Calcutta High Court
Sri Kamlesh Phumbra & Ors vs Woodburn Park Co-Operative Housing ... on 25 September, 2018
Author: Amrita Sinha
Bench: Amrita Sinha
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
Present :- Hon'ble Mr. Justice I. P. Mukerji
Hon'ble Justice Amrita Sinha
APO 333 of 2011
WP 395 of 2009
Sri Kamlesh Phumbra & Ors.
Vs.
Woodburn Park Co-operative Housing Society Ltd. & Ors.
APO 331 of 2011
WP 395 of 2009
Smt. Chanda Devi Tantia & Anr.
Vs.
Woodburn Park Co-operative Housing Society Ltd. & Ors.
APO 394 of 2011
WP 395 of 2009
Sri Subhas Kr. Khajanchjee
Vs.
Woodburn Park Co-operative Housing Society Ltd. & Ors.
For the Appellant :- Mr. Siddhartha Mira, Sr. Adv
Mr. Swaraj Shaw,
Mr. Subhrata Kr. Basu
Mr. Sunil Singhania,
Ms. Nilanjana Adhya
For the Respondent :- Mr. Ahin Chowdhury, Sr. Adv
Mr. Joydeep Kar, Mr. Suman Kr. Dutt Mr. A. Ghosh Mr. D. Mukherjee For the State : Mr. Paritosh Sinha Ms. Chama Mukherjee, Ms. Manika Pandit Judgement On :- 25.09.2018 I.P. MUKERJI, J.:-
This case has a long history. East End Apartments Co-operative Housing Society Ltd. founded under the West Bengal Co-operative Societies Act 1973 owned two plots of land, one premises No. 5 B Woodburn Park Road, Kolkata
- 700020 and the other premises no. 11/1B Ekdalia place, Kolkata - 700019. The society at first constructed a multi-storied residential building at 11/1B, Ekdalia Place, Kolkata - 700019. This building had 21 flats. It wanted to construct another multi-storied building at Woodburn Park Road. A Division Bench of this Court on 15th December, 1978 directed the Registrar of Co-operative Societies Government of West Bengal (Registrar) to take steps for division of the assets and liabilities of this co-operative society, according to the said Act. In compliance with this order, the Registrar made a preliminary order for division of the properties on 5th September, 1979 under Section 77(1) of the said Act. Some members of Woodburn Park Co- operative Society objected to the preliminary order. On 23rd June, 1980, the Deputy Registrar passed the final order of division under Section 77 of the said Act and registered two new societies - Woodburn Park Co-operative Societies (Woodburn) and Ekdalia Housing Co-operative Ltd. (Ekdalia). On 8th August, 1988 the Deputy Registrar constituted directors of the Woodburn Park Co-operative Housing Society Ltd. as the Managing Committee. Smt. Chanda Devi Tantia and 12 others moved a writ application in this Court CR No. 3922 (w) of 1981 challenging this final division and also the appointment of the first Managing Committee. They said that without giving any hearing to them the final order of division was made listing them as non- members of Woodburn. On 20th June, 1984 the writ application was allowed in part by setting aside the order dated 23rd June, 1980 and directing the Registrar to appoint an administrator in Woodburn. This society filed an appeal against this order before a division bench of this Court (FMAT No. 1971 of 1984). Initially the judgement and order dated 20th June, 1984 was stayed by the Division Bench but ultimately by a judgement and order made on 1st August 2002 it dismissed this appeal. Woodburn preferred a special leave petition before the Supreme Court of India (SLP(C) No.18801 of 2002. The special leave petition was admitted by the highest Court, heard out as an appeal and finally disposed of on 2nd April, 2008 as follows.
"In the background of factual position it would be appropriate to set aside the High Court's orders. Let the matter be considered by the Registrar afresh within a period of 6 months. The enquiry will be restricted to decide the question whether there was any resignation and whether letter of resignation was signed by the objectors and whether the resignation was approved by any resolution and on the question of refund of share money and the effect of refund and acceptance. The Registrar shall also consider the other materials which have relevance so far as resignation in consideration. It would be open to the Registrar to call for the records and the documents from the parties within a period of 6 months. There would be no allotment to 13 persons who raised objections until decision is taken by the Registrar. The appeal is disposed of accordingly. No costs."
Woodburn said in an affidavit that all the above persons had resigned by submitting letters of resignation to the erstwhile East End Apartment Co- operative Housing Society Ltd (East End). Each of these persons had filed an affidavit to state that they had not resigned.
It appears from the records of the proceedings before the Registrar that Woodburn could not get the books and records from East End because of a problem arising out of non-payment of the latter's dues. Learned Counsel for Woodburn could place certified copies of three letters certified by a M. Chatterjee, the Chairman of East End. The Registrar expressed the view that Woodburn Park Co-operative Housing Society Ltd. did not take any legal steps to collect the necessary books and records and resignation letters from East End. No action was taken against them under Section 124 of the West Bengal Co-operative Societies Act, 1973. He noted that the original resignation letters of the above 13 persons had not been produced. He also observed that the share certificates were issued to them after their alleged dates of resignation, which were produced before them. In obedience to the order of the Supreme Court dated 2nd April, 2008, the Registrar made a decision on 31st March, 2009. He held that Smt. Chanda Devi Tantia, Bimala Devi Singhania, Smt Puspa Devi Phumbhra, Smt. Sarala Mundra, Smt Maina Devi Phumbhra, Shri Makhanlal Phumbhra, Shri Chunilal Phumbhra, Smt. Laxmi Mundra, Shri Bhairvndhan Banthia, Shri Subhas kumar Khajanchi, Shri Sailendra Nath Bhattacharjee and Shri Kedar Nath Suri or their legal heirs were the members of Woodburn. Furthermore the deposit of Late Bhabimohon Motilal be refunded immediately with "bankable interest".
Woodburn challenged the decision of the Registrar made on 31st March, 2009 by filling the instant writ application (WP No. 395 of 2009) in this Court.
It was disposed of on 30th August, 2011 by Mr. Justice Kar Gupta. His lordship was pleased to allow the writ application. The order of the Registrar dated 31st March 2009 was set aside. The major ground on which it was so done was that the Registrar had not considered the following documents:
i) A communication dated January 10, 1980 submitted by the respondent no.15 to the respondent no.2 with regard to the membership of the respondent no.15 in Woodburn Park Cooperative Society (at page 298 of this writ application).
ii) A Communication dated January 8, 1980 submitted by the respondent no.14 to the respondent no.2 with regard to the membership of the respondent no.15 in Woodburn Park Cooperative Society ( at page 300 of this writ application)
iii) A communication dated December 26, 1979 submitted to the respondent no.2 by the predecessor of interest of respondent nos.17,18 and 19 in Woodburn Park Cooperative Society (at page 302 of this writ application)
iv) A communication dated January 14, 1980 submitted to the respondent no.2 by the predecessor of interest of the respondent nos. 20, 21 and 22 in Woodburn Park Cooperative Society ( at page 303 of this writ application)
v) A communication dated September 11, 1978 submitted by the respondent no.3 address to the respondent no.2 in the matter of dispute among the members of East End Apartment Co-operative Housing Society Ltd. (at page 309 and 314 of this writ application)
vi) Certified copies of the auditor's report dated April 28, 1980 on statutory audit of erstwhile East End Apartment Co-operative Housing Society Ltd., for the year 1978-79 submitted before the Assistant Registrar showing surrender of 68 shares.
Thus he had failed to take into account material evidence. His decision was vitiated for this.
The jurisdiction of the Registrar under the West Bengal Co-operative Societies Act, 1973 and the nature, breadth and enforceability of the orders passed by him have to be carefully examined. Take a look at Section 86 of the said Act. It enacts that "any dispute relating to the affairs of a Co- operative Society" shall be referred to the Registrar if, inter alia, "the society or its members of persons claiming through them" are involved. Therefore, the dispute in the instant case properly fell within the domain of the Registrar.
Section 132 of the said Act says that no suit lies nor any civil or revenue Court has any jurisdiction in respect of any dispute required under Section 86 to be referred to the Registrar (S 132)(d). An appeal from the order of the Registrar lies to the tribunal under Section 134. Hence, it is quite plain that the determination made by the Registrar would be like a decree or order of the Court binding upon all the parties unless varied or set aside by the Tribunal. So if the Registrar is called upon to adjudicate whether a member of the Co-operative Society has surrendered his unit, he is actually deciding very valuable property rights between the parties. In those circumstances, he was enjoined with a duty to very carefully determine the rights and interest of the party, in accordance with the said Supreme Court judgement. What are the findings of the Registrar in his order dated 31st March, 2009 and the basis of those findings? A grave doubt was expressed by him with regard to the alleged resignation of 13 members. He suspected that there was no resignation at all in the absence of original documents. He wondered how share certificates had been issued by the society to parties after their alleged registration. The alleged letters of resignation are all unsigned. The Registrar recorded that an inspection was made of the records lying in the offices of the Co-operative, at the instance of this Court by its order dated 18th February 1982. Mr. M. Chatterjee, Chairman of East End filed a statement showing the position of the society including its membership which included the names of the appellants share money and papers of Unit I and Unit - II. No receipt voucher etc. was found to have been issued to evidence refund of share money.
Mr. Ahin Chowdhury argued that the Supreme Court order envisaged a full scale enquiry and not an adversarial type of adjudication before the Registrar. He said that the Registrar could not fold his hands and say he found himself helpless because East End was unable to produce the original records. He had the power under the said order of the Court to order a full scale enquiry and search for those documents. It could only pass a proper order on consideration of those documents.
I am unable to agree. In my opinion, the Supreme Court did not give any such extra judicial power or a super investigator's powers to the Registrar. There were adversaries in the litigation before him, namely, the Co-operative and the 13 persons who were claiming not to have resigned their membership from the Co-operative.
The Registrar had no duty under the Act or under the order of the Supreme Court on which he was acting to make a full scale enquiry or investigation on his own. He was like an arbitrator or a quasi judicial authority to act on the evidence produced by the parties.
It was for them to produce the documents in support of their respective claims and to take steps to recover the original documents or in the alternative to lead secondary evidence, in accordance with law. If a party was unable to produce the documents which were required to be and were in his custody, The Registrar could under Section 106 of the Evidence Act, 1872 draw any adverse interference against that party. That is enactly what he has done.
In my view, the Registrar was perfectly right to think that if those 13 persons or their predecessors-in-interest had surrendered their membership then the original share certificates would be in the office of the Co-operative. In fact, he found that share certificates had been issued to some of those persons on 30th May, 1977 after their alleged resignation on 20th August, 1976. If the Co-operative Society was seeking a negative declaration that these 13 persons had surrendered their interest in the Co-operative, it was up to them to adduce some proof of this fact before the burden of proof shifted to these 13 persons to prove their membership in the Co-operative Society. Regrettably, the alleged copies of letters of resignation were also found to be suspicious by the Registrar. They were not the original. They were unsigned and were certified by M. Chatterjee, an office bearer of East End.
In addition to this, a letter dated 16th June, 1979 written by M. Chatterjee, the Chairman East End Society was produced in the proceedings before the Registrar. It, inter alia, disclosed a list of members of Unit Nos. I and II of the society which still included the names of these 13 persons. Furthermore, M Chatterji's affidavit before this court affirmed on 1st July, 1982 in an earlier writ C.R.3922 (W) of 1981 did not mention any resignation letters submitted by him to the Woodburn cooperative society. Moreover the alleged letters of resignation were in identical language. The originals were never found. Some unsigned copies certified by M. Chatterjee were produced in evidence by the society.
The argument of Mr. Mitra was more practical. He argued that the Registrar was exercising his powers under the said Act. He was directed to exercise such powers by the Supreme Court. Nevertheless, his authority was circumscribed by the said Act. In its Writ Jurisdiction, this Court had to evaluate the order passed by the Registrar applying the principles applicable to the Court. If the Registrar was found to have taken a possible or reasonable view the court should not interfere with the same. The court should only interfere with the ultimate ruling if it was found to be perverse or so unreasonable that any reasonable man could not have taken the decision. Or the final decision of the Registrar was tainted with corruption, fraud, mala fide, bias, discrimination etc. In Vice Chancellor, Utkal University and Ors. Vs. S. K. Ghosh & Ors. reported in AIR 1954 SC 217, the Supreme Court said that the High Court in exercise of its writ jurisdiction should not substitute its own view for that of the sub-ordinate authority but should only see that it acted honestly and reasonably.
In Union of India & Ors. Vs. Flight Cadet Ashish Rai reported in (2006) 2 SCC 364, the same Court opined that in judicial review the Court should examine the legality of the order, whether the lower authority had exceeded its jurisdiction, committed breach of the principles of natural justice, reached a decision which no reasonable person would make or had abused its powers.
In State of U. P. & Anr. Vs. Johri Mal reported in AIR 2004 SC 3800, the Supreme Court emphasised the role of the supervisory Court to see that the tribunal or an administrative body remained within the bounds of its jurisdiction. At the same time the Courts ought not to discharge government duties and functions or impose the social and economic beliefs of the Judge. The Court should also not interfere with policy decisions. All the above decisions were cited by Mr. Mitra.
I accept the argument that the Registrar has taken a sensible and rational view of the matter, on whatever documents that were available with him. After all the Registrar was determining questions which would have its effect on the title to immovable property. Such a decision had to be made with great caution.
Mr. Mitra's argument was supplemented by Mr. Swaraj Shaw and Ms. Nilanjana Adhya. Mr. Chowdhury was assisted by Mr. Suman Kr. Dutta. The learned trial Judge opined that the adjudicator failed to consider some documents and that for such alleged failure his judgement and order was liable to be set aside.
The Registrar was not obliged to consider all the documents. He was only obliged to consider those that were relevant. The Court is to examine whether the adjudicator had adequate evidence to come to his finding in this case. Now in my opinion, the learned single Judge committed an error in observing that the adjudicator had failed in his duty by not considering the documents enumerated by his lordship in his judgement. I disagree. I find that the adjudicator has relied upon the documents, he considered relevant. If on the basis of the documents not considered by the adjudicator the same conclusion is still possible and that is the case here, the adjudicator cannot be blamed for not considering these documents.
This is for the simple reason that if the documents not considered by the Registrar were before this Court, along with other evidence, this Court would still endorse his finding that the alleged surrender of their units by the 13 persons was suspicious. This feeling is inescapable when share certificates had been issued by the society to those 13 persons after their alleged dates of resignation and when in his letter dated 16th June, 1979, well after the date of their alleged resignation, the chairman of the society had acknowledged that those persons were members of Units I and II. Also when all the resignation letters were written in the same language. Where property rights are involved, in my opinion, the Registrar on a balance of probabilities has taken the correct view.
All those reasons I set aside the impugned judgement and order dated 17th May, 2017. This appeal is allowed to the above extent only. Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
I Agree, (Amrita Sinha, J.) (I.P. MUKERJI, J.)