IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SEVENTH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.25035 of 2001 Between: I.M.Kapoor ..... PETITIONER AND The Co-operative Tribunal, Hyderabad and 2 others .....RESPONDENTS The Court made the following: THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.25035 of 2001 O R D E R: The petitioner Mr.I.M.Kapoor is the elder brother of one Mr.K.K.Kapoor who was the member of the 3rd respondent-Jubilee Hills Cooperative House Building Society vide membership No.2657 w.e.f.30.09.1969. It is stated that in 1969 there were no arrears of any kind and on 13.03.1970 the 3rd respondent society addressed a letter to Mr.K.K.Kapoor, the brother of the petitioner demanding to pay the society a sum of Rs.1,000/- on or before 25.04.1970 so as to enable the society to consider his name for allotment of plot as and when it becomes available. In addition to that he was also asked to pay a sum of Rs.500/- towards next instalment of development charges on or before 30.06.1970. Thereafter, the 3rd respondent society addressed another letter dated 05.10.1970 requesting the brother of the petitioner Mr.K.K.Kapoor to remit a sum of Rs.2,555/- to become eligible for allotment of plot. In the said letter it was mentioned that the brother of the petitioner has paid an amount of Rs.1205/- and therefore, he was requested to pay the balance amount. The petitioner herein addressed a letter dated 02.02.1988 to the 3rd respondent society enclosing two demand drafts for Rs.2,628/- and Rs.3,900/- respectively to meet the demand made by the 3rd respondent society in their earlier letters, stating that his brother Mr.K.K.Kapoor has gone to Delhi vacating the premises and hence he could not received those letters and accordingly requested the 3rd respondent society to credit the amount of enclosing two demand drafts to the account of his brother Mr.K.K.Kapoor and acknowledge the same. But the said amount was returned to the brother of the petitioner Mr.K.K.Kapoor on the ground that Delhi address of Mr.K.K.Kapoor was not furnished. 2. It is stated that the brother of the petitioner Mr.K.K.Kapoor also addressed a letter dated 25.06.1988 to the 3rd respondent society stating that he never received the letters addressed to him earlier as he had left Hyderabad for Delhi in 1970 end and the socalled postal acknowledgments said to have been received by him do not belong to him nor signed by him and accordingly requested the 3rd respondent society to transfer his membership in favour of his elder brother Mr.I.M.Kapoor, the petitioner herein. The brother of the petitioner had also sent a duly signed and attested affidavit on Rs.5 stamp paper for the said purpose. 3. It is not in dispute that the membership of the brother of the petitioner Mr.K.K.Kapoor has been transferred in favour of the petitioner herein vide resolution of the Managing Committee dated 30.11.1991 and the same was communicated to the brother of the petitioner vide letter dated 03.12.1991 by the 3rd respondent. Since no plot has been allotted in favour of the petitioner, the petitioner got issued legal notice which was received by the 3rd respondent on 14.09.1996 calling upon the 3rd respondent society to allot one plot of 1000 square meters. As no reply was given and no action was taken for allotment of plot, the petitioner was constrained to file a petition under Sec.61 and 62 of the Andhra Pradesh Cooperative Societies Act, 1964 in ARC.No.31/1996 on the file of the 2nd respondent-Deputy Registrar/Arbitrator (Housing) to resolve the dispute under Sec.61 of the A.P.Cooperative Societies Act for allotment of plot in favour of the petitioner and to declare the action of the 3rd respondent society in not allotting any plot since 06.02.1988 ignoring his legitimate claim as illegal. 4. A counter was also filed by the 3rd respondent society before the Arbitrator stating that the petitioner was admitted as Member from 30.11.1991 by way of transfer of membership of his brother Mr.k.K.Kapoor. The amount of Rs.6,528/- paid by the brother of the petitioner by way of demand draft in 1988 was returned as the allotment of plot could not be made in favour of his brother in the draw held in the year 1988. It is also admitted that the brother of the petitioner made an application on 30.03.1988 requesting the 3rd respondent society for transfer of his membership in favour of his brother, the petitioner herein and the said request was considered by the Managing Committee in its meeting held on 30.11.1991. It is also admitted that the brother of the petitioner is entitled for allotment if he is successful member in the draw conducted by the society. As there were more number of members than the plots, the 3rd respondent society held the draws, and the brother of the petitioner was not successful in the draw conducted by the 3rd respondent society and there were several other members like the petitioner who were awaiting for the allotment of plots and the plots were being allotted by way of draw without giving any priority to the senior or the junior members. 5. The 2nd respondent-Arbitrator considered the rival contentions of both parties and by order dated 13.05.1997 held that the petitioner is a legitimate member of the society and he is entitled for the allotment of the plot and accordingly directed the 3rd respondent society to allot one plot in favour of the petitioner on the basis of his seniority and as per the bye laws of the 3rd respondent society whenever the plots are available for allotment. Aggrieved by the said order, the 3rd respondent society filed appeal under Sec.76(1) of the A.P.Cooperative Societies Act in CTA.No.21/99 on the file of the 1st respondent-A.P.Cooperative Tribunal. The 1st respondent- Tribunal by order dated 26.07.2001 allowed the appeal of the 3rd respondent society and set aside the order passed by the 2nd respondent in ARC.No.1/1996. However, it is made clear that it is left open for the petitioner herein to renew his claim for allotment and participate in the draw to be held in case of plots being available. Aggrieved by the said order of the 1st respondent-Cooperative Tribunal, this writ petition is filed. 6. Heard both the counsel. 7. I have perused the order of the 1st respondent-Cooperative Tribunal. The 1st respondent-Cooperative Tribunal reiterated the contentions of the 3rd respondent society and while rejecting the contentions of the petitioner herein, set aside the order of the Arbitrator on the ground that the order of the Arbitrator to allot the plot as and when the same is available is a blanket order and the same cannot be sustained as it is arbitrary, exercise of power without notice or without joining the eligible members of the society as parties. The order of the arbitrator is contrary to the bye-laws of the society and the procedure adopted by the society and therefore the same is liable to be set aside. 8. I am unable to accept the said reasoning of the 1st respondent- Tribunal, as the dispute was between the petitioner and the 3rd respondent society before the arbitrator. The observations of the 1st respondent- Tribunal that the order of the arbitrator is contrary to the bye-laws of the society are also without any justification. No bye-law has been extracted to contend that the order of the arbitrator is contrary to the bye-laws of the 3rd respondent society. 9. The conditions for allotment of plot are dealt with under bye-law No.42(a). Under bye-law No.42(a), plots shall be allotted by the Managing Committee and in fact, the choice of the applicant for a particular plot shall also be considered by the society if there is no competition for the same. Bye-law No.42(a) specifies that if the plots are more than members, it is open for the Managing Committee to consider the choice of the particular applicant to allot particular plot. If the members are more than the plots, it is obvious that the senior members are required to be considered first for allot of plot. Therefore, it is incorrect to contend that if the members are more than the available plots, the plots are required to be allotted by drawal of lots. 10. The learned counsel for the 3rd respondent society submits that it is for the Managing Committee to determine the price of the land including the betterment charges payable by a member within the prescribed time. In the instant case, the plot itself has not been allotted and even after allotment of plots, it cannot be said that the betterment charges are required to be paid, as determined by the Managing Committee before the allotment. It is not in dispute that whenever any allotment of plot is made available, it is for the Managing Committee to fix the price of the land including the betterment charges and ask the member to pay the price. In the instant case, the society never made any attempt to fix the price or demand to pay the betterment charges. 11. The question that arises for consideration in this writ petition is whether the plots are required to be allotted by way of drawal of lots among all the senior and junior members or as per the seniority. 12. The learned counsel for the 3rd respondent society fairly conceded that this Court in W.P.Nos.19556/2000 and 20128/2003 dated 01.11.2006, based on the judgment of the Hon’ble Supreme Court of India in Civil Appeal Nos.306-307 of 2005, dated 02.05.2006 held that the Cooperative Society having been formed for the purpose of allotment of plots to its members must strictly and scrupulously follow the statutory rules as also the bye-laws framed by it, and in terms of extant law, seniority rule would govern the allotment of land amongst the members of the society. The above said case also relates to the same Jubilee Hills Cooperative House Building Society and accordingly similar order of the arbitrator directing the allotment of plot as per the seniority was upheld. Unfortunately, in the instant case, the Tribunal set aside the order of the arbitrator without any justification of whatsoever. 13. I am of the opinion that the plot is required to be allotted as per the seniority. In the instant case the petitioner is entitled to be considered for allotment of plot as per the seniority of his membership. When the membership of his brother was transferred in favour of the petitioner, the membership of the petitioner would relate back to the original date of membership. 14. For the foregoing observations, I set aside the order of the 1st respondent-Tribunal in CTA.No.21/1999 dated 26.07.2001 while confirming the order of the 2nd respondent-Arbitrator in ARC.No.31/1996 dated 13.05.1997. The Writ Petition is accordingly allowed. No order as to costs. ___________________ V.ESWARAIAH,J Dated: 27.08.2010 Dsr