THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION Nos.2623 OF 2004 AND 2630 OF 2004 COMMON ORDER: These Civil Revision Petitions, under Article 227 of the Constitution of India, are directed against the order, dated 07.04.2004, in O.A.Nos.62 of 2003 and 136 of 2003, on the file of the Andhra Pradesh Co-operative Tribunal, Vijayawada, whereunder and whereby, the order, dated 28.03.2003, in Claim No.12 of 2000, passed by the Deputy Registrar of Co-operative Societies, Eluru, was set aside. 2. The respondent – society/plaintiff filed a claim petition before the Deputy Registrar of Co-operative Societies, Eluru, against the petitioner herein/defendant for declaration that the respondent - society has got right over the plaint schedule property bearing Plot No.34 admeasuring 760 Square Yards in approved layout plan 144/80; for delivery of vacant possession; for mandatory injunction directing the petitioner herein to remove the unauthorized structures and constructions and also with consequent prayer for perpetual injunction. Basing on the material available on record, the primary authority - the Deputy Registrar of Co-operative Societies, Eluru, held that the respondent - Society has got right over the plaint schedule property and therefore, ordered the petitioner herein to hand over the vacant possession of the suit schedule property to the respondent – society and granted permanent injunction in favour of the respondent - society. It is also ordered that the petitioner herein/defendant was allowed to come to a settlement with the respondent - society in which case the petitioner herein should surrender document No.4721/79, dated 14.12.1979, to the respondent – society and obtain fresh sale deed in favour of the petitioner herein by paying cost of one plot i.e., Rs.2,128/- for 380 Square Yards towards western portion at the previous rate together with the interest thereon and betterment charge of Rs.1500/- from the date of previous registration at 12 % per annum. It is also ordered that the petitioner herein should surrender the remaining portion of plot to the respondent – society situated towards Eastern side comprising of 380 Square Yards by removing unauthorized structures, if any. On appeals by both the parties, the said order has been reversed by the appellate Court and directed the respondent - society to dispose of the plot along with the house to any member of the society only in auction; recover the value of the plot from the said auction amount and the remaining amount has to be delivered to the petitioner herein, within six months from the date of that order, since he has constructed the house with his own amount. Challenging the same, the present Civil Revision Petitions are filed. 3. While exercising supervisory jurisdiction under Article 227 of the Constitution of India, this Court has to see whether any illegal or perverse findings are given by both the Courts below. A finding can be said to be perverse if it is not based upon proper evidence or admissible evidence on record. 4. The contention of the learned counsel for the petitioner is that the claim is bared by limitation in view of the fact that under Rule 49 of the Andhra Pradesh Co-operative Societies Rules, 1964, (for short, “the Rules”) the period of limitation is six years from the date of act or omission with reference to the dispute arose; that the respondent - society has passed cancellation resolution in the year 1984 and thereafter, the claim was not filed within six years; that there is no need to go into the factual aspects and hence, he prays to remand the matter to decided the issue. 5. On the other hand, learned counsel for the respondent - society contended that the period of limitation as prescribed under proviso to Rule 49 of the Rules would apply only with regard to dispute among the members and if the dispute is relating to members and the society, then the Limitation Act, 1963 would apply; that if that is taken into consideration, the claim is filed within 12 years from the date of passing resolution and hence, it is not bared by limitation. 6. The factual matrix is not in dispute. The petitioner herein acting as Secretary executed a sale deed on behalf of the respondent - society in his name without there being any consideration contrary to the bye-laws of the respondent - society. Bye-law No.31 says that service to the society shall be gratitutious and that a member cannot be allotted site free of cost by the respondent - society. The appellate Court also observed that the value of the site is fixed at Rs.5.65 per square yard, which comes to Rs.4256, where as the case of the petitioner herein is that it was given gratitutiously, as he served as Secretary to the society during that period. Therefore, on his own admission it is clear that he has not paid any consideration with regard to the sale deed executed in his favour. Any document not supported by consideration is void. Therefore, the Sale Deed is null and void. Now the question is whether the claim of the respondent herein is bared by limitation. 7. Rule 49 (2) of the Rules reads thus: “(2) The period of limitation for referring a dispute touching the constitution, management or the business of a society to the Registrar under sub- section (1) of Section 61 of the Act shall be regulated by the provisions of the Limitation Act, 1963 as if the dispute is a suit and the Registrar, a Civil Court:” But the proviso reads thus: “Provided that a dispute arising between the parties mentioned in clause (a) of sub-section (i) of Section 61, shall, where the dispute relates to any act or omission on the part of the society or its committee, or any past committee, any past officer, past agent or past employee, or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society be referred to the Registrar within six years from the date on which the act or omission with reference to which the dispute arose, had occurred.” 8. No doubt the proviso controls the main Section, but the proviso is confined only to the acts or omissions with regard to the clause (a) of Sub-section (1) of Section 61 of the Andhra Pradesh Co-operative Societies Act, 1964, (for short, “the Act”), which reads that 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 among the members, then only the proviso to Rule 49 of the Rules would be applicable. But, here is a case where the dispute is with regard to both the management or the business of the society relating to the member of the society and the society. Therefore, clause (b) of Sub-section (1) of Section 61 of the Act would apply which reads thus: “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” So, in view of the fact that it is not a dispute among the members of the society, Section 61 (1) (a) of the Act has no application. If Section 61 (1) (a) of the Act applies then only the limitation of six years would start from the date of dispute as per proviso to Rule 49 of the Rules. If it is a dispute between the society and members, then general provisions of Limitation Act would apply. In view of Rule 49 (2) of the Rules, if that is the case, period of limitation for recovery of possession is twelve years. The resolution is passed admittedly on 11.03.1984 cancelling the membership of the petitioner with the society and also duly refunding the share capital amount. Therefore, the limitation start from the year 1984 and the claim is filed within 12 years i.e., in the year 1992, which is well within the time. Therefore, the appellate Court rightly considered all the aspects and the said order needs no interference by this Court. Therefore, as no illegal or incorrect finding is found, the petitions are devoid of merit and are liable to be dismissed. 9. Accordingly, the Civil Revision Petitions are dismissed. There shall be no order as to costs. _______________ K.C. BHANU, J September 20, 2010 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTIETH DAY OF SEPTEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION Nos.2623 OF 2004 AND 2630 OF 2004 CIVIL REVISION PETITION No.2623 OF 2004: Between: R. Venkata Subbarao .....PETITIONER AND The Eluru Central Excise Employees Co-operative Building Society Limited ....RESPONDENT CIVIL REVISION PETITION No.2630 OF 2004: Between: R. Venkata Subbarao .....PETITIONER AND The Eluru Central Excise Employees Co-operative Building Society Limited ....RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION Nos.2623 OF 2004 AND 2630 OF 2004 September 20, 2010