ss^i-s- HIGH COURT OFCHHATTISGARH AT BILASPUR W.P. No. 792 of 1997 H.S. Kalarthi & Another Vs. Revenue Board of MP & Others Post of pronouncement oforders on'?<-'/04/2010 •c- Sd/- N.K. Agarwal Judge •2/ ates5££^^~'£- -^SSSSEa ^^^^•^ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR W.P, No, 792 of 1997 Petitioners Respondents 1. H.S. Kalarthi S/o Shri Tejnarayan, aged bout 52 years R/o 64, Hanuman Nagar, Durg. 2. Krishna Kumar S/o Shri H.S. Kalarthi, aged about 32 years R/o 65, Hanuman Nagar, Durg. Versus 1. Revenue Board of MP Gwalior. 2. Sant Kumar Agrawal, S/o Late Sarju Prasad Agrawal, Agrawal Hardware, Lohar Chowk, Purani Basti Raipur (MP) (Now CG). 3. Rajkiya Sahkari Karamchari Grih Nirman Samiti Maryadit Titurdeeh District Durg (CG) through OIC . 4. Ramakant Mishra Then President, Rajkiya Sahkari Karamchari Grih Nirman Samiti Maryadit Titurdeeh District Durg (CG). 5. Deputy Registrar, Society, Durg (CG). 6. Joint Registrar, Societies, Raipur (CG). Cooperative Cooperative '^(^ Writ Petition under Article 227 of the Constitution of India fSinale Bench: Hon'ble Mr. N.K. Aaarwal, J.) Present : Shri Avinash Mishra, Advocate for petitioners. Shri Sant KumarAgrawal, respondent No. 2 in person. Shri GD Waswani, Govt. Advocate for State. Shri Vivek Verma, Advocate for respondent No. 3. ORDER (Passed on 3 o day ofApril, 2010) 1. The instant petition is directed against the order dated 28.09.1996 passed by the Ist respondent in case No. ^-s^--;^-^^^^^^^?,^^ 77/623/R/94, affirming the order dated 29.07.1995 passed by the Joint Registrar, Cooperative Society, Raipur in an appeal preferred against the order dated 11.01.1994, passed by the Deputy Registrar, Cooperative Society, Durg, in case No. 64- 15/89. 2. The brief facts of the case are as under: 3. The llnd respondent was a member of lllrd respondent i.e. Rajkiya Sahkari Karamchari Grih Nirman Samiti Maryadit (for short 'hereinafter referred to as 'the Society'). Plot No. 64 & 65 were allotted in favour of llnd respondent by the Society. The llnd respondent paid a sum of Rs. 29,000/- towards the cost of plot and construction of house. Loan amount of Rs. 34,000/- was sanctioned. 4. Being aggrieved by the conduct of the President of the Society, the llnd respondent started making complaint against him. The Society handed over the possession of incomplete house constructed over the plot and directed the llnd respondent to complete the remaining work at his own. 5. Aggrieved by the behavior of President of the Society in one of the complaint dated 05.06.1984 he stated: "control the behavior of the President or cancel his membership." 6. Treating above letter as resignation letter, the President of the Society vide its letter dated 08.08.84 cancelled his membership, returned the amount deposited by him in December, 1984. Meanwhile, the above plots were transferred to the petitioners vide registered sale deed dated 22.10.84 showing therein sale n1-T——r—T .g <.i • . U '•. ! ri€. :^.. ^^z of plot only and also handed over possession of the house after breaking the lock put by the llnd respondent. 7. The llnd respondent filed a dispute under Section 64 of the Chhattisgarh Cooperatives Societies Act seeking relief of declaration to declare the order dated 08.08.84 (cancellation of membership) and sale deed dated 22.10.84 as illegal & void and for restoration of possession of the plot and house constructed thereupon. 8. The above petition was dismissed by the Deputy Registrar. There-against appeal preferred was allowed and award was passed directing the petitioners and lllrd respondent to restore his possession over the suit house, if he re-deposits a sum of Rs. 30,000/- to the Society. The petitioners preferred an appeal there-against before the Board of Revenue which was also dismissed. Hence this petition. 9. As per llnd respondent, he re-deposited Rs. 30,000/- with the Society. 10. Shri Avinash Mishra, learned counsel appearing for the petitioners would submit that the llnd respondent himself resigned from the membership of the Society; received back the consideration paid by him for allotment of plot and construction of house; the Society transferred the above plot in petitioner's favour vide registered sale deed, also handed over its possession, the cooperative court has no jurisdiction to declare the sale deed as void and in such a situation the order passed by the courts below are without jurisdiction, patently illegal and deserve to be set aside. •sf -f:S===^ "!'^v "%^ y^^^ "^&^^i ^ 11. By placing reliance upon judgment of MP High Courtin case of Dr. Kusum Verma and another v. Pritam Singh Gulati and another Shri Mishrafurther submit that the cooperative court cannot grant relief of declaration as prayed for. 12. On the other hand, Shri Sant Kumar Agrawal, llnd respondent appeared in person would submit that in order to show his anger in the complaint made by him against the President to governing body of the Society he had written that if the behavior of the President cannot be controlled then the Society may cancel his membership. That by itself is not sufficient to cancel his membership by resignation as according to him clause 1 1 of bye-laws of the Society provides that the resignation letter must be annexed with affidavit assigning the reason therefor. The same is required to be placed before the governing body and only after passing resolution in this behalf by the governing body the said resignation can be accepted, in the instant case, neither any affidavit was filed nor any resolution was passed by the Society and therefore, the order dated 08.08.84 is per se illegal and void. 13. Shri Agrawal further contend that the said plots were allotted in his favour; loan was sanctioned in his favour; as per letter sent by MP State Sahakari Awas Sangh loan remains in his name, the property was mortgaged with the Sangh and in such situation the said sale deed executed by the President of the Society is void ab-initio and can be ignored. It was further contended that the Society was not authorized to break the lock AIR 1998 Madhya Pradesh 199 .-^- put by him over the suit house and hand over its possession to the petitioners. The dispute was touching the business of the Society and Joint Registrar as well as the Board of Revenye has rightly passed the order which deserves to be upheld. 14. I have heard the counsel appearing for the parties, peruse the order impugned and records of courts below. 15. In order to appreciate the rival contentions raised by the parties, it would be appropriate to re-produce the relevant portions of Section 64 (iv) ofthe MP Co-operative Societies Act, 1960 (for short 'the Act'), and Clause 11 of Bye-laws of the Society which reads as under: "64. Disputes.-(l) Notwithstanding anything contained in any other law for the time being in force, [any dispute touching the constitution, management or business, terms and conditions of employment of a society or the liquidation of a society shall be referred to the Registrar] by any of the parties to the dispute if the parties thereto are among the following:- (a) XXX (b) XXX XXX XXX 2. For the purposes of sub-section (1), a dispute shall include- (i) XXX XXX XXX XXX (iv) a question regarding rights, etc., including tenancy rights between a housing society and its tenants or members; and (v) XXX XXX "'OTTf^r ^Trra?—ii:^i^^di ^ ^TFnra- ^T'^TT ^r ^t^ tft ^R^T ^f^TT ^' ^T ^Mf^f^^T ^ WST ^f^T?T ^TT?)IT ^' f^rf^RT STT^-T Ira ^^? tl^t^ai ^*1lP<1 t^ ft^T ^? W^^TTI f^^ ^ ^l4!^^ ^ ^TT'ST ^R^T ^t ^^FT ^uft ^lRl4> IT^R^^ ^TT ^R'^l^n^ Trf^f^^ siKT ^i^lRd ^f! ^TXTSTq^T f^T^ ^TPT ^^ ^ ^KUlT ^T ^^-^^^-^^^^ ^e^^T ?hTT, ^TcTrrT cp^-11 3liq^<4<p ^t^TT | ^TPT 1q^T t^ STT^-T '^'^TT ^ ^T^ST ^t ^T^CTH ^t^T | 3JT^ ^T^ST ^T^T ST^TST ^t ST^^rfW^T ^ ^CT^ cpt ^ltqT vTT •^TTT | ^f^m ^ ^CT ^rPrRr ^TPT ^r 9T[<r ^ ^R ^pFft t^p ^" ^rR?r ^T^TT^ SKT ^TPT ^ ^TI^i^ 'STT SR^I^R ^? '^7ft| f^^ ^ STT^T TT^T ^t f^TH^ ^TSTTT ^TTft ^lRfcb ^rf^T^^ af^f^TPf^T ^f^^ fiTKT ^^l^ld WT^T 1T?T ^T'cT^T TT ^t, 3T^1[Jf ?^PT 1ra TTRT ^n^^T | Srt^ ^<fl4)l^ TT^t I^TT ^TT "^'HT I ^rf^ ^TPT ^T 3R^N>R f^FTT ^TRTT t ^ v^^t^ <bl^"l ^TPtiN^T ^r^ 3|p|c||4 ^l ^R^ ffs <tft '^'^nr ^ ^T y^iici<t? ^C;^L|T ^" ^ ^t^ ^<W ^TTT 1T?[ ^TT t ^t ^? ^Pft H'RT^ftcT ^TrT ~^^ ^'^T^ Utd|c|4> ^R^T ^ ?WTT 1T^ ^t ^ltbl^ f^ vfT^ ^"€ftf^ufzr ^t ^Tyrtf^T ^? ^ |" 16. A bare perusal of above clauseof Bye-laws of the Society would reveal that by no stretch of imagination the complaint letter dated 05.06.84 sent by the llnd respondent can be treated as resignation letter nor can be accepted by the President and thus, the order dated 08.08.84 regarding cancellation of membership is per se illegal and void. 17. It is also not in dispute that on the date of execution of sale- deed in petitioners favour by the society; neither the society nor the petitioners were in possession of the suit plot and house constructed thereupon. 18. The High Court of Madhya Pradesh in case of Dr. Kusum Verma (Supra) relied upon by the petitioners, has held in para 24 & 25 as under : "24. I am of the considered opinion that the dispute in regard to the invalidity of a particular sale deed and its cancellation on the ground that it was voidable could only be determined and adjudicated upon by a civit court of competent jurisdiction. K ^ ; ^\ i/ •&..." 1 S '!t3K», 1 a- ^ y^-:~^ 25. I am further of the considered opinion that in such matters, a dispute, if any: relating to the transaction regarding a sale could be referred to the Registrar only up to the stage anterior to the passing of the title and not thereafter. A void sale deed which has to be treated as non est is however liable to be ignored at any stage." 19. As per Section 64 of the Act, the dispute raised by the llnd respondent so faras his membership and his possessory right are concerned, the same are certainly a dispute touching the constitution, management or business of the society and is triable by cooperative court. In such a situation, even if it is held that the relief of declaration to declare the sale deed as void and ineffective is within the domain of civil court. It cannot be said that the courts below have no jurisdiction to declare the order of President regarding cancellation of membership as void and ineffective and order of restoration of possession which has been taken by the petitioners illegally without due process of law. 20. This Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, should refrain itself from interfering with the order passed by the Court below, except in such cases where perversity, illegality, irregularity or jurisdictional error is writ large on the face of the record, which is not in the present case. 21. After taking into consideration the circumstances in its totality, in the considered opinion of this court the petition preferred by the petitioners under Article 227 of the Constitution of India is sans merit. The same deserves to be and is hereby dismissed. '%t€^. t J Sahu However, the petitioners are free to pursue their remedies based on sale deed before the jurisdictional civil court in accordance with law. No order asto costs. Sd/- N.K. Agarwal Judge .(