The Sajjana Co-operative Housing Society Ltd v. 1. The State of Telangana

4. Sri.R. Venkat Rao, S/o. R. Rama Swamy, Aged about 70 Years, Occ Advocate, Rl/o. H.No. B5/F9, LlG, APHB Colony, M.J. Road, Hyderabad - 500001.

5. Smt.Puspamma, Wo.P.R.Reddy, President of the Safia1a _ CoopergJlye Housing'society Ltd, Ptot No.23, MLAS Colony, Road No.12, Baniara Hills, Hyderabad. (R5 not necessary party in this petition) ...RESPONDENTS Petition under Article 2% of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, order or direction more particularly a writ in the nature of Certiorari by calling for the records from the 2nd Respondent Tribunal in C.T.A.No.16 of 2013 and consequently set-aside the Judgment dated 18.03.2014 passed by the 2nd Respondent-Tribuna'l in C.T.A.No.16/2013 as the sarfte is illegal, arbitrary, unconstitutional, discriminatory and void being in violation of principles of natural lustice and consequently upheld the decision of the 3rd respondent in 14.4412012 in ARC.9/2008, dated 04.02.2013. l.A. NO: 1 OF 2015(WPMP. NO: 23912OF 201sl Petition under Sectiori 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay of all further proceedings of the award passed in ARC.No.9 of 2008, dt. 26-1 1- 2011 issued by the 3rd Respondent Herein, including the proceedings in EP.no.79l2O12 on the file of the iii Addl. Chief Judge, City Civil Courts, Hyderabad. Counsel for the Petitioner: SRI M.VENKAT DMKAR Counsel for the Respondents No.1to3 : GP FOR COOPERATION Counsel for the Respondent No.4 : SRI M.C.ACHARYULU Counsel for the Respondent No.5 : -- The Court made the following: ORDER THE HONOURABLE SMT. JUSTICE T' MADHAVI DEVI WRIT PETMIONNO.l 8483 oF 2015 OR DER In this writ petition, the petitioner sociery is seeking a Writ of Certiorari by calting for the records from the 2d respondent Tribunal in C.T.A.No.16 of 2013 and consequently to set aside the judgment dt.18.03.2014 passed by the 2"d respondent Tribunal by declaring it as iltegal, arbitrary, unconstitutionat, discriminatory and void and also as being in violation of principles of natural justice and consequently to uphold the decision of the 3d respondent in I'A'No'44 of 2012 in A.R.C.No.9of2008dt.04.02.20l3andtopasssuchotherorderor orders.

2. Brief facts teading to the hling of the present Writ Petition are that the petitioner society was formed on 10'07'19?5 and had acceptd to purchase an extent of 28,006 square yards in PlotNos'6' 7' 9' 10 and part of 8 at Rs.13/- per square yard' The plots were formed by the legal heirs of two persons Dr' Syed Hussain and Mr' Nawab Mir Ahmed Ali Khan who jointty owned Ac'16'5 guntas of non-agricultural land in ) \ , W.P.No.l8483 of 2015 Survey Nos.l29l34 and 129135 of Shaikpet Village. After purchase of the plots, the petitioner society allotted 20 plos to 20 members who have contributed to the land cost. The petitioner society was formed with 35 memkrs and other members were in the waiting list when the plots were allotted in the year 1978. The petitioner society, thereafter, with a view to start second venture, approached the Govemment of Andhra Pradesh in the year 1980 and requested to provide [00 acres of petitioner society enrolled around 600 members and the 4ft respondent is at wait list membership No.42l. However, the attempt of the petitioner society to acquire more land faited and subsequently, the members including the 46 petitioner remained in the waiting list.

3. It is submitted that the 4th respondent filed an application before the Arbitrator in A.R.c.No.9 of 2008 for allotmenr of a plor and initialty the petitioner society which was arrayed as respondent was served with notice an<i the petitioner had appeared and attended the proceedings till

24.04.2010 and the next date of hearing was 01.05.2010, on which day the learned counsel appeared and he was informed that the next date of hearing would bc informed subsequently and since the petitioner society was not informed of the next date of hearing, there was no appearance 3 W.P.No.lE483 of 2015 and an ex Parte award was passed on 26'll '2Ol1 ' Thereafter' the petition was also referred to Civit Court in E'P'No '79 of 2012 and it was at that point of time, the petitioner society claims to have come to know about the ex parte award. In view thereof, the petitioner society filed I.A.No.44 of 20l2in A.R.C.No'9 of 2008 and the Arbitrator' vide orders dt.O4.O2.2Ot3, set aside the ex parte order and reopened the arbitration proceedings. Challenging the same, the 4th respondent fi{ed appeal in C'T.A.No.l6of2013underSection76(1)oftheA.P.Co-operative Societies Acq Lg64 before th€ Tribunal and vide iudgment dt.18.03.2014, the Tribunal has allowed the appeal by observing that by passing the award, the Arbitrator has become functus officio and further that when the award has already been referred to civil Court for execution, the Arbitrator could not have reopened the award by himsetf and the only option available to the aggrieved party is to approach the Co-operative Tribunal under Section 76 of the A'P' Co-operative Societies Act, 1964. Chaltenging the same' the present Writ Petition is 4- Leamed counsel for the petitioner submitted that in the arbitration proceedings, the petitioner who was the respondent had appeared and the 4th respondent herein, who was the appticant before the Arbitrator' ) 4 W.P.No. t8481 of20 t 5 had not filed any evidence and therefore, the petitioner society could not have filed any counter or any evidence and therefore , the ex parte award. passed by the Arbitrator was not on merits. Therefore, it is not an appealable order and the petitioner, therefore, has filed an application for setting aside the ex parte decree along with the apptication to condone the delay and the Arbitrator has considered the same and has not only condoned the delay but also set aside the ex parte decree. power to pass an ex parte decree under Rule 49 Sub_rule (4) of the Telangana Co-operative Societies Rules, 1964, it has also the power to set aside the ex parte decree under Order XVII Rule 2 of C.p.C. In support of his contention that where an order is not passed on merits, it carulot be treated as an order under Rule 49 of the TCS Rules, he placed reliance upon the decision of the Single Judge of the A.p. High Court in the case of BHEL (R&D) Employees, Coop. Housing Socy. Ltd. Vs. The Co-op. Tribunal Hyd & Orsr. [n support of his contention that Order IX Rule 13 of CpC petition can be f,rled for sefting aside the decree and even if the order is an ex parte order, it is liable to be set aside, he placed reliance on the judgrnent of the flon,bte Supreme Court | 2oo5 (r) A.P.L_J. 6t (Hc) 5 W.P.No. t E48i of 20 l5 of tndia in the case of B.Janakiramaiah Chetfy Vs' A'K' Parthasarthi and Ors2.

5. The 4fr respondent has Frled a counter affrdavit and has supported the stand of the Tribunal. It is submitted that the ex parte award can only be challenged before the Tribunal and the Arbitrator has no authority or jurisdiction to set aside the ex parte otdet '

6. Having regard to the rival contentions and the material on record' this Court finds that the Arbitration Application was filed by the 4fr respondent herein before the Arbitrator and under Rule 49 of TCS Rules, the procedure for arbitration and settlement of disputes is provided. Sub-rule (4) thereof provides that the Arbitrator or other person deciding the dispute shall record a brief note o[ the evidence of the parties and witnesses who attended and upon the evidence so recorded, and after consideration of any documentary evidence produced by the parties and pass a decision in accordance with justice' equity and good conscience and such a decision shatl be given in writing and in the absence of any party duly summoned to attend' the dispute may be decided ex Wrte- ) ) ' AIR zoo3 sc a527 6 W-P-No.18483 of20l5 7 . In this case, admittedly, the petitioner society was the l $ respondent before the Arbitrator and had attended the proceedings on

24.04.2010 and on 01.05.2010 and thereafter, did not attend the hearings from 15.05.2010 onwards and the award was passed on 26.ll.2oll.The Tribunal has observed that the Arbitrator has not set the respondents er parte br;r. has paqsg{ the award under Rule a9(a) of the TCS Rules,

1964. As seen from Rute 49 Sub-rule (4) of the said Rules, the witnesses is already recorded and documentar5r evidence, if any, is also produced by the parties. In this case, it is claimed that no evidence has been filed by the petitioner therein before the Arbitrator and therefore, the respondents also did not lead any evidence and the arbitration award was passed. However, this Court, after going through the award, finds that the petitioner society being the respondent has filed a counter affidavit and the 12ft respondent therein has arso got herserf examinqd as R.W.l and Exs.Bl to B16 were also marked. The other r€spondents were set ex parte. Therefore, it is noticed that the petitioner society, which was the I't respondent therein, has not set ex parte and the order was passed under Rule 49 Sub_rule (4) of the TCS Rules on merits. 7 W.P.No.l8483 of 2015 Therefore, it is not afi ex parte order and the Arbitrator could not have recalled the same.

8. Further, as rightly observed by the Tribunat' as the arbitration award is not an ex parte award, there is no case for interference under Order IX Rule 13 of CPC as the Arbitrator having passed the order' becamefunctusofficioandcannotreopentheawardunderany circumstances. Therefore, as rightly observed by the Tribunal' the only option available to the petitioner society was to file an appeal before the Co-operative Appetlate Tribunal' The learned counsel for the petitioner has relied upon the decision of the A'P' Co-operative Tribunal at Hyderabad in the case of S' Naganna Vs' The Divisional Co-operative Officer, Secunderabad Division and anothef ' In the said case' the Tribunal did not consider any tegat position to hold that the ex parte award of the Arbitrator could be set aside' Further' the judgments relied upon by the learned counsel for the petitioner are with regard to the merits of the award and not on the powers or the jurisdiction of the Arbitrator in setting aside the ex parte award passed by the Arbitrator' Therefore, the said decisions are not applicable to the case on hand' 3 c.T.A.No.l37 of 20ll dt.28.06 2013 ) 1 ) E W.P.No.l8483 of 2015

9. In view of the above, this Court does not find any merit in the writ Petition and it is accordingly disposed of. Ir is noticed that vide orders dt.08.10.2015, this Court in W.p.M.p.No.239l2 of 2015 had granted stay of all further proceedings in E.p.No.79 of 2orz on the file of the III Additional Chief Judge, Ciry Civil Court at Hyderabad for a period of five weeks and the said interim order has not been extended subsequently. However, in order to enable the petitioner society to file all further proceedings pursuant to the impugned order for a period of90 (ninety) days and thereafter, the 4th respondent herein shafl proceed with E.P.No.79 of 2012 on the file of the tII Additional Chief Judge, City Civil Court at Hyderabad in accordance with law.

10. The Writ Petition is accordingly disposed of. No order as to costs. tl. Pending miscellaneous petitions, if any, in this Writ petition shatt stand closed SD/. P.Ch. NAGABHUSHAMBA ISTANT REGISTRAR //TRUE COPY// SECTION OFFICER The Principal Secretary, Co-operation Departm Telangana, Hyderabad. , Secretariat, State of The Secretary, A.P.Co-Operative Tribunal, 7th Floor, Chandra Vihar Building, M.J.Road, Nampally, Hyderabad. The Dep^uty Registrar of Cooperative Societies i, Divisional Cooperative Officer, Secunderabad Divisidn, Nampally, Hyderabad One CC to SRI M.VENKAT DIVAKAR, Advocare.[OpUC] To, 1 2 3 4

5. Two CCs to GP FOR COOPERATTON, High Court for the State of Telangana tOUI

6. Two CD Copies. BSK GJP R-+- HIGH COURT DATED:2410212025 ORDER WP.No.18483 of 2015 :<-\ i r ilF- .s i 4ri_ ,1 :i il .) L t 21lu[ 2M - z a) ,)rcflF-O .d * / DISPOSING OF THE WRIT PETITION WITHOUT COSTS f,- t .,'