IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6724 of 2002 BHOLA PRASAD CHOUDHARY Versus THE STATE OF BIHAR & ORS ----------- 9 28/4/2009 Heard Mr. Ishwari Singh, learned counsel for the petitioner, Mr. Durga Nand Jha, learned counsel appearing for the Co-operative Society, Mr. Gajendra Kumar Jha, Counsel for respondent no.6 as also counsel for the State appearing on behalf of the official respondents. This writ application has been filed for quashing of the orders dated 9.3.1996 (Annexure-9) passed by the Deputy Registrar of the Cooperative Society, order dated 7.5.2002 (Annexure-10) passed by the Additional Registrar, Cooperative Society and order dated 20.5.2002 (Annexure-11) passed by the Additional Registrar, Cooperative Society respectively rejecting the claim of the petitioner to be a valid allottee of plot no. D-15 and upholding the respondent no.6 to be a valid allottee of the said plot in exercise of power under Section 48 of the Bihar Cooperative Societies Act (hereinafter to be referred to as ‘the Act’). Mr. Ishwari Singh, learned counsel for the petitioner submits that the decision taken by the Deputy Registrar and the Additional Registrar of the Cooperative Department are unsustainable, inasmuch as, there findings recorded in favour of the respondent no.6 holding her to be a valid allottee is itself vitiated because her registered sale deed executed by the Secretary of the Mithila Sahkari Girih Nirman Samiti Ltd. (hereinafter to be referred 2 to as ‘the Society’) was itself void because the said Secretary of the Society had executed the registered sale deed being restrained to do so by an order dated 26.12.1988 in Misc. Case No. 40/1988. Having assailed the said registered sale deed of respondent no.6, counsel for the petitioner has proceeded that the land in question, plot no. D-15 had already been allotted to him on 23.12.1987 under the orders of the President of the Society and as such any sale deed executed in favour of the respondent no.6 after the said date would have conferred no right to her. Counsel for the respondent no.6 on the other hand defending and supporting the impugned orders has submitted that the claim of the writ petitioner to be a valid allottee of plot no.D-15 was wholly unsustainable and in this respect he has relied to the certain findings recorded by the two authorities namely Deputy Registrar and Additional Registrar. Learned counsel for the Society on the other hand while supporting the case of the respondent no.6 has taken a plea that the alleged discrepancy in the registered sale deed of respondent no.6 was sought to be rectified by giving a post-facto approval to the earlier allotment not only in the case of the petitioner but also seven other similar cases and in this context, he has placed reliance on Annexure-X, a resolution of the Board of Directors of the Society dated 12.12.2004. He has further submitted that the claim of the petitioner to be a valid allottee was not borne out from the records of the Society and that the petitioner being the brother-in-law of the 3 then President of the Society was favored by the latter by issuing a letter of allotment dated 23.12.1987. Counsel for the State supporting the impugned orders passed by the Deputy Registrar and the Additional Registrar of the Cooperative Department has submitted that the view taken by the Additional Registrar of the Cooperative Society that in a dispute under Section 48, the validity of a registered deed executed in favour of the respondent no.6 on 17.6.1989 could not have been gone into and the remedy for the petitioner was only to approach the civil court which alone had the power to cancel the registered sale deed. He has further supported the findings of fact recorded by the Additional Registrar in the impugned order justifying the allotment of the plot no. D-15 in favour of the respondent no.6. On the basis of the pleadings on records and the submissions of the parties, the first and foremost question would be as to whether the petitioner has any valid right for claiming himself to be an allottee of plot no. D-15? In this respect, this Court would find that the petitioner became member for the first time of this society on 25.2.1987 by depositing the membership fee of Rs. 10 as also depositing an amount of Rs. 7,000/- being the first installment towards the cost of land. In the receipt dated 25.2.1987 there is no mention of any plot number and as such, the petitioner cannot contend that he was made member for being allotted plot no. D-15. There is no other document to show that the petitioner was ever allotted plot no. D-15 prior to his filing of an application before the 4 President of the Society on 15.12.1987 which has been brought on record by the respondent no.6 by way of Annexure-A/6. The contents of this application (Annexure-A/6) written by the petitioner himself and addressed to the President of the Society, his own brother-in-law, makes a very interesting reading and is quoted hereinbelow:- ^^lsok esa] v/;{k egksn;] fefFkyk lgdkjh x`g fuekZ.k lfefr fy0 iVuk A egk”;] fuosnu gS fd eSa vkt fnukad 15-12-87 dks lfefr ds lfpo ls muds fuokl ij feyk vkSj mudks dgk fd eSaus vkids rFkk v/;{k ds vkns’kkuqlkj jktho uxj esa IykWV Mh0-15 esa okmUMzh djk fy;k gS A vki eq>s ml IykV dk vkoaVu i= nsa A vkSj ckadh fdruk iSlk eq>s tek djuk gS og Hkh fy[k dj ns arks eSa ckadh iSlk tek dj fucaf/kr djok ywaxk ysfdu os Vky eVksy djus yxs vkSj eq>s dgk fd lHkh jft"Vzh cUn gS tc jft"Vzh gksus yxsxk rks vkidks lwfpr fd;k tk;xk A eSa ftl le; muds ;gka x;k ml le; muds ;gka Jh ’kEHkq“ukFk Bkdqj funsZ’kd cSBs gw, Fks vSkj esjs lkFk Jh pUnz dkUr pkS/kjh Hkh muds ;gka x;s Fks vki muls Hkh iwNrkN dj ysaxs A vr%eSa vkids ikl vkosnu i= ns jgk gwW tks eq>s mDr IykV dk vkoaVu i= fn;k tk; A vkidk fo’oklh] g0- Hkksyk izlkn pkS/kjh rk0 15-12-87 lnL; From the reading of the aforementioned application of the petitioner, it would be clear that he had already occupied plot no. D-15 and had raised a boundary even without there being any valid order of allotment in his favour. It has to be noted that under bye-laws 44 of the Society, the power of allotment is vested with the Board of Directors of the Managing Committee of the Society and yet the petitioner had kept on impressing either the President or the Secretary of the Society that he had constructed his boundary wall over plot no. D-15 on the oral assurance/order of the 5 President/Secretary of the Society. His application in fact seeking the order of allotment in his favour addressed to his own brother-in- law, the President of the Society is by itself an evidence to the fact that no allotment of plot no. D-15 was made in his favour till 15th December, 1987. Then comes the self-serving order of the President of the Society dated 23.12.1987 which was written by the said President, the brother-in-law of the petitioner on 23.12.1987 and has been heavily relied by the petitioner by enclosing the same as Annexure-2 to this writ application. This Court would find necessary to also quote the said order dated 23.12.1987 in ex-tenso which reads as follows:- Jh Hkksyk izlkn pkS/kjh ¼lnL;½] fefFkyk lgdkjh x`g fuek.kZ lfefr fy0] iVukA fo’k; %& lfefr ds IykWV u0 Mh0 15 ds laca/k esaA egk”;] vkidk i= fnukad 15&12&87 ds laca/k esa vkidks lwfpr fd;k tkrk gS fd vkius IykWV ua0 Mh- 15 ds fy, iSlk tek fd;k Fkk ftldk jlhn Hkh vkidks lfpo us fn;k Fkk] vkSj bl IykWV dk ?ksjkcUnh djkus ds fy, lfpo ,oa v/;{k us vkidks dgk Fkk blds eqrkfcr mDr IykWV esa ?ksjkcUnh Hkh djk fy;k gSA blh chp lfpo ds fo:) funsZ”k eaMy ds vf/kdka”k lnL;ksa us esjs ikl fyf[kr f”kdk;r dh Fkh] eSaus ml lEcU/k esa lfpo dks i= fn;k FkkA blh otg ls lfpo us vkids lkFk rky eVksy dk uhr viuk jgs gSA pwWfd mUgsa ekyqe gS fd vki esjs lEcU/kh gSaA bl lEcU/k esa eSaus funsZ”kd eaMy ds dbZ lnL;ksa ls Hkh ijke”kZ ys fy;k gSA vr% bl i= ds ek/;e ls v/;{k dh gSfl;r ls vkidks IykWV u0 Mh-15 ftldk rksth ua0& 5730] [kkrk ua0& 1886] losZ IykWV ua0 2970 gSA vkSj mldk pkSgnnh mRrj esa lfefr dk jksM] nf{k.k esa lfefr dk IykWV ua0& 19] iwoZ esa lfefr dk IykWV ua0& 16] ,oa if”pe esa lfefr dk IykWV ua0& 14 gSA vkids uke vkoafVr fd;k tk jgk gSA vki ckdh iSlk 18]000@& :0 tek dj mDr IykWV dk fucaf/kr djk ysaA funs”kd eaMy lnL;ksa }kjk v/;{k ds uke vkosnu i= dh Nk;k izfr bl i= ds lkFk layXu dj jgk gwWA tksfd le; ij vkidks dke vkosA Hkonh; g0@& jkefoykl vkpk;kZ v/;{k** A bare perusal of the document of the petitioner, the aforesaid letter of the President of the Society dated 23.12.1987 would itself go to show that a brother-in-law was only obliging 6 another brother-in-law and that is how all the norms of the allotment in a Housing Society through its Managing Committee were thrown to the winds. The said order dated 23.12.1987 appears to be merely a deed of relinquishment by one person in favour of another person and in any event, cannot be said to be a decision taken in terms of the bye-laws for allotment of plot of the Society. In this respect, even if everything as stated in the order dated 23.12.1987 of the President is accepted to be correct, the said order itself envisaged that the petitioner should deposit the balance amount of Rs. 18,000/- and get the plot D-15 registered in his name. There is no denial to this fact that even in respect of this self- serving letter, the petitioner had neither deposited Rs. 18,000/- nor had got the land registered in his name till the date of registration of the same land D-15 by a registered sale deed in favour of the respondent no.6 i.e. 18.6.1989. It is also not in doubt that the petitioner had deposited the said amount only on 10.2.1994 vide Annexure-3 at a point of time when the plot no D-15 had not only been allotted to respondent no.6 in view of the decision of the Managing Committee of the Society dated 11.9.1988 but it also conveyed to her by a registered sale deed dated 17.6.1989. This Court is also in agreement with the findings of fact recorded by the Additional Registrar wherein he has made comparative evaluation of claims of both the petitioner and the respondent no.6 and has found the respondent no.6 to be senior in all respect either on the basis of her being made member of the 7 Society in the year 1979 as against the petitioner in the year 1987, deposit of first installment by the respondent no.6 on 23.10.1979 as against the petitioner doing so on 25.2.1987 and deposit of the entire consideration amount of Rs. 34,000/- by the respondent no.6 on 17.6.1989 as against the petitioner doing so on 10.2.1994. At this stage, the plea of the counsel for the petitioner that the sale deed in favour of the respondent no.6 dated 17.6.1989 being a void document as it was executed by the Secretary of the Society during the continuance of stay order passed by the Joint Registrar in an earlier case filed by the Secretary against the President of the Society has to be only noted for its being rejected in view of the specific stand taken by the Society in its counter affidavit enclosing resolution of the Managing Committee that not only in the case of respondent no.6 but seven other persons, the Society had given its post-facto approval to the sale deed executed by the then Secretary. The relevant part of the resolution of the Society dated 12.12.2004 (Annexure-X) reads as follows:- ^^izLrko la[;k 3 ¼rhu½ % funs”kd eaMy dh cSBd fnukad 12-12-2004 dks loZ lEefr ls fu.kZ; fy;k x;k fd ftu lnL;ksa ds }kjk lfefr ds Hkw[k.M ds fo:) esa jkf”k ¼ewY;½ tek dj fn;k x;k Fkk vkSj ftldk fuca/ku ckdh Fkk mu lnL;ksa ds fgr esa fnukad 16-06-1989 ,oa 17-06-1989 dks iwoZ lfpo Jh jkes’oj >k ds }kjk lfefr Hkw[k.M dk fuca/ku fd;k x;k mu lHkh fuca/ku dks ;g lfefr lgh ekurs gq, HkwriwoZ lfpo ds mDr dk;Z dks ?kVuksrj (post facto approval) vuqeksnu loZ lEefr djrh gSA mDr nksuks frfFk;ksa esa fd;k x;k fuca/ku bl izdkj gS rFkk ftu lnL;ksa dks fuca/ku esa dqN =qfV;kW gSa mldks lgh djus dk vf/kdkj lfpo dks fn;k x;kA lnL;ksa dk uke IykWV la[;k frfFk 1- Jh jekuUn dqej firk Lo0 lR;kuUn dqej D-2 16.06.1989 2- Jherh dkUrh nsoh ifr Jh osnkuUn >k D-3 16.06.1989 3- Jhefr mÔk nsoh ifr Jh f=yksdh ukFk flag D-19 17.06.1989 4- Jhefr uhye >k ifr Jh v:.k dqekj >k D-20 17.06.1989 5- Jhefr vkHkk feJk ifr Jh rkjk ukFk feJk D-15 17.06.1989 6- Jhefr lquhrk >k ifr jsorh je.k >k D-66 17.06.1989 7- Jhefr ,0 oh0 mik/;k; ifr izeksn dqekj D-17 17.06.1989 8- Jh izeksn dqekj firk C;kl mik/;k; D-18 17.06.1989 Lfpo g0@& v/;{k g0@& jkes'oj >k jekdkUr ikBd** 8 Counsel for the petitioner, however, submits that the subsequent event cannot be taken note of by this Court as the said resolution was not in existence at the time of passing of the impugned order by the Additional Registrar of the Society. This Court would note that the Additional Registrar in the impugned order has gone into this aspect of the matter and has held that as the Administrator appointed by the Additional Registrar after supersession of the Society had taken over affairs of the Society only on 19.6.1989, the earlier action taken by the Secretary of the Society could not have affected the sale deed executed in favour of the respondent no.6. This Court would also not be in a position to accept the submission of the learned counsel for the petitioner that the sale deed dated 17.6.1989 in favour of the respondent no.6 was a void document and in fact, at best, it can be said to voidable at the instance of the petitioner but then the petitioner had to file a civil suit for getting the same annulled in order to get any right in respect of plot no. D-15. This Court is also not in a position to accept the submission of the learned counsel for the petitioner that the Registrar of the Cooperative Department in exercise of power under Section 48 had the competence and jurisdiction to annul a registered sale deed in favour of Respondent no. 6. The reliance placed by the counsel for the petitioner on a judgment of the Apex Court in the case of Thakur Jugal Kishore Sinha Vs. The Sitamarhi Central Co- operative Bank Ltd., & Anr. Reported in AIR 1967 SC 1494 is also 9 wholly misplaced, inasmuch as, that was not the case of cancellation of a registered sale deed by the Registrar of the Cooperative Department and the findings given therein that Registrar under the Act has been vested with certain powers of the Civil Court, such as in the matter of issuing notice, securing attendance of witness etc. will not mean that the Registrar would become a substitute for Civil Court. In fact, this aspect of the matter has not only been gone into at length in the two impugned orders holding that no such power has been vested for cancellation of a registered sale deed by the Registrar in exercise of power under Section 48 of the Act but also stands setted in a judgment of this Court in the case of Smt. Swati Pande & Ors. Vs. The Registrar, Cooperative Societies, Bihar, Patna & Ors. reported in 2007 (2) PLJR 525 wherein it has been held that there is no power of cancellation of a registered sale deed vested in the Registrar of the Cooperative Department and such power can only be exercised by a Civil Court. There is yet another disturbing feature which would disentitle the petitioner from claiming himself to be a valid allottee, inasmuch as, it is his own case in his representation dated 31.5.1996 (Annexure-B/6) that he came to know of the registered sale deed of the respondent no.6 dated 18.6.1989 sometime in the year 1994. There is also an admission of the petitioner in his application dated 31.5.1996 stating therein that he could not deposit the amount of Rs. 18,000/- despite the order in his favour passed by the President 10 of the Society on 23.12.1987 for a period of 6 years and two months approximately only on the ground of his family disputes. In such a situation there would be hardly any justification for the petitioner to even claim that he was a valid allottee of plot no. D-15 ever since 23.12.1989. The mystery of his family dispute as stated by him to be the sole reason for not depositing the consideration amount of the plot no. D/15, as clearly stated by him in his aforesaid application dated 31.5.1996 however is unfolded by his own conduct, inasmuch as, the petitioner is said to have executed the power of attorney on 13.6.1994 in favour of Ravindra Kumar Acharya who is the nephew (Bhagina) of the petitioner and the son of the aforesaid self-serving President of the Society namely, Ram Bilash Acharya who had passed the aforementioned illegal orders for allotment of plot no. D-15 in favour of the petitioner on 23.12.1987. It has come on record in the rejoinder affidavit filed by the respondent no.6 that an adjascent plot no. D-16 was allotted in the name of the wife of Ravindra Kumar Acharya and Ravindra Kumar Acharya was in fact fighting the proxy litigation on behalf of the petitioner who had neither by himself filed the case before the Registrar of the Cooperative Society under Section 48 of the Act nor this writ application. From the records of this writ application, it is clear that it is Raveindra Kumar Acharya who has executed Vakalatnama and has also sworn the affidavit in support of this writ application. In such a situation, it becomes clear that the father Ram Bilash Acharya in capacity of the President had made an illegal 11 allotment of plot no. D-15 in the name of the writ petitioner and his son Ravindra Kumar Acharya has continued to carry the legacy only left by his father to make the affairs of the society a personal pocket affair. This Court, therefore, having noticed the basic infirmities in the claim of the petitioner of being a valid allottee, would not disturb the findings of fact and would hold that the impugned orders do not suffer from any error either on fact or in law. Consequently, this Court would find no merit in this writ application and the same is hereby dismissed. Abhay Kumar (Mihir Kumar Jha, J.)