IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.30 of 2002 Smt. Aparna Devi wife of Sri Nagendra Choudhary, resident of B-28, Mithila Sahkari Grih Nirman Samiti Ltd., Rajeev Nagar, Road No.9, P.S. Digha, District- Patna --- Petitioner. Versus 1. The State of Bihar through Register, Co-operative Societies, Bihar, Patna. 2. The Additional Registrar( Yojna) , Co-operative Societies, Bihar, Vikas Bhawan, Patna. 3. Mithila Sahkari Grih Nirman Samiti Ltd., (since superseded) through its Administrator. 4. Sri Ashok Kumar Jha son of not known to petitioner, Ex. Administrator, Mithila Sahkari Grih Nirman Samiti Ltd. (Since superseded), Patna, presently posted as Deputy Registrar, Co-operative Societies, Headquarters, Patna. 5. Smt. Vidya Singh, wife of Sri Vidya Nath Singh. 6. Sri Vidya Nath Singh son of Sri Shukhdeo Pd. Singh, both serial no. 5 and 6, C/O Sri Dina Nath Singh are resident of Mohalla Lohanipur West, P.S. Kadamkuan, District- Patna. 7. Sri Rameshwar Jha, Ex. Secretary, Mithila Sahkari Grih Nirman Samiti Limited (since superseded), resident of Mohalla- Nasiriganj, P.S. Danapur, District-Patna. ----------- For the petitioner: Mr. Durga Nand Jha, Adv. For the State : Mr. A. Prabhakar, AC to AAG-XI. For Respondent no.6.: Mr. Sanjay Kumar Verma and Mr. Bijay Bihari Sinha, Advocates. For Society(Respondent No.7): Mr. Madhav Roy, Advocate. 11/ 13-01-2011 Learned counsel for the petitioner is permitted to make necessary correction in interlocutory application No. 10499 of 2010 and he is permitted to add the name of two sons of deceased respondent no.5, as has been disclosed in paragraph-5 of the counter-affidavit filed on behalf of respondent no.6. 2. Before considering the matter on merit, at the request of learned counsel appearing on behalf of the petitioner, with consent of learned counsel appearing on behalf of the respondents, I.A. No. 10499 of 2010 is being 2 taken up for its final disposal. 3. The present interlocutory application in the nature of substitution petition, has been filed on behalf of the petitioner stating therein that respondent no.5, Smt. Manorama Singh, died on 04.06.2005, during the pendency of the main writ petition, leaving behind her husband, namely, Bidyanath Singh (respondent no.6) and two sons, namely, Sanjay Singh and Mritunjay Singh as her legal heirs and representatives. 4. In view of the fact that respondent no. 6, being the husband and one of the legal heirs of the deceased respondent no.5, is already on the record as respondent no.6, there is no question of abatement of the present proceeding. 5. In the aforesaid facts and circumstances, the present interlocutory application is allowed. Let the name of deceased respondent no.5 be expunged from the records of the present proceeding and be substituted by her legal heirs and representatives, as detailed in paragraph-3 of the I.A. The fact be noted that her husband is already on record as respondent no.6. Learned counsel for respondent no.6 submits that he may be permitted to represent newly substituted two sons of deceased respondent no.5 also. With consent of the parties permission is accorded. This disposes of this interlocutory application. Now the matter 3 on the board is taken up on merit for its final disposal. 6. The petitioner has filed the present writ petition under Article 226 of the Constitution of India raising a grievance with respect to order dated 29.12.1997 (Annexure-2) passed by the Administrator of respondent- Mithila Sahkari Grih Nirman Samiti Limited, Patna as also against the order dated 26.11.2001 (Annexure-1) passed by respondent no.2, whereby dispute between the parties with respect to plot no. B-28 of the Society in question and other related issues have been resolved. As per the pleadings of the parties, Mithila Sahkari Grih Nirman Samiti Limited, Patna (hereinafter referred to as “the Society”) is a registered Society under the provisions of Bihar Co-operative Societies Act, 1935 (hereinafter referred to as “the Act”). The petitioner claims to be its member. Deceased respondent no.5, Smt. Manorama Singh, who has now been substituted, and her husband- respondent no.6 also claim to be the members of the said Society. The society acquired certain lands for distribution of the same amongst members for construction of their residential houses. As per the claim of the petitioner, she was allotted plot no. B-28 in the year 1984 and she was given possession over the same. Where-after she constructed her residential house and claims to be in possession over the same by virtue of interim protection granted by this Court 4 vide order dated 21.01.2002 passed in the present proceeding. Respondent no.6 was allotted plot no. B-29 and he claims to have constructed his residential house and residing there. However, as per the claim of the contesting respondents, plot no. B-28 was originally allotted to respondent no.5 and, therefore, plot no. B-28 and B-29 were amalgamated for the purpose of construction of their residential houses. 7. It appears that some dispute arose between the parties some time in the year 1997. The petitioner as also respondent no.5 claimed their ownership over plot no. B-28. As per the claim of the petitioner, though plot no. B- 28 was originally allotted to her, but subsequently due to oversight the same plot was allotted to respondent no.5 also by the Managing Committee of the Society. When this mistake was noticed by the Managing Committee, the allotment made in favour of respondent no.5 was cancelled. However, according to respondents no. 5 and 6, plot no. B-28 was allotted to respondent no.5 and subsequently by committing certain forgery in the documents; the same was shown to have been allotted in favour of the petitioner. According to the respondents, before passing any order for cancellation of allotment of plot no. B-28, notices were not given to them by the Secretary of Managing Committee of the Society in 5 question. 8. It further appears that the Managing Committee of the Society was superseded/dissolved by the competent authority under the provisions of the Act some time in the year 1989 and, therefore, by virtue of power conferred upon the respondent- Registrar under section 41(5) of the Act, an Administrator was appointed for the management of the Society in question and in the year 1997 the Administrator appointed under the provisions of the Act was in-charge for the purpose of managing the affairs of the Society in question. 9. In view of the dispute between the petitioner at one side and deceased respondent no.5 at the other side, who is now substituted by her husband, respondent no.6, and her two sons, with respect to valid allotment of plot No. B-28 and construction of house there over, the matter was taken up by the respondent Administrator for final resolution of the dispute between the parties. Both sides were heard and finally by the impugned order dated 29.12.1997 (Annexure-2) he resolved the dispute in the following manner: ^^ vr% eS v”kksd dqekj >k] fucU/kd] lg;ksx lfefr;ka] fcgkj] iVuk }kjk fu;qDr fefFkyk lgdkjh x`g fuekZ.k lfefr fy0 dk iz”kkld lfefr ds izcU/kddkfj.kh ds “kfDr;ksa dk iz;ksx djrs gq, fuEufyf[kr izLrko ikfjr djrs gq;s fu.kZ; djrk gwWa fd %& ¼d½ vkosfndk Jherh vi.kkZ iRuh Jh ukxsUnz pkS/kjh vfoyEc IykWV 29 ds n[ky dh gqbZ Hkwfe ij ls viuk ,d i{k ds 6 vUnj dCtk gVk ysa A ¼[k½ch0&28 ds Hkw[kaM ds fy, vkt ds cktkjewY; ds vuqlkj fu/kkZfjr jkf”k dk Hkqxrku Jherh vi.kkZ nsoh] Jherh euksjek flag dks bl fu.kZ; ds nks ekg ds vUnj djsa vFkok Jherh euksjek flag ls cktkj ewY; ds vuqlkj fufeZr edku dk ewY; izkIr dj IykWV NksM+ nsa A ¼x½Jh fo|kukFk flag ,d ekg ds vUnj mUgsa vkcafVr IykWV ch0&29 ij viuk dCtk dj ysa A ¼/k½nksuksa i{k vkil esa “kkfUr cuk;s j[ksa rFkk ;Fkk “kh/kz ,d nwljs ds f[kykQ dh xbZ dkjZokbZ vkilh le>kSrs ls lekIr djsa A ¼M+½;fn nksuksa i{kksa esa mi;qZDr fdlh ckr ij rFkk lacaf/kr izfdz;k ij rFkk ewY; ds fu/kkZj.k ij dksbZ fookn gksrk gS rks bls mlds lek/kku ds fy, ,d frzlnL;h; lfefr xfBr dh tk;sxh A ftlesa ,d&,d iap nksuksa i{kksa dh vksj ls rFkk ,d iap iz”kkld dh vksj ls euksuhr fd;s tk;saxs A bl gsrq dksbZ i{k iz”kkld ds le{k vkosnu dj ldrs gSa rFkk ;g nksuksa i{kksa ij ck/;dkjh gksxk A bl fu.kZ; ds lkFk Jherh vi.kkZ nsoh ds vkosnu dks fu’ikfnr fd;k tkrk gS A 10. It appears that the writ petitioner as also respondent no.5 were not satisfied with the resolution of the dispute by the respondent- Administrator and, therefore, respondent no.5 filed Misc. Case No. 8 of 1998 and the writ petitioner filed Misc. Case No. 12 of 1998 before respondent- Registrar for resolution of the dispute between the parties. Both the Miscellaneous cases were admitted by respondent- Registrar and were heard together. However, subsequently in exercise of his power under section 48(2) of the Act, the respondent- Registrar transferred both the cases to the respondent- Additional Registrar for its final disposal. Parties were heard and finally by order dated 16.11.2001 (Annexure-1), 7 respondent- Additional Registrar disposed of both the miscellaneous cases and affirmed the order and findings recorded by the respondent- Administrator. 11. The petitioner being aggrieved by the aforesaid order preferred the present writ petition before this Court. Respondent no.5 also being aggrieved by the aforesaid order preferred Appeal No. 12 of 2002 before the respondent- Registrar under the provisions of section 48(6) of the Act. 12. Mr. Durganand Jha, learned counsel appearing on behalf of the petitioner in his elaborate submissions has assailed the validity and legality of the orders under challenge. In his submission, the petitioner was validly allotted by the Secretary of the Society plot no. B-28 and she has constructed her residential house after obtaining certain loan and she is living there in the house built over the plot in question. According to him, the finding recorded by the authorities that plot no. B-28 was validly allotted to respondent no.5, was contrary to the materials available on record and the allotment of any plot to respondent no.5 by the Society in question would be contrary to the provisions of the Act and the bye-laws framed there-under. 13. Mr. Sanjay Kumar Verma, learned counsel appearing on behalf of respondent no. 5 and 6, in his 8 elaborate submissions, submitted that plot no.B-28 was validly allotted to respondent no.5 by the Secretary of the Managing Committee of the Society and, therefore, she became the rightful owner of the same. According to him, plot no.B-28 was allotted to respondent no.5 and plot no. B-29 was allotted to her husband-respondent no.6. Both plots were amalgamated with each other and they constructed their residential house. In his submission, in fact the writ petitioner was allotted plot no. B-31 and not plot no. B-28. Therefore, the finding recorded by the Administrator that the house was built by the writ petitioner over plot in question, is contrary to the materials available on record. 14. Mr. Madhav Roy, learned counsel appearing on behalf of respondent no.7 as also learned counsel appearing on behalf of the respondent State submit that plot no. B-31 is not available now and has been allotted to some other person by the Managing Committee of the Society. Mr. Roy further submits that the election of a new Managing Committee took place and now a new Managing Committee has been constituted. Therefore, the entire matter may be remitted to the newly constituted Managing Committee for fresh decision. 15. After hearing the parties at length and after considering the materials on record, this Court is of the 9 considered opinion that the entire issues and all the relevant materials are required to be taken into consideration by a competent authority under the provisions of the Act for resolution of the dispute between the petitioner at one hand and the substituted legal heirs of respondent no.5 at the other hand. Apparently, both sides are not satisfied with the findings recorded by the impugned orders, as contained in Annexure-1 and 2. Learned counsel appearing on behalf of respondent no.5 has expressed his apprehension that respondents may not get proper justice at the hands of the Managing Committee because husband of the writ petitioner is a Member of that Committee. It further appears that all the relevant documents and bye-laws have not been considered by the authorities before arriving at the conclusions in the impugned orders. 16. For the reasons recorded above, and with the consent of the parties, impugned orders, as contained in Annexures- 1 and 2 are hereby set aside and the entire matter is remitted to respondent- Registrar of the Cooperative Society, Bihar, Patna, for fresh decision, who shall himself hear the matter and decide all the issues/ disputes between the parties. It is also made clear that respondent- Registrar, Cooperative Society, Bihar, Patna will not transfer the matter to some other officer for 10 deciding the matter and he shall be obliged to decide the case by his own. The parties are hereby directed to appear before respondent- Registrar, Co-operative Society, with certified copy of the present order and with their detailed representations with relevant documents in support of their case on 14.02.2011. Thereafter, the Registrar shall fix next date for hearing the matter on merits. Respondent- Registrar is directed to dispose of the matter on merits within a period of four months commencing from 14.02.2011. He will decide the claim of the parties by a reasoned and speaking order after giving an opportunity of hearing to all concerned. It is also made clear that since a new Managing Committee of the Society has been constituted, therefore, it will be advisable that Secretary of the newly constituted Managing Committee is also added as a party and is given an opportunity of hearing before taking any final decision. 17. Till the matter is finally disposed of by the Respondent- Registrar, the petitioner would not be dispossessed from the premises in question. It is also made clear that Appeal No. 12 of 2002 filed by respondent no.5 shall be merged and shall be taken up and decided along with the present proceeding. 18. With the aforesaid observation/ direction, the present writ petition stands allowed. But there shall be 11 no order as to costs. BTiwary/ ( Birendra Prasad Verma, J.)