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CASE NO.:

Appeal (civil) 306-307 of 2005

PETITIONER:

A. Jitendernath

RESPONDENT:

Jubilee Hills Coop. House Bld. Soc. & Anr.

DATE OF JUDGMENT: 02/05/2006

BENCH:

S.B. Sinha & P.P. Naolekar

JUDGMENT:

J U D G M E N T

S.B. SINHA, J :

These appeals are directed against judgments and orders dated

13.11.2001 and 22.4.2002 passed by the High Court of Andhra Pradesh in

Civil Revision Petition No. 283 of 2000 and Civil Miscellaneous Petition

No. 7763 of 2002 respectively.

Jubilee Hills Cooperative House Building Society Limited, Hyderabad

is a Society registered under the Andhra Pradesh Cooperative Societies Act,

1964. It had enrolled a large number of members. The father of the one

Shri Anne Srinivas and the mother of the Appellant, Mrs. A. Annapurna

Devi, herein were members of the said Society.

From a perusal of the bye-laws framed by the said Society, it appears

that it intended to allot one plot to the family of the member concerned. The

bye-laws contain provisions for nomination.

Bye-laws 19 to 22 which are relevant for our purpose read as under:

"19. Every member may be declaration attested by two

witnesses nominate a person or persons to whom his

share or interest, shall be paid or transferred on his death.

A nominee may be changed by filing a fresh declaration

with the Secretary. In the absence of any nomination the

amount of his share or interest shall be paid or transferred

to such person as may appear to the Managing

Committee to be legally entitled. In case of any doubt

the Managing Committee shall call for a succession

certificate and act in accordance therewith. All amounts

payable to a minor shall be paid to him through his

guardian.

20. The Society shall keep a Book wherein the names of

all persons so nominated and all revocation or variation

(if any) of such nomination shall be recorded within

fifteen days.

21. All shares transferred by virtue of a nomination or by

him or by legal transfer shall be transferred to the

nominee or heir on his becoming a member. He shall

not, however, be entitled to withdraw any such share on

account of such transfer.

22. The nominee of a deceased member shall be made a

member provided he fulfils the qualifications of

membership."

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The mother of the Appellant herein expired on 15.8.1977. It was not

notified to the Society. A plot bearing No. 39 in Phase III in Jubilee Hills

admeasuring 600 sq. yards was allotted in her favour. On or about

5.11.1981, a notice was circulated to the members of the society that

allotment of plots would be done by way of draw of lots. A copy of the said

notice was also sent to Mrs. A Annapurna Devi (since deceased). Plot No.

39 was allotted in her favour on a provisional basis by the society on 20th

June, 1982. She was called upon to pay a sum of Rs. 4,003.90 within one

month from the date of receipt thereof. However, as no payment was made

within the stipulated period, on or about 30.9.1982, a letter was issued

granting final extension of time upto 30.11.1982 to make payment. It was

categorically stated therein that the provisional allotment would be cancelled

and no representation in that behalf shall be entertained if no payment is

made on or before 30.11.1982 for confirmation of provisional allotment of

the said plot. The said amount admittedly was not paid evidently because in

the meantime the mother of the Appellant had expired.

Shri Anne Srinivas was admitted as a member of the Society on

6.8.1983 in place of his father who was a member of the Society.

Indisputably, on 16.9.1983, plot No. 39 was allotted in his favour.

The Appellant on behalf of her mother wrote a letter on 16.3.1985 to

the First Respondent herein for allotment of site in respect of membership

No. 1646 stating:

"Sub: Allotment of site for Membership 1646.

I request you kindly allot me a site in lieu of my

plot No. 39 in phase 3 which has been given to someone

else.

I had to pay to the society around Rs. 4,000/-, I am

ready to pay the above amount immediately and start

construction of the house if you would kindly allot me a

suitable plot nearby.

The plot 39 in phase 3 which was allotted to me

was given to some one else. I was not in Hyderabad for

more than 2 = years and in correspondence from you was

received by me.

When I came to the office to find out about my

plot no. 39, I was told that the same has been allotted to

some one else. There has been a confusion and I had not

received any of your letters. I would be even grateful to

you if you consider my case and allot me a suitable site

to construction of the house immediately.

Thanking you,

Yours faithfully,

For A. Anapoornamma

Son. A. Jithender Nath"

[Emphasis supplied]

In response to the said letter, the allottee was informed that due to

non-payment of development charges, the said allotment had been cancelled.

By a letter dated 21.6.1985, the Appellant informed the Society about the

death of her mother and sought membership of the Society by way of

transfer.

On 18.3.1986, he made a representation for allotment of a new plot

stating :

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"I received your letter dated 20-9-1985. In this

regard, I would like to inform you, that I have already

submitted an affidavit duly notarized, and a death

certificate of my mother Late Smt. A. Annapurnamma.

Now, I enclose the original Affidavit No. 13820 dated

21-6-85, which is duly signed by gazetted officer.

I request you to kindly transfer the membership to

my name and please allot a new plot to me, I am ready to

pay any balance due amount and I am also ready to built

a house immediately."

Respondent No. 1 \026 Society admitted the Appellant as a member on

28.4.1986. Despite the fact that the membership had been transferred to the

Appellant, a sale deed was executed by the Society in favour of Srinivas on

7.2.1987. The said deed was also presented for registration.

Despite having been admitted as a member of the Society, no plot

admittedly was allotted to the Appellant. The Appellant made a

representation for allotment of plot on 15.11.1988. The Society in terms of

its letter dated 3.1.1990 declined to make any allotment in his favour.

Questioning the said action on the part of the Society, the Appellant filed an

application on 4.3.1990 before the Assistant Registrar of the Cooperative

Society which was numbered as ARC 21 of 1990 praying for:

"The Plaintiff, therefore, prays that this Hon'ble Court

may be pleased to declare that the Plaintiff is entitled Plot

No. 39 of the Defendant Society and or in the alternative:

(a) to declare an alternative plot in the same block

to an extent of 600 sq. yards and deliver vacant

possession;

(b) An injunction be granted restraining the

Defendant from allotting the plot No. 39 to any

other member of the Society, pending disposal

of the suit."

In the said proceeding, Srinivas was not impleaded as a party. He,

thus, evidently had no notice thereof. The First Respondent in response to

the notice issued by the Registrar allegedly stated that the said plot No. 39

has been allotted to Srinivas and he had constructed a house thereupon.

Despite the same Srinivas was not impleaded.

The Presiding Officer visited the site and found that no house was

constructed and, therefore, made an award in favour of the Appellant on or

about 22.4.1991 directing the Society to allot the plot No. 39 in favour of the

Appellant. Pursuant thereto or in furtherance thereof, the Appellant paid all

the amounts payable therefor. It is, however, not in dispute that that despite

the same, a deed of sale was registered in favour of Srinivas by the First

Respondent on 13.6.1991.

An appeal marked as CTA No. 6 of 1991 was preferred before the

Third Assistant Judge, City Civil Court, Hyderabad by the First Respondent

against the award. However, as the transfer of membership was not

intimated to Srinivas, he filed a suit in the court of VII Assistant Judge, City

Civil Court, Hyderabad which was marked as OS No. 3702 of 1992 wherein

the Appellant herein was not impleaded as a party. During pendency of the

said suit, Srinivas transferred his right, title and interest in favour of the

Second Respondent herein by a deed of sale dated 25.7.1992. The Second

Respondent thereafter filed an interlocutory application in the said CTA No.

6 of 1991 for being impleaded as a party thereat which was numbered as I.A.

No. 651 of 1993. Both the proceedings were transferred to the District

Cooperative Tribunal, Hyderabad, C.T.A. No. 6 of 1991 was renumbered as

C.T.A. No. 130 of 1996.

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In the meantime, the Civil Court granted a decree in the said original

suit No. 3702 of 1992 on 16.10.1996 in favour of the Second Respondent.

On 30.09.1996, an appeal was preferred by the First Respondent

against the award dated 22.4.1991 before the Cooperative Tribunal. The

Second Respondent also filed an application for impleading himself as a

party therein. By an order dated 30.09.1996, the said appeal as also the said

I.A. were dismissed in default.

The said decree passed in OS No. 3702 of 1992 was put in execution

by the Second Respondent which was marked as EP No. 2 of 997. A

revision application was also filed before the High Court by the Second

Respondent against the order dated 30.09.1996 dismissing the appeal

preferred by the First Respondent in default.

The said revision petition was dismissed with a liberty reserved to the

Second Respondent to come on record as an additional respondent if the said

appeal was restored to its original file. The Appellant also filed an execution

petition for executing the award dated 22.4.1991 before the Second Assistant

Judge, City Civil Court, Hyderabad. An application was filed therein by the

Second Respondent contending that the said execution petition was not

maintainable and by an order dated 27.4.1998, the same was allowed by the

executing court, holding:

"In view of the above discussion, it is evident that the

petitioner is claiming title and possession independently

and not through the JDR Society and that prima facie the

petitioner has lawful title over the disputed plot and also

possession of the same and that the JDR Society had no

title over the disputed plot even by the date of filing of

plaint in ARC 21/90 and that therefore the petitioner

cannot be dispossessed in execution of the decree in ARC

21/90. It is made clear that the question of right, title or

interest in the property between the parties to this petition

to the extent of their relevance for the proper adjudication

of this petition alone has been considered in the light of

the observation in 1992 (1) ALT 371."

The Appellant preferred an appeal against the said order dated

27.4.1998 in the Court of Additional Chief Judge, City Civil Court,

Hyderabad which was numbered as CMA No. 163 of 1998 and by a

judgment and order dated 22.12.1999, the said appeal was allowed opining

that no valid title passed to the said Srinivas prior to 22.4.1991 as the sale

deed in his favour was registered after passing of the award. It was

observed:

"So far as the transfer made in the name of the petitioner

is concerned by the said Srinivas, it is not hit by clause

'G' of A.P. Cooperative Societies Act, 1964 (directions

of the effective and proper functioning of the cooperative

societies in the State) since, the same was passed on

3.12.1997 which is subsequent to the sale deed executed

in the name of the petitioner. The petitioner obtained the

sale deed from her son who is the power of attorney

holder of the said Srinivas under Ex. A.9. However, this

Court has arrived at a conclusion that three is no valid

title passed to the said Srinivas prior to the award passed

by the Tribunal on 22-4-1991. The society being a party

to the said award, it ought to have stopped the

registration by virtue of the award and in fact, it did not

stop the same, and kept in abeyance, and allowed the

document to be registered to deprive the award passed by

the Tribunal. Therefore, I am of the opinion, that the

learned Asst. Judge has arrived at a wrong conclusion

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and on the wrong premise that R.2 had no vested right in

the said property, allowed the petition. Hence, it suffers

from infirmities and the impugned order is liable to be set

aside by allowing the appeal."

The legality of the said order dated 22.12.1999 came to be questioned

by the Second Respondent herein before the High Court by filing a revision

application which by reason of the impugned order dated 13.11.2001 was

allowed by a learned judge of the said Court stating:

"\005The lower appellate court lost the sight of the fact that

as on the date of the order of the Deputy Registrar, the

deed was pending registration and once it was registered

on 13-6-1991, much prior to the initiation of execution

proceedings by the first respondent, it dates back to the

date of presentation of the document, i.e. 7-2-1987. In

such circumstances and in view of the provisions

contemplated in Section 47 of the Registration Act as

well as the law laid down by the Supreme Court, which

was followed by other High Courts, the view taken by the

lower appellate court cannot be sustained. Accordingly,

the order passed by the lower appellate court is set aside.

However, the right and entitlement of the first respondent

vis-`-vis the second respondent cannot be defeated on

account of the above proceedings to which he is not a

party. It is, therefore, left open to the first respondent to

approach the Deputy Registrar for such directions as are

necessary and permissible in law in view of the

development that has taken place culminating in the

order of the Executing Court in E.A. No. 155 of 1997."

An application for clarification of the said order made by the Second

Respondent herein was disposed of by the High Court in terms of an an

order dated 22.04.2002 stating:

"The direction in the order dated 13.11.2001 in CRP No.

283 of 2000 as regards the right of the respondents to

approach the Deputy Registrar for such directions, as are

necessary and permissible in law are obviously for

allotment of an alternative plot other than plot No. 39

phase II which was found to have been validly

transferred in favour of Mr. A. Srinivas the vendor of the

petitioner herein, i.e., Smt. Mina Patalay. The matter is

accordingly clarified."

The Appellant is, thus, before us.

In view of the fact that one award was passed in favour of the

Appellant herein which attained finality, rightly or wrongly, and similarly a

decree having been passed in favour of the Respondent, this Court with a

view to do justice between the parties on or about 10.8.2005 asked the

learned counsel appearing on behalf of the First Respondent herein to

produce the bye-laws, the scheme of allotment and as to whether any other

plot was available which could be allotted in favour of the Appellant. This

Court was informed that one plot being plot No. 400, Phase III was available

and the same would be allotted to the Appellant. The said offer was

accepted by the Appellant. An undertaking was also given to pay the price

therefor and other legal dues as and when demanded by the Society.

Pursuant to or in furtherance of acceptance of the said offer, and

payment made by the Appellant to the Society, an allotment letter was issued

in his favour in respect of the said plot No. 400. However, interlocutory

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applications were filed by one B.M. Ramalingeswara Rao being I.A. Nos. 5-

10 of 2005. The matter came up before a 3-Judge Bench presided over by

Hon'ble the Chief Justice of India and in an order dated 9.9.2005 noticing

the statements made in this said application that the said plot was allotted to

the applicant therein in 1984, it was directed to be put up on 21.9.2005.

Interlocutory applications being Nos. 11 \026 12 were also filed by Dr. M.S.

Raju wherein also notices were issued. In interlocutory applications being

Nos. 13 \026 14 by, however, while issuing notice by an order dated 8.12.2005,

this Court directed:

"Having heard learned counsel for the parties, we are of

the opinion that the respondent No. 1 \026 Jubilee Hills

Coop. House Bld. Soc. should file its responses to the

interlocutory applications for impleadment filed before

us. Such respondents should be filed by 12.1.2006. The

President of the respondent \026 Society shall hand over

authenticated copies of the relevant documents and shall

also keep the original records with the learned counsel

for the respondent \026 Society to enable the parties hereof

to make inspection thereto. After such inspections of the

Society's records are carried out, the parties before us

including those who have filed applications for

impleadment in these appeals would be at liberty to file

their affidavits. Such affidavits should be filed by

25.1.2006."

An application for impleadment has also been filed by one J.S. Rama

Murthy being I.A. Nos. 15-16 wherein it has been stated that an award in his

favour has been passed under Section 61 of the Andhra Pradesh Cooperative

Societies Act, wherein it was directed :

"Having regard to the facts, mentioned above and on

considering totality of the circumstances of the case, the

Respondent Society (i.e.) Jubilee Cooperative House

Building Society Ltd. TA-No. 173, Hyderabad is hereby

directed to allot and register a suitable plot to petitioner."

Mr. S. Muralidhar, learned counsel appearing on behalf of the

Appellant, at the outset, submitted that the order the High Court as regards

interpretation of Section 47 of the Registration Act, 1908 holding that the

sale deed registered in favour of the said Srinivas by the First Respondent on

13.6.1991 would be effective from 7.2.1987 is not correct being contrary to

a 5-Judge Bench decision of this Court in Ram Saran Lall and Others v. Mst

Domini Kuer and Others [(1962) 2 SCR 474]. It was urged that the High

Court committed a manifest error in foreclosing the Appellant's right in

respect of plot No. 39 by directing him to approach the Deputy Registrar

seeking for the remedies afresh.

Drawing our attention to Bye-laws 70(a) and 71, it was contended that

as in terms thereof it is postulated that the lands belonging to the

Respondent- Society would be divided into plots for members thereof and

each member was eligible for being allotted a plot of land, the High Court

acted illegally and without jurisdiction in passing the impugned judgment

particularly in view of the fact that in terms of Rule 17 of the Andhra

Pradesh Cooperative Societies Rules, 1964 (for short "the Rules") as also

Bye-law 19 of the Society, a nomination by a member is envisaged. It was

argued that as the Appellant was admitted as a member in place of his

deceased mother, he became eligible for being allotted the very plot being

No. 39 which could not have been allotted to the said Srinivas as no sale

deed had been executed in his favour at the relevant time. Once the

Appellant was admitted to the membership, in all fairness, the Registrar,

Society should have cancelled the allotment made in favour of the said

Srinivas and allotted the same to the Appellant. In any event, the society

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ought to have brought the relevant records to the notice of the Registrar so as

to enable him to consider grant of alternative relief in his favour as had been

prayed for.

It was further urged that by reason of the award dated 22.4.1991, the

Appellant's indefeasible right on the said plot has been recognized and the

appeal preferred thereagainst having been dismissed, the same attained

finality. The said award, therefore, became final and binding and, thus, in

terms of the Bye-laws the vested right of the Appellant therein could not

have been taken away by reason of the decree passed in the suit. In any

event as he was not a party in the said suit, the decree passed in favour of the

Second Respondent is not binding on him. The principle of res judicata, the

learned counsel would submit, is, thus, attracted and in that view of the

matter, the Respondents herein cannot question the correctness or otherwise

of the said award which was evidently made prior to registration of the deed

of sale in favour of the said Srinivas. In any event, plot No. 400 having been

allotted in favour of the Appellant, the Society must be held to have

recognized the right of the Appellant for allotment of plot in his capacity as

a member of the Respondent \026 Society. As the said plot was available for

allotment, Mr. Muralidhar would submit, this Court may grant prayer (a) in

favour of the Appellant by directing formalization of the allotment of the

said plot by execution and registration of a sale deed in his favour.

Mr. H.S. Gururaja, learned senior counsel appearing on behalf of the

Second Respondent, on the other hand, submitted that the allotment made in

favour of the mother of the Appellant must be deemed to have been

cancelled by the Society as the requisite payments therefor as demanded by

the Society had not been made.

Mr. G. Ramakrishna Prasad, learned counsel appearing on behalf of

the First Respondent \026 Society, urged that at the point of time when

purported allotment of plot No. 400 was made in favour of the Appellant

herein, the Administrator was Incharge, but the affairs of the Society having

been taken over by the elected body, it has now been found out that there

were several persons in whose favour directions have been issued by the

Authorities/ Tribunals to consider the matter relating to allotment of plots in

their favour in accordance with seniority.

Mr. T.L.V. Iyer, Mr. M.N. Rao, Mr. L. Nageswara Rao, learned senior

counsel also addressed us pressing the impleadment applications filed by

different applicants. Our attention has also been drawn to an order dated

13.06.2005 passed by the Andhra Pradesh Cooperative Tribunal wherein it

was directed that allotment of plots including plot no.400 should be made in

accordance with the bye laws.

The principal question which arises for consideration in this appeal is

as to whether the award passed in favour of the Appellant herein is capable

of enforced in law. The said question may have to be answered in favour of

the Appellant only, if the principle of res judicata is found to be applicable in

this case.

The Appellant became a member of the Cooperative Society in place

of his mother. As a member of a Society, nobody had a right to be allotted a

plot far less a particular plot. Plot No. 39 was indisputably allotted in favour

of his mother. But before the provisional allotment could fructify by making

a formal allotment and executing a deed of sale in her favour, she had

expired. This fact was not communicated by the Appellant to the First

Respondent \026 Society for a long time. He in his letter dated 16.3.1985

accepted that he was out of Hyderabad for more than two and half years. He

did not deny or dispute that in the mean time the Society issued several

letters in the name of all allottees to deposit the development cost. A notice

had also been issued to all the allottees asking them to deposit the

development charges failing which the order of allotment would stand

cancelled. It stands admitted that the development charges had not been

deposited in respect of plot No. 39. It may be that no formal letter of

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cancellation of the said plot was issued but in view of the admitted position

that the requirements as contained in letter dated 30.9.1982 of the First

Respondent having not been complied with, the allotment would in law, be

deemed to be cancelled.

An inference as regards cancellation of the said allotment must be

drawn in view of the fact that plot No. 39 admittedly was allotted in favour

of Mr. Srinivas. Even if there had been no express cancellation of allotment

of the said plot, by reason of a fresh allotment, the provisional allotment

made in favour of mother of the appellant must be held to have come to an

end. The allotment of plot No. 39 in favour of the mother of the Appellant

was a provisional one. By reason of such provisional allotment, the allottee

did not derive any legal right far less an indefeasible right. Such provisional

allotment would have acquired permanence provided the requirements

therefor were complied with.

Furthermore, the Appellant in its letter dated 16.3.1985 requested for

allotment of another site in lieu of plot No. 39 in Phase III as the same had

been given to someone else. He was informed thereabout. He never put

forward his case before the First Respondent to allot plot No. 39 in his

favour upon cancellation of such allotment made in favour of Mr. Srinivas.

Even in his other letters, similar requests were made. The Appellant was

also aware of the fact that allotment made in favour of her mother had been

cancelled due to non-payment of the development charges. He had

specifically asked for allotment of another site wherefor he was even ready

to make extra-payment. He had, thus, consistently been asking for allotment

of a new plot. He despite such knowledge that allotment of plot No. 39

made in favour of his mother had been cancelled and subsequently made in

favour of somebody else, while questioning the refusal on the part of the

First Respondent herein to allot another plot in his favour and initiating the

arbitration proceeding only prayed for an order of injunction restraining the

Society from allotting plot No. 39 to any other member of the Society. His

main prayer, however, was that an allotment of an alternative plot in the

same block to the extent of 600 sq. yards be made and the vacant possession

thereof be delivered.

It is beyond any cavil of doubt that the conduct of the First

Respondent \026 Society was not fair. When it had made an allotment in favour

of Mr. Srinivas, it was obligatory on its part to disclose all the facts before

the Registrar so as to enable him to arrive at an independent opinion. It

failed and neglected to do so and, thus, it created all sorts of confusions.

If the contention of the Appellant is correct, that after the said award,

the Society accepted the deposit of the requisite amount from the Appellant,

we fail to see any reason as to why the said fact was not brought to the

notice of the said Srinivas. The appeal preferred by the First Respondent

against the Appellant herein was also not properly pursued. We do not

know whether any application for restoration has been filed.

It may be true, as was submitted by Mr. Gururaja that the appeal was

dismissed for default by the Cooperative Tribunal without giving any proper

notice of transfer, but in the facts and circumstances of the case, it is not

necessary to deal with the said question.

If the contention of the Appellant is to be accepted that by reason of

the provisional allotment made in favour of his mother, he acquired an

indefeasible right only because he at a later date was admitted as a member

of the Society, indisputably, the said Srinivas had acquired a higher right as

not only the said plot was allotted in his favour but also a deed of sale was

executed. The Appellant does not deny or dispute about the factum of

execution of sale by the First Respondent herein in favour of Shri Srinivas as

far back as on 7.02.1987.

In the aforementioned situation, the effect as regards application of

Section 47 of the Registration Act requires consideration. The said provision

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reads as under:

"47. Time from which registered document operates.\027 A

registered document shall operate from the time from

which it would have commenced to operate if no

registration thereof had been required or made, and not

from the time of its registration."

In terms of the aforementioned provision, therefore, if a deed of sale is

executed although not registered, the right, title and interest in respect

thereof shall pass with retrospective effect, i.e., from the date of execution

thereof.

The question is no longer res integra in view of a large number of

decisions of Privy Council as also this Court including Kalyanasundaram

Pillai v. Karuppa Mooppanar [AIR 1927 PC 42], Venkatasubba Shrinivas

Hegde v. Subba Rama Hegde [AIR 1928 PC 86], Radhakisan Laxminarayan

Toshniwal v. Shridhar Ramchandra Alshi and Others [(1961) 1 SCR 248],

K.J. Nathan v. S.V. Maruthi Rao and Other [(1964) 6 SCR 727], Nanda

Ballabh Gururani v. Smt. Maqbool Begun, [(1980) 3 SCC 346] and Thakur

Kishan Singh (Dead) v. Arvind Kumar [(1994) 6 SCC 591].

We would hereinafter notice a few decisions.

In Radhakisan Laxminarayan Toshniwal (supra), a Constitution Bench

of this Court has clearly held:

"It was then submitted that the sale deed had as a matter

of fact, been executed on February 1, 1944; but

respondent Sridhar brought the suit not on the cause of

action arising on the sale dated February 1, 1944, but on

the transaction of April 10, 1943, coupled with that of

April 24, 1943, which being mere contracts of sale

created no interest in the vendee and there was no right of

pre-emption in Respondent 1 which could be enforced

under the Code. Mr Chatterji urged that it did not matter

if the sale took place later and the suit was brought earlier

but the suit as laid down was one to pre-empt a sale of

April 1943 when, as a matter of fact, no sale had taken

place. If respondent Sridhar had based his right of pre-

emption on the basis of the sale of February 1, 1944, the

appellant would have taken such defence as the law

allowed him. The defence in regard to the conversion of

the land from agricultural into non-agricultural site which

negatives the right of pre-emption would then have

become a very important issue in the case and the

appellant would have adduced proper proof in regard to

it. The right of pre-emption is a weak right and is not

looked upon with favour by courts and therefore the

courts could not go out of their way to help the pre-

emptor."

The aforementioned decision has consistently been followed by this

Court. Strong reliance has been placed by Mr. Muralidhar on Ram Saran

Lall (supra). It is interesting to note that in that case the decision of the

earlier Constitution Bench of this Court in Radhakisan Laxminarayan

Toshniwal (supra) was not brought to the court's notice. Hon'ble the Chief

Justice B.P. Sinha was a party to both the decisions. His Lordship,

therefore, presumably was aware of the distinctive features of both the cases.

In Ram Saran Lall (supra), the Constitution Bench of this Court was

considering a different question, namely, in the light of the provision relating

to pre-emption what would constitute a complete sale, as would appear from

the following:

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"\005We will assume that the learned Attorney-General's

construction of the instrument of sale that the property

was intended to pass under it on the date of the

instrument is correct. Section 47 of the Registration Act

does not, however, say when a sale would be deemed to

be complete. It only permits a document when registered,

to operate from a certain date which may be earlier than

the date when it was registered. The object of this section

is to decide which of two or more registered instruments

in respect of the same property is to have effect. The

section applies to a document only after it has been

registered. It has nothing to do with the completion of the

registration and therefore nothing to do with the

completion of a sale when the instrument is one of sale.

A sale which is admittedly not completed until the

registration of the instrument of sale is completed, cannot

be said to have been completed earlier because by virtue

of Section 47 the instrument by which it is effected, after

it has been registered, commences to operate from an

earlier date. Therefore we do not think that the sale in

this case can be said, in view of Section 47, to have been

completed on January 31, 1946\005"

[Emphasis supplied]

The said decision, therefore, does not in any way support the

contention of Mr. Muralidhar; rather runs counter thereto.

We may notice that in Hiralal Agrawal v. Rampadarth Singh and

others [(1969) 1 SCR 328 : AIR 1969 SC 244] this Court made similar

observations. Therein this Court was considering the question as to whether

an application for pre-emption which was filed before the registration of the

deed, although, cognizance in relation thereto was taken thereafter, would be

valid.

Despite knowledge, that plot No. 39 has been allotted to somebody

else, the Appellant did not make the said Srinivas a party in his application

before the Registrar. Ex facie the award being in violation of the principles

of natural justice would be a nullity.

We have, furthermore, noticed hereinbefore the prayers made by the

Appellant in the said arbitration proceedings. In view of prayer (a) which

was the main prayer ex facie the Registrar acted illegally and without

jurisdiction in directing the First Respondent to allot plot No. 39. The First

Respondent made it clear that the plot in question had been allotted in favour

of the said Srinivas. The question as to whether he raised constructions

thereupon or not was immaterial. He despite such allotment having been

made in his favour was not impleaded as a party. He was a necessary party.

No award therefor could have been passed in his absence. In any event, so

far as plot No. 39 is concerned, the only prayer made by the Appellant was

an order of injunction. The Registrar while exercising his judicial function

had no jurisdiction to pass such an order of injunction in view of prayer (a)

made in the application.

The said award, therefore, was a nullity. In this view of the matter,

the principles of res judicata will have no application. [See. Haryana State

Coop. Land Development Bank v. Neelam (2005) 5 SCC 91, Ram Chandra

Singh v. Savitri Devi and Ors. ,JT 2005 (11) SC 439] An order which was

passed by an authority without jurisdiction need not be set aside, being a

nullity, it in the eyes of law never existed. [See Balvant N. Viswamitra and

Others v. Yadav Sadashiv Mule (Dead) Through LRS. and Others (2004) 8

SCC 706]

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Furthermore, the said award was put in execution. The Executing

Court in view of title passed in favour of the said Srinivas and consequent

acquisition of title by him in terms of the deed of sale executed by him in

favour of the Second Respondent herein was entitled to enter into the

question as to whether the said award was capable of being executed. As the

High Court rightly found that the Second Respondent has acquired a valid

title with effect from a date prior to making of the award, the same became

inexecutable. If the said award was not capable of being executed, the

remedy of the Appellant evidently lies to ventilate his grievance as regards

allotment of plot by initiating a different proceeding.

It is true that even in the suit filed by the Second Respondent herein

against the First Respondent being OS No. 3702 of 1992 the Appellant was

not impleaded as a party. The decree passed, therefore, may not be binding

on the Appellant. For the self-same reasons we have assigned hereinbefore,

the said decree may not operate as a res judicata but we have to consider the

matter from a different angle. The Second Respondent did not enforce the

decree as against the Appellant herein where as the award, in view of the

peculiar facts and circumstances of this case, was required to be enforced by

the Executing Court as against the Second Respondent besides the First

Respondent herein and in that view of the matter the Second Respondent in

law could file an appropriate application not only for his impleadment but

also to show that the award is not enforceable in law.

The High Court's judgment, therefore, is unassailable albeit for

additional reasons stated hereinbefore.

We may at this stage notice that Mr. Muralidhar categorically stated

that his client does not press for allotment of plot No. 39 and he would be

satisfied if some other plot is allotted in its favour. This brings us to

consideration to the question of allotment of plot No. 400.

The question which now arises for consideration is that what would be

the effect of allotment of plot No. 400 in Phase III by the First Respondent

during pendency of the proceedings before this Court. We have noticed

hereinbefore that this Court, while asking the learned counsel appearing on

behalf of the First Respondent, was of the opinion that interest of justice

may be subserved if some plot which was available for allotment could be

directed to be allotted in favour of the Appellant herein. A representation

was made, which now turns out to be wrong, on behalf of the First

Respondent that the plot No. 400 was available for allotment. It was in that

situation, the offer of the First Respondent as regard allotment of the said

plot to the Appellant was accepted. The Appellate paid a huge sum therefor.

The said amount has also been appropriated by the First Respondent.

However, in law only because an order of allotment has been issued in

favour of the Appellant herein by the First Respondent, the same by itself

would not mean that thereby the right of the others for being considered

therefor or for that matter any other plot which was available for allotment

could be put in jeopardy. This Court whence proceeded to consider the

matter of allotment of another plot in favour of the Appellant by the First

Respondent, it had evidently in its mind that same plot may be available for

allotment but by reason thereof, the right of somebody else was not meant to

be nor could be affected. Even in exercise of its jurisdiction under Article

142 of the Constitution while making an attempt to do complete justice to

the parties this Court cannot pass an order which could cause injustice to

others and in particular to those who are not before it. The correctness or

otherwise of the contentions raised by the impleaded parties, thus, need not

be gone into. We must, however, place on record that our attention has been

drawn to the fact that several proceedings as regard allotment of plot at the

hands of the society are pending adjudication before several forums. Even a

direction has been issued by a Cooperative Tribunal as regard allotment of

plot No. 400. It goes without saying that the courts of law would always see

to it that while making allotment of plot by a cooperative society, no

discrimination is caused amongst the members. The Cooperative Society

having been formed for the purpose of allotment of plots to its members

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must strictly and scrupulously follow the statutory rules as also the bye-laws

framed by it. It must also act within the four corners not only of the statue

and statutory rules but also the bye-laws framed by it. In terms of the extant

law, seniority rule would govern the matter of allotment of land amongst the

members of the Society. This Court is not in a position to determine the

inter se dispute, if any, even as regard the seniority amongst the members.

In fact this Court has not been called upon to do so nor in view of the lis

between the parties we can go thereinto. Whether the Appellant would be

senior in the matter of allotment of plot over the others is a disputed question

of fact. Such disputed question of fact, as and when any occasion arises

therefor, must be gone into and adjudicated upon by an appropriate forum.

The Appellant as a member has a right, although not indefeasible, to be

considered for allotment of a plot along with other members similarly

situated. Such a right, therefore, could not have been taken away nor

directed to be taken away by any court of law.

We, therefore, are of the opinion that interest of justice would be sub-

served if the First Respondent is directed to consider the question of

allotment amongst its members upon strict compliance of the extant rules

including its bye-laws wherefor cases of all persons eligible therefor must be

considered.

It goes without saying that in the event of any dispute or difference as

regard entitlement to be allotted a plot between the parties, they would be at

liberty to initiate such proceedings or ventilate their grievances before such

forums as is permissible in law.

This brings to the fore another question viz. as to whether, in view of

the conduct of the First Respondent, the Appellant should be monetarily

compensated. We think so. The First Respondent despite the knowledge

that the award dated 22.4.1991 was not enforceable appears to have taken

some amount from the Appellant. It compelled the Appellant to fight

litigations before various forums. The Appellant also had to initiate an

execution proceeding for execution of the award passed by the Registrar. It

succeeded at least before one court. Even before this Court, a wrong

representation was made by the First Respondent that plot No. 400 was

available for allotment to the Appellant. The said representation was turned

to be wrong. As we are not in a position to consider the correctness or

otherwise of one representation or the other by the First Respondent herein

as also the contentions raised by the impleaded parties, we are of the opinion

that the conduct of the First Respondent is deplorable. It being a Society

was obligated to render all assistance to this Court so as to enable it in turn

to render a decision in accordance with law. It could not have made any

mis-representation before us. We are not bothered as to whether at the

relevant point of time the First Respondent was represented by an

Administrator or an elected body. It was admittedly being represented who

could do so before us in law.

We, therefore, direct the Registrar of the Cooperative Society to

initiate an enquiry against the persons concerned who were responsible for

making a wrong representation before us and take suitable action against

them in accordance with law. We further direct that all amounts deposited

by the Appellant before the First Respondent be refunded to him with penal

interest at the rate of 24% per annum, subject, of course, to deduction of

such amount to which the First Respondent was entitled to for admitting him

as a member of the Society. The First Respondent shall also pay a further

sum of Rs. 1,00,000/- (Rupees one lakh only) to the Appellant herein by way

of compensation. The First Respondent shall also pay a sum of Rs.

1,00,000/- (Rupees one lakh only) to the Second Respondent by way of

compensation. Such payments be made to them within a period of four

weeks from date. The First Respondent shall be at liberty to recover the

amount of interest as also the amount of compensation directed to be paid to

the Appellant herein from such persons who may be found responsible

therefor.

For the foregoing reasons, these appeals are dismissed, subject,

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however, to the aforementioned observations and directions. The parties

shall, however, in the facts and circumstances of the case pay and bear their

own costs throughout.

In view of our views aforementioned, it is not necessary for us to pass

any separate order on the interlocutory applications. They are disposed of

accordingly.