The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-May-2024 18:49:28 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 42668 OF 2023 Parbati Sitha @ Paluni Sitha and another …. Petitioners Mr. Subash Chandra Acharya, Advocate Member, Cooperative Tribunal, Odisha, Bhubaneswar and others -versus- …. Opp. Parties
Legal Reasoning
Mr. Amiya Kumar Mishra, Additional Government Advocate (For Opp. Party No.2) Mr. Biren Sankar Tripathy, Advocate (For Opp. Party No.6) CORAM: JUSTICE K.R. MOHAPATRA Order No. 4. 1.
Decision
ORDER 02.05.2024 This matter is taken up through hybrid mode. 2. The Petitioners in this writ petition seek to assail the order dated 12th December, 2023 (Annexure-4) passed by learned Member, Co-operative Tribunal, Odisha, Bhubaneswar in T.A. No.8 of 1997, whereby learned Tribunal refused to interfere with the ex parte award dated 23rd July, 1993 passed by the Arbitrator-cum-SARCS in Dispute Case No.13 of 1992-93 and EP Case No.18/(93-94). 3. Mr. Acharya, learned counsel for the Petitioners submits that being aggrieved by the order dated 5th September, 2011 passed by the State Co-operative Tribunal, Bhubaneswar in the aforesaid appeal, the Petitioners had moved this Court in W.P.(C) No.27178 of 2011. The said writ petition was disposed of on 5th January, 2023 with the following direction: Page 1 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-May-2024 18:49:28 // 2 // “9. As it is submitted that the post of judicial member of the Tribunal is lying vacant and the appeal cannot be taken up at this stage, this Court directs that T.A. No.8 of 1997 shall be disposed of as expeditiously as possible preferably within a period of six months from the date of the joining of the Judicial Member, State Co-operative Tribunal, Odisha, Bhubaneswar giving opportunity of hearing to the parties concerned. In order to avoid further delay in the matter, 10. parties are directed to appear before learned Tribunal on 16th January, 2023 along with certified copy of this order to receive further instruction in the matter.” Accordingly, the matter was taken up before learned Tribunal and the impugned order under Annexure-4 has been passed. 3.1 It is further submitted by Mr. Acharya, learned counsel for the Petitioners that one, Agani Behera was the owner in possession of the house in question. After his death, interest of the property devolved upon his son, namely, Babaji Behera and daughters, the present Petitioners. Said Babaji Behera by practicing fraud, mortgaged the entire property with the Barabati House Building Cooperative Ltd. (for brevity ‘the Society’) and obtained financial assistance. For non-payment of loan Dispute Case No.13 of 1992-93 was initiated against the widow of Babaji Behera, namely, Haramani Behera and an ex parte award was passed on 23rd July, 1993 to recover Rs.1,15,057/- from her. For non-payment of amount, EP Case No.18/(93-94) was initiated on the file of the Asst. Registrar of Cooperative Societies (ARCS), Cuttack. Thereafter the property was put to auction and sale certificate has been issued in favour of the highest bidder, namely Opposite Party No.6. Assailing the auction, the Petitioner filed OJC No.3683 of 1994, which was dismissed vide order dated 2nd November, 1994. Again the Petitioners moved this Court in OJC Page 2 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-May-2024 18:49:28 // 3 // No.3890 of 1995 assailing the order passed in Dispute Case No.13 of 1992-93. The said writ petition was dismissed vide order dated 2nd January, 1997 with an observation that it is open to the Petitioners to file appeal in accordance with law. In the interregnum, the Opposite Party No.6 alleging that he had deposited the entire bid amount of Rs.1,96,000/- and sale certificate was not issued in his favour, filed OJC No.10102 of 1996 for a direction to the Society for issuance of sale certificate and for delivery of possession. The writ petition was disposed of on 6th January, 1997 with a direction to regularize the deposit, issue sale certificate and deliver the property in question to Opposite Party No.6 within a period of three months from the date of the order. Accordingly, the sale certificate was issued on 28th April, 1997. Subsequently, on 16th May, 1997, the ARCS, Cuttack authorized the Inspector of the Co-operative Societies to deliver possession of the house in question in favour of Opposite Party No.6. At this stage, the Petitioners preferred TA No.8 of 1997 before the State Cooperative Tribunal, Odisha, Bhubaneswar assailing the order passed in Dispute Case No.13 of 1992-93 and order passed in EP Case No.18/(93-94). The said appeal was dismissed vide order dated 16th December, 1998 on the ground of limitation. Assailing the same, the Petitioners preferred OJC No.18450 of 1998, which was disposed of on 3rd November, 2010. Accordingly, learned Tribunal took up the appeal and again dismissed the same vide order dated 5th September, 2011 holding that the Petitioners have no locus standi to prefer the appeal, as they were not parties to the dispute case. Assailing the same, the Page 3 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-May-2024 18:49:28 // 4 // Petitioners preferred W.P.(C) No.27178 of 2011 and the aforesaid order was passed therein. Pursuant to the said direction, learned Tribunal took up the appeal on merit and passed the impugned order under Annexure-4. 4. It is submitted by Mr. Acharya, learned counsel for the Petitioners that learned Tribunal again holding that the Petitioners have no locus standi to file the appeal, dismissed the same without delving into the merit of the case, as directed by this Court. Hence, the impugned order under Annexure-4 is not sustainable. In the meantime, the Petitioners have also filed C.S. No.245 of 2024 for appropriate relief, which is pending before learned Civil Judge (Senior Division), 1st Court, Cuttack. 5. Mr. Tripathy, learned counsel for Opposite Party No.6 submits that due to protraction of litigation by the Petitioners by filing frivolous application, the Opposite Party No.6 is yet to enjoy the fruit of the decree. Since the Petitioners were not the member of the Society, learned Tribunal has rightly held that they cannot maintain an appeal before the Tribunal. He, therefore, prays for dismissal of the writ petition. 6. Mr. Mishra, learned Additional Government Advocate also supports the submission of Mr. Tripathy, learned counsel for Opposite Party No.6 and submits that a non-member cannot maintain an appeal before the Tribunal in view of the decision of the apex Court in the case of Sugauli Sugar Works (Private) Ltd. –v- Assistant Registrar, Cooperative Societies, Motihari Circle, Motihari and others, reported in AIR 1962 SC 1367. Thus, learned Tribunal dismissing the appeal, observed that the Page 4 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-May-2024 18:49:28 // 5 // Petitioners would be at liberty to move the competent Court for asserting their right, if any, over the suit property. 7. Taking note of the submissions made by learned counsel for the Petitioners, a short question arises for consideration is that whether the Petitioners have any locus standi to maintain an appeal before the Tribunal under the provisions of Odisha Cooperative Societies Act, 1962 (for brevity ‘the Act’). In view of the settled law in Sugauli Sugar Works (Private) Ltd. (supra), it is manifest that dispute between non-member and a society would not be determinable by the Registrar under Section 68 of the Act. Thus, an appeal at the instance of the said non-member, would not be maintainable. 8. Admittedly, the Petitioners are not the members of the Society from which Babaji Behera, S/o-Agani Behera had taken financial assistance. In the meantime, the Petitioners have tried their luck before this Court on several occasions and failed. The sale certificate has already been issued in favour of Opposite Party No.6. Thus, this Court is of the considered opinion that learned Tribunal has committed no error in holding that the Petitioners have no locus standi to maintain the appeal before the Tribunal against the award passed in Dispute Case No.13 of 1992-93 and EP Case No.18/(93-94). 9. Accordingly, the writ petition being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge Page 5 of 5 ms