Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.1101511016 OF 2017
Velagacharla Jayaram Reddy & Ors. .…Appellant(s)
Versus
M.Venkata Ramana & Ors .Etc. ….Respondent(s)
J U D G M E N T
A.S. Bopanna,J.
The respondents No.4, 6 and 7 in W.P.
1.
No.6212/2006 are before this Court in this appeal. They
claim to be aggrieved by the order dated 20.04.2010
passed by the High Court of Judicature, Andhra Pradesh
at Hyderabad. By the said order, the learned Division
Bench of the High Court has allowed the writ petition and
quashed the award dated 28.01.2004 passed by the
Signature Not Verified
Digitally signed by
SATISH KUMAR YADAV
Date: 2022.01.11
16:33:15 IST
Reason:
Divisional Cooperative Officer, Cuddapah acting as an
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Arbitrator in deciding the dispute raised under Section
61(1) (b) of the Andhra Pradesh Cooperative Societies
Act, 1964 (“APCS Act” for short). The said award had
been affirmed by the Andhra Pradesh Cooperative
Tribunal at Hyderabad, through its judgment dated
27.02.2006.
2. The facts necessary to be noted for disposal of
these appeals are as follows: The Government of Andhra
Pradesh through its G.O. Ms. No.956, Revenue
Department, dated 22.08.1970, allotted land situate in
Sy.No.752/2 and 91/1, Kondayapalli Tank bund to the
N.G.O. Cooperative Building Society Ltd. for the purpose
of formation of Layout and to allot sites to its members.
The area was within the jurisdiction of Chinnachowk,
Gram Panchayat at that point in time. The said
Panchayat was later on merged in the Municipal
Corporation, Kadapa, which presently has jurisdiction
over the area.
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3. There is not much dispute to the fact that in the
said land a layout was formed and 625 members were
allotted plots. The layout also consisted of specific areas
earmarked for parks, playground, school, religious place,
shopping area and parking place. The instant appeal
relates to the respective plots which were allotted to the
respondents No.1 in C.A.No.11015 and 11016/2017. The
respondent No.1 in C.A. No.11016/2017 who died
subsequently, was deleted from the array of parties. As
such, the entire consideration in this appeal is limited to
the plot measuring 3.2 cents allotted to the respondent
No.1 (Mr. M.V. Ramana) in C.A. No.11015/2017. Since
there has been an amendment to the cause title and
certain parties who were parties to the original
proceedings before the Divisional Cooperative Officer
have been deleted, henceforth the parties will be referred
to in the rank they were arrayed in the original
proceedings for completeness and clarity.
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4. The plaintiffs before the Divisional Cooperative
Officer raised a grievance with regard to the allotment of
plot to defendant No.2 therein (Mr. M.V. Ramana)
alleging that the said plot was reserved as parking area
in the layout plan. The plaintiffs were, a Welfare
Association which was a part of the same layout, former
President and VicePresident of the N.G.O Society which
allotted the plot and a couple i.e. plaintiff Nos.4 and 5
who own shop premises in the layout which is situated
opposite the plot in issue. The said plaintiffs No.4 and 5
are not members but were persons who were interested
in purchasing the same plot that was allotted to
defendant No.2, ostensibly to retain the same as parking
area in front of their shops on plot Nos.27, 35 and 36.
5. The Divisional Cooperative Officer, on perusal of
the material and evidence, noted the said plot to be a
vacant commercial plot as denoted in the plan. However,
on providing his own analysis, he has proceeded to term
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the plot in issue as a ‘parking area’ and has accordingly
passed the award dated 28.01.2004 in favour of the
plaintiffs. The defendants, more particularly, the
respondent herein (Mr. M.V. Ramana) filed an appeal
before the Andhra Pradesh Cooperative Tribunal at
Hyderabad, which affirmed the award through its
judgment dated 27.02.2006. The respondent filed a writ
petition before the High Court assailing the order dated
24.04.2010 in W.P.No.212/2006. The High Court on a
detailed consideration, more particularly with regard to
maintainability of a proceeding of the present nature
before the Cooperative Officer, held it against the
appellants herein, allowed the writ petition and set aside
the award of the Divisional Cooperative Officer as also
the order of the Cooperative Tribunal. The appellants
are therefore aggrieved by the order passed by the High
Court.
We have heard Mr. B. Narayana Reddy, learned
6.
senior counsel for appellants, Mr. Annam D.N. Rao,
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learned counsel for the respondent No.1 and Mr. K.
Ravindra Kumar, learned Senior Counsel appearing for
respondent No.5 and perused the materials available on
record.
From a perusal of the proceedings, it is noted that
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the appellant along with the others had raised the
dispute before the Divisional Cooperative Officer
invoking Section 61 of the APCS Act. The said provision
reads as hereunder:
“61. Disputes which may be referred to the
Registrar:
(1) Notwithstanding anything in any law for the
time being in force, if any dispute touching the
constitution, management or the business of a
society, other than a dispute regarding disciplinary
action taken by the society or its committee
against a paid employee of the society, arises
(a) among members, past members and persons
claiming through members, past members and
deceased members; or (b) between a member, past
member or person claiming through a member,
past member or deceased member and the society,
its committee or any officer, agent or employee of
the society; or (c) between the society or its
committee, and any past committee, any officer,
agent or employee, or any past officer, past agent
or past employee or the nominee, heir or legal
representative of any deceased officer, deceased
agent or deceased employee of the society; or (d)
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between the society and any other society, such
dispute shall be referred to the Registrar for
decision.
Explanation: For the purposes of this subsection
a dispute shall include (i) a claim by a society for
any debt or other amount due to it from a member,
past member, the nominee, heir or legal
representative of a deceased member, whether
such debt or other amount be admitted or not;
(ii) a claim by surety against the principal debtor
where the society has recovered from the surety
any amount in respect of any debt or other amount
due to it from the principal debtor as a result of
the default of the principal debtor whether such
debt or other amount due to be admitted or not;
(iii) a claim by a society against a member, past
member, or the nominee, heir or legal
representative of a deceased member for the
delivery of possession to the society of land or
other immovable property resumed by it for breach
of the conditions of assignment or allotment of
such land or other immovable property;
(xxx)
(2) If any question arises whether a dispute
referred to the Registrar under this section is a
dispute touching the constitution, management or
the business of a society, such question shall be
decided by the Registrar.
[(3) Every dispute relating to, or in connection
with, any election to a committee of a society shall
be referred for decision to the Tribunal having
jurisdiction over the place where the main office of
the society is situated, whose decision thereon
shall be final.]
(4) Every dispute relating to, or in connection with
any election 2 [shall be referred under subsection
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(3) only after the date of declaration of the result of
such election.]”
8. The Act has made a provision for members of a Co
operative Society to approach the cooperative Officer
designated, when there is a dispute amongst the
members of a society or the member/members against
the Society etc.
9. In the instant case, at this stage before this Court,
certain parties have been deleted as indicated supra and
the appellant who was a former President of the Society
is alone prosecuting these appeals. However, what will
have to be noted is the frame of the dispute, the parties
to the dispute at the point in time when it was raised and
the context in which it was done. Defendant No.2, a
member of the society who was allotted a plot in another
layout formed by the N.G.O. Society, sought for an
exchange of the plot. Accordingly, the earlier allotted plot
was surrendered to the Society by the defendant No.2. In
lieu thereof, the Society allotted the plot measuring 3.25
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cents to defendant No.2 and a sale deed dated
07.04.2000 was also executed and registered. Former
office bearers of the Society who were members of the
N.G.O society, were amongst the plaintiffs. Jayanagar
Housing Welfare Society was a society in the larger
layout plan and therefore seeking to sustain the facilities
available in the layout by contending that the plot
allotted to the defendant No.2 was a vacant area reserved
as parking area. Plaintiffs No.4 and 5 were however not
the members of the Society but were purchasers of
commercial plots bearing No. 27, 35, 36 and had
constructed shops thereon. The plot allotted to the
defendant No.2 is located in front of the shops belonging
to the plaintiffs No.4 and 5 in plots No.27, 35 and 36.
Though they contend that it is a vacant plot retained in
the layout as parking area and are seeking to espouse a
cause, their conduct needs to be noted. They had earlier
requested the NGO Society to allot the plot in their
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favour but are presently aggrieved when it is allotted to
another claimant.
10. Plaintiffs No.4 and 5 however seek to explain their
conduct by stating that they had sought to purchase the
plot and retain it as a parking area. Such an explanation
cannot be accepted on face value. If in fact a plot was
earmarked in the layout plan as a parking area, it is the
bounden duty of the authorities concerned to maintain
the same as such. It is difficult to fathom that a private
individual who owns shop premises in the layout would
invest money and purchase the vacant plot to retain it as
a parking area for the benefit of the general public. If
that be so, plaintiffs No.4 and 5 apart from being non
members who could not have invoked the provisions of
the APCS Act, were also rival claimants and competitors
for allotment of the same plot which is the subject matter
of dispute. The members i.e. former office bearers had
made a common case with the nonmembers who were
otherwise interested in allotment of the same plot. In
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furtherance of the same, the plaintiffs had sought for a
declaratory relief to declare the registered sale deed dated
07.04.2000 as null and void. Hence, keeping in
perspective the subject matter, the relief sought and the
parties involved, the High Court was justified in its
conclusion.
11. Be that as it may, whether it was before the
authorities under the A.P.C.S Act or if the parties were
relegated to the jurisdictional Court under the Civil
Procedure Code, grant of relief would have arisen only if
there was definite material to indicate that the plot in
question was reserved as a parking area in the layout
plan and that the same therefore being a civic amenity
area, had on formation of the layout, vested in the
Municipal Corporation along with the roads, drains and
open areas for the purpose of retaining it as such and
maintaining the same. There is no such document on
record. Secondly, the person seeking relief from the
Court should approach the Court with clean hands, as
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per wellestablished legal norms. In the instant case,
plaintiffs No.4 and 5 had made attempts to secure
allotment of the same plot allotted to the defendant No.2,
in their favour though presently, it is sought to be
explained that it was to be retained for parking, which,
as already indicated above, is an explanation which
cannot be accepted. Therefore, the challenge by the said
plaintiffs to the allotment made in favour of the
defendant and the same cause being supported by the
other plaintiffs, cannot be considered to be bonafide.
That apart, as noted, there is no definite material
12.
to delineate from the layout plan that it was a parking
area. As per the case set up and also the finding
recorded by the original authority, the plot has been
shown as commercial plot/vacant plot. Keeping in view
the location of the property owned by the plaintiffs No.4
and 5, the original authority had deemed it fit to keep the
disputed plot vacant for being maintained as a parking
area which is only an assumption based on the own
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analogy of the Divisional Cooperative Officer and
amounts to modifying the approved layout plan. The
consideration in that regard made by the original
authority, based on the said assumption is as hereunder:
“(27) In order to conclude that the vacant site
shown as the southern boundary was meant only
to be a parking place although recited as vacant
place the following points may well be appreciated.
a) On the southern side of the shop rooms,
particularly for the plots 27, 36 and 35
there is no other place to connect with
the road.
b) For visitors coming to the shopping
complex by bicycles, scooters, or cars
there must be some space for parking
the vehicles, particularly because it is
obviously a commercial area. Vacant
site viewed in the proper context and
from a correct perspective means
necessarily a parking place because
parking place is a ‘must’ in a
commercial area.
c) The SubDivisional Cooperative officer
who was the inspecting authority
prepared a defect sheet which is worth
perusal in this context. In para 5 of the
said sheet the said officer had clearly
made a note that the society sold away
site for parking place to the Second
defendant i.e., M. Venkata Ramana. The
said Venkata Ramana is a member of the
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Society and had taken a plot in the
satellite city of the NGO's Cooperative
House Building Society Ltd., Kadapa on
dip system on 26.10.1996. The Society is
also having surplus plots near
Kondayapalli village. The present
managing committee of the D1 Society
has cancelled his plot in the satellite city
and executed the impugned reg. sale deed
in favour of M. Venkata Ramana for 3.2.
cents which is the parking place in
question.
d) What is important to note in this context
is that the first defendant Society has not
taken any prior permission from the
Divisional Cooperative officer,
Cuddapah/District Cooperative Officer,
Cuddapah during the year 1998/1999
and 1999/2000 to effect sale in favour of
the 2nd defendant. The society has
regularized the several encroachments
made by some members, taking
permission duly from the Cooperative
Dept. But the two cases relating to the
plaintiffs 4 and 5 were not brought to the
notice of the Divisional Cooperative
Officer, Cuddapah /District. Cooperative
Officer, Cuddapah, appropriate action
was also recommended in the defect sheet
to be taken against the managing
committee.
e) One more important factor to be
appreciated in this context is that the
southern boundary is mentioned only
as a vacant site but not as the vacant
site of the 1st defendant Society. If
really the 1st default Society retained
its ownership on the vacant site on the
southern side it would not have failed
to mention that the said vacant side
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belonged to itself. It is significant to
note that the boundaries on the other
three sides show to whom the
properties belonged.
f) It is therefore but reasonable to opine
that plot No. 27, 35 & 36 were
purchased only under the impression
that the vacant site in question was
meant for parking of vehicles.
According to the principles of town
planning there must be parking place
In this context
in any commercial area.
the judgment of the learned IV ADJ,
Cuddapah in O.S. No. 477 of 1996 and
the Judgment of the learned 1st
ADJ/Cuddapah in O.S. No. 44/98
deserve to be considered with great care.
(28) In the residential area, a site of two cents
being part of a larger area earmarked for public.
park and playground was sold by the 1st
defendant building society to one of the members
of the said society consequently Jayanagar Welfare
association filed 0.S No. 477 of 1996 in public
interest and succeeded in getting a decree. The
contention in the suit was that the extent of 2
cents being part of the area earmarked for play
ground the sale was illegal. In the instant case,
the extent of 3.2 cents is a vacant site left
obviously for the purpose of parking of vehicles
on the southern side of plots 27, 36, 35 in the
commercial complex and so the analogy holds
good.
(29) Plaintiffs 2 and 3 are no doubt expresidents
of the 1st Defendant building society but they are
now members of the welfare association, which is
the 1st defendant in the arbitration reference. The
1st plaintiff Kotla Rama Subbaiah was the 1st
president of the Society. The very fact that the
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plaintiffs l to 3 who are expresidents of D1
building Society have filed this dispute shows
that 3.2 cents must be a parking place because
they are well acquainted with all the relevant
facts from the beginning. There is no selfish
interest for them in questioning the sale in
favour of the second defendant otherwise. ”
(Emphasis supplied)
13. Notwithstanding the above analogy based on an
assumption which is unsustainable, in order to render a
quietus to the issue, this Court through the order dated
29.10.2021, had sought for a report from the District
Judge, Kadapa on the whole conspectus of the matter.
An exhaustive Report dated 06.11.2021 has been
submitted on all aspects of the matter which we have
carefully perused. The said Report nowhere indicates
that the plot in question was reserved or earmarked as a
parking area. On the other hand, it has been referred to
as the area earmarked for commercial purpose. It is
stated that as per the given layout plan it is in one of the
commercial areas out of three slots allotted for
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commercial purpose. Hence, the said report coupled with
the discussion by the Divisional Cooperative Officer
extracted supra, will disclose that it was not earmarked
as a parking area in the layout plan but was only
deduced so by the Divisional Cooperative Officer in the
course of his discussion in the award.
14. Insofar as the allotment of the plot made to the
defendant No.2 (Mr. M.V. Ramana) is concerned, the
learned District Judge has noted that the defendant No.2
was a member of the Society and Rule 42 relating to the
allotment procedure has been noted in detail. The
procedure followed in that regard by seeking permission
from the Divisional Cooperative Officer vide letter dated
07.05.1999 and the permission accorded to proceed in
terms of Rule 42 (4) of the Society Rules is referred.
Pursuant to the same, the Board of Directors held a
meeting on 06.04.2000, wherein allotment was made by
passing a resolution to that effect. The decision to allot
was made after cancelling the allotment of plot No.3354
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which had been made earlier in favour of the defendant.
Since Rule 42 (4) required that Board Resolution be
approved by General Body and the resolutions for the
years 19952000 were not traced, it has been
commented in the Report that the Board resolution is
without authorisation.
15. In our view, nonavailability of the General Body
resolution at this juncture, as observed by the Learned
District Judge, cannot be held to be fatal in the facts and
circumstances of this case. That is for the reason that
the competent authority in appropriate proceedings has
not referred to this aspect. The undisputed position is
also that the defendant No.2 (respondent herein M.V.
Ramana) is a member of the Society and being entitled to
allotment of a plot, had earlier been allotted plot No3354
at another location. It is on surrender of that plot that
the present allotment was made in his favour, though the
plot is of a slightly bigger dimension. The order of the
Divisional Cooperative Officer indicates that the price for
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allotment was fixed keeping in view the market value.
The allotment being of the year 2000, construction has
also been raised. More than two decades have elapsed by
now. Any intervention or action at this juncture will not
be justified for all the aforestated reasons.
16. Therefore, taking a holistic view of the matter, the
appeals are dismissed with no order as to costs.
….…………………….CJI.
(N.V. RAMANA)
..……………………….J.
(A.S. BOPANNA)
…….……………………J.
(HIMA KOHLI)
New Delhi,
January 11, 2022
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