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TMI Blog2006 (5) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... iety. 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 legal transfer shall be transferred to the nominee or heir on his b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een 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 name and please allot a new plot to me, I am ready to pay any balance due amount and I am also ready to built a house immediately. Respondent No. 1 - Society admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 in OS No. 3702 of 1992 was put in execution by the Second Respondent which was marked as EP No. 2 of 997. A revision application was also filed before the High Court by the Second Respondent again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 on the date of the order of the Deputy Registrar, the deed was pending registration and once it was registered on 13-6-1991, much prior to the initiation of execution proceedings by the first respondent, it dates back to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 filed before us. Such respondents should be filed by 12.1.2006. The President of the respondent - Society shall hand over authenticated copies of the relevant documents and shall also keep the original records with the learned Counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een 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 decree passed in favour of the Second Respondent is not binding on him. The principle of res judicata, the learned Counsel would submit, is, thus, attracted and in that view of the matter, the Respondents herein cannot question the correctness or othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 30.9.1982 of the First Respondent having not been complied with, the allotment would in law, be deemed to be cancelled. An inference as regards cancellation of the said allotment must be drawn in view of the fact that plot No. 39 admittedly was allotted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posit 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 also a deed of sale was executed. The Appellant does not deny or dispute about the factum of execution of sale by the First Respondent herein in favour of Shri Srinivas as far back as on 7.02.1987. 23. In the aforementioned situation, the effect as regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 assume that the learned Attorney-General's construction of the instrument of sale that the property was intended to pass under it on the date of the instrument is correct. Section 47 of the Registration Act does not, however, say when a sale would be deemed to be complete. It only permits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant 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 deed of sale executed by him in favour of the Second Respondent herein was entitled to enter into the question as to whether the said award was capable of being executed. As the High Court rightly found that the Second Respondent has acquired a valid title with effect from a date prior to making of the awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 contentions raised by the impleaded parties, thus, need not be gone into. We must, however, place on record that our attention has been drawn to the fact that several proceedings as regard allotment of plot at the hands of the society are pending adjudication before several forums. Even a direction has been issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious 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 time the First Respondent was represented by an Administrator or an elected body. It was admittedly being represented who could do so before us in law. 33. We, therefore, direct the Registrar of the Cooperative Society to initiate an enquiry against the persons concerned who were responsible for making a wrong r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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