Bharat Sewak Sahkari Grah Nirman Samiti Maryadit vs State of M.P.

With the consent of the parties, the petition is heard finally. Petitioner society filed this petition against the order dt. 13.7.2009 (Annexure P/9) passed by the M.P. State Co-operative Tribunal in S.A. No. 136/2006.

Respondent No. 2 was granted a lease of plot No. 73/4 and 74/4 on 12.10.1991 and 21.1.1992 by the Officer-in-Charge of the Society. Subsequently, some complaints were made against the aforesaid allotment of plot on the ground that Officer-in-Charge allotted plot to his son and he was not competent to receive the plot because at the relevant time he was minor and he did not deposit the amount of membership. After inquiry, the society cancelled the lease deed. Against the aforesaid order, respondent No. 2 raised a dispute u/s 64 of M.P. Co-operative Societies Act, 1960 (hereinafter referred to as the ''Act of 1960''). Dy. Registrar, Cooperative Societies, Shivpuri vide judgment dt. 28.2.2002 (Annexure P/5) dismissed the dispute after holding that the respondent No. 2 was minor and he was not a regular member of the Society. Office-in-Charge of the Society in order to give benefit to his son allotted the plots. Against the aforesaid order, an appeal was filed before the Joint Registrar, Co-operative Societies, Gwalior, that was dismissed vide order dt. 12.9.2006. Thereafter, a Second Appeal was filed before M.P. State Co-operative Tribunal. M.P. State Cooperative Tribunal vide impugned order dt. 13.7.2009 (Annexure P/9) held that the respondent No. 2 was not eligible for allotment of the plot but the Tribunal allowed the appeal on the ground that the Registrar or his authorised officer has no power and authority u/s 64 of the Act of 1960 to set aside the registered sale deed.

Counsel for the petitioner has submitted that the order of M.P. State Co-operative Tribunal is against the law. Registrar or his nominee while deciding the dispute u/s 64 of the Act of 1960 has power to set aside the allotment of plot and if the sale deed was executed, that was consequential, hence, the authority has also power to set aside the same. In support of his contention, learned counsel relied on the Division Bench decision of this court in the case of Madhavrao Kulkarni Vs. 9th Addl. District Judge, Indore and others reported in 1991 RN 81.

Contrary to this, learned counsel appearing on behalf of respondent No. 2 has contended that the order passed by the M.P. State Co-operative Tribunal is in accordance with law. While hearing the dispute, the Registrar or his nominee has no power to set aside the sale deed. It is within the jurisdiction of civil court. In support of his contention, learned counsel relied on the judgment of Hon''ble Supreme Court in the case of Sabharwal Brothers and Another Vs. Smt. Guna Amrit Thandani of Bombay,

The question for consideration in this petition is that whether the Registrar or his nominee has power to set aside the sale deed as consequential action when the main action of allotment of plot was per se illegal.

The concurrent findings recorded by the Dy. Registrar and Joint Registrar of Co-operative Societies are that at the time of allotment the respondent No. 2 was minor. He did not apply for membership. He was not competent to enter into contract with the society in accordance with the bylaws of the society. His father, who was the Officer-in-Charge of the society allotted the plot in his favour, hence, in our opinion, the allotment of plot to respondent No. 2 was per se illegal.

It is not disputed that u/s 64 of the Act of 1960, the Registrar or his nominee has a power to decide the dispute touching the business of the society. Respondent No. 2 himself approached the Assistant Registrar and filed the dispute u/s 64 of the Act of 1960, that was dismissed because the society cancelled the allotment of plot. The Tribunal has committed an error of law in holding that the Registrar or his nominee has no power to set aside the sale deed executed by the society. In the present case, no sale deed was set aside by the Registrar or his nominee in exercise of power u/s 64 of the Act of 1960, the nominee of Registrar simply dismissed the dispute.

Counsel for the respondent No. 2 relied on the judgment of the Hon''ble Supreme Court in the case of Sabharwal (supra) wherein Hon''ble Supreme Court has held as under:-

Where the objects of a society were to carry on the trade of buying, selling, hiring and letting land in accordance with the cooperative principles, the letting by a member of such society of the flat purchased from the society could not be said "to touch the business of the society." The fact that such letting was forbidden by a regulation of the society was immaterial.

In our opinion, the citation cited by the learned counsel is irrelevant because the nominee of the Registrar has not granted any relief to respondent No. 2, it simply dismissed the dispute presented by the respondent No. 2. The authority has further observed that if the respondent No. 2 is eligible he can apply afresh for allotment of plot and that is in accordance with law.

Hence, the petition is allowed. Impugned order dt. 13.7.2009 (Annexure P/9) passed by the M.P. State Cooperative Tribunal is hereby quashed and the orders dt. 28.2.2002 and 12.9.2006 passed by the Dy. Registrar and Joint Registrar of the Cooperative Societies are upheld. No order as to costs.