1996, Miscellaneous Case No. 186 of 1996 was filed by the original petitioner in which the Registrar, Co-operative Societies had passed an order of status quo on 3.7.1996 (annexure-7), hence the said allotment being in teeth of the specific order of status quo passed by the competent authority cannot have any value in the eye of law and any act done on its basis cannot be allowed to be sustained. This also shows the arbitrary and bias attitude of the members of the society in favour of respondent no. 4 considering which this court vide its order dated 3.5.2001, directed that no construction of any sort will be made on the disputed plot of land by any one. If any act has been done in violation of the specific orders of this court or even of the Registrar, such acts are clearly illegal and non-sustainable in law, to say the least. Furthermore, to uphold the sanctity of the orders of the courts, the violators of such orders should be strictly dealt with. 21. In the said facts and circumstances, the impugned order passed by the Registrar, Co-operative Societies, Bihar dated 28.11.2000 (annexure-20) in Miscellaneous Case no. 186 of 1996 is held to be illegal, arbitrary and perverse and is accordingly quashed and the matter is remanded to the Registrar, Co-operative Societies, Bihar to consider the matter afresh after giving reasonable opportunity of hearing to the parties and decide the same in accordance with law in view of the above findings within three months from the date of receipt/production of a copy of this order. 22. In the result, this writ petition is allowed with the above observations/directions, but there would be no order as to cost.