THE HON’BLE SRI JUSTICE M.S.RAMACHANDRA RAO W.P.No.14613 of 2001 %30.04.2013 # Ashish Kumar Bhaumik and another ...PETITIONER VERSUS $ Smt. Pramila Widow of late Sri M.Laxma Reddy and others. ...RESPONDENTS < GIST: > HEAD NOTE: ! Counsel for the Petitioners : Sri B.Vijayasen Reddy. ^ Senior Counsel for the respondents 1to 4 and 9 to 12: Sri E.Manohar, representing Sri Ashok Reddy ^ Counsel for the respondent 6: Sri C.V.R. Rudra Prasad ^ Counsel for the respondents 7 and 8: Government Pleader ^ Counsel for the respondents 13 to 17: Sri Avinash Desai ? Cases referred: [1] AIR 1990 AP 171 (FB) 2( 2011) 11 SCC 524 3 (2010) 10 SCC 677 4 2010 4 ALD 500 5 1989 (3) ALT 401 6 (2011) 1 ALD 385 7 AIR 1964 SC 477 8 (2003) 6 SCC 675 THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO W.P.No.14613 of 2001 ORDER : In this writ petition the petitioners challenge the award dt.15.11.1995 in A.R.C.No.85 of 1993 of 7th respondent as confirmed by order dt.27.03.2001 in C.T.A.No.19 of 1996 of the Co-operative Tribunal constituted under the A.P. Co- operative Societies Act, 1964 (for short, “the Act”) /8th respondent. 2. The subject matter of this litigation is a house plot No.73, Block-III, Sy.No.403/1 and 120/1, admeasuring 700 Sq.yds., within MCH Ward No.8, Block No.II, at road No.17, Jubilee Hills, Hyderabad, originally belonging to 6th respondent-Society. 3. This plot was initially allotted by 6th respondent to one M. Laxma Reddy (husband of 1st respondent and father of respondent Nos.2, 3 and 4) by letter Ref.JCS/5/83 dt.14.07.1983/12.08.1983 after he paid a sum of Rs.4000/- to it vide Receipt No.1946, dt.16.6.1982. He also deposited a sum of Rs.9,904.25 ps. for which a receipt No.2104, dt.23.9.92 was issued by 6th respondent. He was given membership number M.S.No.3186. He died on 25.01.1987 leaving respondents 1 to 4 as his legal heirs. 4. The 5th respondent approached 6th respondent claiming that she is the grand daughter of M. Laxma Reddy and, prior to his death, he transferred the above plot to her under a letter dt.13.12.1986 requesting it to transfer the said plot along with his membership in her favour and also executed an affidavit dt.15.12.1986 to that effect. The Secretary of 6th respondent accepted the said request vide proceedings No.JCS/3186/86 dt.16.12.1986 subject to ratification by the Managing Committee on 25.12.1986. The 6th respondent also executed a registered sale deed dt.25.07.1987 in favour of 5th respondent. Subsequently, the 5th respondent executed a regd. General Power of Attorney dt.21.12.1991 in favour of one B. Hanumanth Rao authorizing him to sell the plot. The writ petitioners purchased the plot under a registered sale deed dt.02.03.1995 from 5th respondent executed through her General Power of Attorney holder B. Hanumanth Rao. 5. The 2nd respondent and his counsel addressed letters dt.21.07.1990, 20.11.1990 and 13.04.1992, apart from legal notices dt.14.04.1991, 24.06.1991 and 02.01.1992, to 6th respondent furnishing the death certificate, legal heir certificate, etc. and requested it for transfer of allotment of the plot in his favour on the ground that respondent Nos.1, 3 and 4 have no objection to the transfer of the membership and the plot in his name. The 6th respondent through a letter dt.20.04.1992 directed the respondent Nos.1 to 4 to approach the Dy. Registrar of Co- operative Societies (Housing) in the matter. 6. Thereafter, respondent Nos.1 to 4 approached 7th respondent u/s.61 of the Act for relief contending that 6th respondent and 5th respondent were acting in collusion; 6th respondent is not transferring the membership and allotment of plot of M. Laxma Reddy in the name of 2nd respondent. They prayed for a direction to 6th respondent- Society to substitute the names of respondent Nos.1 to 4 or of the 2nd respondent and transfer membership and allot plot of M.Laxma Reddy in their name or in the name of 2nd respondent in place of M. Laxma Reddy as his legal heirs (or) in the alternative in the name of respondent Nos.1 to 4 and also execute necessary document and register the above plot. The said dispute was numbered as A.R.C.No.85 of 1993 by 7th respondent. They contended inter alia that 5th respondent showed false and fabricated documents to claim the property of M. Laxma Reddy, that he died intestate and they alone are entitled to succeed to the plot. They also contended that documents produced by 5th respondent were never executed by M. Laxma Reddy during his lifetime. 7. Before the 7th respondent, 6th respondent filed a counter contending that the above plot was transferred by M. Laxma Reddy in December, 1986 to 5th respondent and he gave a notarized affidavit dt.15.12.1986 requesting for the said transfer; the 5th respondent also gave a similar affidavit; the managing committee of 6th respondent- Society in its meeting held on 25.12.1986 approved the transfer of membership and the above plot of M. Laxma Reddy to 5th respondent; and a sale deed dt.25.07.1987 was executed in favor of 5th respondent by the 6th respondent-Society. It also pleaded that it had no knowledge of the false and fabricated documents said to have been submitted in respect of property of M. Laxma Reddy. It further contended that transfer was effected by M. Laxma Reddy during his lifetime and it had no obligation to substitute and transfer membership or the plot in the name of 2nd respondent. 8. Before the 7th respondent, notice dt.30.08.1993 was issued to 5th and 6th respondents fixing the date of hearing of the A.R.C.No.85 of 1993 on 18.09.1993. A second notice dt.27.09.1993 was also sent by registered post to 5th respondent informing the date of hearing on 27.09.1993 which was acknowledged on 01.10.1993. Subsequently notices dt.20.11.1993, 7.2.1994 and 16.2.1994 were also sent and a regd. letter dt.16.2.1994 sent to her was returned unserved. On furnishing correct address of 5th respondent represented by her GPA holder by 2nd respondent through an affidavit dt.23.4.1994, fresh summons were sent to 5th respondent on 5.7.1994 and 2.9.1994. Since the said two registered notices sent to her by registered post were returned unserved, the 7th respondent treated it as deemed service and set her ex- parte. 9. By order dt.15.05.1995, the 7th respondent allowed the A.R.C.No.85 of 1993 and held that respondents 1 to 4 being the legal heirs of M. Laxma Reddy, the original member with Membership M.S.No.3186 and allottee of the above plot, they are entitled to the said membership and the plot and he directed 6th respondent-Society to de- register the plot registered in favour of 5th respondent under sale deed dt.25.07.1987 and register it in favour of 2nd respondent duly transferring the membership No.3186 in his favour. He held that M.Laxma Reddy was a bonafide member of 6th respondent-Society; respondents 1 to 4 were his legal heirs; to the naked eye it is clear that the signatures of M. Laxma Reddy were forged in the affidavit dt.15.12.1986 and letter dt.13.12.1986 furnished to the 6th respondent-Society when compared with the signatures of M. Laxma Reddy in letters dt.03.07.1978 and 18.09.1982 signed by him; there was no necessity to send the signatures for expert opinion; the affidavit dt.15.12.1986 and the Xerox copy of a letter dt.13.12.1986 are forgeries; as the plots are very valuable and there is a possibility of persons forging documents to secure the plots, it was incumbent on 6th respondent to take precautions before affecting transfers; the 6th respondent should have issued a notice by RPAD to M. Laxma Reddy informing him that it had received an application for transfer of his plot and membership and asking him to confirm the said request; in such an event, any fraud could have been easily discovered if M. Laxma Reddy had denied the said documents; the silence of the Society in not replying to the letters addressed to it by respondent Nos.1 to 4 cannot be countenanced and its plea that the letters written by respondent Nos.1 to 4 were not noticed is not tenable; and that the 6th respondent-Society showed scant regard to procedures of administration and there is something fishy in the entire transaction of transfer of membership and plot of M. Laxma Reddy to 5th respondent. 10. Challenging the same, 5th respondent filed an appeal u/s.76 of the Act before the 8th respondent/Co- operative Tribunal. She impleaded the petitioners herein as respondent Nos.7 and 8 in the appeal as she had transferred the above plot to them under a registered sale deed dt.02.03.1995 through B. Hanumantha Rao, her General Power of Attorney. The said appeal was numbered as C.T.A.No.19 of 1996. 11. By order dt.27.03.2001, the said appeal was also dismissed by the 8th respondent Tribunal confirming the findings of 7th respondent. The 8th respondent rejected the contention of 5th respondent that no notice was served on her and no opportunity was given to her by 7th respondent while disposing of A.R.C.No.85 of 1993. It held that she received the notice dt.20.11.1993 sent by 7th respondent to participate in the hearing before him on 01.10.1993 and once this notice was received, 5th respondent ought to have ascertained the further dates of proceedings/hearings and participated in the proceedings. It held that 6th respondent-Society did not choose to issue any notice to Late M. Laxma Reddy who was alive by then to ascertain whether or not the request for transfer of his membership and of his plot was actually made by him and no statement of the said M. Laxman Reddy was also recorded. Even the minutes of the meeting dt.25.12.1986 wherein the 6th respondent-Society is alleged to have approved the transfer of membership and the plot of M. Laxma Reddy to 5th respondent were suppressed and not produced by 6th respondent, and therefore, adverse inference has to be drawn against the 6th respondent; the alleged transfer of membership of M. Laxma Reddy and of the plot allotted to him are shrouded in suspicious circumstances; the 5th respondent claimed to be the grand- daughter of the brother of M. Laxma Reddy but when he had two sons and a daughter apart from his wife who were legal heirs and who would normally succeed to his property, the 6th respondent could not have acted on the request of 5th respondent; no valid explanation is given by 6th respondent for not replying to the letters sent by respondents1 to 4; and the 7th respondent rightly concluded that the whole transaction is fraudulent and due procedure was not followed by 6th respondent. It also held that the way in which the President of the Society acted and the subsequent stand taken by him showed that he had scant respect for law and collusiveness was evident on the face of the record. 12. Challenging the same the present writ petition is filed by the petitioners. Pending the writ petition the 2nd respondent died and his legal representatives were brought on record as respondent Nos.9 to 12. 13. Heard Sri B. Vijayasen Reddy-counsel for the petitioners; Sri E. Manohar, Senior advocate representing Sri Ashok Reddy for respondent Nos.1 to 4 and 9 to 12; Sri C.V.R. Rudra Prasad for 6th respondent; the Government Pleader for the respondent Nos.7 and 8; and Sri Avinash Desai for respondent Nos.13 to 17, who claim to have obtained an agreement-of-sale dt.14.11.1996 from the 5th respondent. Notice to 5th respondent is returned unserved. 14. The counsel for petitioners contended that the order of the Co-operative Tribunal confirming the order of the 7th respondent is contrary to law and without jurisdiction; the dispute considered by the 7th respondent is not one contemplated u/S.61 of the A.P. Co-operative Society Act, 1964; it is not with regard to management of the Society and there is no dispute between the member or members of the Society; the 7th and 8th respondents failed to see that the plot was already transferred in the name of 5th respondent and she had transferred it to petitioners and therefore 6th respondent-Society had no locus standi in any manner to deal with the said plot; the only remedy available to respondent Nos.1 to 4 was to get the registered sale deed executed by 6th respondent in favour of 5th respondent declared as null and void by approaching the competent Civil Court; the 7th respondent cannot act as a substitute to a Civil Court; there is a collusion between respondent Nos.1 to 4 and 5th respondent in order to defeat the legitimate rights of the petitioners; once the plot was transferred in the name of 5th respondent, the 6th respondent-Society became functus officio and the dispute did not come within the purview of Section 61. He further contended that issues such as forgery cannot be gone into and decided by an arbitrator like the 7th respondent appointed under the provisions of Section 61 of the Act. 15. The counsel for 6th respondent contended that it had rightly transferred the membership and the plot of M. Laxma Reddy to 5th respondent; the request of respondent Nos.1 to 4 could not be complied with because by the time they made their request in 1990, the plot was already transferred in favour of 5th respondent by way of a registered sale deed executed in her favour on 25.07.1987; there is a title dispute between private parties and the parties have to approach a competent civil court and the issue cannot be subjected to arbitration u/S.61. 16. The learned Senior Counsel appearing for respondent Nos.1 to 4 contended that concurrent findings of fact recorded in award of the 7th respondent and the order of the 8th respondent tribunal do not suffer from any error apparent on face of record warranting interference by this Court under Art.226 of Constitution of India; that the transfer of membership and the plot was made by 6th respondent to 5th respondent in violation of bye-laws No.11(a) and (b) and 13 of registered bye laws of 6th respondent-Society. He contended that there is nothing to show that 5th respondent has been admitted as a member by the Managing Committee of 6th respondent-Society prior to execution of the sale deed dt.25.07.1987 by 6th respondent to 5th respondent as required under bye-law 11(a); no evidence is adduced as to the sanction of the Managing Committee for the transfer of the membership and plot of M. Laxma Reddy to 5th respondent; there is no dispute that respondent Nos.1 to 4 are the legal representatives of M. Laxma Reddy and after his death they addressed several letters to 6th respondent which were not replied; both 7th and 8th respondents have adversely commented on the conduct of 6th respondent- Society and held that the transfer is not valid; notices were sent by registered post with acknowledgment due to 5th respondent as recorded by the 7th respondent in his order and she did not participate in the proceedings after receiving the notices; the 5th respondent, during the pendency of proceedings before 7th respondent transferred the plot to petitioners with a view to defeat the rights of the respondent Nos.1 to 4; the petitioners do not appear to have made any enquiries before purchasing the plot and therefore, they are not bonafide purchasers; the petitioners are pendente lite transferees and will only get what the 5th respondent would get; the 7th respondent acts as a Civil Court and has got all the powers of a Civil Court; there is no need to annul the sale deed between 5th respondent and petitioners; the 7th respondent had jurisdiction to decide the dispute between the respondent Nos.1 to 4 and 6th respondent u/S.61 of the Act as it had illegally admitted 5th respondent in the place of M. Laxma Reddy as a member and had executed the sale deed dt.25.07.1987 in her favour; the remedy of the petitioners is only to sue 5th respondent for return of the amount which they had paid under the sale deed; the concurrent findings of fact of 7th and 8th respondents are based on appreciation of evidence on record; and therefore, the writ petition be dismissed. 17. I have noted the contentions of the respective parties. 18. Bye-law Nos.11 and 13 of the registered bye-laws of the 6th respondent state : 11.(a) No member shall be permitted to transfer any share or interest held by him unless; (i) the member has held such share or interest for not less than one co-operative year, and, (ii) transfer is made to the person, who has been admitted as member by the Managing Committee of the Society; 11.(b) The transfer shall not be operative unless and until (i) it is sanctioned by the Managing Committee; and (ii) the name of the transferee has been entered in the share transfer register, or admission register; (iii) the member-transferee pays the Society, before such transfer, the total call money etc., due in respect of that plot, and provided also the refund due to the member-transferor, shall be made only by the Society. … … … 13. (1)If a member dies, his membership shall ipso facto cease. (2)Every member may nominate any person or persons to whom the profits or assets of the Society or any other money due to him, shall be transferred or paid. The number of persons so nominated, shall not exceed the number of shares held by the member. When a member nominates more than one person, in respect of shares held by him, he shall as far as possible, specify the amount to be transferred or paid, to each nominee in terms of whole shares. (3)A nomination made by the member or any variation or revocation thereof, shall not be valid and shall not, in the event of the death of the member, have effect unless : (i) it is made in writing in Form-1, and signed by the member in the presence of atleast two witnesses, and (ii) it is entered in the books of the Society kept for the purpose. (4) If no nomination has been made by a member, the Society shall on the death of the member, by notice exhibited at the office of the Society, invite claims or objections for the transfer or payment of the share or interest of deceased member, to a heir or legal representative within the time specified in the notice. After considering the objection or claims, if any, received in this behalf and after making such enquiries as the Managing Committee considers necessary, it shall decide as to the person who, in its opinion, is the heir or the legal representative of the deceased member and proceed to transfer or pay the share capital or interest of the deceased member to such person. Such person shall be admitted as a member, before the transfer of shares in his name is given effect to. (5)In case of payment of value of share or interest or other moneys due to the deceased member, the Managing Committee shall obtain sureties for the amounts involved in such payments, from two members of the Society. 19. The admitted facts are that M. Laxma Reddy, the husband of the 1st respondent and father of respondent Nos.2 to 4 was the allottee of the subject plot under letters dt.14.07.1983 and 12.08.1983 of the 6th respondent- Society. He expired on 25.01.1987 and respondent Nos.1 to 4 are his legal heirs. The 5th respondent produced an affidavit dt.15.12.1986 and a xerox copy of a letter dt.13.12.1986 allegedly signed by M. Laxma Reddy requesting 6th respondent-Society to transfer his plot and membership to 5th respondent. It is contended by petitioners and 6th respondent-Society that the Society accepted the request of M. Laxma Reddy vide reference No.JCS/3186/86, dt.16.12.1986 and transferred the plot and membership in favour of 5th respondent. 2 0 . It is the contention of 6th respondent and the petitioners that the Managing Committee of 6th respondent in a meeting held on 25.12.1986 approved of the transfer of membership and plot of M. Laxma Reddy to 5th respondent and that a sale deed was executed in favour of 5th respondent by 6th respondent on 25.07.1987. Admittedly, the minutes of the meeting of the Managing Committee of 6th respondent dt.25.12.1986 approving the transfer of membership and directing transfer of the plot from M. Laxma Reddy to 5th respondent were not filed before 7th respondent or 8th respondent. No explanation is furnished by 6th respondent for their non-production. In the absence of proof of passing of such a resolution of the Managing Committee approving the transfer as mandated bye-law 11(b), the transfer would not be operative (assuming for the sake of argument that the letter dt.13.12.1986 and affidavit dt.15.12.1986 were executed by M. Laxma Reddy, although this fact is also seriously disputed by respondent Nos.1 to 4). There is also no evidence to show that 5th respondent had been admitted as a member of the Managing Committee of 6th respondent-Society as mandated by bye-law No.11 (a)(ii). Thus no record is produced by 6th respondent before 7th respondent and 8th respondent to establish that it had followed the procedure laid down in the bye-laws before executing the sale deed in favour of 5th respondent. In view of this the sale deed dt.25.7.1987 executed by Secretary of 6th respondent Society in favor of 5th respondent does not create any right, title or interest in favor of 5th respondent and consequently the sale deed dt. 2.3.1995 executed by 5th respondent in favor of petitioners also does not create any right in the petitioners. They are are declared null and void and of no consequence and are liable to be ignored. 21. It is settled law that bye-laws constitute a contract between a Society and it’s members (as held in Konaseema Co-op Central Bank v. N.Seetharama Raju[1]). In view of the mandate contained in bye-law 11 extracted above, without proof of passing of a resolution of the Managing Committee permitting the transfer of membership and the plot from M.Laxma Reddy to 5th respondent, no title passes to her merely because a sale deed is executed by an office-bearer of 6th respondent in her favour on 25.7.1987. 22. In State Bank of Travancore v. Kingston India Computers Private Limited[2], the Supreme Court held that a suit filed on behalf of a company without a resolution of the Board of Directors delegating its powers to the signatory of the plaint is not maintainable. Since the 6th respondent is also a Co-operative Society and a body corporate in view of S.9 of the Act and it’s bye-laws require that interest of a member can only be transferred after sanction by it’s Managing Committee, in the absence of proof of such sanction by the Managing Committee, no right, title or interest in the plot can be conferred on 5th respondent by it. 23. I am also in complete agreement with the finding of 7th and 8th respondents that 6th respondent-Society ought to have issued a notice to M. Laxma Reddy to confirm whether or not he gave a letter dt.13.12.1986 and affidavit dt.15.12.1986 seeking transfer of his membership and plot to 5th respondent before executing the sale deed dt.25.07.1987 in favour of the 5th respondent. This would have ensured that any fraud played by 5th respondent would have been discovered immediately before execution of the sale deed by 6th respondent in her favor. The conduct of the 6th respondent-Society in not producing the resolution dt.25.12.1986 and in not replying to the several letters addressed by the respondent Nos.1 to 4 also confirms the suspicion that the whole transaction of transfer of the plot of M. Laxma Reddy in favour of the 5th respondent was done in a clandestine and highly suspicious manner as rightly held by 7th and 8th respondents. 24. In Ritesh Tewari v. State of Uttar Pradesh[3] , the Supreme Court dealing with the scope of exercise of jurisdiction under Art.226 of the Constitution of India observed: “26. The power under Article 226 of the Constitution is discretionary and supervisory in nature. It is not issued merely because it is lawful to do so. The extraordinary power in the writ jurisdiction does not exist to set right