TaxTMI 
TaxTMI 
2006 (5) TMI 568
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....evi, herein were members of the said Society. 3. From a perusal of the bye-laws framed by the said Society, it appears that it intended to allot one plot to the family of the member concerned. The bye-laws contain provisions for nomination. Bye-laws 19 to 22 which are relevant for our purpose read as under: 19. Every member may be declaration attested by two witnesses nominate a person or persons to whom his share or interest, shall be paid or transferred on his death. A nominee may be changed by filing a fresh declaration with the Secretary. In the absence of any nomination the amount of his share or interest shall be paid or transferred to such person as may appear to the Managing Committee to be legally entitled. In case of any doubt the Managing Committee shall call for a succession certificate and act in accordance therewith. All amounts payable to a minor shall be paid to him through his guardian. 20. The Society shall keep a Book wherein the names of all persons so nominated and all revocation or variation (if any) of such nomination shall be recorded within fifteen days. 21. All shares transferred by virtue of a nomination or by him or by le....
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....fice to find out about my plot No. 39, I was told that the same has been allotted to some one else. There has been a confusion and I had not received any of your letters. I would be even grateful to you if you consider my case and allot me a suitable site to construction of the house immediately. Thanking you, Yours faithfully, For A. Anapoornamma Son. A. Jitendar Nath [Emphasis supplied] 6. In response to the said letter, the allottee was informed that due to non-payment of development charges, the said allotment had been cancelled. By a letter dated 21.6.1985, the Appellant informed the Society about the death of her mother and sought membership of the Society by way of transfer. On 18.3.1986, he made a representation for allotment of a new plot stating: I received your letter dated 20-9-1985. In this regard, I would like to inform you, that I have already submitted an affidavit duly notarized, and a death certificate of my mother Late Smt. A. Annapurnamma. Now, I enclose the original Affidavit No. 13820 dated 21-6-85, which is duly signed by gazetted officer. I request you to kindly transfer the membership to my n....
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....rship was not intimated to Srinivas, he filed a suit in the court of VII Assistant Judge, City Civil Court, Hyderabad which was marked as OS No. 3702 of 1992 wherein the Appellant herein was not impleaded as a party. During pendency of the said suit, Srinivas transferred his right, title and interest in favour of the Second Respondent herein by a deed of sale dated 25.7.1992. The Second Respondent thereafter filed an interlocutory application in the said CTA No. 6 of 1991 for being impleaded as a party thereat which was numbered as I.A. No. 651 of 1993. Both the proceedings were transferred to the District Cooperative Tribunal, Hyderabad, C.T.A. No. 6 of 1991 was renumbered as C.T.A. No. 130 of 1996. 10. In the meantime, the Civil Court granted a decree in the said original suit No. 3702 of 1992 on 16.10.1996 in favour of the Second Respondent. On 30.09.1996, an appeal was preferred by the First Respondent against the award dated 22.4.1991 before the Cooperative Tribunal. The Second Respondent also filed an application for impleading himself as a party therein. By an order dated 30.09.1996, the said appeal as also the said I.A. were dismissed in default. The said decree passed i....
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....ioner. The petitioner obtained the sale deed from her son who is the power of attorney holder of the said Srinivas under Ex. A.9. However, this Court has arrived at a conclusion that three is no valid title passed to the said Srinivas prior to the award passed by the Tribunal on 22-4-1991. The society being a party to the said award, it ought to have stopped the registration by virtue of the award and in fact, it did not stop the same, and kept in abeyance, and allowed the document to be registered to deprive the award passed by the Tribunal. Therefore, I am of the opinion, that the learned Asst. Judge has arrived at a wrong conclusion and on the wrong premise that R.2 had no vested right in the said property, allowed the petition. Hence, it suffers from infirmities and the impugned order is liable to be set aside by allowing the appeal. 12. The legality of the said order dated 22.12.1999 came to be questioned by the Second Respondent herein before the High Court by filing a revision application which by reason of the impugned order dated 13.11.2001 was allowed by a learned judge of the said Court stating: ...The lower appellate court lost the sight of the fact that as ....
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.... by the Appellant. An undertaking was also given to pay the price therefore and other legal dues as and when demanded by the Society. 15. Pursuant to or in furtherance of acceptance of the said offer, and payment made by the Appellant to the Society, an allotment letter was issued in his favour in respect of the said plot No. 400. However, interlocutory applications were filed by one B.M. Ramalingeswara Rao being I.A. Nos. 5- 10 of 2005. The matter came up before a 3-Judge Bench presided over by Hon'ble the Chief Justice of India and in an order dated 9.9.2005 noticing the statements made in this said application that the said plot was allotted to the applicant therein in 1984, it was directed to be put up on 21.9.2005. Interlocutory applications being Nos. 11 - 12 were also filed by Dr. M.S. Raju wherein also notices were issued. In interlocutory applications being Nos. 13 - 14 by, however, while issuing notice by an order dated 8.12.2005, this Court directed: Having heard learned Counsel for the parties, we are of the opinion that the respondent No. 1 - Jubilee Hills Coop. House Bld. Soc. should file its responses to the interlocutory applications for impleadment ....
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....visaged. It was argued that as the Appellant was admitted as a member in place of his deceased mother, he became eligible for being allotted the very plot being No. 39 which could not have been allotted to the said Srinivas as no sale deed had been executed in his favour at the relevant time. Once the Appellant was admitted to the membership, in all fairness, the Registrar, Society should have cancelled the allotment made in favour of the said Srinivas and allotted the same to the Appellant. In any event, the society ought to have brought the relevant records to the notice of the Registrar so as to enable him to consider grant of alternative relief in his favour as had been prayed for. 18. It was further urged that by reason of the award dated 22.4.1991, the Appellant's indefeasible right on the said plot has been recognized and the appeal preferred there against having been dismissed, the same attained finality. The said award, therefore, became final and binding and, thus, in terms of the Bye-laws the vested right of the Appellant therein could not have been taken away by reason of the decree passed in the suit. In any event as he was not a party in the said suit, the decr....
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....dicata is found to be applicable in this case. The Appellant became a member of the Cooperative Society in place of his mother. As a member of a Society, nobody had a right to be allotted a plot far less a particular plot. Plot No. 39 was indisputably allotted in favour of his mother. But before the provisional allotment could fructify by making a formal allotment and executing a deed of sale in her favour, she had expired. This fact was not communicated by the Appellant to the First Respondent - Society for a long time. He in his letter dated 16.3.1985 accepted that he was out of Hyderabad for more than two and half years. He did not deny or dispute that in the mean time the Society issued several letters in the name of all allottees to deposit the development cost. A notice had also been issued to all the allottees asking them to deposit the development charges failing which the order of allotment would stand cancelled. It stands admitted that the development charges had not been deposited in respect of plot No. 39. It may be that no formal letter of cancellation of the said plot was issued but in view of the admitted position that the requirements as contained in letter dated 30....
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....re the Registrar so as to enable him to arrive at an independent opinion. It failed and neglected to do so and, thus, it created all sorts of confusions. If the contention of the Appellant is correct, that after the said award, the Society accepted the deposit of the requisite amount from the Appellant, we fail to see any reason as to why the said fact was not brought to the notice of the said Srinivas. The appeal preferred by the First Respondent against the Appellant herein was also not properly pursued. We do not know whether any application for restoration has been filed. It may be true, as was submitted by Mr. Gururaja that the appeal was dismissed for default by the Cooperative Tribunal without giving any proper notice of transfer, but in the facts and circumstances of the case, it is not necessary to deal with the said question. If the contention of the Appellant is to be accepted that by reason of the provisional allotment made in favour of his mother, he acquired an indefeasible right only because he at a later date was admitted as a member of the Society, indisputably, the said Srinivas had acquired a higher right as not only the said plot was allotted in his favour but a....
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.... regard to the conversion of the land from agricultural into non-agricultural site which negatives the right of pre-emption would then have become a very important issue in the case and the appellant would have adduced proper proof in regard to it. The right of pre-emption is a weak right and is not looked upon with favour by courts and therefore the courts could not go out of their way to help the pre- emptor. The aforementioned decision has consistently been followed by this Court. Strong reliance has been placed by Mr. Muralidhar on Ram Saran Lall (supra). It is interesting to note that in that case the decision of the earlier Constitution Bench of this Court in Radhakisan Laxminarayan Toshniwal (supra) was not brought to the court's notice. Hon'ble the Chief Justice B.P. Sinha was a party to both the decisions. His Lordship, therefore, presumably was aware of the distinctive features of both the cases. 26. In Ram Saran Lall (supra), the Constitution Bench of this Court was considering a different question, namely, in the light of the provision relating to pre-emption what would constitute a complete sale, as would appear from the following: ...We will ass....
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....sed constructions thereupon or not was immaterial. He despite such allotment having been made in his favour was not impleaded as a party. He was a necessary party. No award therefore could have been passed in his absence. In any event, so far as plot No. 39 is concerned, the only prayer made by the Appellant was an order of injunction. The Registrar while exercising his judicial function had no jurisdiction to pass such an order of injunction in view of prayer (a) made in the application. The said award, therefore, was a nullity. In this view of the matter, the principles of res judicata will have no application. [See. Haryana State Coop. Land Development Bank v. Neelam (2005) ILLJ 1153 SC, Ram Chandra Singh v. Savitri Devi and Ors. (2003) 8 SCC 319] An order which was passed by an authority without jurisdiction need not be set aside, being a nullity, it in the eyes of law never existed. [See Balvant N. Viswamitra and Ors. v. Yadav Sadashiv Mule (Dead) Through LRS. and Ors. AIR 2004 SC 4377] 29. Furthermore, the said award was put in execution. The Executing Court in view of title passed in favour of the said Srinivas and consequent acquisition of title by him in terms of the de....
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....plot No. 400 was available for allotment. It was in that situation, the offer of the First Respondent as regard allotment of the said plot to the Appellant was accepted. The Appellate paid a huge sum therefore. The said amount has also been appropriated by the First Respondent. However, in law only because an order of allotment has been issued in favour of the Appellant herein by the First Respondent, the same by itself would not mean that thereby the right of the others for being considered therefore or for that matter any other plot which was available for allotment could be put in jeopardy. This Court whence proceeded to consider the matter of allotment of another plot in favour of the Appellant by the First Respondent, it had evidently in its mind that same plot may be available for allotment but by reason thereof, the right of somebody else was not meant to be nor could be affected. Even in exercise of its jurisdiction under Article 142 of the Constitution while making an attempt to do complete justice to the parties this Court cannot pass an order which could cause injustice to others and in particular to those who are not before it. The correctness or otherwise of the conten....
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....iew of the conduct of the First Respondent, the Appellant should be monetarily compensated. We think so. The First Respondent despite the knowledge that the award dated 22.4.1991 was not enforceable appears to have taken some amount from the Appellant. It compelled the Appellant to fight litigations before various forums. The Appellant also had to initiate an execution proceeding for execution of the award passed by the Registrar. It succeeded at least before one court. Even before this Court, a wrong representation was made by the First Respondent that plot No. 400 was available for allotment to the Appellant. The said representation was turned to be wrong. As we are not in a position to consider the correctness or otherwise of one representation or the other by the First Respondent herein as also the contentions raised by the impleaded parties, we are of the opinion that the conduct of the First Respondent is deplorable. It being a Society was obligated to render all assistance to this Court so as to enable it in turn to render a decision in accordance with law. It could not have made any mis-representation before us. We are not bothered as to whether at the relevant point of tim....