W.P.NO.2179-93 (1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2179 OF 1993 Balwant Subhana Shinde .. Petitioner versus Ambai Defence Personnel Co-operative Housing Society & Anr. .. Respondents Mr.Sachin Dhakephalkar i/by Mr.Ramesh Karale for the petitioner. Mr.V.S.Gokhale for respondent Nos.1 and 2. CORAM : A.S.OKA, J. DATE : 30th August 2010. JUDGMENT: . Heard the learned counsel appearing for the petitioner and learned counsel appearing for the respondents. The petitioner is the original disputant in a dispute filed against the respondents under section 91 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the said Act). The case of the petitioner made out in the dispute is that the 1st respondent is the society registered under the said Act and the petitioner is a member of the said society. It is contended that by virtue of membership, the W.P.NO.2179-93 (2) 1st respondent allotted plot No.24 to the petitioner. It is alleged that only a part of the house was constructed by the 1st respondent society and remaining part was constructed by the petitioner himself. It is the allegation that the petitioner was employed in military service and was being transferred from place to place. Therefore, the chairman of the 1st respondent society inducted the 2nd respondent on the suit plot. When the petitioner visited Kolhapur he found that the 2nd respondent was in possession of the said plot. When the petitioner made the enquiry with the chairman of the 1st respondent, he was informed that the 2nd respondent has been kept on the suit plot for protecting the suit plot on temporary basis. It is alleged that the chairman of the 1st respondent society unauthorisedly transferred the possession of the suit plot to the 2nd respondent in the year 1975 and since then the 2nd respondent has been residing in the house on the suit plot along with members of his family. 2. It is stated that on 10th May 1980, the petitioner by writing a letter called upon the 1st respondent to hand over the possession of the said plot together with structure thereon. It is alleged that on 5th October 1985 a resolution was passed by the managing committee of the 1st respondent by which the said plot was transferred to the 2nd respondent. It is alleged in the W.P.NO.2179-93 (3) dispute that the petitioner had never agreed to sell the suit plot to the 2nd respondent and had not executed any agreement in his favour. It is alleged that the chairman of the 1st respondent society unauthorisedly inducted the 2nd respondent in the suit plot without the consent of the petitioner. It is stated that the resolution dated 5th October 1985 is illegal. 3. In the dispute, an injunction was prayed for by the petitioner restraining the 1st respondent from acting upon the resolution dated 5th October 1985. A declaration was prayed that the resolution dated 5th October 1985 was illegal and is liable to be cancelled. In the alternative, a prayer was made for passing an order of possession of the said plot. 4. The dispute was opposed by the respondents. A stand taken in the written statement is that resolution dated 5th October 1985 was passed at the instance of the petitioner who received agreed consideration from the 2nd respondent in respect of the suit plot. It is contended that on the basis of letters written by the petitioner himself, the resolution was passed by the managing committee. The dispute was dismissed by the learned Judge of the Co-operative Court. However, a direction was issued that on demand by the petitioner and on the petitioner making necessary payment, the 1st W.P.NO.2179-93 (4) respondent shall allot to him any other plot which will be available to the 1st respondent society either by way of surrender or by way of transfer by any other member. The appeal preferred by the petitioner before the Co- operative Appellate Court has been dismissed. While dismissing the appeal, the learned Member of the Appellate Court confirmed the direction given by the Appellate Court for allotment of the plot in favour of the petitioner. 5. The learned counsel appearing for the petitioner submitted that there is no agreement for sale or any other document executed by the petitioner in favour of the 2nd respondent for transfer of the plot. He invited attention of the Court to the correspondence made between the petitioner and the 1st respondent. He pointed out that by a communication issued in the year 1979, the 1st respondent had warned the petitioner not to transfer the plot without permission of the 1st respondent society. He also pointed out that on 7th August 1981 the petitioner had written a letter to the 1st respondent informing the 1st respondent that application for transfer of the said plot made by the 2nd respondent should not be considered. He stated that repeatedly the petitioner came out with a case that he had not agreed to transfer the said plot to 2nd respondent. He submitted that there is no legal transfer of the said plot by the petitioner in favour of the 2nd respondent and W.P.NO.2179-93 (5) that only on the basis of certain statements appearing in the letters allegedly written by the petitioner, the 1st respondent could not have effected transfer of the flat. He pointed out the bye-laws of the society and submitted that in absence of any transaction of sale between the petitioner and 2nd respondent and in absence of prior permission of the 1st respondent, resolution of transfer of membership could not have been passed by the 1st respondent and therefore the resolution itself is illegal. He submitted that it is not in dispute that the petitioner was the original allottee of the said plot and that there is no lawful document executed by the petitioner for transfer of the said plot in favour of the 2nd respondent. He pointed out that on the face of it, the resolution passed by the society was patently illegal. 6. I have given careful consideration to the submissions. Both the Courts below have extensively referred to the correspondence made by the petitioner with the 2nd respondent right from the year 1976. A compilation containing the said correspondence is placed on record by the learned counsel appearing for the 2nd respondent. The letter dated 14th September 1976 written by the petitioner to the 2nd respondent shows that there was an agreement to transfer the said plot to the 2nd respondent. This letter is followed by series of letters written by the petitioner himself which indicate W.P.NO.2179-93 (6) that the petitioner had agreed to transfer the said plot to the 2nd respondent. In fact, in some of the letters, the petitioner has have called upon the 2nd respondent to pay the amount by demand draft by giving particulars of his own bank account. In fact, in one of the letters sent by the petitioner to the 2nd respondent he has criticised the 1st respondent for raising an objection for transferring the said plot to 2nd respondent. Apart from the said correspondence the Courts below have recorded following findings of fact: (a) The letters to which reference is made earlier at Exhibits 0-1 to 0-22 were admitted by the petitioner in his cross-examination; (b) The petitioner received a sum of Rs.14,300/- from the 2nd respondent towards transfer of the suit plot and the amount has been send by the 2nd respondent to the petitioners’ bank by demand drafts as requested by the petitioner himself; (c) The 2nd respondent repaid the loan liability of the petitioner in connection with the suit plot by paying a sum of Rs.17,745/-; (d) The petitioner admitted that from the year 1975 till 5th October 1985 he did not make any grievance to the 1st respondent as regards non-delivery of possession of the plot; (e) The Appellate Court noted that the petitioner admitted that W.P.NO.2179-93 (7) though the suit plot was alloted to him, it was never placed in his possession; (f) The construction on the plot was carried out by the 2nd respondent. 7. The aforesaid are the findings concurrently recorded by both the Courts below on the basis of documentary evidence on record and on the basis of the admissions of the petitioner. In fact, the petitioner admitted in the evidence that the 2nd respondent has been paying municipal taxes, electricity and water charges in respect of the plot and structure thereon. 8. In the light of the correspondence made by the petitioner himself, the Courts below observed that now it does not lie in the mouth of the petitioner to say that he had never agreed to transfer the suit plot in the name of the 2nd respondent. The petitioner has admittedly received consideration of Rs. 14,300/- by a demand draft and on the other hand 2nd respondent repaid the loan to the extent of Rs.17,745/-. In the circumstances, the Courts below were justified in not entertaining the challenge by the petitioner to the resolution passed by the 1st respondent society on 5th October 1985 transferring the plot and building to the 2nd respondent. Even after dismissing W.P.NO.2179-93 (8) the dispute and appeal, a direction has been issued to 1st respondent to allot a plot to the petitioner on application made by the petitioner as and when a plot is available. 9. The petitioner has invoked extra-ordinary remedy of Article 227 of the Constitution of India. Considering the aforesaid factual findings of fact arrived at by both the Courts below which are based on evidence on record, this is not a case where interference can be made in the writ jurisdiction under Article 227 of the Constitution of India. The petition is accordingly rejected. Rule is discharged with no orders as to costs. 10. Notwithstanding the dismissal of the petition, it is obvious that the direction issued by the Courts below to the 1st respondent society stands and the same will have to be implemented by the 1st respondent society. (A.S.OKA, J)