Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13
CASE NO.:
Appeal (civil) 306-307 of 2005
PETITIONER:
A. Jitendernath
RESPONDENT:
Jubilee Hills Coop. House Bld. Soc. & Anr.
DATE OF JUDGMENT: 02/05/2006
BENCH:
S.B. Sinha & P.P. Naolekar
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
These appeals are directed against judgments and orders dated
13.11.2001 and 22.4.2002 passed by the High Court of Andhra Pradesh in
Civil Revision Petition No. 283 of 2000 and Civil Miscellaneous Petition
No. 7763 of 2002 respectively.
Jubilee Hills Cooperative House Building Society Limited, Hyderabad
is a Society registered under the Andhra Pradesh Cooperative Societies Act,
1964. It had enrolled a large number of members. The father of the one
Shri Anne Srinivas and the mother of the Appellant, Mrs. A. Annapurna
Devi, herein were members of the said Society.
From a perusal of the bye-laws framed by the said Society, it appears
that it intended to allot one plot to the family of the member concerned. The
bye-laws contain provisions for nomination.
Bye-laws 19 to 22 which are relevant for our purpose read as under:
"19. Every member may be declaration attested by two
witnesses nominate a person or persons to whom his
share or interest, shall be paid or transferred on his death.
A nominee may be changed by filing a fresh declaration
with the Secretary. In the absence of any nomination the
amount of his share or interest shall be paid or transferred
to such person as may appear to the Managing
Committee to be legally entitled. In case of any doubt
the Managing Committee shall call for a succession
certificate and act in accordance therewith. All amounts
payable to a minor shall be paid to him through his
guardian.
20. The Society shall keep a Book wherein the names of
all persons so nominated and all revocation or variation
(if any) of such nomination shall be recorded within
fifteen days.
21. All shares transferred by virtue of a nomination or by
him or by legal transfer shall be transferred to the
nominee or heir on his becoming a member. He shall
not, however, be entitled to withdraw any such share on
account of such transfer.
22. The nominee of a deceased member shall be made a
member provided he fulfils the qualifications of
membership."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13
The mother of the Appellant herein expired on 15.8.1977. It was not
notified to the Society. A plot bearing No. 39 in Phase III in Jubilee Hills
admeasuring 600 sq. yards was allotted in her favour. On or about
5.11.1981, a notice was circulated to the members of the society that
allotment of plots would be done by way of draw of lots. A copy of the said
notice was also sent to Mrs. A Annapurna Devi (since deceased). Plot No.
39 was allotted in her favour on a provisional basis by the society on 20th
June, 1982. She was called upon to pay a sum of Rs. 4,003.90 within one
month from the date of receipt thereof. However, as no payment was made
within the stipulated period, on or about 30.9.1982, a letter was issued
granting final extension of time upto 30.11.1982 to make payment. It was
categorically stated therein that the provisional allotment would be cancelled
and no representation in that behalf shall be entertained if no payment is
made on or before 30.11.1982 for confirmation of provisional allotment of
the said plot. The said amount admittedly was not paid evidently because in
the meantime the mother of the Appellant had expired.
Shri Anne Srinivas was admitted as a member of the Society on
6.8.1983 in place of his father who was a member of the Society.
Indisputably, on 16.9.1983, plot No. 39 was allotted in his favour.
The Appellant on behalf of her mother wrote a letter on 16.3.1985 to
the First Respondent herein for allotment of site in respect of membership
No. 1646 stating:
"Sub: Allotment of site for Membership 1646.
I request you kindly allot me a site in lieu of my
plot No. 39 in phase 3 which has been given to someone
else.
I had to pay to the society around Rs. 4,000/-, I am
ready to pay the above amount immediately and start
construction of the house if you would kindly allot me a
suitable plot nearby.
The plot 39 in phase 3 which was allotted to me
was given to some one else. I was not in Hyderabad for
more than 2 = years and in correspondence from you was
received by me.
When I came to the office to find out about my
plot no. 39, I was told that the same has been allotted to
some one else. There has been a confusion and I had not
received any of your letters. I would be even grateful to
you if you consider my case and allot me a suitable site
to construction of the house immediately.
Thanking you,
Yours faithfully,
For A. Anapoornamma
Son. A. Jithender Nath"
[Emphasis supplied]
In response to the said letter, the allottee was informed that due to
non-payment of development charges, the said allotment had been cancelled.
By a letter dated 21.6.1985, the Appellant informed the Society about the
death of her mother and sought membership of the Society by way of
transfer.
On 18.3.1986, he made a representation for allotment of a new plot
stating :
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13
"I received your letter dated 20-9-1985. In this
regard, I would like to inform you, that I have already
submitted an affidavit duly notarized, and a death
certificate of my mother Late Smt. A. Annapurnamma.
Now, I enclose the original Affidavit No. 13820 dated
21-6-85, which is duly signed by gazetted officer.
I request you to kindly transfer the membership to
my name and please allot a new plot to me, I am ready to
pay any balance due amount and I am also ready to built
a house immediately."
Respondent No. 1 \026 Society admitted the Appellant as a member on
28.4.1986. Despite the fact that the membership had been transferred to the
Appellant, a sale deed was executed by the Society in favour of Srinivas on
7.2.1987. The said deed was also presented for registration.
Despite having been admitted as a member of the Society, no plot
admittedly was allotted to the Appellant. The Appellant made a
representation for allotment of plot on 15.11.1988. The Society in terms of
its letter dated 3.1.1990 declined to make any allotment in his favour.
Questioning the said action on the part of the Society, the Appellant filed an
application on 4.3.1990 before the Assistant Registrar of the Cooperative
Society which was numbered as ARC 21 of 1990 praying for:
"The Plaintiff, therefore, prays that this Hon’ble Court
may be pleased to declare that the Plaintiff is entitled Plot
No. 39 of the Defendant Society and or in the alternative:
(a) to declare an alternative plot in the same block
to an extent of 600 sq. yards and deliver vacant
possession;
(b) An injunction be granted restraining the
Defendant from allotting the plot No. 39 to any
other member of the Society, pending disposal
of the suit."
In the said proceeding, Srinivas was not impleaded as a party. He,
thus, evidently had no notice thereof. The First Respondent in response to
the notice issued by the Registrar allegedly stated that the said plot No. 39
has been allotted to Srinivas and he had constructed a house thereupon.
Despite the same Srinivas was not impleaded.
The Presiding Officer visited the site and found that no house was
constructed and, therefore, made an award in favour of the Appellant on or
about 22.4.1991 directing the Society to allot the plot No. 39 in favour of the
Appellant. Pursuant thereto or in furtherance thereof, the Appellant paid all
the amounts payable therefor. It is, however, not in dispute that that despite
the same, a deed of sale was registered in favour of Srinivas by the First
Respondent on 13.6.1991.
An appeal marked as CTA No. 6 of 1991 was preferred before the
Third Assistant Judge, City Civil Court, Hyderabad by the First Respondent
against the award. However, as the transfer of membership was not
intimated to Srinivas, he filed a suit in the court of VII Assistant Judge, City
Civil Court, Hyderabad which was marked as OS No. 3702 of 1992 wherein
the Appellant herein was not impleaded as a party. During pendency of the
said suit, Srinivas transferred his right, title and interest in favour of the
Second Respondent herein by a deed of sale dated 25.7.1992. The Second
Respondent thereafter filed an interlocutory application in the said CTA No.
6 of 1991 for being impleaded as a party thereat which was numbered as I.A.
No. 651 of 1993. Both the proceedings were transferred to the District
Cooperative Tribunal, Hyderabad, C.T.A. No. 6 of 1991 was renumbered as
C.T.A. No. 130 of 1996.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13
In the meantime, the Civil Court granted a decree in the said original
suit No. 3702 of 1992 on 16.10.1996 in favour of the Second Respondent.
On 30.09.1996, an appeal was preferred by the First Respondent
against the award dated 22.4.1991 before the Cooperative Tribunal. The
Second Respondent also filed an application for impleading himself as a
party therein. By an order dated 30.09.1996, the said appeal as also the said
I.A. were dismissed in default.
The said decree passed in OS No. 3702 of 1992 was put in execution
by the Second Respondent which was marked as EP No. 2 of 997. A
revision application was also filed before the High Court by the Second
Respondent against the order dated 30.09.1996 dismissing the appeal
preferred by the First Respondent in default.
The said revision petition was dismissed with a liberty reserved to the
Second Respondent to come on record as an additional respondent if the said
appeal was restored to its original file. The Appellant also filed an execution
petition for executing the award dated 22.4.1991 before the Second Assistant
Judge, City Civil Court, Hyderabad. An application was filed therein by the
Second Respondent contending that the said execution petition was not
maintainable and by an order dated 27.4.1998, the same was allowed by the
executing court, holding:
"In view of the above discussion, it is evident that the
petitioner is claiming title and possession independently
and not through the JDR Society and that prima facie the
petitioner has lawful title over the disputed plot and also
possession of the same and that the JDR Society had no
title over the disputed plot even by the date of filing of
plaint in ARC 21/90 and that therefore the petitioner
cannot be dispossessed in execution of the decree in ARC
21/90. It is made clear that the question of right, title or
interest in the property between the parties to this petition
to the extent of their relevance for the proper adjudication
of this petition alone has been considered in the light of
the observation in 1992 (1) ALT 371."
The Appellant preferred an appeal against the said order dated
27.4.1998 in the Court of Additional Chief Judge, City Civil Court,
Hyderabad which was numbered as CMA No. 163 of 1998 and by a
judgment and order dated 22.12.1999, the said appeal was allowed opining
that no valid title passed to the said Srinivas prior to 22.4.1991 as the sale
deed in his favour was registered after passing of the award. It was
observed:
"So far as the transfer made in the name of the petitioner
is concerned by the said Srinivas, it is not hit by clause
’G’ of A.P. Cooperative Societies Act, 1964 (directions
of the effective and proper functioning of the cooperative
societies in the State) since, the same was passed on
3.12.1997 which is subsequent to the sale deed executed
in the name of the petitioner. The petitioner obtained the
sale deed from her son who is the power of attorney
holder of the said Srinivas under Ex. A.9. However, this
Court has arrived at a conclusion that three is no valid
title passed to the said Srinivas prior to the award passed
by the Tribunal on 22-4-1991. The society being a party
to the said award, it ought to have stopped the
registration by virtue of the award and in fact, it did not
stop the same, and kept in abeyance, and allowed the
document to be registered to deprive the award passed by
the Tribunal. Therefore, I am of the opinion, that the
learned Asst. Judge has arrived at a wrong conclusion
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13
and on the wrong premise that R.2 had no vested right in
the said property, allowed the petition. Hence, it suffers
from infirmities and the impugned order is liable to be set
aside by allowing the appeal."
The legality of the said order dated 22.12.1999 came to be questioned
by the Second Respondent herein before the High Court by filing a revision
application which by reason of the impugned order dated 13.11.2001 was
allowed by a learned judge of the said Court stating:
"\005The lower appellate court lost the sight of the fact that
as on the date of the order of the Deputy Registrar, the
deed was pending registration and once it was registered
on 13-6-1991, much prior to the initiation of execution
proceedings by the first respondent, it dates back to the
date of presentation of the document, i.e. 7-2-1987. In
such circumstances and in view of the provisions
contemplated in Section 47 of the Registration Act as
well as the law laid down by the Supreme Court, which
was followed by other High Courts, the view taken by the
lower appellate court cannot be sustained. Accordingly,
the order passed by the lower appellate court is set aside.
However, the right and entitlement of the first respondent
vis-‘-vis the second respondent cannot be defeated on
account of the above proceedings to which he is not a
party. It is, therefore, left open to the first respondent to
approach the Deputy Registrar for such directions as are
necessary and permissible in law in view of the
development that has taken place culminating in the
order of the Executing Court in E.A. No. 155 of 1997."
An application for clarification of the said order made by the Second
Respondent herein was disposed of by the High Court in terms of an an
order dated 22.04.2002 stating:
"The direction in the order dated 13.11.2001 in CRP No.
283 of 2000 as regards the right of the respondents to
approach the Deputy Registrar for such directions, as are
necessary and permissible in law are obviously for
allotment of an alternative plot other than plot No. 39
phase II which was found to have been validly
transferred in favour of Mr. A. Srinivas the vendor of the
petitioner herein, i.e., Smt. Mina Patalay. The matter is
accordingly clarified."
The Appellant is, thus, before us.
In view of the fact that one award was passed in favour of the
Appellant herein which attained finality, rightly or wrongly, and similarly a
decree having been passed in favour of the Respondent, this Court with a
view to do justice between the parties on or about 10.8.2005 asked the
learned counsel appearing on behalf of the First Respondent herein to
produce the bye-laws, the scheme of allotment and as to whether any other
plot was available which could be allotted in favour of the Appellant. This
Court was informed that one plot being plot No. 400, Phase III was available
and the same would be allotted to the Appellant. The said offer was
accepted by the Appellant. An undertaking was also given to pay the price
therefor and other legal dues as and when demanded by the Society.
Pursuant to or in furtherance of acceptance of the said offer, and
payment made by the Appellant to the Society, an allotment letter was issued
in his favour in respect of the said plot No. 400. However, interlocutory
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13
applications were filed by one B.M. Ramalingeswara Rao being I.A. Nos. 5-
10 of 2005. The matter came up before a 3-Judge Bench presided over by
Hon’ble the Chief Justice of India and in an order dated 9.9.2005 noticing
the statements made in this said application that the said plot was allotted to
the applicant therein in 1984, it was directed to be put up on 21.9.2005.
Interlocutory applications being Nos. 11 \026 12 were also filed by Dr. M.S.
Raju wherein also notices were issued. In interlocutory applications being
Nos. 13 \026 14 by, however, while issuing notice by an order dated 8.12.2005,
this Court directed:
"Having heard learned counsel for the parties, we are of
the opinion that the respondent No. 1 \026 Jubilee Hills
Coop. House Bld. Soc. should file its responses to the
interlocutory applications for impleadment filed before
us. Such respondents should be filed by 12.1.2006. The
President of the respondent \026 Society shall hand over
authenticated copies of the relevant documents and shall
also keep the original records with the learned counsel
for the respondent \026 Society to enable the parties hereof
to make inspection thereto. After such inspections of the
Society’s records are carried out, the parties before us
including those who have filed applications for
impleadment in these appeals would be at liberty to file
their affidavits. Such affidavits should be filed by
25.1.2006."
An application for impleadment has also been filed by one J.S. Rama
Murthy being I.A. Nos. 15-16 wherein it has been stated that an award in his
favour has been passed under Section 61 of the Andhra Pradesh Cooperative
Societies Act, wherein it was directed :
"Having regard to the facts, mentioned above and on
considering totality of the circumstances of the case, the
Respondent Society (i.e.) Jubilee Cooperative House
Building Society Ltd. TA-No. 173, Hyderabad is hereby
directed to allot and register a suitable plot to petitioner."
Mr. S. Muralidhar, learned counsel appearing on behalf of the
Appellant, at the outset, submitted that the order the High Court as regards
interpretation of Section 47 of the Registration Act, 1908 holding that the
sale deed registered in favour of the said Srinivas by the First Respondent on
13.6.1991 would be effective from 7.2.1987 is not correct being contrary to
a 5-Judge Bench decision of this Court in Ram Saran Lall and Others v. Mst
Domini Kuer and Others [(1962) 2 SCR 474]. It was urged that the High
Court committed a manifest error in foreclosing the Appellant’s right in
respect of plot No. 39 by directing him to approach the Deputy Registrar
seeking for the remedies afresh.
Drawing our attention to Bye-laws 70(a) and 71, it was contended that
as in terms thereof it is postulated that the lands belonging to the
Respondent- Society would be divided into plots for members thereof and
each member was eligible for being allotted a plot of land, the High Court
acted illegally and without jurisdiction in passing the impugned judgment
particularly in view of the fact that in terms of Rule 17 of the Andhra
Pradesh Cooperative Societies Rules, 1964 (for short "the Rules") as also
Bye-law 19 of the Society, a nomination by a member is envisaged. It was
argued that as the Appellant was admitted as a member in place of his
deceased mother, he became eligible for being allotted the very plot being
No. 39 which could not have been allotted to the said Srinivas as no sale
deed had been executed in his favour at the relevant time. Once the
Appellant was admitted to the membership, in all fairness, the Registrar,
Society should have cancelled the allotment made in favour of the said
Srinivas and allotted the same to the Appellant. In any event, the society
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13
ought to have brought the relevant records to the notice of the Registrar so as
to enable him to consider grant of alternative relief in his favour as had been
prayed for.
It was further urged that by reason of the award dated 22.4.1991, the
Appellant’s indefeasible right on the said plot has been recognized and the
appeal preferred thereagainst having been dismissed, the same attained
finality. The said award, therefore, became final and binding and, thus, in
terms of the Bye-laws the vested right of the Appellant therein could not
have been taken away by reason of the decree passed in the suit. In any
event as he was not a party in the said suit, the decree passed in favour of the
Second Respondent is not binding on him. The principle of res judicata, the
learned counsel would submit, is, thus, attracted and in that view of the
matter, the Respondents herein cannot question the correctness or otherwise
of the said award which was evidently made prior to registration of the deed
of sale in favour of the said Srinivas. In any event, plot No. 400 having been
allotted in favour of the Appellant, the Society must be held to have
recognized the right of the Appellant for allotment of plot in his capacity as
a member of the Respondent \026 Society. As the said plot was available for
allotment, Mr. Muralidhar would submit, this Court may grant prayer (a) in
favour of the Appellant by directing formalization of the allotment of the
said plot by execution and registration of a sale deed in his favour.
Mr. H.S. Gururaja, learned senior counsel appearing on behalf of the
Second Respondent, on the other hand, submitted that the allotment made in
favour of the mother of the Appellant must be deemed to have been
cancelled by the Society as the requisite payments therefor as demanded by
the Society had not been made.
Mr. G. Ramakrishna Prasad, learned counsel appearing on behalf of
the First Respondent \026 Society, urged that at the point of time when
purported allotment of plot No. 400 was made in favour of the Appellant
herein, the Administrator was Incharge, but the affairs of the Society having
been taken over by the elected body, it has now been found out that there
were several persons in whose favour directions have been issued by the
Authorities/ Tribunals to consider the matter relating to allotment of plots in
their favour in accordance with seniority.
Mr. T.L.V. Iyer, Mr. M.N. Rao, Mr. L. Nageswara Rao, learned senior
counsel also addressed us pressing the impleadment applications filed by
different applicants. Our attention has also been drawn to an order dated
13.06.2005 passed by the Andhra Pradesh Cooperative Tribunal wherein it
was directed that allotment of plots including plot no.400 should be made in
accordance with the bye laws.
The principal question which arises for consideration in this appeal is
as to whether the award passed in favour of the Appellant herein is capable
of enforced in law. The said question may have to be answered in favour of
the Appellant only, if the principle of res judicata is found to be applicable in
this case.
The Appellant became a member of the Cooperative Society in place
of his mother. As a member of a Society, nobody had a right to be allotted a
plot far less a particular plot. Plot No. 39 was indisputably allotted in favour
of his mother. But before the provisional allotment could fructify by making
a formal allotment and executing a deed of sale in her favour, she had
expired. This fact was not communicated by the Appellant to the First
Respondent \026 Society for a long time. He in his letter dated 16.3.1985
accepted that he was out of Hyderabad for more than two and half years. He
did not deny or dispute that in the mean time the Society issued several
letters in the name of all allottees to deposit the development cost. A notice
had also been issued to all the allottees asking them to deposit the
development charges failing which the order of allotment would stand
cancelled. It stands admitted that the development charges had not been
deposited in respect of plot No. 39. It may be that no formal letter of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13
cancellation of the said plot was issued but in view of the admitted position
that the requirements as contained in letter dated 30.9.1982 of the First
Respondent having not been complied with, the allotment would in law, be
deemed to be cancelled.
An inference as regards cancellation of the said allotment must be
drawn in view of the fact that plot No. 39 admittedly was allotted in favour
of Mr. Srinivas. Even if there had been no express cancellation of allotment
of the said plot, by reason of a fresh allotment, the provisional allotment
made in favour of mother of the appellant must be held to have come to an
end. The allotment of plot No. 39 in favour of the mother of the Appellant
was a provisional one. By reason of such provisional allotment, the allottee
did not derive any legal right far less an indefeasible right. Such provisional
allotment would have acquired permanence provided the requirements
therefor were complied with.
Furthermore, the Appellant in its letter dated 16.3.1985 requested for
allotment of another site in lieu of plot No. 39 in Phase III as the same had
been given to someone else. He was informed thereabout. He never put
forward his case before the First Respondent to allot plot No. 39 in his
favour upon cancellation of such allotment made in favour of Mr. Srinivas.
Even in his other letters, similar requests were made. The Appellant was
also aware of the fact that allotment made in favour of her mother had been
cancelled due to non-payment of the development charges. He had
specifically asked for allotment of another site wherefor he was even ready
to make extra-payment. He had, thus, consistently been asking for allotment
of a new plot. He despite such knowledge that allotment of plot No. 39
made in favour of his mother had been cancelled and subsequently made in
favour of somebody else, while questioning the refusal on the part of the
First Respondent herein to allot another plot in his favour and initiating the
arbitration proceeding only prayed for an order of injunction restraining the
Society from allotting plot No. 39 to any other member of the Society. His
main prayer, however, was that an allotment of an alternative plot in the
same block to the extent of 600 sq. yards be made and the vacant possession
thereof be delivered.
It is beyond any cavil of doubt that the conduct of the First
Respondent \026 Society was not fair. When it had made an allotment in favour
of Mr. Srinivas, it was obligatory on its part to disclose all the facts before
the Registrar so as to enable him to arrive at an independent opinion. It
failed and neglected to do so and, thus, it created all sorts of confusions.
If the contention of the Appellant is correct, that after the said award,
the Society accepted the deposit of the requisite amount from the Appellant,
we fail to see any reason as to why the said fact was not brought to the
notice of the said Srinivas. The appeal preferred by the First Respondent
against the Appellant herein was also not properly pursued. We do not
know whether any application for restoration has been filed.
It may be true, as was submitted by Mr. Gururaja that the appeal was
dismissed for default by the Cooperative Tribunal without giving any proper
notice of transfer, but in the facts and circumstances of the case, it is not
necessary to deal with the said question.
If the contention of the Appellant is to be accepted that by reason of
the provisional allotment made in favour of his mother, he acquired an
indefeasible right only because he at a later date was admitted as a member
of the Society, indisputably, the said Srinivas had acquired a higher right as
not only the said plot was allotted in his favour but also a deed of sale was
executed. The Appellant does not deny or dispute about the factum of
execution of sale by the First Respondent herein in favour of Shri Srinivas as
far back as on 7.02.1987.
In the aforementioned situation, the effect as regards application of
Section 47 of the Registration Act requires consideration. The said provision
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13
reads as under:
"47. Time from which registered document operates.\027 A
registered document shall operate from the time from
which it would have commenced to operate if no
registration thereof had been required or made, and not
from the time of its registration."
In terms of the aforementioned provision, therefore, if a deed of sale is
executed although not registered, the right, title and interest in respect
thereof shall pass with retrospective effect, i.e., from the date of execution
thereof.
The question is no longer res integra in view of a large number of
decisions of Privy Council as also this Court including Kalyanasundaram
Pillai v. Karuppa Mooppanar [AIR 1927 PC 42], Venkatasubba Shrinivas
Hegde v. Subba Rama Hegde [AIR 1928 PC 86], Radhakisan Laxminarayan
Toshniwal v. Shridhar Ramchandra Alshi and Others [(1961) 1 SCR 248],
K.J. Nathan v. S.V. Maruthi Rao and Other [(1964) 6 SCR 727], Nanda
Ballabh Gururani v. Smt. Maqbool Begun, [(1980) 3 SCC 346] and Thakur
Kishan Singh (Dead) v. Arvind Kumar [(1994) 6 SCC 591].
We would hereinafter notice a few decisions.
In Radhakisan Laxminarayan Toshniwal (supra), a Constitution Bench
of this Court has clearly held:
"It was then submitted that the sale deed had as a matter
of fact, been executed on February 1, 1944; but
respondent Sridhar brought the suit not on the cause of
action arising on the sale dated February 1, 1944, but on
the transaction of April 10, 1943, coupled with that of
April 24, 1943, which being mere contracts of sale
created no interest in the vendee and there was no right of
pre-emption in Respondent 1 which could be enforced
under the Code. Mr Chatterji urged that it did not matter
if the sale took place later and the suit was brought earlier
but the suit as laid down was one to pre-empt a sale of
April 1943 when, as a matter of fact, no sale had taken
place. If respondent Sridhar had based his right of pre-
emption on the basis of the sale of February 1, 1944, the
appellant would have taken such defence as the law
allowed him. The defence in regard to the conversion of
the land from agricultural into non-agricultural site which
negatives the right of pre-emption would then have
become a very important issue in the case and the
appellant would have adduced proper proof in regard to
it. The right of pre-emption is a weak right and is not
looked upon with favour by courts and therefore the
courts could not go out of their way to help the pre-
emptor."
The aforementioned decision has consistently been followed by this
Court. Strong reliance has been placed by Mr. Muralidhar on Ram Saran
Lall (supra). It is interesting to note that in that case the decision of the
earlier Constitution Bench of this Court in Radhakisan Laxminarayan
Toshniwal (supra) was not brought to the court’s notice. Hon’ble the Chief
Justice B.P. Sinha was a party to both the decisions. His Lordship,
therefore, presumably was aware of the distinctive features of both the cases.
In Ram Saran Lall (supra), the Constitution Bench of this Court was
considering a different question, namely, in the light of the provision relating
to pre-emption what would constitute a complete sale, as would appear from
the following:
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13
"\005We will assume that the learned Attorney-General’s
construction of the instrument of sale that the property
was intended to pass under it on the date of the
instrument is correct. Section 47 of the Registration Act
does not, however, say when a sale would be deemed to
be complete. It only permits a document when registered,
to operate from a certain date which may be earlier than
the date when it was registered. The object of this section
is to decide which of two or more registered instruments
in respect of the same property is to have effect. The
section applies to a document only after it has been
registered. It has nothing to do with the completion of the
registration and therefore nothing to do with the
completion of a sale when the instrument is one of sale.
A sale which is admittedly not completed until the
registration of the instrument of sale is completed, cannot
be said to have been completed earlier because by virtue
of Section 47 the instrument by which it is effected, after
it has been registered, commences to operate from an
earlier date. Therefore we do not think that the sale in
this case can be said, in view of Section 47, to have been
completed on January 31, 1946\005"
[Emphasis supplied]
The said decision, therefore, does not in any way support the
contention of Mr. Muralidhar; rather runs counter thereto.
We may notice that in Hiralal Agrawal v. Rampadarth Singh and
others [(1969) 1 SCR 328 : AIR 1969 SC 244] this Court made similar
observations. Therein this Court was considering the question as to whether
an application for pre-emption which was filed before the registration of the
deed, although, cognizance in relation thereto was taken thereafter, would be
valid.
Despite knowledge, that plot No. 39 has been allotted to somebody
else, the Appellant did not make the said Srinivas a party in his application
before the Registrar. Ex facie the award being in violation of the principles
of natural justice would be a nullity.
We have, furthermore, noticed hereinbefore the prayers made by the
Appellant in the said arbitration proceedings. In view of prayer (a) which
was the main prayer ex facie the Registrar acted illegally and without
jurisdiction in directing the First Respondent to allot plot No. 39. The First
Respondent made it clear that the plot in question had been allotted in favour
of the said Srinivas. The question as to whether he raised constructions
thereupon or not was immaterial. He despite such allotment having been
made in his favour was not impleaded as a party. He was a necessary party.
No award therefor could have been passed in his absence. In any event, so
far as plot No. 39 is concerned, the only prayer made by the Appellant was
an order of injunction. The Registrar while exercising his judicial function
had no jurisdiction to pass such an order of injunction in view of prayer (a)
made in the application.
The said award, therefore, was a nullity. In this view of the matter,
the principles of res judicata will have no application. [See. Haryana State
Coop. Land Development Bank v. Neelam (2005) 5 SCC 91, Ram Chandra
Singh v. Savitri Devi and Ors. ,JT 2005 (11) SC 439] An order which was
passed by an authority without jurisdiction need not be set aside, being a
nullity, it in the eyes of law never existed. [See Balvant N. Viswamitra and
Others v. Yadav Sadashiv Mule (Dead) Through LRS. and Others (2004) 8
SCC 706]
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13
Furthermore, the said award was put in execution. The Executing
Court in view of title passed in favour of the said Srinivas and consequent
acquisition of title by him in terms of the deed of sale executed by him in
favour of the Second Respondent herein was entitled to enter into the
question as to whether the said award was capable of being executed. As the
High Court rightly found that the Second Respondent has acquired a valid
title with effect from a date prior to making of the award, the same became
inexecutable. If the said award was not capable of being executed, the
remedy of the Appellant evidently lies to ventilate his grievance as regards
allotment of plot by initiating a different proceeding.
It is true that even in the suit filed by the Second Respondent herein
against the First Respondent being OS No. 3702 of 1992 the Appellant was
not impleaded as a party. The decree passed, therefore, may not be binding
on the Appellant. For the self-same reasons we have assigned hereinbefore,
the said decree may not operate as a res judicata but we have to consider the
matter from a different angle. The Second Respondent did not enforce the
decree as against the Appellant herein where as the award, in view of the
peculiar facts and circumstances of this case, was required to be enforced by
the Executing Court as against the Second Respondent besides the First
Respondent herein and in that view of the matter the Second Respondent in
law could file an appropriate application not only for his impleadment but
also to show that the award is not enforceable in law.
The High Court’s judgment, therefore, is unassailable albeit for
additional reasons stated hereinbefore.
We may at this stage notice that Mr. Muralidhar categorically stated
that his client does not press for allotment of plot No. 39 and he would be
satisfied if some other plot is allotted in its favour. This brings us to
consideration to the question of allotment of plot No. 400.
The question which now arises for consideration is that what would be
the effect of allotment of plot No. 400 in Phase III by the First Respondent
during pendency of the proceedings before this Court. We have noticed
hereinbefore that this Court, while asking the learned counsel appearing on
behalf of the First Respondent, was of the opinion that interest of justice
may be subserved if some plot which was available for allotment could be
directed to be allotted in favour of the Appellant herein. A representation
was made, which now turns out to be wrong, on behalf of the First
Respondent that the plot No. 400 was available for allotment. It was in that
situation, the offer of the First Respondent as regard allotment of the said
plot to the Appellant was accepted. The Appellate paid a huge sum therefor.
The said amount has also been appropriated by the First Respondent.
However, in law only because an order of allotment has been issued in
favour of the Appellant herein by the First Respondent, the same by itself
would not mean that thereby the right of the others for being considered
therefor or for that matter any other plot which was available for allotment
could be put in jeopardy. This Court whence proceeded to consider the
matter of allotment of another plot in favour of the Appellant by the First
Respondent, it had evidently in its mind that same plot may be available for
allotment but by reason thereof, the right of somebody else was not meant to
be nor could be affected. Even in exercise of its jurisdiction under Article
142 of the Constitution while making an attempt to do complete justice to
the parties this Court cannot pass an order which could cause injustice to
others and in particular to those who are not before it. The correctness or
otherwise of the contentions raised by the impleaded parties, thus, need not
be gone into. We must, however, place on record that our attention has been
drawn to the fact that several proceedings as regard allotment of plot at the
hands of the society are pending adjudication before several forums. Even a
direction has been issued by a Cooperative Tribunal as regard allotment of
plot No. 400. It goes without saying that the courts of law would always see
to it that while making allotment of plot by a cooperative society, no
discrimination is caused amongst the members. The Cooperative Society
having been formed for the purpose of allotment of plots to its members
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13
must strictly and scrupulously follow the statutory rules as also the bye-laws
framed by it. It must also act within the four corners not only of the statue
and statutory rules but also the bye-laws framed by it. In terms of the extant
law, seniority rule would govern the matter of allotment of land amongst the
members of the Society. This Court is not in a position to determine the
inter se dispute, if any, even as regard the seniority amongst the members.
In fact this Court has not been called upon to do so nor in view of the lis
between the parties we can go thereinto. Whether the Appellant would be
senior in the matter of allotment of plot over the others is a disputed question
of fact. Such disputed question of fact, as and when any occasion arises
therefor, must be gone into and adjudicated upon by an appropriate forum.
The Appellant as a member has a right, although not indefeasible, to be
considered for allotment of a plot along with other members similarly
situated. Such a right, therefore, could not have been taken away nor
directed to be taken away by any court of law.
We, therefore, are of the opinion that interest of justice would be sub-
served if the First Respondent is directed to consider the question of
allotment amongst its members upon strict compliance of the extant rules
including its bye-laws wherefor cases of all persons eligible therefor must be
considered.
It goes without saying that in the event of any dispute or difference as
regard entitlement to be allotted a plot between the parties, they would be at
liberty to initiate such proceedings or ventilate their grievances before such
forums as is permissible in law.
This brings to the fore another question viz. as to whether, in view of
the conduct of the First Respondent, the Appellant should be monetarily
compensated. We think so. The First Respondent despite the knowledge
that the award dated 22.4.1991 was not enforceable appears to have taken
some amount from the Appellant. It compelled the Appellant to fight
litigations before various forums. The Appellant also had to initiate an
execution proceeding for execution of the award passed by the Registrar. It
succeeded at least before one court. Even before this Court, a wrong
representation was made by the First Respondent that plot No. 400 was
available for allotment to the Appellant. The said representation was turned
to be wrong. As we are not in a position to consider the correctness or
otherwise of one representation or the other by the First Respondent herein
as also the contentions raised by the impleaded parties, we are of the opinion
that the conduct of the First Respondent is deplorable. It being a Society
was obligated to render all assistance to this Court so as to enable it in turn
to render a decision in accordance with law. It could not have made any
mis-representation before us. We are not bothered as to whether at the
relevant point of time the First Respondent was represented by an
Administrator or an elected body. It was admittedly being represented who
could do so before us in law.
We, therefore, direct the Registrar of the Cooperative Society to
initiate an enquiry against the persons concerned who were responsible for
making a wrong representation before us and take suitable action against
them in accordance with law. We further direct that all amounts deposited
by the Appellant before the First Respondent be refunded to him with penal
interest at the rate of 24% per annum, subject, of course, to deduction of
such amount to which the First Respondent was entitled to for admitting him
as a member of the Society. The First Respondent shall also pay a further
sum of Rs. 1,00,000/- (Rupees one lakh only) to the Appellant herein by way
of compensation. The First Respondent shall also pay a sum of Rs.
1,00,000/- (Rupees one lakh only) to the Second Respondent by way of
compensation. Such payments be made to them within a period of four
weeks from date. The First Respondent shall be at liberty to recover the
amount of interest as also the amount of compensation directed to be paid to
the Appellant herein from such persons who may be found responsible
therefor.
For the foregoing reasons, these appeals are dismissed, subject,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13
however, to the aforementioned observations and directions. The parties
shall, however, in the facts and circumstances of the case pay and bear their
own costs throughout.
In view of our views aforementioned, it is not necessary for us to pass
any separate order on the interlocutory applications. They are disposed of
accordingly.