Patna High Court
Peoples Cooperative House ... vs The State Of Bihar on 25 July, 2023
Author: Rajiv Roy
Bench: Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No. 17097 of 2015
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Peoples Cooperative House Construction Society Limited having its office at
and P.O.- Lohianagar, P.S.- Kankarbagh, Town and District- Patna, through its
Honourary Secretary, Maheshwar Prasad Sinha, Son of Late Jeo Narayan
Sinha.
... ... Petitioner/s
Versus
1. The State of Bihar through the Secretary, Co-operative Department, Bihar,
Patna.
2. Registrar, Co-operative Societies, Bihar Patna.
3. Deputy Registrar, Co-Operative Societies Patna Division Patna.
4. Bihar State Housing Board through its Managing Director, Mangles Road
Patna.
5. Executive Engineer, Bihar State Housing Board, Patna Division-1
Kankarbagh.
6.1. Habiba Ahmad, wife of Late Shamshul Hoda, resident of Mohalla- Naya
Tola, P.S. Pirbahore, and District- Patna.
6.2. Sharaf Hoda son of Late Shamsul Hoda, resident of Mohalla- Naya Tola,
P.S. Pirbahore, and District- Patna.
6.3. Zain Hoda, Son of Late Shamsul Hoda, resident of Mohalla- Naya Tola, P.S.
Pirbahore, and District- Patna.
7. Municipal Corporation, Patna through its Chief Municipal Commissioner.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Mukesh Kumar, Advocate
For the Housing Board : Mr. Devendra Kumar Sinha, Sr. Advocate
For the Patna
Municipal Corporation : Mr. Sanjay Prakash Verma, , Advocate
For the Private Res. 6 : Mr. Y.V. Giri, Senior Advocate
Mr. Abu Haider, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL JUDGMENT
Date : 25-07-2023
Heard Mr. Mukesh Kumar, learned counsel for the
petitioner, Mr. Devendra Kumar Sinha, learned Senior Counsel
duly assisted by Mr. Birendra Kumar Roy, for the Bihar State
Housing Board, Mr. Y.V. Giri with Md. Abu Haider, learned
Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023
2/25
counsel who represent the heirs of the respondent no.6 duly
assisted by Mr. S.P. Verma, learned counsel for the Patna
Municipal Corporation.
2. The petitioner, Peoples Cooperative House
Construction Society Ltd. (henceforth for short 'the Society')
has preferred this writ petition for the issuance of:
(i) an appropriate writ, order or direction for
quashing of the order dated 18.08.2012 (Annexure '10') passed
by the respondent no.3 as well as the order dated 07.09.2015/
14.09.2015(Annexure '11') passed by the respondent no. 4 declaring the same as illegal;
(ii) an appropriate writ, order or direction commanding the respondents especially the respondent no.6 to desist from enforcing the orders contained in Annexures 10 & 11;
(iii) any other appropriate writ/writs, order/orders, direction/ directions and/or relief/reliefs which the petitioner is entitled to in the particular facts and circumstances of the case.
3. The brief facts of the case is/are as follows:-
4. 'The Society' is registered under the provisions of Bihar Cooperative Societies Act and Rules (henceforth for short Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 3/25 'the Act and the Rules') under which a management committee was constituted with the object to acquire land by purchase or lease and/or to develop a colony by allotting lands to its members.
5. In continuation of that, erstwhile Housing Department leased out 131.12 acres of land for developing colony for the members of 'the Society' in the year 1964 and a registered lease deed was executed on 17.01.1968. According to 'the petitioner-Society', although the Department had sanctioned 1600 plots; on the spot, there was only 1590 plots.
6. Out of the said plots so allotted, 10 plots were kept for public utility while 1580 plots were allotted to its members and documents were executed in their favour. So far as the respondent no.6, namely, Samsul Hoda [since deceased and substituted by his heirs, Abiba Ahmad (wife), Sharaf Hoda & Zain Hoda (both sons)] is/are concerned; the mother of the late respondent no. 6 was one of the member of 'the Society' and after her death, he was inducted as a member. He approached 'the Society' for allotment of land and thus was allotted Plot No. 218 in 'F' Block and accordingly, the documents executed in his favour.
7. According to the writ petitioner, the respondent no. Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 4/25 6 failed to construct the plot within six months and in the meantime, the Housing Department which was re-designated as Bihar State Housing Board (henceforth for short 'the Board') grabbed the vacant land of 'the Society' which included F-218.
8. Meanwhile, 'the Society' also took decision to construct four storied building on Plot Nos. B-184 and B-186 for its left over members which was sanctioned by the competent authority but upon the objection raised by the other members of 'the Society'; the matter went to the Patna High Court vide C.W.J.C. No. 4627 of 1989 and as 'the Housing Board' had also initiated the proceedings, the writ petition was disposed of on 04.08.1989 with a direction to it to take appropriate decisions (Annexure-2 to the petition).
9. 'The Board' thereafter vide memo no. 3328 dated 18.11.1989 declared the proposed construction illegal which was challenged in C.W.J.C. No. 10112 of 1989 but the same was referred for arbitration on 19.07.1990 (Annexure-3 and 4 respectively to the writ petition).
10. Meanwhile, the erstwhile Patna Regional Development Authority (henceforth for short 'the PRDA') also instituted Vigilance Case No. 01/1991 against the proposed construction and further restrained 'the Society' from making Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 5/25 any construction. As a result, four (4) storied building could not be constructed.
11. Being completely frustrated with 'the petitioner- Society' attitude, the respondent no.6 filed application before the Joint Registrar, Patna Division, Patna for a direction to them to allot an alternative plot in lieu of Plot no. F-218. The Joint Registrar in turn transferred the case to the Deputy Registrar, Patna Division, Patna who by an ex-parte order dated 10.11.1994 passed in Miscellaneous Case No.07/1990 directed 'the Society' to allot one of the 10 plots which had been kept reserved for public utility.
12. On getting information of the aforesaid ex-parte order, 'the petitioner-Society' filed appeal before the Registrar who transferred the same to the Additional Registrar for disposal. The Additional Registrar thereafter vide an order dated 29.08.2008 set aside the ex-parte order and directed the Deputy Registrar to decide the matter afresh after hearing the parties within three months.
13. On remand, the Deputy Registrar instituted Case no.05/2009 and issued notice to respondent no.6 who appeared and contested the case. Thereafter vide an order dated 18.08.2009, it directed 'the Society' to approach 'the Housing Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 6/25 Board' and get the matter settled in order to facilitate the allotment of land to its members.
14. The respondent no.6 challenged the aforesaid order dated 18.08.2009 (Annexure 8) as well as the previous order dated 29.08.2008 (Annexure '7') of the Additional Registrar, Patna in CWJC No.933 of 2010. The Hon'ble Court vide an order dated 17.01.2012 remanded the matter to the respondent - Deputy Registrar for disposal after of hearing the parties.
15. Again on remand, the succeeding Deputy Registrar instituted Case no. 04/2012 and took up the hearing and finally vide an order dated 18.08.2012 directed 'the Society' to either allot a plot of land or a flat to the respondent no. 6 without charging any cost for the purpose.
16. 'The petitioner-Society', being aggrieved, challenged the aforesaid order before the respondent - Registrar in Appeal Case No. 183/2012. During the course of hearing of the appeal, 'the Society' tried to impress upon the Appellate Authority that it does not have any vacant plot for allotment to the respondent no.6 nor there has been any constructed flat so that the same could be allotted to him and as such, the order under appeal was neither workable nor reasonable. Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 7/25
17. After hearing the parties, the Registrar vide an order dated 07.09.2015/14.09.2015 disposed of the appeal with the following directions:
(a) "The society would allot a flat of the apartment constructed over plot no.184 and 187 as per order of the Deputy Registrar without charging any cost thereof.
(b) If the society has any grievance against the Board with respect to encroachment of its land then it should approach Secretary, Housing Department for arbitration and adjudication.
(c) If the respondent no.2 (present respondent no.6) has any grievance against the society, he is free to approach the competent authority in terms of Clause 15 of the agreement".
18. Still aggrieved, the present writ petition by 'the Society'.
19. Heard learned counsel for the parties.
20. It is the contention of 'the petitioner-Society' that in view of the restrained order of 'the erstwhile PRDA' (now the Patna Municipal Corporation) as contained in Annexure-5 to the writ petition, there was no occasion for construction of any apartment and as such, the Registrar could Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 8/25 not have given direction to allot a flat in an imaginary apartment. It is the further case of 'the petitioner- Society' that they do not have any plot available so that the same could be allotted to the respondent no.6 and as such, the order has to be interfered with.
21. The respondent no. 6, Samsul Hoda who was alive in the year 2016 in his counter affidavit, stated that the statements made in para-18 of the writ petition is wrong and misconceived. The further averment was that no office building of 'the Society' has been constructed on the vacant plots though some construction do have taken place over Plot nos. 183 and
185. Further, there is only a godown over the Plot no. B/187.
22. It was further contended by him that the statements made in paras 30 & 31 of the writ petition are wrong and misconceived. The order impugned is/are fully justified as number of plots between B-183 to B- 188 are still vacant which has also been confirmed by the respondent 'Housing Board' in view of the order of this Hon'ble Court passed in CWJC No. 933 of 2010.
23. The case of the respondent no. 6 further is/was that the statements made in paras 32 to 36 of the said writ petition are again wrong and misconceived and the petitioner is Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 9/25 putting forward lame excuses and in the process, harassing the respondent no. 6 as it never wanted to give any plot to him.
24. The respondent no. 6 submitted that 'the petitioner-Society' does not want to part with such plots which are still vacant even after the repeated order/ directions of this Hon'ble Court on the earlier occasion as well as after the order of the learned Registrar of the Bihar Co-Operative Society.
25. The respondent no. 6 thus reiterated that:
(i) as per the requirement, the Respondent No. 6 was allotted a plot in 'the petitioner-Society' for the construction of the house;
(ii) accordingly, an agreement was signed for plot no. F-218 registered on 07.05.1980 in the Registrar office, Patna;
(iii) after obtaining the indenture, the respondent no. 6 repeatedly requested the Secretary of 'the Society' to provide him the physical possession of the plot in question;
(iv) the respondent no. 6 further requested 'the Society' to appoint an 'Amin' to demarcate the plot no. 218 in Block F to enable him to take physical possession of the same.
However, even the 'Amin' of 'the Society' failed to demarcate the plot in question and no report was submitted by him. Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 10/25
(v) thus, the respondent no. 6 has got every reason to believe that he has been cheated and actually the plot in question never existed;
(vi) in that case, he is entitled to one of the few plots (183, 184, 185, 186, 187 of 188) which are vacant and still left unallotted in Block B of 'the Society' without any further delay.
26. In reply to the counter affidavit, 'the Society' submitted that :
(i) 'the Board' has grabbed the F-218 and as such, the respondent no. 6 (now his heirs) should approach its Secretary, for arbitration instead of moving before 'the Society' and unless 'the Board' returns the land, the same can not be allotted to the petitioner;
(ii) there are some construction on plot nos. 183 to 192 which again cannot be allotted to the respondent no. 6;
(iii) lastly, the apartment could not be completed due to the order of the Patna Municipal Corporation and
(iv) to conclude, no plot/flat can be allotted to the respondent no. 6 (now his heirs).
27. 'The Board' on its side filed counter affidavit refuting the claim of 'the petitioner-Society' of having grabbed the land especially F-218.
Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 11/25
28. It has further stated that 'the petitioner-Society' was allotted 1600 plots but it illegally showing more plots from the sanctioned plan, distributed the same to its members.
29. It further narrated in paragraph-10 of its reply that so far as plot no. F-218 which 'the petitioner- Society' claims to have allotted to the respondent no. 6 the same do not find place in the sanctioned plan of 'the Board'.
30.Thus, an entirely wrong allegation has been made that the respondent-Board has encroached the land of 'the petitioner-Society'. It further justified the orders passed in favour of the respondent no. 6 which has been questioned in the writ petition.
31. The petitioner by way of reply tried to refute the said claim and in that backdrop 'the Board' was again directed by a co-ordinate Bench to file a clear affidavit on the point as to whether it has encroached/acquired even a single inch of land allotted to 'the petitioner- Society' or not.
32. The supplementary counter affidavit of 'the Board' is on the record according to which 'the petitioner- Society' illegally created non existent plot nos. 215 to 218 and thus, it actually cheated its members.
33. It is important to incorporate paragraph 6 of the Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 12/25 said reply which is as follows:-
"that it is further relevant/pertinent to mention here that the Plot no. F-218 was not in existence in layout plan hence there is no question of acquisition by the Housing Board. It is the society which allegedly created Plots and wants to save the skin from the illegal action is trying to complicate the matter. The society is solely responsible for the situation and it is duty of them to allot another Plot to Mr. Samshul Hoda. The society is misrepresenting the tracing of the fact raises issues in different forum in order to delay the matter. The society should adopt corrective measures such as measurement of entire 1600 plots and create plot thereafter and allot it to different member including Mr. Samshul Hoda. It is pertinent to point out that the society without any prior approval/ permission of the Board created the plot which is against the provision of law. Thus, such action by the society amounts to fraud done with Mr. Samshul Hoda and other member and now trying to misrepresent before the Hon'ble Court.
(bold mine)
34. It further gave chart of the lay out plan of Block
-F to show that there was no such plot no. 218.
35. 'The Board' in its supplementary counter affidavit Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 13/25 thus made categorical statement that no land of 'the petitioner- Society' has been encroached by it.
36. On the last occasion, on 26.06.2023, this Court wanted 'the petitioner-Society' to answer on the following points:
(i) in which year, Housing Board encroached its land and further what steps were taken by it and/or whether it agitated the matter with the Housing Board or not;
(ii) it also has to clarify what is the total area that has been encroached by the Housing Board;
(iii) whether it is duty bound/required to allot the respondent nos. 6.1 to 6.3 an alternative plot or not in view of its failure to get them possession of plot allotted?
37. Pursuant thereto, 'the petitioner-Society' filed supplementary affidavit on 07.07.2023 stating that they agitated the matter before 'the Board' (Annexure-17/I)
38. A perusal of the aforesaid documents show that 'the petitioner-Society' has simply tried to hoodwink the Court in order to save its skin of having allotted a non-existent plot to the original allottee, the respondent no. 6. Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 14/25
39. So far as the second question framed by this Court on 26.06.2023 is concerned, it has been stated that if all the scattered areas are calculated, around 24775 sq.ft. have been taken by 'the Board'.
40. Regarding the last question, it has been stated in para 9 that in compliance of this Hon'ble Court's order dated 26.06.2023; 'the petitioner- Society' tried to contact legal heirs of Respondent no. 6 on the address as given in the substitution petition filed by them but no one was found there.
41. Further, the legal heirs of Respondent no.6, never came for transfer of share money and name in the petitioner-Society office, and as such it is unable to take any decision.
42. Learned counsel appearing for the heirs of the respondent no. 6 objected to the said averment made in paragraph-9 and stated in its reply to the said affidavit in paragraph-4 which read as follows :-
"So far as para-9 of the said supplementary affidavit is concerned, it is humbly stated and submitted that the same is wholly wrong and misconceived and is hereby totally and out rightly denied. The heirs and legal representatives of the deceased- respondent no. 6 are still residing at the said address as Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 15/25 given in the substitution application and there is no question to live in any other place as it is ancestral one house since long but the petitioner society only to save of their skin, such type of frivolous statements has been made without any basis as the intention of the petitioner-society is always only to defeat the right of the deceased- respondent no. 6 and his heirs as because the petitioner-society has never choosen to inform either to the deceased respondent's heirs or their lawyer about the said step which was to be taken by any means i.e., either by any post or letter on under the mobile nos. registered etc. of the respondent's lawyer as the same is on record but nothing has reasons best known to them. been done reasons best known to them."
(bold mine)
43. From the aforesaid narration put forward by the respective parties, it is clear that :
(i) 'the petitioner-Society' entered into an agreement and executed a registered deed with the respondent no. 6 for a non-existent plot no. F-218 inasmuch as the physical possession was never granted to him;
(ii) an important factor in this case is that when the respondent no. 6 approached 'the petitioner-Society' Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 16/25 and also took the help of the Society's 'Amin'; even he failed to locate the plot;
(iii) having been convinced that he has been cheated, the respondent no. 6 approached the court of Cooperative Societies, Bihar, Patna. After long litigation, finally vide an order dated 18.08.2012, the Court of Deputy Registrar, Cooperative Societies, Bihar Patna in Miscellaneous Case No. 04/2012 held as follows :-
^^U;k;ky; mi fuca/kd] lg;ksx lfefr;k¡] fcgkj] iVukA fofo/k okn la0& 04@2012 lelqy gksnk cuke nh fiiqYl dksijsfVHk lkslkbVh fyå 18-08-12& mHk; i{k ds fo}ku vf/koäkvksa dks lqukA fnukad 04-08-12 dks çfroknh lfefr ds lfpo Lo;a mifLFkr gq, vkSj dgk fd lfefr Hkw[kaM la[;k 184 ,oa 186 ij ,ikVZesaV fuekZ.k gsrq Loh--fr fey xbZ gS vkSj mlij 1100 oxZQhV dk 12 ¶ySV~l dk fuekZ.k lfefr djk,xhA mUgksaus ;g Hkh dgk fd oknh dks Hkw[kaM nsus gsrq os fcgkj jkT; vkokl cksMZ ls ckr djsaxs vkSj ;fn ogk¡ ls Hkw[kaM la[;k 687 ;k 688 feyh rks os oknh dks t:j nsaxsa vU;Fkk 100 oxZQhV dks mij of.kZr ,d ¶ySV vo'; nsaxsA lfefr lfpo us dgk fd fcgkj jkT; vkokl cksMZ }kjk lfefr dks fn, x, Hkwfe esa tks IykV~l of.kZr gS mlesa 218 uEcj dk dksbZ IykV~l gS gh ugha cfYd lfefr us Cykd ,Q esa 201 ls 212 uEcj ds cM+s Hkw[kaMksa dks vius ls 16 Hkw[kaMksa esa cny dj lnL;ksa dks fn;k ftlesa Hkw[kaM la[;k 218 gS ftls oknh dks jftLVªh dh xbZ FkhA oknh }kjk mä Hkw[kaM ij edku fuekZ.k ugha djus ;k ml ij ckmaMªh ugha cuk, tkus ds dkj.k fcgkj jkT; vkokl cksMZ us mä tehu dks [kkyh le>dj iqu% mls vius dCts esa dj fy;kA U;k;ky; esa tks lk{; ds :i esa nLrkost fn[kk, x, Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 17/25 mlesa vkokl cksMZ us lfefr dks ;g 'krZ yxkbZ Fkh fd mlds }kjk of.kZr Hkw[kaMksa esa lfefr dksbZ NsM+NkM+ ugha djsxhA ysfdu lfefr us ,slk fd;k ftldk ifj.kke oknh dks Hkqxruk iM+ jgk gSA o"kZ 1980 esa lfefr us oknh dks tehu dh jftLVªh dh vkSj oknh 32 o"kksaZ ls mlij dkfct ugha gks tk,A oknh U;k;ky; vk, vkSj mi fuca/kd] lg;ksx lfefr;ka iVuk çeaMy us okn la[;k 07@90 esa fnukad 10-08-1994 dks QSlyk fn;k fd Cykd ^ch^ ls IykV la[;k 183 ls 188 ds chp fdlh Hkh IykWV dh jftLVªh oknh le'kksy gksnk ds i{k esa dh tk;A bl okn ds fo:) mijh U;k;ky; vihy dh lquokbZ dj bl] ckn dks] fuEu U;k;ky; esa iqu% fjek.M dj fn;kA çfroknh lfefr us bl U;k;ky; esa rdZ fn;k fd rRdkyhu mi fuca/kd] lg;ksx lfefr;kWa }kjk fn, x, QSlys esa ftu Hkw[kaMksa dk ftØ gS og lkoZtfud mi;ksx dh tehu gS ftl ij vius lfefr viuk lkewnkf;d Hkou ikdZ ;k fo|ky;
cuk,xhA çfroknh lfefr us U;k;ky; dks ;g Hkh crk;k Fkk fd oknh tSls vusd lnL; gSa ftuds i{k esa lfefr }kjk fucaf/kr Hkw[kaM vHkh Hkh fcgkj jkT; vkokl cksMZ us vf/kx`ghr dj fy;k gSA ;fn oknh dks lkoZtfud mi;ksx dh Hkwfe dk fuca/ku gksxk rks muds tSls yfEcr vU; lHkh ekeyksa esa ,slk djuk iMsxkA çfroknh ds bUgha rdksaZ ds vk/kkj ij bl U;k;ky; us vius iwoZ ds QSlys esa la'kks/ku djrs gq, Cykd ch esa Hkw[kaM la[;k 183 ls 188 rd esa IykV nsus laca/kh vkns'k dks jnn dj fn;k vkSj lfefr dks vkns'k fn;k fd og vkokl cksMZ ls okrkZ dj oknh le'kqy gksnk dks mUgsa jftLVªh fd, x, Hkw[kaM ij ekfydkuk gd fnykos ;k mldk eqvkotk fnyk, A bl U;k;ky; }kjk fnukad 18-08-2009 dks ikfjr mä vkns'k ds vkyksd esa lfefr us dksbZ dkjZokbZ ugha dhA rc oknh us ekuuh; iVuk mPp U;k;ky; esa lh0MCY;w0tsålhå 933@2010 nk;j fd;k ftles ekuuh; U;k;ky; }kjk iqu% bl ds'k dks bl U;k;ky; esa fopkj djus gsrq okil fd;k x;k gSA mHk; i{k ds fo}ku vf/koDrkvksa dks lquus ds ckn U;k;ky; bl urhts ij igq¡pk gS fd lfefr us bl U;k;ky; }kjk fjekaM okn la[;k 05@09 esa fnukad 18-08-2009 esa ikfjr vkns'k ds vkyksd esa dksbZ dkjZokbZ ugha dj oknh dks ekuuh; mPp U;k;ky; tkus gsrq Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 18/25 ck/;fd;kA bl ckn ds lquokbZ ds nkSjku U;ky; ds ekSf[kd ,oa fyf[kr funs'k ds ckotwn lfefr us ;g ugha crk;k fd oknh ¼le'ksy gksnk½ tSls fdrus lnL; gSa ftUgsa lfefr] fucaf/kr tehu dks fcgkj jkT; vkokl cksMZ us vf/kx`ghr dj fy;k gSA blls U;k;ky; dks ;g lansg gS fd oknh dks lfefr Hkw[kaM ds Cykd ch esa miyC/k tehu ugha nsus gsrq lfefr us bl lwpuk dks Nqik;k gSA mi;qZä rF;ksa ds vkyksd esa ;g U;k;ky;
lfefr çca/kdkfj.kh dks vkns'k nsrk gS fd og oknh dks CykWd ch fLFkr Hkw[kaM la[;k 183 ls 188 ds chp ,d Hkw[kaM miyC/k djkdj bl vkns'k ds rhu ekg ds vanj mldh jftLVªh oknh ds uke dj ns ;k rhu ekg ds vanj Hkw[kaM la[;k 184 ls 186 ij cu jgs ,ikVZesaV esa ls 1100 oxZQhV dk ,d ¶ySV fcuk 'kqYd ds nsus gsrq ,djkjukek djs vkSj nks lky ds Hkhrj mä QySV dks vkosnd dks uke fucaf/kr dj nsaA mi;qZä vkWctZjos'ku ds lkFk bl okn dk fuLrkj fd;k tkrk gSA g0@& mi fuca/kd Kkikad& 28 @fof/k] iVuk fnukad& 21@8@12 çfrfyfi%& oknh ,oa çfroknh dks lwpukFkZ ,oa vko';d dkjokbZ gsrq çsf"krA g0@& vLi'V 21@8@12 mi fuca/kd**
44. 'The petitioner-Society' being aggrieved preferred appeal vide no. 183 of 2012 before the court of Registrar, Cooperative Societies, Bihar Patna. However, it too vide an order dated 07.09.2015/14.09.2015 concurred with the order passed by the court of Deputy Registrar, Cooperative Societies, Bihar Patna and further directed to provide flat in the apartment which is to be constructed on Plot no. 184 to 187. Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 19/25
45. The order dated 07.09.2015/14.09.2015 by the Registrar, Cooperative Societies, Bihar Patna in Appeal No. 183 of 2012 read as follows :
^^U;k;ky;] fuca/kd] lg;ksx lfefr;k¡] fcgkj] iVukA vihy okn la[;k& 183@2012 ihiqYl dks&vkWijsfVo gkml daLVVªD"ku lkslk;Vh }kjk ekun lfpo cuke mi fuca/kd] lg;ksx lfefr;k¡] iVuk izeaMy] iVuk ,oa vU;
vkns'k 07@09@15 14@09@15 ;g vihy okn fcgkj lgdkjh lfefr;k¡ vf/kfu;e] 1935 dh /kkjk&48 ¼6½ ds rgr~ mi fuca/kd] lg;ksx lfefr;ksa] iVuk çeaMy] iVuk }kjk fofo/k okn la[;k&04@2012 esa ikfjr vkns'k fnukad 18-08-12 dks fujLr djus gsrq nk;j fd;k x;k gSA oknh rFkk çfroknh la[;k&2 ,oa 3 ds fo}ku vf/koäkx.k ds foLr`r cgl dks lquk ,oa vfHkys[k dk voyksdu fd;kA oknh ds fo}ku vf/koäk dk dguk gS fd çLrqr vihy okn fo}ku U;k;ky;] mi fuca/kd] lg;ksx lfefr;k¡] iVuk çeaMy] iVuk }kjk okn la[;k&04@2012 esa ikfjr U;k;kns'k ds fo:) nk;j fd;k x;k gS] ftlds }kjk çfroknh la[;k&2 dks oknh lfefr ds lkoZtfud mi;ksx dh tehu vFkok oknh lfefr ds Iy‚V la[;k& 184 ls 186 ij cu jgs vikVZesaV esa ls ,d ¶ySV fcuk 'kqYd ds nsus dk funs'k fn;k x;k gSA fo}ku vf/koäk dk ;g Hkh dguk gS fd lfefr us çfroknh la[;k& 2 dks mudh ek¡ dh e`R;q ds mijkar fof/kd çfrfuf/k cukrs gq, o"kZ 1974 esa gh vkoafVr Iy‚V F&218 dks iqu% 1977 esa vkoafVr dj fn;k Fkk] ftl ij oknh dks Lease Deed ds fu"iknuksijkar possession Hkh ns fn;k x;k FkkA ysfdu çfroknh la[;k&2 }kjk N% ekg esa edku fuekZ.k dk vk'oklu nsus ds ckn Hkh ml ij fuekZ.k Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 20/25 ugha fd;k x;k ,oa Iy‚V la[;k F&218 ds [kkyh jgus ds dkj.k fcgkj jkT; vkokl cksMZ ¼çfroknh la[;k&3½ }kjk dCtk dj fy;k x;k gSA ,slh fLFkfr dfri; vU; lnL;ksa ds lkFk Hkh gqbZ gSA ftuds Hkw[kaMksa ij fcgkj jkT; vkokl cksMZ dk dCtk gSA Qyr% blds vkyksd esa çfroknh la[;k&2 dks Hkw[kaM vkoafVr djuk laHko ugha gks ik jgk gSA çfroknh la[;k&2 ds fo}ku vf/koäk }kjk oknh lfefr ds dFku ij vlgefr tkfgj dh xbZA mudk dguk gS fd lfefr ds ikl vHkh Hkh dfri; Hkw[kaM miyC/k gS] tks lfefr lkoZtfud mi;ksx ds uke ij vkoafVr djus ls cp jgh gSA çfroknh la[;k&2 ds fo}ku vf/koäk ds vuqlkj oknh lfefr vius mÙkjnkf;Ùo fuoZgu ls cp jgh gSA çfroknh la[;k&3] fcgkj jkT; vkokl cksMZ ds fo}ku vf/koäk us oknh lfefr ds vfHkdFku dks xyr Bgjk;k vkSj dgk fd oknh dks fcgkj jkT; vkokl cksMZ }kjk 1968 esa 131&12 ,dM+ tehu vkoklh; d‚yksuh ds fodkl ds fufeÙk nh xbZ FkhA blesa 1600 Hkw[kaM Fks ,oa lfefr us vuqca/k dh 'krksaZ dk mYya?ku dj 1600 Hkw[kaMksa ls vf/kd Iy‚V cukdj lnL;ksa esa forfjr fd;k gSA çfroknh la[;k&3 ds fo}ku vf/koäk ds vuqlkj F&218 la[;k dk dksbZ Iy‚V Iyku esa of.kZr gh ugha gS ,oa lfefr us vuqca/k ds foijhr bls fufeZr fd;k gSA ;g fd fcgkj jkT; vkokl cksMZ us oknh lfefr dh fdlh tehu dk vfrØe.k ugha fd;k x;k gS rFkk ;g fd lfefr dk mä dFku rF;ghu gSA oknh lfefr ds fo}ku vf/koäk us rnarj fookn dh n'kk esa vuqca/k dh 'krksaZ ds vuq:i vuqca/k ds mica/k 15 ds rgr~ fookpu gsrq lfpo] Hkou foHkkx ¼rRdkyhu inuke½ dks ekeys dks lkSaius dk vuqjks/k fd;kA çfroknh la[;k&3] fcgkj jkT; vkokl cksMZ ds fo}ku vf/koäk }kjk Hkh bldk leFkZu fd;k x;kA fo}ku vf/koäk dk dguk gS fd oknh lfefr ,oa çfroknh fcgkj jkT; vkokl cksMZ ds chp ds vuqca/k esa Hkh /kkjk&17 ds rgr lfpo] Hkou foHkkx dks gh fookpu gsrq l{ke çkf/kdkj gksus dh ckr dgh xbZ gSA vkns'k mijksä fcanqvksa dh foospuk] mHk; i{k dh foLr`r lquokbZ rFkk vfHkys[k voyksdu ds vk/kkj eSa Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 21/25 fo}ku U;k;ky;] mi fuca/kd] lg;ksx lfefr;ksa] iVuk çeaMy] iVuk ds bl U;k;kns'k ls lger gw¡ fd çfroknh la[;k&2 dk uSlfxZd vf/kdkj Hkw[kaM vkoaVu ds laca/k esa curk gSA oknh lfefr vf/kdkj ls çfroknh la[;k&2 dks oafpr ugha dj ldrh gSA mä vkyksd esa oknh lfefr dks funs'k fn;k tkrk gS fd okn la[;k&04@2012 esa fo}ku U;k;ky;] mi fuca/kd] lg;ksx lfefr;kWa ds vkns'k esa of.kZr rF; fd oknh jkfefr dks IykWV la[;k&184 ls Iy‚V la[;k& 187 esa fufeZr gks jgs vikVZesaV] ftldh çLoh--fr çkIr gS] tSlk fd oknh lfefr ds fo}ku vf/koäk }kjk fo}ku U;k;ky;] mi fuca/kd] lg;ksx lfefr;ksa ds le{k dgk x;k Fkk esa çfroknh la[;k&2 dks ,d ¶ySV fcuk 'kqYd miyC/k djk,A ;fn oknh lfefr ,oa fcgkj jkT; vkokl cksMZ ds chp Hkwfe ds vfrØe.k laca/kh fookn gS lks ;knh lfefr vfrØe.k laca/kh fookn ds fu"iknukFkZ lfefr ,oa fcgkj jkT; vkokl cksMZ ds chp xkg tuojh] 1968 esa fu"ikfnr lafonk esa of.kZr mica/k la[;k&17 ds rgr~ jkfp;] Hkou foHkkx ¼rRdkyhu inuke½ ds le{k viuk fookn çLrqr djsaA blds lkFk gh çfroknh la[;k&2 dks Hkh oknh lfefr ,oa muds chp gq, vuqca/k ds mica/k &15 ds rgr~ viuk fookpu] ;fn os larq"V u gks] rks lacaf/kr l{ke çkf/kdkj ds le{k is'k djuss dh Lora=rk nh tkrh gSA mijksä direction ds lkFk mä ckn esa fnukad 01-04-13 dks ikfjr LFkxukns'k (stay order) dks okil ysrs gq, okn dk fuLrkj fd;k tkrk gSA lHkh lacaf/krksa dks lwfpr djsaA g0@& fuca/kd] lg;ksx lfefr;k¡A**
46. This court is in complete agreement with the original order passed by the Deputy Registrar, Cooperative Societies, Bihar Patna. 'The petitioner-Society' which allotted a non-existent plot no. F- 218 to the respondent no. 6, late Samsul Hoda is/was duty bound to accommodate him by making Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 22/25 alternate arrangement. It cannot play the game of hide and seek by complaining that the said plot has been taken over by 'the Board' due to non construction in time by the respondent no. 6 and as such 'the Society' cannot be forced to provide him another plot.
47. The said stand of 'the petitioner-Society' is preposterous inasmuch as, as per the facts on record, at no point of time, the physical possession of the said plot no. F-218 was provided to the respondent no. 6 and even its own 'Amin' failed to locate the plot.
48. 'The petitioner-Society' in the aforementioned circumstances is/was duty bound to provide him alternate plot and/or if the proposed apartment would have been constructed, a flat.
49. Since the second part is now over as due to the Vigilance case pending before the Patna Municipal Corporation in which there is a restrain order; no apartment can be constructed, 'the petitioner-Society' has to provide an alternate plot to the heirs of the respondent no. 6. Whether it will be from plot no. 183 to 188 and/or any other plot which is vacant within 'the Society' with the same area that was originally allotted to him (in F-218), it is for 'the Society' to decide. Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 23/25
50. Further, if it has any grievance with 'the Board', it has to contest the same with it but cannot ask an individual/member/his heirs to wait till then, in this particular case, 40 years.
51. Further, on the last occasion, when this Court on 26.06.2023 wanted 'the petitioner-Society' to sit with the heirs of respondent no. 6 to sort out the differences, a completely false statement was made in paragraph-9 that it tried to contact the legal heirs on the address given in the substitution petition but no one was found.
52. This submission was immediately refuted by the learned counsel for the heirs of the respondent no. 6 stating that 'the petitioner-Society' only to save its skin made this frivolous statement as the family members are fully residing in the address given in the substitution petition.
53. Learned counsel for 'the petitioner-Society' had no answer to the said submission put forward by the learned counsel for the aforesaid respondent.
54. Mr. Devendra Kumar Sinha, Learned Senior Counsel for 'the Board' armed with the affidavit made a categorical statement that so far as the Housing Board is concerned, it never encroached any piece of land of 'the Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 24/25 petitioner-Society' and a frivolous allegation has been made by it only to deny the respondent no. 6/his heirs the rightful due.
55. Most unfortunate part is that the respondent no. 6 who wanted a home of his own in 1983 after agitating the matter for more than three decades, left this world on 26.08.2017 with the said unfulfilled dream in his eyes. Now his heirs are fighting for justice.
56. In the aforesaid background, this Court holds that the order dated 18.08.2012 passed by the Deputy Registrar, Co- operative Societies, Patna Division (Annexure-10) as also the order dated 07.09.2015/14.09.2015 passed by the Registrar, Co- operative Societies, Bihar, Patna (Annexure-11) need no interference and the writ petition is accordingly dismissed.
57. 'The petitioner-Society' is duty bound to allot a plot admeasuring the same area as that of plot no. F-218 which was originally allotted to the respondent no. 6 and preferably amongst the plot nos. 183 to 187 within a period of three months from today in view of the fact that full four decades have passed since the first allotment was made to the original allottee who is now no more and his heirs are now carrying forward his desire to have a sweet home.
58. Further, as 'the petitioner- Society' allotted a non- Patna High Court CWJC No. 17097 of 2015 dt.25-07-2023 25/25 existent plot no. F-218 to the respondent no. 6 and in the process, made him to wait for decades who ultimately left this world; his heirs are entitled for compensation of Rs. 25,000/- which will be paid to the widow of the respondent no. 6 namely, Habiba Ahmad (respondent no. 6.1) by demand draft issued by the local State Bank of India branch within a period of two months from today.
59. With the aforesaid directions/observations, the writ petition stands dismissed.
(Rajiv Roy, J) Jagdish/Neha/-
AFR/NAFR AFR CAV DATE 11.07.2023 Uploading Date 27.07.2023 Transmission Date