Bombay High Court
Keshav Krishna Londhe (Dr.) vs Adarsh Gruha Nirman Sahakari Sanstha ... on 3 February, 2005
Equivalent citations: 2005(5)BOMCR404
Author: B.P Dharmadhikari
Bench: B.P Dharmadhikari
JUDGMENT Dharmadhikari B.P., J.
1. Heard Shri Sirpurkar, Advocate for the petitioner and Shri Patil, Advocate for respondent No. 1.
2. By this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner challenges the reversing judgment of Co-operative Appellate Court dated 31-12-1990 in Appeal Nos. 55 of 1990 and 56 of 1990. The said appeals were filed respectively by present respondents Nos. 1 and 2 together and present respondent No. 3 separately challenging the judgment of Co-operative Court dated 25-6-1990 in Dispute No. 44 of 1982 by which the Dispute under Section 91 filed by the present petitioner came to be allowed and cancellation of allotment of Plot No. 59 in his favour was declared to be illegal and quashed. It appears that after the judgment of Co-operative Appellate Court in favour of respondent No. 3, respondent No. 3 has obtained the lease deed of said plot in his favour and he has been permitted to raise construction of residential house upon it on his own risk.
3. The dispute was filed by the present petitioner under Section 91 of the Maharashtra Co-operative Societies Act, 1960, before the Co-operative Court pointing out that he is a member of respondent No. 1 Society and he has paid the value of one share of Rs. 50, admission fee of Rs. 1/- and miscellaneous expenses of Rs. 4/- on 14-12-1973. He further stated that he was issued a share certificate bearing No. 169 on the same date in his name. Thereafter, from time to time he deposited amount of Re. 3,650/- as full cost of plot and its development charges. He was allotted Plot No. 59 and on 1-3-1977, the Secretary of respondent No. 1 society communicated to him that society was willing to execute a sale-deed in his favour and for that purpose he should contact the Secretary or Chairman of respondent No. 1. He further mentioned that there were no dues outstanding against him. He was called upon to comply certain formalities like swearing of affidavit about his income and declaration that he has no house property within the limits of Nagpur Municipal Corporation. He stated that the same were forwarded by R.P.A.D. to respondent No. 1 society on 10-10-1980 and were received by respondent No. 1 on 15-10-1980. However, by a letter dated 16-9-1980, the society informed him that it was unable to grant him plot because he had not supplied the necessary documents. He further made a grievance that said plot was allotted to respondent No. 3, who claimed to be the member of the society. It is his case that along with his dispute, he filed 23 documents showing his share certificate, receipts issued by the society for payment made by him, some letters in which he was described as a member and the impugned communication dated 16-9-1980. The petitioner also filed an application for grant of temporary injunction under Section 95 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the Act), that injunction was granted in his favour after hearing the respondents. In reply to his dispute before the Co-operative Court, the respondents filed their written statement and denied all the allegations. In the written statement, the respondents contended that present petitioner was never enrolled as a member. It is to be noted that present respondent Nos. 1 and 2 filed one written statement while present respondent No. 3 filed his separate written statement. Respondents No. 1 and 2 further stated that Plot No. 59 was never allotted to the petitioner. They contended that he also did not complete formalities as per demand made by the society and, therefore, Plot No. 59 was rightly allotted to respondent No. 3 after receiving entire sale cost and sale deed has been executed in his favour. It was further stated that said respondent No. 3 became absolute owner of Plot No. 59.
4. It is in this background that the Co-operative Court framed issues and one of the issues which is relevant was whether the disputant before it was member of the society and had paid the requisite amount. The Co-operative Court after permitting parties to lead evidence, delivered its judgment and recorded a finding in favour of the petitioner. It held that the petitioner was the member of the society. It further found that cancellation of allotment in his favour is illegal and wrongful. As such, it restored allotment of Plot No. 59 in favour of the petitioner and cancelled the sale-deed executed in favour of respondent No. 3 by opponents respondents Nos. 1 and 2.
5. This judgment of Co-operative Court was challenged separately in two appeals by the respondents. Respondents Nos. 1 and 2 filed Appeal No. 55 of 1990 while respondent No. 3 filed Appeal No. 56 of 1990. The appeals were heard together by Co-operative Appellate Court and the said Court held that the finding reached by the Co-operative Court that the petitioner was member of opponent society is wrong. It further found that as the petitioner did not fulfil necessary formalities, Plot No. 59 was rightly allotted to respondent No. 3. In fact the Co-operative Appellate Court has held that Plot No. 59 was never allotted to petitioner and as such he had no right, to claim Plot No. 59. In view of these findings, the Co-operative Appellate Court was pleased to allow both the appeals and set aside the judgment of the Co-operative Court. It directed the society to execute sale deed in favour of respondent No. 3 within three months. This order has been challenged in the present writ petition. This Court on 5-3-1992 issued rule in the matter.
6. Shri Sirpurkar, Advocate for the petitioner has contended that the issue whether the petitioner is or is not the member of respondent No. 1 society did not fall for consideration because the society itself admitted that the petitioner is its member. He has invited attention of the Court to the written statement filed by respondents Nos. 1 and 2 and the admission contained therein for that purpose. He points out that the society admitted to have received the amount from him and issued a share certificate in his name. He further points out that in specific reply, the society specifically accepted that the petitioner had applied for becoming a member of society and he was duly admitted as member of the society. He contends that this being admitted position, there could not be any debate over his membership in the matter. It is his contention that such a debate was raised for the first time in appeal filed before Co-operative Appellate Court and the Co-operative Appellate Court has accepted the plea, raised by the society belatedly. He has relied upon certain cases to which the reference will be made little later in this judgment, to contend that in view of the admissions there was no need for him to lead any positive evidence to show that he has been admitted as member in accordance with law. He has further contended that in fact society was estopped from raising a plea that the petitioner is not its member. He has cited some cases to substantiate his contention that such a plea cannot be allowed to be raised later on and evidence adduced without pleadings cannot be looked into. He has invited attention of the Court to the documents on record in which he has been addressed as a Member. It is his contention that in this background, the Co-operative Appellate Court was wrong in holding that the petitioner is not the member of the Society. He further contends that the document at Ex. 40 on record has been wrongly interpreted as only offer of allotment while in fact the Plot No. 59 was allotted to him and it was mutated in corporation records also in his name. He contends that in such circumstances, Plot No. 59 could not have been allotted to respondent No. 3. He further states that the declaration and affidavit which was sought for from him were forwarded by registered post acknowledgment due and the society received the same. He contends that the defence of society that it received blank documents through this envelop is false. He further states that the view taken by the Co-operative Appellate Court is erroneous and perverse. He contends that the order and judgment passed by the Co-operative Court needs to be restored back. He contends that the respondents made efforts to amend written statement to incorporate plea that petitioner was not the member of the society but those amendments were rejected and the orders rejecting those amendments were not challenged and therefore, those orders have become final. He points out that right from the year 1973, the petitioner has been treated as member and as such there is estoppel which operates against the respondents in the matter. He further contends that in view of the provisions of Section 38 of the Maharashtra Co-operative Societies Act, 1960, when the name of the petitioner appears in the register of members, it cannot be said that the petitioner is not the member of the society.
7. Shri Patil, Advocate appearing for respondent No. 1 states that the issue of membership has been framed by the Co-operative Court itself and it has been answered in favour of the petitioner. He contends that even the dispute regarding membership of petitioner was very much involved before the Co-operative Appellate Court and the same has been rightly considered by the Co-operative Appellate Court. He contends that the rules which govern grant of membership of Co-operative Society are mandatory and the petitioner never applied for grant of such membership though he paid share money and also deposited membership fee. He contends that this fact is admitted by the petitioner in his evidence wherein he has stated that he does not remember whether he has filed in membership form. He contends that society is bound to adhere to the provisions of Co-operative Societies Act and the petitioner was duty bound to adduce positive evidence regarding his membership. He further points out that the petitioner has also to submit a declaration that he does not hold any other house property within the limits of Nagpur Municipal Corporation and as the petitioner has not supplied any such declaration to the society, he cannot become member thereof. He contends that though opportunity was given to the petitioner to complete the formalities and to fill in the lacuna, the petitioner did not utilise it and ultimately Plot No. 59 was required to be allotted to respondent No. 3. He contends that mere admission in the written statement in this background is not sufficient. He contends that membership is to be granted by the General Body and that also is required to be done after a person applies in writing for becoming its member. He invites attention to discussion by the Co-operative Appellate Court in this respect. It is his contention that as the petitioner did not fulfil the required criterion, he never became member of respondent No. 1 society.
8. The Advocate for the petitioner has stated that there was no dispute regarding his membership before the Co-operative Court. The Co-operative Court, however, in its judgment mentions that the respondents denied the membership of the petitioner. This is apparent from para 6 of judgment of the Co-operative Court. In this connection, reference may be made to the reply filed by present respondent No. 3 before the Co-operative Court on affidavit on 9-3-1983. In the said affidavit reply, respondent No. 3 has denied membership of petitioner and has asserted that he is the valid member of the society. He has further stated that he started construction of his house on Plot No. 59 sometimes in February, 1982 and in November, 1982 when he got the notice of Court, his construction was almost complete. His written statement also contains similar story. On 5-2-1985 he has amended his written statement to point out that he has taken loan of Rs. 75,000/- from his employer i.e. Canara Bank and the house property is mutated in his name. In the reply affidavit, which the present respondents No. 1 and 2 have filed on 3-3-1983 before Co-operative Court, the society denied that any specific plot or Plot No. 59 was ever allotted to the petitioner. It was further stated that the present petitioner had applied to be a member of respondent No. 1 society and he was duly admitted to its membership on his acquiring one share of Rs. 50, plus payment of Re. 1 as admission fee and Rs. 4/- as miscellaneous expenses on 14-12-1973. It is further mentioned that on 27-12-1976, as per appendix "E" of the Bye laws of respondent. No. 1 society forms were sent to all the members of society including petitioner under certificate of posting with request that they should furnish their affidavits in prescribed proforma and necessary information as required under Rule 5(5) and (6) of the Bye law. It is contended that all other members complied with it but the petitioner and one Shri Barapatre did not comply with these requirements. It is further mentioned that this default was brought to the notice of General Body on 12-8-1979 and the General Body decided to service a notice upon such members and if after notice they failed to fulfil requirements, the society would not be bound to allot any plot to such members. On 15-7-1980, the Executive Committee of respondent No. 1 took note that even after four years since 1976, some members failed to submit affidavit or supply necessary information and did not get sale deed executed. The Executive Committee by Resolution No. 3, therefore, decided to give 15 days notice to such members and in case of default, the plots available were decided to be allotted to other members who had completed necessary formalities. It is the contention of respondents No. 1 and 2 in this respect that accordingly by R.P.A.D. letter dated 26-8-1980, the petitioner was called upon to file his affidavit and submit other informations within 15 days. On 16-9-1980, as the petitioner had failed to fulfil the necessary formalities, the petitioner was informed that the society was unable to allot any plot to him and it is the case of the society that the petitioner addressed a letter to society on 10-10-1980 allegedly enclosing his affidavit but there was no such affidavit enclosed. This letter was placed before the Executive Committee of respondent No. 1 on 17-10-1980 and on that date, the Executive Committee reiterated the action taken by the secretary in compliance with its earlier resolution and resolution of General Body. On 1-12-1980, the society informed the petitioner that he did not submit any affidavit along with his letter dated 10-10-1980.
9. Thus, from the affidavit, which is filed on 3-3-1983, it is apparent that the society admitted that the petitioner applied for its membership and he was duly admitted to its membership. Insofar requirements of affidavit and declaration is concerned, the society had admitted that on 27-12-1976, the society called such affidavit and declaration for the first time from all its members including the petitioner. The written statement which the society filed before the Co-operative Court in para 1 also admits the details of payment as mentioned by the petitioner and also issuance of Share Certificate No. 169 in his favour. It is also admitted by the society that from time to time the petitioner deposited amount of Rs. 3,650/- with it for plot. However, it has denied that the said amount was deposited towards Plot No. 59. In the said written statement in specific reply, the society has specifically stated that the petitioner had also applied to be a member of respondent No. 1 society and he was duly admitted to its membership. Thus, when pleadings are perused, it appears that respondents No. 1 and 2 admitted that petitioner had applied for becoming its member and he was duly admitted. As such, he also paid necessary amount and he was holding a share of society. It also appears that his name was appearing in the register of members which the society is bound to maintain under Section 38 of the Act. Under Section 38(2) of the Act, the date on which the person was admitted to membership and the date on which he ceases to be a member as mentioned in this register are stated to be the prima facie evidence of said dates. The Co-operative Court has considered the issue of membership and apart from the material to which the reference is made above, it has also found that the secretary of society who entered the witness box has specifically stated that the forms for membership wee supplied to all the members including the petitioner. The Co-operative Court has further found that there is a share certificate at Ex. 38 before it and Ex. 39 receipts disclosing the payment of admission fee by the member. It is in this back ground that the Co-operative Court concluded that the petitioner is the member of society.
11. When the finding reached by the Co-operative Appellate Court is considered, the Co-operative Appellate Court has considered the said issue in the light of the Rules and Bye-laws which govern the grant of membership. The Co-operative Appellate Court has observed that the Co-operative Court has relied upon the deposition of the petitioner and took a negative approach by observing that the respondent society could not point out as to how the petitioner cannot be treated as a member. It has further observed that the Cooperative Court was influenced by share certificate at Ex. 38 and the single statement appearing in deposition of witness for society that forms for membership were supplied to the petitioner. It has further held that the Co-operative Court found that the witness for society admitted that in original membership register, the name of the petitioner appeared at Sr. No. 70. The Cooperative Appellate Court then takes note of admission in written statement and proceeds further to consider the arguments advanced by the petitioner that there is no resolution of Managing Committee to admit the petitioner as member and that the Co-operative Court has not considered the issue in the light of provisions of Bye-laws and Rules. The Appellate Court in para 9 observes that there is no membership application signed and submitted by the petitioner to respondent No. 1 society and no such membership application is produced on record. It is further observed that at no time Managing Committee resolved to admit petitioner as member. Co-operative Appellate Court also makes mention of the deposition of petitioner that he does not know whether he signed membership form or not. The Appellate Court has mentioned that the petitioner has stated in his cross that he was not given membership form till date and therefore, he could not file it on record. It is in this back ground that it has referred to provisions of Rule 19 of the Rules framed under the Act. The said Rule 19 reads as under:
"1) No person shall be admitted as a member of the society unless, he has applied in writing in the form laid down by the society... for membership.
2) his application is approved by the Committee of the society in pursuance of the powers conferred on it in that behalf ...
3) he has fulfilled all other conditions laid down in the Act, Rules and Bye-laws
4) in case of ..."
After considering the said provisions, it has observed that the conditions under Rule 19 and Bye-laws of the society are required to be complied with and, until and unless the same are complied with, no person would become member. It has found that there are 15 such conditions prescribed under the bye-laws and it has further found that these conditions require prospective member to give true information in Schedule "A". He has to give agreement in Schedule "C". The Appellate Court states that upon scanning evidence of both sides, it found that the petitioner did not apply for membership in writing and his such application was not approved by the Managing Committee and he did not fulfil several conditions. It found that he deposited entrance fees, share money as prescribed by Bye-law No. 5. It has held that the Co-operative Court has not considered the ruling of the Hon'ble Apex Court in Raj Rani v. Delhi Administration, . Thereafter, it has observed that such a person who has paid share money or entrance fee only cannot be treated as a member of the society.
12. The ruling to which reference has been made by the Co-operative Appellate Court considers the situation in which one Debabrata Mookherjee, Chairman was appointed by the Hon'ble Apex Court, on 29-8-1974 to hold the meeting of New Friends Co-operative House Building Society Limited. The reading of para 29 of this ruling shows that issue of membership of 60 persons was one of the main contention before the Chairman and these members were admitted to membership on 25th January, 1974. The Chairman on enquiry found that out of these 60 persons, 21 had at one time or another withdrawn their membership and 10 out of those 21 had either never applied or never paid the requisite membership fee. The Chairman, therefore, found that only 39 persons were to be considered for membership. The Chairman also found that several of 60 persons were highly placed Government officials and friends and relations of persons prominent in public life. It is in this background, the Court considered the provisions of Rules in relation to membership. The Apex Court has found that Rule 24 requires a person to apply in writing for membership and his application is to be approved by the Committee of the society. It has thereafter made reference to Rule 25 which stated that no person would be eligible for admission as a member if he owns a residential house or plot of land for construction in Union Territory of Delhi. Rule 30 deal with disposal of applications for admission of members. Bye-laws 5 of the society require such person to sign a declaration that he or his wife or his dependents did not own a dwelling house or plot in Delhi. The case of 39 persons were judged in this background by the Apex Court. It found that out of these 39 persons, 20 applications did not bear any date. The Hon'ble Court noted that the date of application, the prescription for time for deposit of the membership fee and the amount of qualifying share and the filling of requisite declaration are formalities which could not be disregarded. The Co-operative Appellate Court has, therefore, held that in view of the finding reached by it that the petitioner did not apply in writing for membership and there is no mention of any resolution granting membership to him, he cannot be treated as a member of the society. Apart from this, the Hon'ble Apex Court has itself in para 63 of this judgment directed that this ruling is not precedent for affairs of any other society.
13. Here it is to be noticed that the petitioner in his cross-examination has stated that he does not remember whether he has signed the membership forms or not. He has further stated that membership form was never supplied to him till date. However, the society in its reply affidavit filed before the Cooperative Court mentioned above and thereafter in its written statement filed on 9-2-1984 before the Co-operative Court has specifically stated on oath that the petitioner applied to be a member of respondent No. 1 society and he was duly admitted to the membership of the society on his acquiring one share of Rs. 50/-payment of Re. 1/- as membership entrance fee and Rs. 4/- as miscellaneous expenditure on 14-12-1973. It is also mentioned that on this date, his Serial No. in membership register is 170. Coupled with this, specific admission in written statement, it is to be noticed that the Co-operative Society has later written to the petitioner and all other members to supply affidavit and declaration. At that time, the petitioner was not called upon to submit any form of application for membership in writing. It was not intimated to him that the Managing Committee has not passed any resolution granting membership to him. When the society specifically wrote to the petitioner and several others with a view to obtain compliance with various formalities, one fails to understand why such communication did not call upon the petitioner to submit the membership application along with other documents.
14. The petitioner has filed before the Co-operative Court share certificate dated 14-12-1973, receipts showing payment of share amount, entrance fee, miscellaneous expenses, receipts for various dates between 26-4-1974 to 19-4-1976 towards payment of cost of plot and land development charges. He has also placed on record receipts showing other payments. On 1-3-1977, vide Ex. 51, the secretary of the society has written to him that General Body meeting has taken place on 6-2-1977 and society is willing to execute sale deeds in favour of persons to whom the plots are allotted. It is mentioned in this that no amount is in balance from the petitioner. He has also produced on record a communication by which he was called upon to communicate his decision about change of plot so as to finalise the allotment. All these documents, therefore, reveal that the society has treated the petitioner as member. On 26-8-1980, the society has written to the petitioner that he has not submitted affidavit which is required for membership and he was called upon to contact the society for preparing documents for registration of sale deed. Thus, this document also reveal that only formality which petitioner was to complete was affidavit and the society was ready to execute sale deed in his favour. On 16-9-1980, he was informed that he has not submitted necessary documents and, therefore, the society is not in a position to give plot on him.
15. Thus, when all this correspondence is looked into it is clear that if respondents No. 1 and 2 wanted to contend that there is no resolution passed by the Managing Committee granting membership to the petitioner, the burden was upon respondents No. 1 and 2 to produce their proceedings book for the relevant period and to show to the Co-operative Court that there is no resolution passed by the Managing Committee. It is to be seen that from 1973 till 1980, the petitioner has been treated as member of the society. He has made all the payments and society was ready and willing to execute sale-deed also in his favour. In such circumstances, I find that the Co-operative Court has correctly appreciated the situation and finding reached by it could not have been set aside by the Co-operative Appellate Court. The reliance placed on the judgment of, the Apex Court by the Co-operative Appellate Court for that purpose is misconceived and erroneous. In judgment before the Apex Court, the dispute was of totally different nature and in different background. It is not the case of respondents Nos. 1 and 2 that the petitioner was not bona fide member of the society or that he had any other immovable property within the limits of Municipal Corporation which disentitles him to become a member. The Co-operative Appellate Court has failed to note that practically in case of all the members of society, there were same formalities to be completed and case of the petitioner was not an exception to it. The interference in the finding recorded by the Co-operative Court by the Co-operative Appellate Court is, therefore, unwarranted and liable to be set aside.
16. The Co-operative Court has also considered the entitlement of petitioner to Plot No. 59. For that purpose it has framed two issue. Issue No. 2 tried by it was whether the petitioner did not comply with the demand of filing affidavit as made by respondent No. 1 society through its communication dated 26-8-1980. The next issue was whether the society was entitled to cancel allotment made in favour of the petitioner though he did not supply affidavit. While considering the first issue the Co-operative Court has found that the petitioner has forwarded necessary affidavit and information about his cross-examination by R.P.A.D. to the respondents through a letter. The said letter is at Ex. 0-11 on record of Co-operative Court. It has further found that the respondent society has denied that it has received any such affidavit but it has made reference to the certificate of postal authority certificate which clearly disclosed that a registered packet was delivered to respondent No. 1 society. It has also considered the defence of respondent No. 1 that petitioner forwarded blank forms as per Annexures 26 and 27 along with registered letter. The Co-operative Court has refused to believe this story. It has, therefore, held that the petitioner did supply necessary affidavit to respondent No. 1 and therefore, it has answered the issue in favour of petitioner. While considering this issue, the Co-operative Appellate Court has again observed that the Co-operative Court was influenced by certificate issued by he postal authorities. It has further observed that minute observation of letter dated 10-10-1980 forwarded by the petitioner to the society reveals otherwise and the Co-operative Appellate Court has mentioned that in such letter the petitioner has mentioned that the secretary to whom letter was addressed would do the needful in the matter by filling in requisite information in the duplicate forms and return the same for further action so that the petitioner can complete the final registration. However, it is to be noticed that in very opening line of said letter at Ex. 55, the petitioner has stated that he has forwarded Annexure "A" forms and Annexure II and particulars in duplicate form along with an affidavit required for final sale deed and registration of plot purchased by him. Even at the end of letter at enclosure, he has mentioned affidavit and duplicate forms of Annexure A and Annexure II with particulars. The grievance made by respondent No. 1 was in relation to not receiving the affidavit. The Co-operative Court is right in observing that why a person who has paid the amount from time to time to the society to purchase a plot should send blank forms as per annexures 26 and 27 and not an affidavit along with registered letter. The said conduct which is attributed to the petitioner by the society is unbelievable and the Co-operative Court has correctly appreciated the situation in this respect. The application of mind by the Co-operative Appellate Court is not correct. The Co-operative Appellate Court has also referred to cross-examination of petitioner and has observed that there are number of instances in it which go against him. It has held that there is no explanation as to why affidavit after 9-9-1980 was forwarded after one month i.e. on 10-10-1980. The second instance is that the petitioner could not disclose the name of Advocate who has signed on his affidavit and he could not tell the name of the Magistrate before whom he has sworn the affidavit. The Appellate Court has also observed that record of Court i.e. Executive Magistrate before whom the affidavit was sworn was also not called. It, therefore, had concluded that he has only forwarded blank form and no affidavit was sent by him.
17. I find that all the members of the Co-operative Society were called upon to furnish affidavit and accordingly the petitioner was also called upon to furnish the said affidavit and the petitioner in fact submitted said affidavit. The reasons given by the Co-operative Appellate Court for holding that the petitioner did not forward the affidavit but only forwarded blank forms are not sufficient and relevant. Not remembering the name of the Executive Magistrate or not remembering the name of Advocate cannot be taken as sufficient ground to disbelieve his testimony. It is to be noted that the petitioner was deposing before the Court on 8-8-1984 i.e. practically four years after the affidavit.
18. The Co-operative Court has thereafter considered the arguments of the petitioner that even if no affidavit is supplied or blank forms were sent, allotment made in his favour could not have been cancelled on that ground. Along with this, the Co-operative Court has also considered the issue whether Plot No. 59 was allotted to the petitioner. The Co-operative Court has observed that in resolution Plot No. 59 was allotted to the petitioner but then it has made reference to letter dated 6-3-1976 which is at Ex. 40. It has held that the said letter issued by the society under the signature of his secretary clearly reveals that Plot No. 59 is allotted to the petitioner. It has thereafter observed that once allotment is made to the member, it cannot be revoked as it has the effect of dismembering the holder thereof. The Co-operative Court has observed that right of membership and right of plot cannot be separated and the society cannot deprive the member of his right to plot. It has found that no care was taken to issue show cause notice to the petitioner before cancellation of allotment of plot in his favour. It has relied upon certain judgments for the said purpose.
19. The Co-operative Appellate Court has, however, treated this letter at Ex. 40 as only an offer to prospective purchaser and it has held that it was only an offer to the petitioner and it was not a letter of allotment. For that purpose it has considered the contents of Ex. 40 and has concluded that entire letter shows that it is not a letter of allotment at all. It has relied upon other correspondence to observe that the petitioner also did not assert in it that plot No. 59 was allotted to him. It has also made reference to his cross-examination and has observed that he was under confusion as regards the number of plot. If the letter at Ex. 40 is perused in this background, the said letter mentions that Special General Body Meeting of plot holders of society was held on 29-2-1976 and plots have been distributed to members who deposited 1 1/2 of the land cost. It is expressly mentioned that Plot No. of petitioner is 59 and the petitioner has paid amount of Rs. 2,650/- and he has to deposit balance amount of Rs. 1,644/-. The further clause in this letter direct the members to deposit the balance amount by 19-4-1976 and procedure to be followed if some plots become available if amount are not paid by holders thereof. In last clause it is mentioned that if a member does not want the plot given to him or he wants to exchange it with some other member, application to that effect should be made to society within 15 days. Thus, I do not find anything in this letter to come to the conclusion that it is not a letter of allotment but it is merely an offer of allotment. I find that the letter has not been correctly interpreted by the Co-operative Appellate Court.
20. In this respect, it is to be noticed that as observed by the Hon'ble Apex Court in its judgment in the case of Rickmers Verwaltung G.M.B.H. v. Indian Oil Corporation Ltd., , the existence of contract between the parities can be gathered through correspondence or documents. Here, the issuance of letter vide Ex. 40, the payment made by the petitioner, the letters issued by the society to him treating him as member, all reveal that in fact said Plot No. 59 was allotted to him. It is to be noticed that the Cooperative Appellate Court has taken note of some unproved documents filed along with list Ex. 66-A. However, that discussion also shows that when Nagpur Municipal Corporation sanctioned lay out plan on 13-9-1976, 94 plots were earmarked thereon and one plot was for the petitioner. The Co-operative Appellate Court further finds that it was subsequently revised on 13-3-1980 after physical verification of plots and from that list name of the petitioner was removed along with other defaulters. Thus, it is to be seen that even said list contains the name of the petitioner. Reference to provisions of Indian Contract Act in this respect will also be useful. Section 3 deals with communication, acceptance and revocation of proposals. Section 4 considers the contingencies in which said communication of acceptance or revocation is complete. Section 5 further prescribes the procedure for revocation of proposals and acceptances and then Section 6 points out how proposal can be revoked. Section 6 of Indian Contract Act, 1872, reads as under:
"6. Revocation how made. - A proposal is revoked (1) by the communication of notice of revocation by the proposer to the other party; (2) by the lapse of the time prescribed in such proposal for its acceptance or, if no time is so prescribed, by the lapse of a reasonable time, without communication of the acceptance; (3) by the failure of the acceptor to fulfil a condition precedent to acceptance; or (4) by the death or insanity of the proposer, if the fact of his death or insanity comes to the knowledge of the acceptor before acceptance.
It will thus be seen that the revocation of allotment of Plot No. 59 to the petitioner is not in accordance with Section 6. Plot No. 59 was allotted to the petitioner and he also made payment thereof and as such, even if it was a proposal by payment, it was accepted by him. Thus, the offer was accepted and its acceptance was communicated as required by Section 4 by the petitioner to the society. The proposal, therefore, could not have been revoked after the acceptance as communicated by the petitioner to the society. Hence, the contention on this ground, the reasoning put forth by the Co-operative Appellate Court cannot stand the scrutiny of law. It is to be noticed that by treating Ex. 40 as merely offer for allotment, the Co-operative Appellate Court has even sidelined the issue regarding observations of principles of natural justice in the matter.
21. Once it is held that the petitioner is a member of respondent No. 1 society and he was allotted Plot No. 59 and he completed necessary formalities, it follows that allotment in his favour could not have been cancelled and said cancellation is, therefore, wrongful. On 16-9-1980, the society has expressed his inability to allot plot to the petitioner and thereafter it has allotted said Plot No. 59 to respondent No. 3. It is to be noticed that if the allotment made in favour of the petitioner is to be cancelled on any ground, he ought to have been given a previous notice therefore and admittedly, no such notice has been given to the petitioner by the society. As per pleading of society, the allotment made in favour of the petitioner has been cancelled only because of his failure to supply affidavit to the society. Under the circumstances, the Cooperative Court has correctly found that the petitioner is entitled to restoration of said Plot No. 59. The society has, however, in the meanwhile sold said Plot No. 59 to present respondent No. 3. The petitioner has questioned said sale also in dispute filed by him before the Co-operative Court. The Co-operative Court has found that there could not have been any sale-deed of said plot in favour of respondent No. 3. It has found that the plot continues to belong to society while structure raised thereon belongs to the member. It has, therefore, held that sale-deed executed by respondent No. 1 society in favour of respondent No. 3 is bad in law and requires to be cancelled. The said issue is considered by the Co-operative Appellate Court in para 12 of its judgment. It has held that Ex. 40 was not a letter of allotment to the petitioner and in fact the final allotment of Plot No. 59 is in favour of respondent No. 3. It has again observed that Plot No. 59 was not finally allotted to the petitioner. It has further found that lay out plan was sanctioned by the Planning authority finally on 13-9-1976. It also mentions that the ad interim injunction was initially granted restraining respondent No. 3 from raising construction but later on it was vacated by observing that there would not be any harm if respondent No. 3 is permitted to construct over the plot at his own risk. It has thereafter found that name of respondent No. 3 has been mutated in corporation records as owner and the property is mortgaged with Canara Bank for loan for construction of plot. It found that dispute was filed on 6-9-1982 while sale deed in favour of respondent No. 3 was executed on 21-10-1980. It has thereafter found that there is a equitable mortgage created in favour of Canara Bank by respondent No. 3. It has further observed that the view taken by the Co-operative Court that there could not have been any sale deed in favour of respondent No. 3 is correct and the society should cancel sale-deed but it further directed the society to execute sale-deed in favour of respondent No. 3. Thus, again it is to be noticed that all these observations of the Appellate Court are influenced by its earlier findings that Plot No. 59 was never allotted to the present petitioner. Once it is held that letter at Ex. 40 has the effect of allotting Plot No. 59 to the petitioner, the cancellation of said allotment is found illegal, the consequence which follows is that the petitioner becomes entitled to Plot No. 59. Respondent No. 3 has taken the risk with open eyes and he cannot blame anybody for the same. This brings me to consider the case laws on which the reliance has been placed by both sides.
22. Shri Sirpurkar, Advocate for the petitioner has relied upon the judgment of the Hon'ble Apex Court in the case of Nagindas v. Dalpatram, , to contend that admission is the best evidence and can be made foundation of rights of the parties. He has also relied upon the judgment of Bombay High Court in F.H. & B. Corporation v. Unichem Laboratories, to point out that question of infringement of patent is mixed question of law and fact. He contended that the question whether the petitioner is duly admitted as a member is a question of fact and in view of admission in written statement, it was not necessary for the petitioner to adduce any evidence in support thereof He has also relied upon the judgment of the Hon'ble Apex Court in Vasantha Viswanathan v. V.K. Elayalwar, reported at , to contend that new plea cannot be allowed to be raised for the first time in appeal even if it is mixed question of fact and law. However, as already discussed above, the issue of membership of petitioner has been very much considered even by the Cooperative Court and as such said case law has no application here. Next ruling on which reliance is placed is Santosh Hazari v. Purushottam Tiwari, reported at . It states that even if there is substantial question of law involved, such question must be involved in the case and therefore, there must, be first a foundation for it in the pleadings. Here, I find that the petitioner has asserted that he is a member of society while respondent No. 3 has denied his membership. The Cooperative Court has considered this disputed question and hence, this ruling is not applicable in the facts and circumstances of the case. The next ruling on which he relies upon in Ramesh Kumar v. National Insurance Co. Ltd., . In, this case, the Apex Court did not permit insurance company to raise a plea that the persons travelling on a vehicle were not the owners of the goods. The Apex Court has held that such issues must be raised and foundation therefor must be led in pleadings. The next ruling relied upon is State of U.P. v. Chandra Prakash Pandey, reported at . Again it considers the similar situation. However, as already observed above, the issue regarding membership of petitioner is already raised and is very much involved in this case. Next ruling on which reliance is placed is Gokul Mahto v. State Bank of Bihar, reported at , in which the Hon'ble Apex Court has observed that it was not necessary for the parties to consider whether the document is benami or sham as there was no pleading before the primary authority. This ruling also, therefore, has no application in the facts and circumstances of the present case.
23. Shri Sirpurkar, Advocate for the petitioner contended that the plea of his membership has been waived by the respondents and, therefore, they cannot be permitted to reagitate again. He has relied upon the judgment of the Hon'ble Apex Court in Management of KSRTC v. KSRTC Staff and Workers' Federation, reported at in support of his contention. However, from the discussion above, it is apparent that there is no such waiver in the facts of present case. The other rulings are Modi Spg. & Wvg. Mills v. Ladha Ram & Co., ; D.S. Construction v. Export C.G. Corporation, reported at 1990(Supp.) Bom.C.R, 164 : 1991(1) Mh.L.J. 50; D.L.F. United P. Ltd. v. Prem Raj, reported at and Siddik Mohomed Shah v. Mt. Saran, reported at A.I.R. 1980 Privy Council 57(1). All consider the scope of Order 6, Rule 17 of Civil Procedure Code and application for amendment of written statement. It is the argument of Shri Sirpurkar that respondents No. 1 and 2 made an attempt to withdraw the admission of membership of petitioner by making amendments. However, I find that respondent No. 3 did not accept membership of the petitioner and the Co-operative Court framed issue in relation to membership of the petitioner. As such, the said citations are not relevant for deciding the present controversy. The last case on which reliance is placed is again in relation to the pleadings and evidence and variance between the same. The said case is Kashi Nath v. Jaganath, reported at . In view of the findings recorded above, I find that this ruling has no application here. 23. Shri Patil, Advocate for the respondent No. 1 has relied upon the judgment of the Hon'ble Apex Court in the case of Raj Rani v. Delhi Administration, reported at . This case is already commented upon above. The next case relied upon by him is President, N.P.S.S.S. Co-Op. Cr. Socy. v. R.D. Umalkar, reported at (2) Co-op. Cases 192, which is the judgment of Division Bench of this Court and in it, it has been held that Registrar of Co-operative Societies cannot direct induction of person as member of a society against the wish of majority. It is his contention that the resolution of Managing Committee is must for granting membership to the petitioner. This issue is already considered above. Third ruling is Eknath A. Alokar etc. etc. v. State of Maharashtra, reported at 1989(3) Bom.C.R. 166 : 1991 Co-op. Cases 480 : 1991 C.T.J. 34. This judgment of Division Bench of this Court, it shows that application for membership of any member is required to be approved by the committee of society. He has also placed reliance upon the Division Bench judgment in Eknath Ashiram Alokar etc. etc. v. State of Maharashtra, reported at 1991 C.T.J. 34 for the same purpose. In that case, the Chairman of a Sugar factory enrolled 3387 persons and the same was set aside by the Joint Director. While adjudicating upon the issue, the Division Bench has held that under the bye-laws and the Rules, it is Managing Committee of society and not its Chairman who is empowered to consider the application of membership. He has also relied upon the judgment of this Court in J.M. Co-op. H. Society Ltd. v. Z. Chem. Works Pvt. Ltd., reported at 1992 Co-op. C. 538, to contend that once a statutory authority has come to the conclusion well within its jurisdiction, the writ Court cannot, interfere therewith. However, as discussed above, it is apparent that the entire application of mind by the Co-operative Appellate Court in this respect is erroneous and perverse. The letter of allotment at Ex. 40, the admission in written statement as also the letter at Ex. 55 along with which the petitioner forwarded the affidavit to respondent No. 1 society are not at all evaluated property by the Co-operative Appellate Court. The reasons put forth by it to differ with the findings recorded by the Co-operative Court are misconceived and unsustainable. This ruling, therefore, has no application in the facts and circumstances of the present case.
24. Under the circumstances, writ petition as filed is allowed. Respondents No. 1 and 2 are directed to execute the sale-deed of Plot No. 59 in favour of the petitioner by cancelling lease deed executed by them in favour of respondent No. 3. Respondent No. 3 shall place the petitioner in possession of Plot No. 59. As respondent No. 3 has raised construction on Plot No. 59 at his own risk, time of six months is given to the said respondent No. 3 to comply with this order. Writ petition is disposed of accordingly. Rule is made absoute in above terms. There shall be no order as to costs.