JUSTICE COOPERATIVE HOUSING SOCTY. LTD THR. CHIEF PROMOTOR, NAGPUR v. SADASHIV DURGAJI AMBHORE

2. The necessary facts for disposal of the appeal in nut shell are as under :

The Special Land Acquisition Officer Pench Project-1 Nagpur declared two separate awards for acquisition of lands bearing Survey No.272, 290/2 and 301/1 admeasuring 15.10 acres of mouza Shivangaon, Nagpur. Said land was originally owned and possessed by one Shri Sadashiv Durgaji Ambhore i.e. respondent. As per contentions of the appellant this land was declared as surplus land under the Urban Land Ceiling Act by the competent authority vide order dated 21.5.1981 in ULC Case 1756/76. As per the order dated 21.5.1981, the competent authority was pleased to allow the land retainable admeasuring 1251.92 sq. mtrs. out of Survey No.272 in the name of Sadashiv Ambhore. The appellant purchased the retainable land from Shri Sadashiv Ambhore vide registered sale-deed 12.3.1984 for total consideration of Rs.10,820/-. It is further contention of the appellant that vide agreement dated 21.12.1983 executed between the appellant who is the proposed society and respondent Sadashiv Ambhore, it was agreed that the land owner shall submit a scheme to the government for construction of house for weaker section of the society and after the scheme is approved shall surrender all the retainable tenements to the society. In addition to the agreement the

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land owner respondent had given power of attorney duly registered in favour of the appellant authorizing Chief Promoter to apply for exemption under the Urban Land Ceiling Act. The appellant was also authorized by the land owner by registered power of attorney dated 21.12.1983 that the appellant shall have every right to receive the compensation which would be awarded by the Government of Maharashtra or any other competent authority in respect of land declared as surplus by the Competent Authority. The Chief Promoter of the appellant society has already paid huge amount of Rs.1,30,000/- to the land owner. Thus, appellant is the person interested in the property which is acquired by the Government and therefore appellant is entitled for the said compensation. As the government declared the award and called the interested persons to receive the compensation, the appellant raised the objection that respondent land owner is not entitled to receive the compensation but it is the appellant who is the interested person and the respondent authorized him to accept the amount of compensation. Thus, appellant applied to the Special Land Acquisition Officer praying that compensation amount be given to him in respect of a land bearing No.272, 290/2 and 301/1 P.H. No.43 standing in the name of respondent Sadashiv Ambhore.

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3. The respondent Sadashiv Durgaji Ambhore filed his written statement vide Exh.-16 to the objection of the appellant and to the claim of the appellant on the ground that transaction of sale deed in respect of retainable agricultural land is not lawful transaction and same is invalid in law. The title of the land covered by the sale deed is not vested with the appellant society. The transaction in question is of the year 1984 and the law pertaining to urban land ceiling agglomeration came into force much prior to that. Therefore the provisions of Urban Land Ceiling Act are directly attracted and therefore the transfer of immovable property came under the scheme of urban land ceiling agglomeration is void unless and until permission is sought from the Competent Authority. Therefore, the said transaction dated 12.3.1984 in favour of the appellant society is not valid and legal transaction. The agreement between the appellant and the respondent dated 21.12.1983 is not enforceable by law. Therefore, the alleged claim of the appellant cannot be considered. It is further contended by the respondent that the appellant is not interested person within the meaning of provision of the Land Acquisition Act. But he is only interested person to receive the compensation amount of his acquired land and prayed for rejection of the objection filed by the appellant. The Special Land Acquisition

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Officer has referred the matter under Section 30 of the Land Acquisition Act for apportionment of compensation amount awarded of acquired lands.

4. After considering the rival contentions of the parties the Civil Judge, Senior Division framed the necessary issues and recorded the findings. It is observed by the Reference Court that it is undisputed fact that the respondent Sadashiv Durgaji Ambhore is the owner of acquired lands Survey No.272, 290/2 and 301/1 situated at village Shivangaon, Tahsil and district Nagpur. It is further undisputed that the appellant who is unregistered society has been purchased from the respondent vide registered sale-deed dated 21.2.1984. The reference was received by the Reference Court to decide the controversy between the parties under Section 30 of the Land Acquisition Act. The Reference Court further observed that the appellant failed to adduce the evidence whereas respondent had adduced the evidence. It reveals from the evidence of the respondent that the Special Land Acquisition Officer acquired his lands Survey Nos.272 and 292/2 admeasuring 0.13 and 0.33 R respectively, situated at mouza Shivangaon. The respondent had also received the notice from Special Land Acquisition Officer under Section 12(2) of the Land Acquisition Act to receive the compensation of Rs.1,37,953/-,

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but the Chief Promoter of the appellant Society, namely, Ramesh Bapu Gedam raised an objection before the Special Land Acquisition Officer for granting compensation amount in his favour. It is further observed by the Reference Court that the acquired lands came under the provisions of urban land ceiling agglomeration prior to 1984 and any transaction in respect of land which comes under the Urban Land Ceiling Act becomes void unless and until permission is sought from the Competent Authority by the purchaser and therefore, the appellant is not entitled for apportionment of compensation amount of acquired land. The respondent is the owner and in possession of the acquired land and therefore he is only entitled to receive entire compensation amount from the Special Land Acquisition Officer and therefore appellant is not entitled for apportionment of compensation amount. The appellant failed to adduce any oral as well as documentary evidence and failed to discharge the burden, therefore, Reference Court directed the Land Acquisition officer to disburse the compensation amount in favour of the respondent.

5. Being aggrieved with the same, the appellant society preferred this appeal on the ground that the Special Land Acquisition Officer has initiated proceeding under the Land Acquisition Act, 1884 for acquisition. When appellant came to know the notices were issued

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by the Land Acquisition officer in favour of the respondent for payment of compensation, the appellant raised an objection. In view of the objection reference under Section 30 of the Land Acquisition Act was made by the Collector to the Civil Judge, Senior Division. However, Civil Judge, Senior Division has not given sufficient opportunity to the appellant to adduce the evidence. In fact, Land Acquisition Case No.164/1994 was transferred from one Court to another and there was no notice to the appellant about transfer of case from one Court to another. Again the matter was posted for framing of issues and again it was transferred from one Court to another and no notice was received by the appellant, therefore, appellant could not remain present when the matter was called out. Thus, the order and award passed by the second Joint civil Judge, Senior Division, Nagpur is exparte order and liable to be set aside.

6. Heard learned Advocate Mr. O.A. Ghare, for the appellant. He submitted that undisputed fact is that the appellant is the unregistered society filed objection through its Chief Promoter Ramesh Bapu Gedam. It is also undisputed that originally Survey No.272 and 290/2 was owned by the respondent Sadashiv Durgaji Ambhore. It is undisputed that the society has purchased the retainable lands from the respondent vide registered sale deed dated 12.3.1984 for total

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consideration of Rs.1,30,000/-. It is further undisputed that the land has been purchased by the appellant under registered sale-deed dated 21.2.1984. As per the contention of the appellant he is the interested person, said land is acquired by the Special land Acquisition Officer which was situated at mouza Shivangaon. As the notices under Section 12(2) of the Land Acquisition Act was issued to the respondent, appellant raised objection before the Special Land Acquisition Officer and claimed the compensation in his favour in view of the sale-deed and agreement between the appellant and the respondent. However, learned trial Court had not given any opportunity to the appellant to adduce the evidence. In fact, reference was not traceable for some time, it was transferred from one Court to another. No notice was issued to the appellant and therefore appellant could not adduce evidence. The Reference Court erroneously directed the Special Land Acquisition Officer to grant compensation to the respondent. Thus, the order passed by the Civil Judge, Senior Division is erroneous one and liable to be set aside.

7. On the other hand, learned Advocate Mr. Nitin Vyawahare submitted that the appellant society is not registered society and is not competent to enter into an agreement, the transaction between the appellant society and the respondent is not valid transaction. The

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society is entitled to enter into an agreement only after its registration. The society becomes competent to acquire, hold and dispose of the property only when it is registered and not otherwise. On the other count that no opportunity was granted to the appellant, he submitted that when the respondent can adduce the evidence after transfer of the matter from one Court to another then why not the appellant. Notice was also not issued to the respondent but the respondent has attended the matter and adduced evidence. He submitted that the ground mentioned by the appellant is not reasonable and justified one. No case is made out for remand hence appeal deserves to be dismissed.

8. Heard submissions of both parties and first and foremost issue arising for determination is, whether the appellant has made out the case for remand of the reference ?

9. It is undisputed fact that the respondent Sadashiv Durgaji Ambhore is the owner of the acquired land Survey Nos.272, 292/2 and 301/1, situated at village Shivangaon, taluka and district Nagpur. It is further undisputed fact that the land has been purchased by the appellant under registered sale deed dated 21.2.1984. It is further undisputed fact that the Special Land Acquisition Officer acquired the land Survey Nos.272 and 292/2, admeasuring 0.13 and 0.33 R respectively, situated at mouza Shivangaon. Admittedly, respondent

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Sadashiv Durgaji Ambhore has received the notice from Special land Acquisition Officer under Section 12(2) of the Land Acquisition Act to receive the compensation amount Rs.1,37,973/-. The appellant as well as respondent both have claimed the compensation amount. As per the contention of the appellant he is the person interested to receive the compensation, whereas as per contention of the respondent the transaction between the appellant and the respondent is not legal one as appellant is not competent to enter into the contract being it is unregistered society.

10. In support of his contention learned Advocate Mr. Ghare placed reliance on Sharda Devi vs. State of Bihar and another, reported in (2003) 3 SCC 128, wherein Hon'ble Apex Court held that,

"State is not a 'person interested' as defined in Section 3(2) of the Act. It is not a party to the proceeding before the Collector in the sense, which the expression 'parties to the litigation' carries. The Collector holds the proceedings and makes an award as a representative of the State Government. Land or an interest in land pre-owned by State cannot be the subject matter of acquisition by State the question of deciding the ownership of State or holding of any interest by the State Government in proceedings before the Collector (as defined in Section 3(c) of the Act). If it was a government land, there was no question of

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initiating the proceeding for acquisition at all. The Government would not acquire the land, which already vests in it. A dispute as to the pre- existing right or interest of the State Government in the property sought to be acquired is not a dispute capable of being adjudicated upon or referred to the Civil Court for determination either under Section 18 or Section 30 of the Act. The reference made by the Collector to the Court was wholly without jurisdiction and the Civil Court ought to have refused to entertain the reference and ought to have rejected the same. All the proceedings under Section 30 of the Act beginning from the reference and adjudication thereon by the Civil Court suffer from lack of inherent jurisdiction and are therefore a nullity liable to be declared so." He further placed reliance on Abdur Rahman and others vs. Athifa Begum and others, reported in (1996) 6 SCC 62, wherein it is held by the Hon'ble Apex Court that, 'non-appearance of the appellant before the high Court, High court cannot go into the merits of the case' and lastly he relied upon the judgment of this Court in Second Appeal No.144/2011 Nilkanth Tanba Pazara vs. Ranjana Uddhav Rao, wherein the appeal was remitted back to the Appellate Court for deciding it afresh by giving an opportunity to the appellant.

11. On the basis of the law laid down in the decisions

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appellant prayed for remand of the reference.

12. On the other hand, learned Advocate Mr. Nitin Vyawahare submitted that in fact the appellant is not registered co-operative society and society becomes competent to acquire, hold and dispose of the property only when it is registered and not otherwise. Therefore, appeal itself is not maintainable and liable to be dismissed. He placed his reliance on Maneklal Mansukhbhai Cooperative Housing Society Ltd. Vs. Rajendra Kumar Maneklal Shah and another, reported in (2001) 6 SCALE 226 wherein Hon'ble Apex Court held that, 'the appellant society was not registered on the date of said agreement. The Hon'ble Apex Court has referred Section 37 of the Gujrat Cooperative Societies Act which provides that a society on its registration shall be a body corporate by the name under which it is registered, with perpetual succession and a common seal, and with power to acquire, hold and dispose of property, to enter into contracts, to institute and defend suits and other legal proceedings and to do all such things as are necessary for purpose for which it is constituted.' It is further held by the Hon'ble Apex Court that the aforesaid provision shows that the society becomes competent to acquire, hold and dispose of the property only when it is registered and not otherwise. He submitted that similar is the situation as the society is

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not registered society and not competent to acquire, hold and dispose of the property and therefore not entitled for receive any compensation, as the transaction between the appellant and the respondent is not legal one. The appellant has claimed the compensation on the basis of sale-deed executed between the appellant and the respondent, namely, Sadashiv Durgaji Ambhore. As the compensation is claimed on the basis of sale-deed which is executed by the respondent in favour of co-operative society. Learned Advocate for the respondent submitted appeal has no merit and deserves to be dismissed.

13. I have given thoughtful consideration to the rival submission. It is not disputed that the appellant society is not a registered society. The cause title of the appeal itself shows that it is a proposed society. Thus, it is an admitted fact that appellant society is not registered society. As observed by the Hon'ble Apex Court in case of Maneklal Mansukhbhai Cooperative Housing Society Ltd. Vs. Rajendra Kumar Maneklal Shah and another (supra) by referring the provision of Gujarat Co-operative Societies Act and Gujrat Co- operative Societies Rules, 1965 and held that society becomes competent to acquire, hold and dispose of the property only when it is registered and not otherwise. Similar is the situation as similar

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provisions are incorporated in Maharashtra Cooperative Societies Act, 1960 and the Rules 1961. The legal position in view of the said provision is as given below. Section 8 of the Maharashtra Co- operative Societies Act, 1960 deals with the application for registration, which is reproduced as under :

Section 8.

Application for registration-

(1) For the purposes of registration, an application shall be made to the Registrar in the prescribed form, and shall be accompanied by four copies of the proposed by-laws of the society [and such registration fee as may be prescribed in this behalf. Different registration fees may be prescribed for different classes of societies, regard being had to the service involved in processing an application for registration.] The person by whom, or on whose behalf, such application is made, shall furnish such information in regard to the society, as the Registrar may require.

(2) The application shall be signed--

(a) in the case of a society other than a federal society by at least ten persons(each of such persons being a member of a different family), who are qualified under this Act, and

(b) in the case of a federal society, by at least five societies.

No signature to an application on behalf of a society shall be valid, unless the person signing is a member of the committee of such a society and is authorised by the committee by resolution to sign on its behalf the application for registration of the society and its bye-laws; and a copy of such resolution is appended to the application.

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14. Section 36 of the Act provides that, a 'Society on its registration shall be a body corporate by the name under which it is registered, with perpetual succession, and a common seal, and with power to acquire, hold and dispose of property, to enter into contracts, to institute and defend suits and other legal proceedings and to do all such things as are necessary for the purpose for which it is constituted.' Thus, Section 36 makes every registered society a corporate body having perpetual succession and common seal. Rule 4 of the Maharashtra Co-operative Societies Rules, 1961 framed under the Act provides that, 'Every application for registration of a society under Section 8 shall be made in Form 'A' in Marathi, Hindi or English, and shall, be accompanied by;

(a) a list of persons who have contributed to the share capital, together with the amount contributed by each of them, and the entrance fee paid by them;

(b) a certificate from the Bank or Banks stating the credit balance therein in favour of the proposed society;

(c) a scheme showing the details explaining how the working of the society will be economically sound and, where the scheme envisages the holding of immovable property by the society, the description of such property proposed to be purchased, acquired or transferred to the society;

(d) such other documents as may be specified in the model bye-laws, if any, framed by the Registrar;

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[(e) the registration fees at the following rates, namely:-]

15. Thus, the scheme showing the details explaining how the working of the society will be economically sound and, where the scheme envisages the holding of immovable property by the society, the description of immovable property proposed to be purchased, acquired or transferred to the society. The aforesaid provision shows that the society becomes competent to acquire, hold and dispose of the property only when it is registered and not otherwise.

16. The Hon'ble Gujarat High Court in Laxminagar Co-Op. Housing Society Vs. Mamlatdar, reported in (2005) 3 GLR 2083 dealt with this issue and in para 6 observed that, "As held by this Court in the case of Ramji Mandir Narsinhji & Ors. Vs. Narsinh Nagar Alias Tekri Co.op Housing Society Ltd & Ors., reported in 1979 GLR Page 801 in as well as in the case of Jayantilal Hansraj Shah and Others Vs. Hemakuwarben Dolatraj Dave and others, reported in 1996(3)GLR 522 and the decision in the case of Shivalaya Coooperative Housing Society Vs. Shantaben T. Patel, reported in 2002(1) GLR Page 426, the proposed Cooperative Housing Society not being duly registered as a

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Cooperative Society cannot enforce a contract in favour of an unregistered Cooperative Society and that unregistered Co-operative Society cannot enter into contract and that suit itself is not maintainable as society itself is not in existence in the eye of law and that the contract entered into by proposed/unregistered Cooperative Society is not a valid contract in the eye of law. The Judgment of this Court in the case of Ramji Mandir Narsinhji & Others (Supra) is confirmed by the Hon'ble Supreme Court of India as reported in 2002(1) GLH 290 by holding that an unregistered cooperative society cannot enter into a contract.

17. Under the above circumstance the transaction i.e. registered sale-deed dated 12.3.1984 entered into between the respondent and the appellant society itself was a nullity as the society is the proposed society and not registered not a legal entity and not in existence unless it is registered. As the appellant has claimed the compensation amount on the basis of sale-deed, but in view of the judgment of the Hon'ble Apex Court in the decisions referred above, the transaction between the appellant who is unregistered co- operative society and the respondent itself is a nullity. As per the legal provisions the society becomes competent to acquire, hold and dispose of the property only when it is registered and not otherwise.

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Therefore, the contention of the appellant that appellant is a interested person on the basis of sale-deed which itself is null and void, appellant cannot claim the compensation on the basis of documents which is null and void.

18. The proceedings for apportionment of compensation are in the nature of interpleader suit and the parties to these proceeding are free to litigate in the ordinary way as in an ordinary suit to determine their respective rights in respect of amount of compensation or any portion thereof. The proceeding being of civil nature, the parties certainly are required to plead their case and lead evidence in support of the same. The appellant, therefore, after pleading are under obligation to adduce the evidence to that effect. It is argued and pleaded by the learned Advocate for the appellant that no opportunity was granted to the appellant to adduce the evidence and no notice was given to the appellant when the reference was transferred from one Court to another.

19. I have perused the record and proceedings. From the record it shows that the reference under Section 30 of the Land Acquisition Act was received on 20.3.1994. Thereafter, notice was issued to the respondent. The respondent appeared, from time to time appellant and the respondent have attended the proceeding. Though it is submitted that the proceeding was not traceable for

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considerable period, but roznama nowhere shows that the proceeding was not traceable. The roznama was maintained on every date. Thus, contention of the appellant that it was transferred from one Court to another and was not traceable is not sustainable in the light of the noting recorded before the learned trial Court.

20. Considering the judgment of the Hon'ble Apex Court as cited above, as the appellant society is not registered society and the transaction which is null and void. The legal position is clear that the society cannot acquire, hold and dispose of the property unless it is registered.

21. In view of this proposition, there is no substance in the submission of the appellant. For the reasons stated herein above, the present appeal deserves to be dismissed.

22. For the aforesaid reasons, the appeal fails and is accordingly dismissed. There shall be no order as to costs.

23. The amount deposited by the acquiring body be disbursed to the respondent on due identification and verification along with interest.

(Urmila Joshi-Phalke, J.)

okMksns

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