1 wp7764-04 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION WRIT PETITION NO. 7764 OF 2004 Shramsafalya Co-operative Housing Society Ltd. .. Petitioner V/s. Sitaram Vithal Sawant & Ors. .. Respondents ..... Mr. Prataprao J. Shinde for the petitioner. Mr. R. V. Govilkar for respondent No.1. ..... CORAM : A.S.OKA, J. DATE : AUGUST 23, 2011. ORAL JUDGMENT : Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the first respondent. The petitioner is a Co-operative society which was duly registered under the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as “the said Act”). On 10th December, 1990, the first respondent filed a complaint before the Assistant Registrar of the Co-operative Societies making a grievance that the order of the registration of the petitioner-society was obtained by practicing a fraud and misrepresentation. On 16th January, 1991, the Assistant Registrar of Co-operatives Societies passed an order directing that the first respondent may approach the 2 wp7764-04 Divisional Joint Registrar of Co-operative Societies, Konkan Bhavan, New Bombay for redressal of his grievance and after making the said observation, the said application was rejected. Thereafter, the first respondent filed an application in April 1991 before the Divisional Joint Registrar of the Co-operative Societies praying for cancellation of the registration of the petitioner society. By a registered deed of conveyance, the petitioner society purchased the property bearing Survey No.27, Hissa No.5, CTS No.1282 situated at Kunjur village, Bombay suburban District, Bombay. The first respondent contended that one Alfred D'Mello who was the owner of the said land executed a lease deed in his favour for a period of 99 years. On the basis of such lease deed, the first respondent stated that he constructed two chawls having 35 tenements. It was pointed out that the said Mr. Alfred D'Mello had filed a Civil Suit in the City Civil Court, Bombay and during the pendency of the said civil suit, the petitioner-society purchased the said land from the legal representatives of the deceased D'Mello on 1st November, 1985 by a conveyance deed. It was also pointed out that the first respondent has filed Civil Suit No.4723 of 1988 in the City Civil Court at Bombay for challenging the said conveyance deed. It was contended that out of the thirty one signatories to the application for registration of the petitioner society, the eleven persons are not the tenants of 3 wp7764-04 the first respondent against whom suits have been filed in the Small Causes Court, Bombay. It was contended that the alleged chief promoter was not a tenant of the first respondent. It was alleged that the registering authority has blindly believed the information submitted by the petitioner the land was a free hold land and ordered registration of the society. It was contended that the ownership of the land was itself in dispute. In the said application, prayer was made by the first respondent that record of the registration of the petitioner society be called for from the Assistant Registrar of the Co-operative Societies and necessary order may be passed as per Section 21(A) of the said Act. 2. The said application was contested by the petitioner by filing a reply. Reliance was placed on the conveyance dated 1st November, 1985 executed by the legal representatives of deceased Alfred D'Mello. It was contended that though the registered sale deed relates to area of 2832.7 sq. meters, the respondent No.1 claims himself to be the owner of the area of hardly 774 sq. meters. The Divisional Joint Registrar rejected the said application by passing a reasoned order. An Appeal was preferred by the first respondent before the State Government for challenging the said order. By the impugned Judgment and order dated 19th June, 2004, the State Government allowed the Appeal by setting aside the order of registration of the petitioner society 4 wp7764-04 and directed the Divisional Joint Registrar to immediately appoint Official Assignee in respect of the said society as per the provisions of Section 21A of the said Act. 2. The learned counsel appearing for the petitioner submitted that the petitioner society was claiming on the basis of a registered sale deed which was executed by the persons who were admittedly the legal representatives of the owner of the land and in fact the first respondent is claiming leasehold rights through the same owner. He submitted that the suit filed by the first respondent was dismissed by the City Civil Court, Bombay. He submitted that the impugned Judgment and order shows non application of mind and the Appellate Authority has erroneously gone into the issue of title. He submitted that there is no finding recorded regarding any misrepresentation by the petitioner. 3. The learned counsel appearing for the first respondent supported the impugned Judgment and order. He submitted that the first respondent has obtained a decree for possession from the Court of Small Causes, Bombay and the fact that the suit filed by the first respondent was pending in the Civil Court has not been considered by the registering authority. He submitted that though there was a purported sale deed relied upon by the petitioner as noted by the Appellate Authority, the said purported 5 wp7764-04 deed of conveyance was not accepted by the Revenue Authorities and the effect has not been given to the said deed of conveyance in the revenue record. He submitted that as there was a clear misrepresentation on the part of the petitioner, the order of registration has been set aside with which no interference is called for. 4. I have given careful consideration to the submissions. In the application made by the first respondent to the Divisional Joint Registrar, he has admitted that he was claiming on the basis of the lease deed dated 28th August, 1982 executed by Mr. Alfred D'Mello in his favour. It is an admitted position that the legal representatives of the deceased Alfred D'Mello executed the conveyance dated 1st November, 1985 in favour of the petitioner- society. It is stated that the conveyance deed was challenged by the first respondent by filling Civil Suit No.4723 of 1988. As of today, the admitted position is that the civil suit stands dismissed. There is no dispute as regards the fact that Mr. D'Mello was the original owner of the said plot whose legal representatives had executed the sale deed in the year 1985 in favour of the petitioner. The first respondent claimed to the be lessee of the said deceased D'Mello. 4. In the application made by the first respondent, the prayer 6 wp7764-04 was for exercise of the power under Section 21(A) of the said Act. The grounds on which the impugned order has been passed can be summarized as under. (i) In 25 suits filed by the first respondent before the Court of Small Causes, Bombay, the said Court has held that the first respondent is the absolute owner of the property. (ii) The City Survey records and property documents stand in the name of the first respondent and the revenue authority had not acted upon the sale deed. (iii) As many as 24 decrees of possession have been passed in favour of the first respondent by the Court of Small Causes, Bombay. (iv) There is a clear cut misrepresentation on the part of the Chief Promoter of the Petitioner before the registering authority that there is a clear and marketable title of the said land in favour of the petitioner. 5. Thus, the finding of misrepresentation is only on the ground that the present petitioner has made a representation that the title was clear and marketable. As the position stands today, 7 wp7764-04 there cannot be any dispute about the title of the petitioner to the said land as the owner. The first respondent claims through the original owner as the lessee of a part of the said land and admittedly the legal representatives of the original owner executed a conveyance deed in respect of the entire land in favour of the petitioner-society. The challenge to the said conveyance deed was made by the first respondent by filing a civil suit. The said suit stands dismissed. The decree passed by the Court of Small Causes, Bombay was in respect of the tenements constructed on the said land. The issue of ownership of the said land was not involved in the said suits. The effect of the decrees passed by the Court of Small causes, Bombay was at highest that the first respondent has established himself as the landlord in respect of certain structures on the said land. The decree passed by the Court of Small Causes, Bombay has nothing to do with the title in respect of the said land. In such suits between the landlord and tenant under the Rent Act, the issue of title of the landlord is never conclusively decided. Therefore, the finding that there was a misrepresentation made by the petitioner is completely erroneous. Thus, the impugned order will have to be set aside in as much as the ground of misrepresentation as provided in Section 21A is not proved. 8 wp7764-04 6. It is made clear that this Court has not made any adjudication on the pending petitions in this Court arising out of the suits filed in the Court of Small Causes and this Court has not made any adjudication as regards the merits of the civil suit filed by the first respondent. It is also made clear that no adjudication is made regarding the issue of the declaration of the said land as a slum area. Suffice it to say that the finding recorded by the Appellate Authority regarding the misrepresentation by the petitioner is erroneous. Therefore, the order of cancellation of registration of the petitioner deserves to be set aside. 7. Hence, I pass the following order: :: O R D E R :: i. The impugned Judgment and order dated 19th June, 2004 passed by the Hon'ble Minister of State (Co-operation), Maharashtra State, Mumbai is quashed and set aside and the order dated 15th April, 1996 passed by the Divisional Joint Registrar is restored. ii. Rule is made absolute on the above terms with no orders as to costs. (A.S.OKA, J.)