WA/1042/2004 of Sri Ch. Venugopal, Vs J. Srirama Murthy, on 31 December 2004

1. J. Srirama Murthy,

Plot No. 5-4, Srinivasa Apartments,

Behind State Bank of India,

Seetammadhara Junction, Viskhapatnam-13.

2. The Secretary,

NGO's Co-operative House & Building Societies, No.B-1152, Akkayapalem, Visakhapatnam-16.

3. The Deputy Registrar of Co-operative Societies, Visakhapatnam, Visakhapatnam District.

4. The A.P. Co-operative Tribunal, Vijayawada, Rep by its Secretary, Yalamachali Complex,Elore Road, Vijayawada. .....RESPONDENT(S)

Counsel for the Appellant: Mr. P. Srinivas, Advocate,for Mr. P.M. Gopal Rao, Senior Advocate.Counsel for Respondent No.1: Mr. Ravindra Babu, Adv.Counsel for Respondent No.2: Mr. J.U.M.V. Prasad, Adv.Counsel for Respondent Nos.3 & 4: G.P. FOR CO-OPERATIONThe Court made the following :

JUDGMENT:(Per Hon’ble Sri Justice B. Sudershan Reddy)

The unsuccessful writ petitioner is the appellant in this Writ Appeal.

The 1[st] respondent filed arbitration case against the appellant and the 2[nd]respondent-N.G.O’s. Co-operative House & Building Societies (for short ‘theSociety’) seeking declaration of title and perpetual injunction restraining theappellant herein from making constructions in Plot No.255 situated in SurveyNo.13 (Part) and 14 of Kapparada village, Visakhapatnam District (hereinafterreferred to as “the scheduled property”). The case set up by him before theArbitrator was that he is one of the members of the Society and was allottedPlot No.26 and that he entered into an agreement with M. Nagabhushana Raoand accordingly exchanged the said plot with Plot No.77. That he againexchanged the said plot with one Veerabhadra Rao and got Plot No.255, whichwas allotted to the said Veerabhadra Rao. The Society recognized the saidexchange on 16-03-1996. That he gave a complaint to the Society about theillegal acts of construction of compound wall by the appellant.

The case of the appellant was that his father was allotted Plot No.255(scheduled property) and he paid the required amounts in the year 1985 itself and the Society delivered the possession of the said plot in the year 1985 itselfto his father. That he filed an application for construction of house in PlotNo.255 vide letter, dated 22-12-1998, to which the Society addressed a letter, dated 10-01-1999,requiring him to furnish the relevant documents and the same were furnished toi t . The Society did not raise any obstruction whatsoever in making theconstruction. No objections were raised by the Society and as well as the 1[st] respondent at the time when the constructions were made. The Society filedits counter denying the allegations and averments made by the 1[st] respondentin the arbitration case. It is further admitted that the father of the appellant Ch. Ramalingam was allotted Plot No.255 admeasuring 311 Square yards (scheduled property) and paid the amounts in the year 1962and remaining amounts in the year 1985 in response to the letter issued by theSociety, dated 14-04-1985. It is stated in clear and categorical terms that Plot No.255 inrespect of which the 1[st] respondent asserted his title was allotted to theappellant’s father

Ch. Ramalingam. It was further stated that the exchange of plots between the1[st] respondent and Nagabhushana Rao were not brought to the notice of theSociety and the said exchange was not recognized by the Society. It is evenadmitted that the appellant constructed the house and the Municipal authoritieshave levied the house tax and assessed the house and accordingly issueddemand notices requiring the appellant to pay the property tax.

However, the Society filed another counter styling it as “Reply counter to thecounter filed by Sri. Ch. Venugopal son of late Ch. Ramalingam, Respondent-II”inter alia stating that Plot No.255 is vacant and the payment of advance amount towards the scheduled property during 1962 is not correct but an amount ofRs.1,125/- and Rs.5,000/- was paid on 08-10-1967 and 22-08-1994, respectively, by late Ch. Ramalingam. The tentative site value was not paid fully till date.

The Tribunal relying upon Ex.P-2 letter addressed by the Society to the 1[st]respondent and Veerabhadra Rao, dated 16-03-1996, found that mutualexchange was with consent and approval of the Society. It was held that the 1[st] respondent has been in peaceful possession and enjoyment of thescheduled property. The Tribunal brushed aside the averments made in thecounter affidavit filed by the Society that the then Secretary one G. ApparaoReddy committed several irregularities and the approval stated to have beengranted by the Society is a fabricated one. The Tribunal further held that theirregularities, if any, committed by the then Secretary is of no consequence and the 1[st] respondent cannot be held responsible for the same.

The appellant herein filed appeal before the A.P. Co-operative Tribunal, Vijayawada, challenging the correctness of theaward passed by the Arbitrator. The Appellate Tribunal found that the appellantherein did not produce any original allotment letter and even going by the ledgerrecords, the appellant has paid only part payment in respect of the scheduledproperty whereas the 1[st] respondent paid the entire amount and the Society accepted the exchangeof his site with the site of Veerabhadra Rao and allotted the same to the 1[st]respondent. The Tribunal accordingly dismissed the appeal preferred by theappellant and the writ petition filed by the appellant challenging the orders passed by the Tribunals below also met the same fate.

The question that falls for consideration is whether the orders passed by theTribunals which were confirmed by the learned single Judge suffer from anyerror apparent on the face of the record ?

Sri P. Srinivas, learned counsel for the appellant, submitted that the 1[st]respondent invoked the jurisdiction of the Arbitrator under Section 61 of theA.P. Co-operative Societies Act, 1964 (for short ‘the Act’) did not make out anycase whatsoever establishing his title in respect of the scheduled property. Theburden is on the 1[st] respondent to establish that there was a valid exchangebetween himself and Nagabhushana Rao as pleaded by him in which he got Plot No.77 in lieu of Plot No.26 allotted to him by the Society. Likewise theburden is on the 1[st] respondent to establish that there was a further exchangebetween himself and Veerabhadra Rao in which he got the scheduled property.There is nothing on record evidencing the allotment of

Arguments

Plot No.77 in favour of Nagabhushana Rao and Plot No.255 in favour ofVeerabhadra Rao. No evidence has been made available by the 1[st] respondentin this regard. The findings recorded by the Tribunals below are not based onany evidence. The Tribunal below misdirected themselves to the real andsubstantial question that had fallen for consideration and committed an error inplacing the burden on the appellant.

Learned counsel for the 1[st] respondent contended that both the Tribunalsconcurrently found that the appellant herein has no title to the scheduledproperty and such concurrent finding of facts cannot be interfered with by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.The learned single Judge rightly did not interfere with the concurrent finding offacts and no interference is called for.

It is very well settled and needs no restatement at our hands that thisCourt while exercising its Certiorari jurisdiction cannot reappreciate theevidence available on record and substitute its own findings for that ofTribunals below. Such a course is impermissible. Writ of Certiorari lies tocorrect the manifest errors, if any, committed by the Tribunals in exercise oftheir jurisdiction. Misdirection in considering the substantial issues that fallenfor consideration before the Tribunals, amounts to errors apparent on the faceof the record and can always be corrected by this Court in exercise of itsCertiorari jurisdiction. We shall bear this in mind and proceed to consider thecase on hand.

The 1[st] respondent in clear and categorical terms pleaded that one M.Nagabhushana Rao was allotted Plot No.77 by the Society and he entered into an agreement with the saidNagabhushana Rao and got Plot No.77 in exchange of Plot No.26 allotted tohim. There is no evidence that Nagabhushana Rao was allotted Plot No.77,which could have been exchanged with Plot No.26 stated to have been allottedto the 1[st] respondent. Likewise, there is no evidence that one Veerabhadra Raowas allotted Plot No.255 and the said Veerabhadra Rao exchanged Plot No.255allotted to him with Plot No.77, which the 1[st] respondent got in exchange withNagabhushana Rao. It is the primary duty of the 1[st] respondent to establish that Plot No.77 was initially allotted toNagabhushana Rao and Plot No.255 was allotted to Veerabhadra Rao,

respectively. The plea of exchange set up by the 1[st] respondent has to fail ifthese facts are not established. This aspect of the matter has been totallyignored by the Tribunals below. The 1[st] respondent is required to establishthree vital facts viz., (a) that the society has allotted Plot No.26 to him and hepaid the entire amount liable to be paid to the society; (b) that Plot No.77 hasbeen validly allotted in favour of Nagabhushana Rao and he paid the amountspayable to the society as is required; and (c) that Plot No.255 has been validlyallotted in favour of Veerabhadra Rao and he paid the amount payable to thesociety in respect of the same. The 1[st] respondent cannot succeed unlessthese facts are established. This aspect of the matter has been totally ignoredby the Tribunals below. The findings recorded by the Tribunals below as to theexchange of plots by the 1[st] respondent are based on no evidence, andtherefore, the findings are perverse in their nature. A finding based on noevidence is a perverse finding.

The Tribunals below misdirected themselves in casting burden upon theappellant herein to prove that the scheduled property plot was allotted to hisfather. Admittedly, the scheduled property was not allotted to the 1[st] respondentand he claims to have secured the same in exchange with the plots allotted toother members. The Tribunal ought to have considered whether those plotswere at all allotted to those individual members from whom the 1[st] respondentis stated to have secured the scheduled property in exchange with the plotallotted to him. The Tribunal instead of framing the correct question for itsconsideration committed an error, which is apparent on the face of the record,in casting burden upon the appellant herein to establish his title to thescheduled property. The Society did not raise any dispute as against the appellant herein and it is the 1[st] respondent who raised the dispute assertinghis right, title and interest in the scheduled property and it is for him toestablish as to how he secured the scheduled property for which purposes hehas to establish the allotment of plots in favour of those individuals with whomhe is stated to have entered into an agreement and exchanged the plot allottedto him with those plots. It is also required to notice that the 1[st] respondentherein did not implead Veerabhadra Rao and Nagabhushana Rao with whom heclaims stated to have entered into an agreement for mutual exchange of plotsallotted to them. These vital aspects have been ignored by the Tribunals below,which resulted in passing of erroneous orders.

Learned counsel for the 1[st] respondent, however, made an attempt to filesome documents in order to substantiate that Nagabhushana Rao andVeerabhadra Rao were allotted plots by the Society and they have entered intoa mutual agreement with the 1[st] respondent for exchanging the plots. Thesedocuments are not, admittedly, filed before the Arbitrator or the appellateauthority. We cannot receive those documents and examine their genuinenessin this summary proceedings.

The Tribunals below have also failed to advert themselves as to theeffect of inconsistent and contradictory statements taken by the Society in itscounter and in the additional counter. This is also a notable aspect thatescaped the attention of the Tribunals below.

For the aforesaid reasons, we hold that the orders passed by theTribunals below are vitiated by apparent errors on the face of the record requiring the interference of this Court and correction in exercise of itsCertiorari jurisdiction. The matter is accordingly remitted for fresh considerationby the Arbitrator, in accordance with law, for which purposes he shall providefurther opportunity to the parties to lead evidence in support of their case. Itshall be open to the 1[st] respondent to file the documents that were sought to be filed before us,which shall be received by the Arbitrator for consideration. The Arbitrator shalldispose of the matter on merits, in accordance with law, uninfluenced by theobservations made by the Co-operative Tribunal and the learned single Judgewhile disposing of the writ petition. The arbitration case shall be disposed ofwithin six months from the date of receipt of copy of the order.

The impugned order under appeal is accordingly set aside. The WritAppeal is allowed without any order as to costs.

___________________________B. SUDERSHAN REDDY, J

Date:_______ Dec., 2004.

___________________________

T. CH. SURYA RAO, J

To

1. The Deputy Registrar of Co-operative Societies,Visakhapatnam, Visakhapatnam District.Visakhapatnam, Visakhapatnam District.

2. The A.P. Co-operative Tribunal, Vijayawada,Rep by its Secretary, Yalamachali Complex,Elore Road, Vijayawada.

3. Two C.Cs. to G.P. for Co-operation, High Court of A.P.,Hyderabad (O.U.T.)Hyderabad (O.U.T.)

4. Two C.D. copies.