IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE NINETH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT APPEAL NO : 1745 of 1999 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 23/08/1999 in WP NO : 17516 OF 1999 on the file of the High Court.) Between: J.A Azaraiah s/o John Shelly Secretariat , Hyderabad. ..... APPELLANT AND 1 M/s Achuta Cooperative Housing Society rep by President H.No.68, Shantinagar, Hyderabad. 2 Coopearive Sub-Registrar, C/o Dy. Registrar of Cooperative Societies, Pay and Accounts Office Building, Near Exhibition Grounds, Hyderabad. 3 A.Subbaiah s/o A.Mallikarjunaiah 302 Purushotham Enclave H.No.16-3-629/4, Anandnagar, khairtabad, Hyderabad. 4 Cooperative Tribunal Chandra Vihar Mukramjahi Market Road, Hyderabad. .....RESPONDENTS Counsel for the Appellant: Sri Augustya Sharma Counsel for the Respondent: GP for Co-operation Sri LVS Nagaraju GP for GHMC Sri GANTA RAMA RAO The Division Bench of this Court made the following Judgment: THE HON’BLE SMT. JUSTICE T. MEENA KUMARI A N D THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN. * * * WRIT APPEAL NO. 1 7 4 5 OF 1999 JUDGMENT : {Per the HON’BLE SMT. JUSTICE T. MEENA KUMARI} 1. The writ appeal is filed questioning the orders dated 23-8-1999 passed by the learned single Judge of this court confirming the judgment dated 01-5-1999 passed by the fourth respondent- Co-operative Tribunal in CTA.No.60 of 1997 wherein the fourth respondent-Co-operative Tribunal has upheld the action of the first respondent-society in cancellation of the plot to the appellant. 2. The facts of the case are that the first respondent-society has been assigned with Government land measuring Ac:4-00 in Shaikpet village covered by survey no.403 for construction of houses to the Government employees. After getting necessary layout permission from Municipal Corporation, the managing committee of the first respondent in its meeting held on 17-12-1984 had allotted plots to its members and intimated to pay the cost of the land, betterment charges of the plot @ Rs.30/- per sq.yard within 90 days. The appellant paid only Rs.16,800/- as against a sum of Rs.29,092/- payable towards the total consideration. Thereupon, the first respondent’s new managing committee after taking charge issued notice dated 20-11-1990 informing the appellant to pay the balance of Rs.12,292/- other wise the allotment of plot will be cancelled. The appellant herein received the notice on 03-12-1990 and failed to pay the balance of amount. Thereby the first respondent’s managing committee at its meeting held on 17-2-1991 cancelled the allotment of the plot to the appellant and also other defaulters. The cancellation proceedings was communicated through registered post vide L.No.1190/APCDOPH/SL/Notice/90 dated 17-2-1991, which was received by him on 13-3-1991. After cancellation of the plot bearing no.30, admeasuring 342 sq.yards situated at Road No.10, Banjara Hills, Shaikpet village, Hyderabad, it was re-allotted to the third respondent herein as per the resolution dated 30-4-1991. 3. The appellant raised a dispute in ARC.No.24/91 earlier and the Arbitrator allowed it setting aside the cancellation of the said plot. Aggrieved by the said award, the first respondent-society filed CTA.No.459/94 and the Co-operative Tribunal in its judgment dated 16-3-1996 set aside the award by remanding the case for fresh consideration on the issues involved therein. The Arbitrator passed award in ARC.No.15/96-G on 23-12-1996 against the first respondent-society and aggrieved by it, CTA.No.60 of 1997 was filed. 4. On the basis of the rival contentions raised in CTA.No.60 of 1997, the fourth respondent-Co-operative Tribunal through its elaborate judgment dated 01-5-1999 upheld the action of the first respondent-society in cancelling the plot bearing No.30, admeasuring 342 sq.yards situated at Road No.10, Banjara Hills, Shaikpet village, Hyderabad, it was re-allotted to the third respondent herein as per the resolution dated 30-4-1991. 5. Aggrieved of the judgment in CTA.No.60 of 1997 dated 01-5-1999 passed by the Co-operative Tribunal, the appellant filed WP.No.17516 of 1999 seeking to suspend the same and agitated that the first respondent-society has no power to cancel the allotment on the ground of arrears either in bye-laws or in the allotment letter and hence the cancellation of plot is without any authority, jurisdiction or right and the bye-law no.42 (10) provides for cancellation only in the event of failure to construct within one year and that too, with the prior permission of Registrar and in the instant case, the cancellation is neither on the ground of failure to construct nor with the prior permission of Registrar. He further contended that the Co-operative Tribunal failed to consider that the first respondent-society cannot resume the plot on the ground of breach of conditions, without initiating the proceedings under Rule 49 (7) of the A.P. Co-operative Societies Rules, 1964 and hence the entire resumption proceedings are void and nonest and the third respondent herein entered into possession illegally in connivance with the first respondent- society, pending ARC. The appellant contended in WP.No.17516 of 1999 that the Co-operative Tribunal failed to consider that he filed the dispute on 16-5-1991 and therefore the principles of doctrine of lis pendence is applicable and the sale deed executed by the first respondent-society on 17-5-1991 in favour of the third respondent herein is hit by the principles of doctrine of lis pendence and the doctrine does not depend on any interim stay and the principle is laid down to strike the attempts of the parties to the litigation to circumvent the jurisdiction of the courts and frustrated the decrees. Further there was no notice dated 21-11- 1990, which is illegal and its observation that the appellant herein failed to pay in spite of several opportunities is incorrect and an error apparent on the face of record. The Co-operative Tribunal committed serious irregularity in observing that when once the registered document had been executed, the purchaser gets title over it. The sale deed executed in favour of the third respondent was kept in secrete for a long time and the conduct of the first respondent-society in suppressing the same in their counter shows that it is a fraudulent transfer made in a hasty and clandestine manner to defeat the rights of the appellant. 6. In view of the above contentions raised in WP.No.17516 of 1999, the learned Single Judge of this Court while dismissing WP.No.17516 of 1999 through an order dated 23-8-1999 observed that the appellant did not pay the requisite amount which he was asked to pay. The allotment of plot in his favour was cancelled and the same was allotted to the third respondent and a sale deed was executed in his favour. The fourth respondent-Co-operative Tribunal by an elaborate order set aside the award, which was challenged in C.T.A. No. 60 of 1997. Further the third respondent had acquired the plot through a sale deed, which could not be nullified either by the Deputy Registrar or by the Co-operative Tribunal. Since the matter is pending before the civil court and the appellant will have ample opportunity of putting forth his case before the civil court. The findings on the issues framed by the Co- operative Tribunal are basically the findings on questions of fact, which are conclusive and cannot be re-opened in the said writ petition. 7. Questioning the order dated 23-8-1999 passed by the learned single Judge in WP.No.17516 of 1999 the present writ appeal is filed. 8. Sri S. Augstya Sharma, the learned counsel appearing on behalf of the appellant had taken this court through various aspects of the matter and particularly pointed out to the findings recorded by the Co-operative Tribunal. The learned counsel further pointed out firstly the circular dated 02-5-1996 issued to the appellant to pay balance of sale consideration of Rs.12,291-20 paise by reiterating the other conditions of allotment remain unchanged; secondly, the notice dated 21-11-1990 directing the appellant to pay the balance amount to the first respondent society, failure of remittance would result cancellation of allotment without any further notice and the said notice was received by the appellant on 03-12-1990; and thirdly the letter dated 17-12-1990 of the first respondent society cancelling the allotment of plot and that the appellant filed ARC.No.24 of 1991 before the Deputy Registrar against cancellation of the plot. The learned counsel would maintain that the Arbitrator passed orders dated 23-10-1991 setting aside the cancellation of allotment order. Thereafter, the first respondent society filed appeal under section 76 of the A.P. Co-operative Societies Act and the Co-operative Tribunal set aside the order passed by the Arbitrator and remitted the mater for fresh disposal. On remittance the proceedings are re- numbered as ARC.No.59 of 1996. On 23-12-1996 the Arbitrator passed orders directing the first respondent society to restore the plot to the appellant. Aggrieved by the orders of the Arbitrator, the first respondent society filed CTA.No.60 of 1997. The fourth respondent-Co-operative Tribunal allowed CTA.No.60 of 1997 filed by the first respondent society and set aside the award passed by the Arbitrator. Questioning the same, the appellant filed WP.No.17516 of 1999 and the learned single Judge dismissed WP.No.17516 of 1999 filed by the appellant herein and against which the present writ appeal is filed. 9. On the other hand, the learned Govt. Pleader for Co-operation submitted that the first respondent-society estimated the cost of land admeasuring 342 sq.yds and fixed at Rs.29,091-20 paise. The new Managing Committee of the first respondent society had taken charge in June 1990 and that the earlier committee in its proceedings dated 02-5-1996 demanded balance payment from the defaulters and that a final notice was issued on 20-11-1990 to pay the balance of Rs.12,292/- within fifteen days and the said notice was received by the first respondent on 03-12- 1990 for which no reply was sent even after two months. Therefore, the managing committee of the first respondent society in its meeting held on 17-2-1991 by recording the minutes had cancelled the allotment and duly intimated the cancellation of plot and it was served on the appellant on 13-3-1991. Thereafter,, the appellant sent a cheque on 09-4-1991 belatedly which was not accepted giving reasons for not accepting it. After cancellation of the plot of the appellant, it was re-allotted to the third respondent in pursuance of the meeting held on 30-4-1991 and the said plot was registered in favour of the third respondent on 16-5-1991. 10. Heard the learned counsel for the appellant as well as the learned Government Pleader for Co-operation and perused the material placed on record. 11. It is an admitted fact that on 09-11-1984 the appellant was allotted plot No.30, admeasuring 342 sq.yards, for which a sum of Rs.16,800/- towards land cost and betterment charges as fixed by the society was paid by him. It is stated by the appellant that as per allotment letter, the society had demanded the land costs of Rs.10,260/- and betterment charges of Rs.20,520/- and out of which a sum of Rs.16,800/- was already paid and that only a sum of Rs.3,720/- remained due. While things stood thus, the society issued another demand notice in November 1990 to pay extra sum of Rs.12,291-20 paise. In order to secure the amount, the appellant applied to the Government for sanction of house building loan and requested the society to grant some more time to pay the said amount and in the meanwhile the society issued a letter on 17-2- 1991 which was received by the appellant on 13-3-1991 informing him that his allotment was cancelled. Thereafter, the appellant send the demand amount through cheque under protest but the cheque was returned. In the cross-examination the appellant admitted that he had to pay the amount of Rs.3000/- towards the balance of the amount, which he did not pay. He also admitted that he received notice from the society demanding payment within fifteen days from the date of receipt of notice and for that notice the appellant did not send any reply. Further the appellant admitted in his cross-examination that he sent a cheque for Rs.12,000/- on 08- 4-1991 after he received the letter of cancellation of plot. 12. Further it is not the grievance of the appellant that the land cost and development charges were arbitrarily raised. The appellant neither protested about the hike in price nor alleged that the office bearers have unnecessarily raised the land cost without there being enhancement of rate by the Government. Merely because a member had paid the amount, he cannot compel the society not to cancel the allotment and wait till a favourable day to make payment. In view of the observations made by the Tribunal, we do not find any ground to interfere with the orders passed by the learned single Judge of this Court. 13. The writ appeal is accordingly dismissed. No costs. ---------------------------------------- JUSTICE T. MEENA KUMARI. ----------------------------------------------- -- JUSTICE RAMESH RANGANATHAN. 09/06/2008. I s L