Suman Sahkari Grih Nirman Samiti v. The State Of Bihar & Ors

Patna High Court CWJC No.6421 of 2009 (7) dt.06-04-2012 2 allotted one of the residential plots bearing Plot No.1718, Block No.C at Khemni Chak, Village Kama, P.S. Phulwari in the district of Patna in favour of Jaleshwar Nath Sinha. A registered sale deed was executed on 24.1.1991 in his favour for a consideration amount of Rs.90,000/-. The sale deed was signed by Subodh Kumar Sinha on behalf of his brother Jaleshwar Nath Sinha by virtue of being holder of power of Attorney. It is relevant to state that Jaleshwar Nath Sinha was serving in Gujarat under N.T.P.C. during the relevant period. It is the case of respondent no.6 that plot in question was not handed over to him. The respondent no.6 even goes to the extent of stating that the plot in question was not even acquired by the Society and there was dispute regarding the boundary and physical availability of the plot. Being aggrieved, the respondent no.6 filed an application under section 48 of the Cooperative Societies Act, 1935 giving rise to Misc. Case No.8/94 before the Assistant Registrar, Cooperative Societies seeking a direction to the petitioners to refund the amount deposited with interest on account of non-availability of the plot. After hearing the parties, the Assistant Registrar, Cooperative Societies vide his elaborate order dated 19.12.1996 accepted the claim of respondent no.6 and directed for refund of the money with 12% interest w.e.f. Patna High Court CWJC No.6421 of 2009 (7) dt.06-04-2012 3

24.1.1991. The Assistant Registrar also recommended supersession of society. The Society being aggrieved preferred an appeal bearing Appeal No.10/97 before the Deputy Registrar, Cooperative Societies, Patna who after hearing the parties affirmed the order dated 19.12.1996 passed by the Assistant Registrar, Cooperative Societies. The Appellate Court, however, observed that the money be returned only to Jaleshwar Nath Sinha after taking receipt from him. The Socieity next preferred a revision application before the Registrar, Cooperative Societies giving rise to Revision Case No.60/06 which too was dismissed on 25.2.2009 as not maintainable. This led the petitioner to move this court in writ jurisdiction. The petitioners have assailed the impugned orders firstly on the ground that unless and until the registered sale deed is cancelled, the respondent no.6 and his brother would not be entitled to refund of money. Secondly, if the order of the respondents is allowed to stand, the Society would suffer double jeopardy. On one hand it would have to refund the money and on the other hand the sale deed still would continue to remain in the name of Jaleshwar Nath Sinha, despite refund of money to him. In such circumstances, the Society would never be in a position to sell the plot and recover it’s cost incurred in Patna High Court CWJC No.6421 of 2009 (7) dt.06-04-2012 4 purchasing the plot from the original raiyat. In support of his submissions that the sale deed can be annulled only by a decree of Civil Courts, learned counsel has referred to decision in the case of Smt. Swati Pande & Ors Vs The Registrar, Cooperative Societies, Bihar, Patna & Ors, reported in 2007(2) PLJR 525 as well as decision rendered in the case of Sri Ram Ayodhaya Prasad Vs The State of Bihar, reported in 2012(1) PLJR 610. In the case of Smt. Swati Pande (supra) the learned Judge observed that the Registration Act does not specifically provide any mode or manner in which a deed of transfer earlier registered before the Registrar of Document could be annulled, but even if the Registrar of Document had the power to admit such a deed of annulment for registration, it had to be done as per the requirement of principles of natural justice and cannot be done to the detriment of the person in whose favour the earlier deed of transfer was registered. It was held that once a property is transferred by a registered document, a vested civil right devolves upon the transferee and to nullify such vested right, only a civil court of competent jurisdiction would have the right to decide the matter. In case of Sri Ram Ayodhaya Prasad (supra), the petitioner Patna High Court CWJC No.6421 of 2009 (7) dt.06-04-2012 5 moved this court for quashing the registered sale deed of an apartment along with other connected reliefs. The Division Bench of this court affirming the order of learned Single Judge held that the writ court in its extraordinary prerogative writ jurisdiction would not issue any such direction. The petitioners next contended that the power of attorney executed by Jaleshwar Nath Sinha in favour of respondent no.6 is defective. An intervention application has been filed with a prayer that the plot allotted in favour of Jaleshwar Nath Sinha may be allotted to him.The prayer of the intervener cannot be granted for two reasons; firstly, Interlocutory Application is not on record. Secondly, such claim on behalf of intervener cannot be adjudicated in a writ filed by the Society against statutory orders which is at variance with the reliefs sought by the intervener. Further more, it would be for the Society to decide allotment in case one surrenders a plot as per its byelaws and regulations at instance, which may involve examination of comparative cases of other members desirous of taking the plot. As such intervention application cannot be allowed and is rejected. Now coming back to the main issue, learned counsel for Patna High Court CWJC No.6421 of 2009 (7) dt.06-04-2012 6 the petitioner Society submits that there would be some difficulty in refunding the money as the name of the plot even after refund of the money would continue to stand in the name of Jaleshwar Nath Sinha. In such circumstances, there will be difficulty for the Society to allot the said plot to another member. It appears both from the orders of the Assistant Registrar and the Deputy Registrar, Cooperative Societies that allotment order made in favour of Jaleshwar Nath Sinha was not acted upon as there seems to be serious dispute whether the plot was actually purchased/acquisitioned or not by the Society. Further more, section 48 of the Bihar Cooperative Societies Act, 1935 also provides that if any dispute touching the business of registered society arising amongst members and society, the same shall be referred to the Registrar. I have not referred to other disputes which as well can be referred to Registrar, Cooperative Society as it would not be relevant for the case. Admittedly, if a member does not get plot despite registration and payment of full cost, he can bring such dispute under section 48 of the Act before the Registrar. The Assistant Registrar as well as the Deputy Registrar have found that the complaint made by the Respondent no.6 has merit and as such Patna High Court CWJC No.6421 of 2009 (7) dt.06-04-2012 7 on failure to hand over the plot to the Society was directed to refund the money with interest. Respondent no.6 who holds power of attorney on behalf of his brother Jaleshwar Nath Sinha, in whose favour the plot was allotted, submits that both he and his brother are willing to give an undertaking with an affidavit that they would not make any claim to the plot in question and the Society would be at liberty to settle the same with any one else. Shri Jaleshwar Nath Sinha would appear in person and give an undertaking with an affidavit before the Society with a copy to the Assistant Registrar, Cooperative Societies that he would not make any claim to the plot in question and would not object to any settlement made thereof by the Society, the latter would refund the amount deposited by him within three months from the date of receipt of copy of the order. This would take care of the difficulty of society in transferring or allotting the suit land in future. A statute has to be interpreted in a manner which would advance the goals and objectives for which the legislation was engrafted. The other issue is whether the respondent no.6 would be entitled to 12% interest from the date of registration. So far as this issue is concerned, I find that the rate of interest granted by Patna High Court CWJC No.6421 of 2009 (7) dt.06-04-2012 8 respondent no.1 is excessive and the same is reduced to 6% w.e.f. the date on which the amount was deposit. If the Society refunds the money with interest, there would be no need to proceed under the Certificate manual. With the aforesaid observations and directions, this writ application stands disposed of. KHAN/- (Samarendra Pratap Singh, J)