Co-Operative Society Act - refused to allot a plot - Writ not maintainable in absence of perversity etc., - Chalapathi Rao a famous journalist & a member of society passed away with out marriage leaving deposit of Rs.10,000/- for allotment of a plot - his sister being legal heir after 6 years claimed for refund of the amount when society decided to do something in the name of Chalapathi Rao- and later demanded for allotment of plot by offering to pay balance amount of sale - Society refused - Writ - writ not maintainable as there is no perversity, element of excess of jurisdiction, error of law, violation of principles of natural justice, abuse of process of law,unreasonableness and procedural impropriety, and found that deceased Sri Chalapathi Rao was a great journalist who was produced by this country and this is not the way of respecting the family members of such a great personality and further held that writ petition is
dismissed and the petitioner society shall make necessary arrangements for registration of the plot in favour of the third respondent herein, within a period of two months from the date of receipt of a copy of this order. =
One late Chalapathi Rao, a famous journalist and the then member of
the society applied for allotment of a plot in 1982 by paying a sum of
Rs.10,000/-, but he, who was a bachelor, died on 25.3.1983 without leaving
any legal heirs.
Society took up provisional allotments in 1984 and final
allotment in 1987.
No nomination was made by the said Chalapathi Rao and
no claim for refund of Rs.10,000/- was made by any person for a period of
six years thereafter i.e. till June, 1989.
2.3 Based on a request made by prominent personalities in the field of
journalism, petitioner society felt it appropriate to construct a memorial in
the name of late Chalapathi Rao and earmarked plot No.110/A for the said
purpose and the very venture also is made after him.
2.4 Respondent No.2 herein, in the month of March, 1989 for the first
time, issued a telegram, claiming herself as a successor of late Sri Chalapathi
Rao and requested the petitioner society not to entertain any third party
claim and the same was followed by another telegram in June, 1989, asking
for refund of Rs.10,000/- paid by Sri Chalapathi Rao while referring to
succession certificate and the society did not accede to the said request on
the ground that the claim being barred by time since the same was made
after six years of the death of Sri Chalapathi Rao.
Later, the 2nd respondent
changed her stand and made a request for allotment of plot in her name
while offering to pay the balance, but the society refused to oblige the same.=
In the absence of any perversity, element of excess of jurisdiction,
error of law, violation of principles of natural justice, abuse of process of
law,unreasonableness and procedural impropriety, this Court is not inclined to
exercise power of judicial review under Article 226 of the Constitution of India
to disturb the concurrent findings of fact recorded by the statutory
authorities.
The succession certificate made available by the second
respondent herein manifestly shows the interest of the second respondent in
the subject property and the absence, if any with regard to the particulars of
the property in the said certificate would not dis entitle the second respondent
from claiming the right in the subject property in view of the reasons in the
preceding paragraphs.
There is absolutely no evidence on record made
available by the society to demonstrate that they followed the mandatory
requirements of the provisions of Section 28 of the A.P. Cooperative Societies
Act and Rule 17 of the A.P. Cooperative Societies Rules, 1964.
It is also
noteworthy that the society is also not disputing the status of the second
respondent as sister of the deceased, Sri Chalapathi Rao.
In the absence of
such element, having failed to follow the procedure under the statute, in the
opinion of this Court, the society cannot deny the reasonable claim of the
respondents herein.
It is also to be noted that Ex.A.4 dated 15.12.2002
shows that the second respondent paid a sum of Rs.1,000/- and as per the
counsel for the third respondent the society received the said amount and the
amount is lying with the society right now.
19. Before parting with the judgment, it may be appropriate to mention
that the deceased Sri Chalapathi Rao was a great journalist who was
produced by this country and this is not the way of respecting the family
members of such a great personality.
20. For the aforesaid reasons and having regard to the principles laid
down in the judgments referred to above and keeping in view the object and
intention behind the provisions of law referred to above, writ petition is
dismissed and the petitioner society shall make necessary arrangements for
registration of the plot in favour of the third respondent herein, within a
period of two months from the date of receipt of a copy of this order.
2014 - Aug.Month - http://judis.nic.in/judis_andhra/filename=11799
THE HONBLE SRI JUSTICE A.V.SESHA SAI
W.P.No.9135 of 2007
04-8-2014
The Journalist Cooperative Housing Society Ltd., Plot No.127/A, Journalists A
Colony, Jubilee Hills, Hyderabad, rep. by its Secretary M.Venugopala
Rao....Petitioner
The District Cooperative Officer, Hyderabad (Urban) District, A.P.H.B.
Building, Near Ajanta Gate, Nampally, Hyderabad & 2 others. ...Respondents
Counsel for the Petitioner: Sri P.GIRISH KUMAR
Counsel for the Respondent No.1: G.P. FOR COOP.
Counsel for the Respondent No.3 : Sri V.RAGHU
<Gist:
>Head Note:
?Cases referred:
1.AIR 1930 Privy Council 270
2.AIR 1991 SC 2219
3.LAWS (SC) 2012-3-26/TLPRE-2012-0-147
THE HONBLE SRI JUSTICE A.V.SESHA SAI
W.P.No.9135 of 2007
ORDER:
This Writ Petition, filed under Article 226 of the Constitution of India,
is
directed against the judgment dated 30.11.2006 rendered by the Andhra
Pradesh Cooperative Tribunal, Hyderabad in C.T.A.No.28 of 2001 and the
Award in A.R.C.No.5/97 dated 30.12.2000 passed by the Joint
Registrar/District Cooperative Officer, Hyderabad Urban District-1st
respondent.
2. Filtering the unnecessary details, the pleadings as per the writ affidavit
which are essential and pertinent for adjudication of the issue involved in the
present Writ Petition, are as follows:
2.1 Petitioner is a registered society of working journalists established
under the provisions of the A.P. Cooperative Societies Act, 1964 (for short
the Act) with an object of securing the land for the purpose of providing
house plots to its members and for advancement of loans for construction of
dwelling houses. Pursuant to the allotment made by the Government, the
petitioner society invited applications in the year 1982 from the eligible
members for allotment of plots.
2.2 One late Chalapathi Rao, a famous journalist and the then member of
the society applied for allotment of a plot in 1982 by paying a sum of
Rs.10,000/-, but he, who was a bachelor, died on 25.3.1983 without leaving
any legal heirs. Society took up provisional allotments in 1984 and final
allotment in 1987. No nomination was made by the said Chalapathi Rao and
no claim for refund of Rs.10,000/- was made by any person for a period of
six years thereafter i.e. till June, 1989.
2.3 Based on a request made by prominent personalities in the field of
journalism, petitioner society felt it appropriate to construct a memorial in
the
name of late Chalapathi Rao and earmarked plot No.110/A for the said
purpose and the very venture also is made after him.
2.4 Respondent No.2 herein, in the month of March, 1989 for the first
time, issued a telegram, claiming herself as a successor of late Sri Chalapathi
Rao and requested the petitioner society not to entertain any third party
claim and the same was followed by another telegram in June, 1989, asking
for refund of Rs.10,000/- paid by Sri Chalapathi Rao while referring to
succession certificate and the society did not accede to the said request on
the ground that the claim being barred by time since the same was made
after six years of the death of Sri Chalapathi Rao. Later, the 2nd respondent
changed her stand and made a request for allotment of plot in her name
while offering to pay the balance, but the society refused to oblige the same.
2.5 In the year 1997, the 2nd respondent filed A.R.C.No.5 of 1997 before
the 1st respondent under Section 61 of the Act, seeking a direction to the
society to register plot No.110/A in her name and to deliver possession by
receiving balance value of the plot. Respondent No.1 passed an award in
A.R.C.No.5 of 1997 dated 16.3.1998 in favour of 2nd respondent. Petitioner
filed C.T.A.No.92 of 1998 before the A.P. Cooperative Tribunal and the same
was allowed on 31.7.1999, remanding the matter to the 1st respondent for
fresh disposal. After remand, 1st respondent passed an Award dated
30.12.2000 in favour of 2nd respondent and the society preferred C.T.A.
against the said award and the Tribunal dismissed the same by way of
judgment dated 30.11.2006.
3. Challenging the said judgment rendered by the Tribunal, confirming
the Award of 1st respondent, the present Writ Petition has been filed. This
Court, while issuing rule nisi on 27.4.2007, granted interim suspension of the
impugned order and the same was made absolute on 12.11.2009. In view of
the death of the 2nd respondent, 3rd respondent who is the son of 2nd
respondent, came on record. A counter affidavit is filed by 3rd respondent,
denying the averments and allegations in the affidavit filed in support of the
Writ Petition and in the direction of justifying the impugned orders.
4. Heard Sri P.Girish Kumar, learned counsel for the petitioner, learned
Government Pleader for respondent No.1 and Sri K.V.Bhanu Prasad, learned
counsel for respondent No.3 apart from perusing the material available on
record.
5. Contentions of Sri P.Girish Kumar, learned counsel for petitioner:
(1) The judgment rendered by the Cooperative Tribunal confirming the
award passed by the 1st respondent is erroneous and contrary to law and
opposed to the very spirit and object of the provisions of the A.P. Cooperative
Societies Act, 1964 and the Rules made thereunder.
(2) The claim of the 2nd respondent is hopelessly barred by limitation since
the 2nd respondent did not raise the claim within three years as per Article
113 of the Limitation Act and in view of Rule 49 of the A.P. Cooperative
Societies Rules, 1964 (for short the Rules).
(3) The succession certificate produced by the 2nd respondent would not
give any right to the 2nd respondent to claim allotment of plot.
(4) Since the society followed the procedure as stipulated under Rule 17
of the Rules, the 2nd respondent is not entitled for any relief.
(5) Since the 2nd respondent initially asked for refund of Rs.10,000/-, no
relief can be granted.
(6) Late Chalapathi Rao did not nominate anybody, as such no body is
entitled to claim the allotment.
6. Contentions of Sri K.V.Bhanu Prasad, learned counsel for 3rd Respondent
(1) The claim made by 2nd respondent was within time before 1st
respondent and the objection contra raised by the petitioner society is
untenable and unsustainable.
(2) The impugned action on the part of the petitioner society is in
contravention of the mandatory provisions of Section 28 of A.P. Cooperative
Societies Act and the Rules 17 and 49 of the Rules framed thereunder.
(3) The finding of fact recorded by the primary authority and the appellate
authority cannot be disturbed, nor it can be interfered with since the primary
authority and the appellate authority assigned cogent and convincing reasons
for arriving at the conclusion in favour of unofficial respondents.
(4) The succession certificate produced by the 2nd respondent would
demonstrate the interest of the 2nd respondent in the claim.
In support of his contentions and submissions, the learned counsel for
3rd respondent places reliance on the judgments in MT.BOLO v.
MT.KOKLAN AND OTHERS , STATE OF PUNJAB AND OTHERS v.
GURDEV SINGH, ASHOK KUMAR and HEINZ INDIA PVT LTD v.
STATE OF U.P. .
7. In the light of the above pleadings, submissions and contentions, now
the point which arises for consideration of this Court is - whether the
judgment rendered by the Tribunal in C.T.A.No.28 of 2001 dated 30.11.2006,
confirming the Award dated 30.12.2000 passed by 1st respondent in
A.R.C.No.5 of 1997 is in conformity with the provisions of the A.P.
Cooperative Societies Act, 1964 and the Rules framed thereunder and
whether the same warrants any interference of this Court by way of judicial
review under Article 226 of the Constitution of India?
8. The material made available before this Court manifestly show that the
Joint Registrar/District Cooperative Officer-1st respondent herein passed
Award under Section 62(4) of the A.P. Cooperative Societies Act on
30.12.2000. While noticing the failure on the part of the society in filing the
counter and after thoroughly referring to the written arguments filed by the
society on 7.2.2000, the 1st respondent passed the impugned order. It is
significant to note at this juncture that the petitioner society at any point of
time did not dispute the relationship of 2nd respondent with late Chalapathi
Rao as sister. The 1st respondent herein in the impugned order dealt with
the aspect of limitation raised by the petitioner society and also the impact
and effect of provisions of Section 28 of the Act and Rule 17 of the Rules and
also the succession certificate produced by the 2nd respondent. The Tribunal
also meticulously and thoroughly and in detail considered the entire material
available on record and passed the impugned order by assigning cogent and
convincing reasons. The Tribunal, after taking into consideration the
pleadings available on record, framed the following two points for
consideration.
(1) Whether the dispute raised by Smt.Leela Rao (2nd respondent
herein) is barred by limitation?
(2) Whether there are any illegalities or infirmities in the impugned
award and if so, the impugned award is liable to be set aside?
9. A reading of the judgment rendered by the Tribunal manifestly
discloses that the Tribunal recorded categoric findings on the conduct of the
society and found fault with the attitude exhibited by the society at
paragraphs 12 to 16 of the impugned judgment. It is also to be noted that
the Tribunal recorded a well reasoned finding on the aspect of limitation
raised by the society in an elaborate manner at paragraphs 31 to 37 and
eventually disapproved the contention and also deprecated the action of the
society in failing to adhere to the provisions of Section 28 of the Act and Rule
17 of the Rules. At this juncture, it may be appropriate to refer to Section 28
and Rule 17 of the Rules. Section 28 of the A.P. Cooperative Societies Act,
1964 reads as under:
Section 28 - Transfer of interest on death of a member
(1) On the death of a member, the society shall transfer his share or
interest to the person or persons nominated in accordance with the
rules, or if no person has been so nominated to such person as may
appear to the committee to be the heir or legal representative, as the
case may be, becoming a member of the society, subject to such
conditions as may be prescribed:
Provided that nothing in this sub-section shall prevent a minor or a
person of unsound mind from acquiring by inheritance or otherwise the
share of interest of a deceased member in a society.
(2) Notwithstanding anything in sub-section (1), any such nominee, heir,
or legal representative, as the case may be, may require the society to
pay to him the value of the share or interest of the deceased member as
ascertained in the manner prescribed.
(3) A society shall pay all other moneys due to the deceased member
from the society to such nominee, heir or legal representative, as the
case may be, subject to such conditions as may be prescribed.
(4) All transfers and payments made by a society in accordance with the
provisions of this section shall be valid and effectual against any demand
made upon the society by any other person.
Rule 17 of A.P. Cooperative Societies Rules, 1964 reads as under:
17. Procedure to be adopted when no nomination is made:
(1) If no nomination has been made by a member, the society shall, on
the death of a member by a notice exhibited at the office of the society
invite claims or objections for transfer of the share or interest of the
deceased member to an heir to legal representative within the time
specified in the notice.
(2) After considering the objections or claims if any, received in this
behalf and after making such inquiries the committee considers
necessary, it shall decide as to the person who in its opinion is the heir
or legal representative of the deceased member, and to proceed to
transfer the share or interest of the deceased member to such person,
only.
(3) In case of payment of the value of the share or interest or other
moneys due to die deceased member, the committee shall obtain
sureties for the amounts involved in such payments from two members
of the society.
10. From a reading of the provisions of Section 28, it would be very much
evident that there is an obligation on the part of the society to transfer the
share of a member and interest in favour of a nominee and in the absence of
such nominee, to such person as may appear to the committee to be the heir
or legal representative of the deceased member. Rule 17 of the Rules
mandates the society to exhibit at the office of the society a notice inviting
claims or objections for transfer of the share or interest of the deceased
member to a heir or legal representative within the time specified in the
notice. This provision also obligates the society to consider the objections
and claims, if any, and to cause enquiry and to take a decision with regard to
heir or legal representative of the deceased member and to transfer the
share or interest of the deceased member in favour of such person.
11. In the instant case, the petitioner society did not produce any
evidence to show that the procedure as contemplated above was followed.
In the absence of any material, this Court has absolutely no hesitation to
come to a conclusion that the petitioner society did not adhere to the
provisions of Section 28 of the Act read with Rule 17 of the Rules. Having
failed to follow the statutory mandate as referred to above, in the considered
opinion of this Court, it would never be open to the petitioner society to deny
the benefit to the unofficial respondents herein.
12. Coming to the aspect of limitation, the learned counsel for petitioner
contends that the claim of the second respondent is barred by limitation. On
the other hand, it is the contention of the learned counsel for the 3rd
respondent that it is within time and to bolster the same the learned counsel
has placed reliance on the judgments MT.BOLO v. MT.KOKLAN, STATE OF
PUNJAB AND OTHERS v. GURDEV SINGH, ASHOK KUMAR and HEINZ INDIA
PVT LTD v. STATE OF U.P.
13. In MT.BOLO v. MT.KOKLAN (1 supra), the Privy Council held as under:
There can be no right to sue until there is an accrual of the right
asserted in the suit and its infringement or at least clear and
unequivocal threat to infringe that right by the defendant against whom
the suit is instituted.
14. In STATE OF PUNJAB v. GURDEV SINGH (2 supra), the Honble
Supreme Court at paragraph 4 held as under:
4. First of all, to says that the suit is not governed by the law of
Limitation runs afoul of our Limitation Act. The statute of Limitation was
intended to provide a time limit for all suits conceivable. Section 3 of the
Limitation Act provides that a suit, appeal or application instituted after
the prescribed "period of limitation" must subject to the provisions of
Section 4 to 24 be dismissed although limitation has not been set. up as
a defence. Section 2(j) defines the expression' 'period of limitation'' to
mean the period of limitation prescribed in the Schedule for suit, appeal
or application. Section 2(j) also defines,' 'prescribed period'' to mean the
period of limitation computed in accordance with the provisions of the
Act. The Court's function on the presentation of plaint is simply to
examine whether, on the assumed facts, the plaintiff is within time. The
Court has to find out when the "right to sue" accrued to the plaintiff. If a
suit is not covered by any of the specific articles prescribing & period of
limitation, it must fall within the residuary article. The purpose of the
residuary article is to provide for cases which could not be covered by
any other provision in the Limitation Act. The residuary article is
applicable to every variety of suits not otherwise provided for. Article 113
(corresponding to Article 120 of the Act 1908) is a residuary article for
cases not covered by any other provisions in the Act. It prescribes a
period of three years when the right to sue accrues. Under Article 120 it
was six years which has been reduced to three years under Article 113.
According to the third column in Article 113, time commences to run
when the right to sue accrues. The words "right to sue" ordinarily mean
the right to seek relief by means of legal proceedings. Generally, the
right to sue accrues only when the cause of action arises, that is, the
right to prosecute to obtain relief by legal means. The suit must be
instituted when the right asserted in the suit is infringed or when there is
a clear and unequivocal threat to infringe that right by the defendant
against whom the suit is instituted (See: (i) Mt. Bole v. Mt. Koklam and
Ors. and (ii) Gannon Dunkerley and Co. v. The Union of India :
1970CriLJ741 .
15. According to Rule 49(2) of the Andhra Pradesh Cooperative Societies
Rules, 1964, the period of limitation for referring a dispute, touching the
constitution, management or business of a society to the Registrar under
sub-section (1) of Section 61 of the Andhra Pradesh Cooperative Societies
Act, 1964 shall be regulated by the provisions of the Limitation Act, 1963 as if
the dispute is a suit and the Registrar, a Civil Court. As per proviso to Rule
49 (2) of the Rules, the period of limitation for the disputes, falling under
Section 61 (1) (a) of the Act is six years. The dispute in the instant case
does not fall under the proviso to Rule 49 (2) read with Section 61 (1) (a) of
the Act, as such, the period of limitation for raising and entertaining the
dispute is required to be examined in the light of the provisions of Article 113
of the Limitation Act. The period of limitation for institution of any suit for
which no period of limitation is prescribed elsewhere in the schedule is three
years from the date on which the right to sue accrues.
16. In the light of the above provisions of law, now it is required to be
examined whether the claim made or dispute raised in the instant case is
within the time or not. In the present case, the second respondent got
issued Ex.A.11 legal notice dated 16.12.1996 to the society, intimating that
she would institute a suit in the event of failure to transfer the plot in her
name after receiving the balance amount towards the cost of the plot.
Responding to the said legal notice, the society issued Ex.A.12 reply dated
14.02.1997, stating that the society received Ex.A.11 legal notice and the
committee studied the issue and decided to seek the views of the previous
office bearers of the society at the time of allotment of plot to Sri Chalapathi
Rao in view of the legal implications involved and that the opinion of the
elders among the journalists fraternity was also being solicited and that they
were not in a position to take any haste decision in the matter. In view of
the same, it can be safely concluded that till the date of issuance of Ex.A.12
reply dated 14.02.1997 the petitioner society did not deny the claim of the
second respondent. Even as per the society, the General Body of the society
passed a resolution on 28.09.1997, cancelling the provisional allotment in the
name of Sri Chalapathi Rao while directing the Managing Committee to
construct a memorial in the name of Sri Chalapathi Rao. Material available
on record vividly shows that the second respondent herein raised the dispute
in the year 1997 by way of ARC.No.5/1997, and the Society came forward
with a petition on 24.11.1997 saying that the claim was barred by limitation.
Therefore, in the considered opinion of this Court, the cause of action arose
for the second respondent herein to raise the dispute only in the year 1997.
In view of the said denial, the right to sue accrued to the respondent against
the society only in the year 1997 ie., the year in which the society declined to
accede to the request of the second respondent. Therefore, by any stretch
of imagination, it cannot be contended that the claim is barred by limitation
and the contention raised contra by the petitioner society is liable to be
rejected as being devoid of any merit. Having failed to follow and adhere to
the provisions of Section 28 of the Act and Rule 17 of the Rules, it is not at
all
open for the petitioner society to deny the claim.
17. The learned counsel for the petitioner contends that the impugned
orders are arbitrary and liable to be set aside. Resisting the said contention
and while contending that the concurrent finding of fact recorded by the
preliminary and appellate fact finding authorities cannot be interfered in the
absence of any perversity, the learned counsel for the third respondent relied
on the decision of the Honble apex Court in HEINZ INDIA PVT LTD v. STATE
OF U.P. (3 supra) (in Civil Appeal No.1476/2006 dated 23.03.2012), at
paragraphs 19 to 22 held as under:
19. The Market Committee and the Director have recorded concurrent
findings of fact to the effect that the Petitioners had failed to establish
that no sale of the stocks of ghee had taken place within the Mandi limits
at Aligarh. The statutory presumption that any transfer of stocks from
within the Mandi area, was pursuant to a sale was thus held to have
remained unrebutted. A challenge to the above finding would necessarily
raise the question as to the scope of judicial review of such findings. We
need to sail smooth over that aspect before examining the validity of the
orders within the permissible parameters of judicial review.
The power of judicial review is neither unqualified nor unlimited. It has
its own limitations. The scope and extent of the power that is so very
often invoked has been the subject-matter of several judicial
pronouncements within and outside the country. When one talks of
'judicial review' one is instantly reminded of the classic and oft quoted
passage from Council of Civil Service Unions (CCSU) v. Minister for the
Civil Service (1984) 3 All ER 935, where Lord Diplock summed up the
permissible grounds of judicial review thus:
Judicial Review has I think developed to a stage today when, without
reiterating any analysis of the steps by which the development has come
about, one can conveniently classify under three heads the grounds on
which administrative action is subject to control by judicial review. The
first ground I would call 'illegality', the second 'irrationality' and the third
'procedural impropriety'.
By 'illegality' as a ground for judicial review I mean that the decision-
maker must understand correctly the law that regulates his decision-
making power and must give effect to it. Whether he has or not is par
excellence a justiciable question to be decided, in the event of dispute,
by those persons, the judges, by whom the judicial power of the State is
exercisable.
By 'irrationality' I mean what can by now be succinctly referred to as
'Wednesbury unreasonableness'. It applies to a decision which is so
outrageous in its defiance of logic or of accepted moral standards that no
sensible person who had applied his mind to the question to be decided
could have arrived at it. Whether a decision falls within this category is a
question that judges by their training and experience should be well
equipped to answer or else there would be something badly wrong with
our judicial system....
I have described the third head as 'procedural impropriety' rather than
failure to observe basic rules of natural justice or failure to act with
procedural fairness towards the person who will be affected by the
decision. This is because susceptibility to judicial review under this head
covers also failure by an administrative tribunal to observe procedural
rules that are expressly laid down in the legislative instrument by which
its jurisdiction is conferred, even where such failure does not involve any
denial of natural justice.
20. The above principles have been accepted even by this Court in a
long line of decisions handed down from time to time. We may,
however, refer only to some of those decisions where the development
of law on the subject has been extensively examined and the principles
applicable clearly enunciated. In Tata Cellular v. Union of India: (1994) 6
SCC 651, this Court identified the grounds of judicial review of
administrative action in the following words:
The duty of the court is to confine itself to the question of legality. Its
concern should be:
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law,
3. committed a breach of the rules of natural justice,
4. reached a decision which no reasonable tribunal would have reached or,
5. abused its powers.
Therefore, it is not for the court to determine whether a particular policy
or particular decision taken in the fulfilment of that policy is fair. It is
only concerned with the manner in which those decisions have been
taken. The extent of the duty to act fairly will vary from case to case.
Shortly put, the grounds upon which an administrative action is subject
to control by judicial review can be classified as under:
(i) Illegality: This means the decision-maker must understand correctly
the law that regulates his decision-making power and must give effect to
it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
Reference may also be made to the decision of this Court in State of
Punjab v. Gurdial Singh: (1980) 2 SCC 471 where Krishna Iyer, J. noticed
the limitations of judicial review and declared that the power vested in
the Superior Courts ought to be exercised with great circumspection and
that interference may be permissible only where the exercise of the
power seems to have been vitiated or is otherwise void on well
established grounds. The Court observed:
The court is handcuffed in this jurisdiction and cannot raise its hand
against what it thinks is a foolish choice. Wisdom in administrative action
is the property of the executive and judicial circumspection keeps the
court lock-jawed save where the power has been polluted by oblique
ends or is otherwise void on well-established grounds. The constitutional
balance cannot be upset.
There is almost complete unanimity on the principle that judicial review
is not so much concerned with the decision itself as much with the
decision-making process. (See Chief Constable of North Wales Police v.
Evans (1982) 3 All ER 141). As a matter of fact, the juristic basis for such
limitation on the exercise of the power of judicial review is that unless
the restrictions on the power of the Court are observed, the Courts may
themselves under the guise of preventing abuse of power, be guilty of
usurping that power. Justice Frankfurter's note of caution in Trop v.
Dulles 356 U.S. 86 (1958) is in this regard apposite when he said:
All power is, in Madison's phrase, 'of an encroaching nature'. Judicial
power is not immune against this human weakness. It also must be on
guard against encroaching beyond its proper bounds, and not the less so
since the only restraint upon it is self-restraint.
21. That the Court dealing with the exercise of power of judicial
review does not substitute its judgment for that of the legislature or
executive or their agents as to matters within the province of either, and
that the Court does not supplant 'the feel of the expert' by its own
review, is also fairly well-settled by the decisions of this Court. In all such
cases judicial examination is confined to finding out whether the findings
of fact have a reasonable basis on evidence and whether such findings
are consistent with the laws of the land. (See Union of India v. S.B.
Vohra, : (2004) 2 SCC 150, Shri Sitaram Sugar Co. Ltd. v. Union of India
: (1990) 3 SCC 223, and Thansingh Nathmal and Ors. v. Supdt. of Taxes
and Ors. Dhubri : AIR 1964 SC 1419.
22. In Dharangadhra Chemical Works Ltd. v. State of Saurashtra and
Ors.: AIR 1957 SC 264, this Court held that decision of a Tribunal on a
question of fact which it has jurisdiction to determine is not liable to be
questioned in proceedings under Article 226 of the Constitution unless it
is shown to be totally unsupported by any evidence. To the same effect
is the view taken by this Court in Thansingh Nathmal's case (supra)
where this Court held that the High Court does not generally determine
questions which require an elaborate examination of evidence to
establish the right to enforce which the writ is claimed. We may while
parting with the discussion on the legal dimensions of judicial review
refer to the following passage from Reid v. Secretary of State for
Scotland (1999) 1 All ER 481, which succinctly sums up the legal
proposition that judicial review does not allow the Court of review to
examine the evidence with a view to forming its own opinion about the
substantial merits of the case.
Judicial review involves a challenge to the legal validity of the
decision. It does not allow the court of review to examine the
evidence with a view to forming its own view about the substantial
merits of the case. It may be that the tribunal whose decision is
being challenged has done something which it had no lawful
authority to do. It may have abused or misused the authority which
it had. It may have departed from the procedures which either by
statute or at common law as a matter of fairness it ought to have
observed. As regards the decisions itself it may be found to be
perverse or irrational or grossly disproportionate to what was
required. Or the decision may be found to be erroneous in respect
of a legal deficiency, as for example, through the absence of
evidence, or of sufficient evidence, to support it, or through account
being taken of irrelevant matter, or through a failure for any reason
to take account of a relevant matter, or through some
misconstruction of the terms of the statutory provision which the
decision maker is required to apply. But while the evidence may
have to be explored in order to see if the decision is vitiated by such
legal deficiencies it is perfectly clear that in case of review, as
distinct from an ordinary appeal, the court may not set about
forming its own preferred view of evidence.
18. In the absence of any perversity, element of excess of jurisdiction,
error of law, violation of principles of natural justice, abuse of process of
law,unreasonableness and procedural impropriety, this Court is not inclined to
exercise power of judicial review under Article 226 of the Constitution of India
to disturb the concurrent findings of fact recorded by the statutory
authorities. The succession certificate made available by the second
respondent herein manifestly shows the interest of the second respondent in
the subject property and the absence, if any with regard to the particulars of
the property in the said certificate would not disentitle the second respondent
from claiming the right in the subject property in view of the reasons in the
preceding paragraphs. There is absolutely no evidence on record made
available by the society to demonstrate that they followed the mandatory
requirements of the provisions of Section 28 of the A.P. Cooperative Societies
Act and Rule 17 of the A.P. Cooperative Societies Rules, 1964. It is also
noteworthy that the society is also not disputing the status of the second
respondent as sister of the deceased, Sri Chalapathi Rao. In the absence of
such element, having failed to follow the procedure under the statute, in the
opinion of this Court, the society cannot deny the reasonable claim of the
respondents herein. It is also to be noted that Ex.A.4 dated 15.12.2002
shows that the second respondent paid a sum of Rs.1,000/- and as per the
counsel for the third respondent the society received the said amount and the
amount is lying with the society right now.
19. Before parting with the judgment, it may be appropriate to mention
that the deceased Sri Chalapathi Rao was a great journalist who was
produced by this country and this is not the way of respecting the family
members of such a great personality.
20. For the aforesaid reasons and having regard to the principles laid
down in the judgments referred to above and keeping in view the object and
intention behind the provisions of law referred to above, writ petition is
dismissed and the petitioner society shall make necessary arrangements for
registration of the plot in favour of the third respondent herein, within a
period of two months from the date of receipt of a copy of this order.
______________
A.V.SESHA SAI, J
Date: 4.8.2014
dismissed and the petitioner society shall make necessary arrangements for registration of the plot in favour of the third respondent herein, within a period of two months from the date of receipt of a copy of this order. =
the society applied for allotment of a plot in 1982 by paying a sum of
Rs.10,000/-, but he, who was a bachelor, died on 25.3.1983 without leaving
any legal heirs.
Society took up provisional allotments in 1984 and final
allotment in 1987.
No nomination was made by the said Chalapathi Rao and
no claim for refund of Rs.10,000/- was made by any person for a period of
six years thereafter i.e. till June, 1989.
2.3 Based on a request made by prominent personalities in the field of
journalism, petitioner society felt it appropriate to construct a memorial in
the name of late Chalapathi Rao and earmarked plot No.110/A for the said
purpose and the very venture also is made after him.
2.4 Respondent No.2 herein, in the month of March, 1989 for the first
time, issued a telegram, claiming herself as a successor of late Sri Chalapathi
Rao and requested the petitioner society not to entertain any third party
claim and the same was followed by another telegram in June, 1989, asking
for refund of Rs.10,000/- paid by Sri Chalapathi Rao while referring to
succession certificate and the society did not accede to the said request on
the ground that the claim being barred by time since the same was made
after six years of the death of Sri Chalapathi Rao.
Later, the 2nd respondent
changed her stand and made a request for allotment of plot in her name
while offering to pay the balance, but the society refused to oblige the same.=
In the absence of any perversity, element of excess of jurisdiction,
error of law, violation of principles of natural justice, abuse of process of
law,unreasonableness and procedural impropriety, this Court is not inclined to
exercise power of judicial review under Article 226 of the Constitution of India
to disturb the concurrent findings of fact recorded by the statutory
authorities.
The succession certificate made available by the second
respondent herein manifestly shows the interest of the second respondent in
the subject property and the absence, if any with regard to the particulars of
the property in the said certificate would not dis entitle the second respondent
from claiming the right in the subject property in view of the reasons in the
preceding paragraphs.
There is absolutely no evidence on record made
available by the society to demonstrate that they followed the mandatory
requirements of the provisions of Section 28 of the A.P. Cooperative Societies
Act and Rule 17 of the A.P. Cooperative Societies Rules, 1964.
It is also
noteworthy that the society is also not disputing the status of the second
respondent as sister of the deceased, Sri Chalapathi Rao.
In the absence of
such element, having failed to follow the procedure under the statute, in the
opinion of this Court, the society cannot deny the reasonable claim of the
respondents herein.
It is also to be noted that Ex.A.4 dated 15.12.2002
shows that the second respondent paid a sum of Rs.1,000/- and as per the
counsel for the third respondent the society received the said amount and the
amount is lying with the society right now.
19. Before parting with the judgment, it may be appropriate to mention
that the deceased Sri Chalapathi Rao was a great journalist who was
produced by this country and this is not the way of respecting the family
members of such a great personality.
20. For the aforesaid reasons and having regard to the principles laid
down in the judgments referred to above and keeping in view the object and
intention behind the provisions of law referred to above, writ petition is
dismissed and the petitioner society shall make necessary arrangements for
registration of the plot in favour of the third respondent herein, within a
period of two months from the date of receipt of a copy of this order.
2014 - Aug.Month - http://judis.nic.in/judis_andhra/filename=11799
THE HONBLE SRI JUSTICE A.V.SESHA SAI
W.P.No.9135 of 2007
04-8-2014
The Journalist Cooperative Housing Society Ltd., Plot No.127/A, Journalists A
Colony, Jubilee Hills, Hyderabad, rep. by its Secretary M.Venugopala
Rao....Petitioner
The District Cooperative Officer, Hyderabad (Urban) District, A.P.H.B.
Building, Near Ajanta Gate, Nampally, Hyderabad & 2 others. ...Respondents
Counsel for the Petitioner: Sri P.GIRISH KUMAR
Counsel for the Respondent No.1: G.P. FOR COOP.
Counsel for the Respondent No.3 : Sri V.RAGHU
<Gist:
>Head Note:
?Cases referred:
1.AIR 1930 Privy Council 270
2.AIR 1991 SC 2219
3.LAWS (SC) 2012-3-26/TLPRE-2012-0-147
THE HONBLE SRI JUSTICE A.V.SESHA SAI
W.P.No.9135 of 2007
ORDER:
This Writ Petition, filed under Article 226 of the Constitution of India,
is
directed against the judgment dated 30.11.2006 rendered by the Andhra
Pradesh Cooperative Tribunal, Hyderabad in C.T.A.No.28 of 2001 and the
Award in A.R.C.No.5/97 dated 30.12.2000 passed by the Joint
Registrar/District Cooperative Officer, Hyderabad Urban District-1st
respondent.
2. Filtering the unnecessary details, the pleadings as per the writ affidavit
which are essential and pertinent for adjudication of the issue involved in the
present Writ Petition, are as follows:
2.1 Petitioner is a registered society of working journalists established
under the provisions of the A.P. Cooperative Societies Act, 1964 (for short
the Act) with an object of securing the land for the purpose of providing
house plots to its members and for advancement of loans for construction of
dwelling houses. Pursuant to the allotment made by the Government, the
petitioner society invited applications in the year 1982 from the eligible
members for allotment of plots.
2.2 One late Chalapathi Rao, a famous journalist and the then member of
the society applied for allotment of a plot in 1982 by paying a sum of
Rs.10,000/-, but he, who was a bachelor, died on 25.3.1983 without leaving
any legal heirs. Society took up provisional allotments in 1984 and final
allotment in 1987. No nomination was made by the said Chalapathi Rao and
no claim for refund of Rs.10,000/- was made by any person for a period of
six years thereafter i.e. till June, 1989.
2.3 Based on a request made by prominent personalities in the field of
journalism, petitioner society felt it appropriate to construct a memorial in
the
name of late Chalapathi Rao and earmarked plot No.110/A for the said
purpose and the very venture also is made after him.
2.4 Respondent No.2 herein, in the month of March, 1989 for the first
time, issued a telegram, claiming herself as a successor of late Sri Chalapathi
Rao and requested the petitioner society not to entertain any third party
claim and the same was followed by another telegram in June, 1989, asking
for refund of Rs.10,000/- paid by Sri Chalapathi Rao while referring to
succession certificate and the society did not accede to the said request on
the ground that the claim being barred by time since the same was made
after six years of the death of Sri Chalapathi Rao. Later, the 2nd respondent
changed her stand and made a request for allotment of plot in her name
while offering to pay the balance, but the society refused to oblige the same.
2.5 In the year 1997, the 2nd respondent filed A.R.C.No.5 of 1997 before
the 1st respondent under Section 61 of the Act, seeking a direction to the
society to register plot No.110/A in her name and to deliver possession by
receiving balance value of the plot. Respondent No.1 passed an award in
A.R.C.No.5 of 1997 dated 16.3.1998 in favour of 2nd respondent. Petitioner
filed C.T.A.No.92 of 1998 before the A.P. Cooperative Tribunal and the same
was allowed on 31.7.1999, remanding the matter to the 1st respondent for
fresh disposal. After remand, 1st respondent passed an Award dated
30.12.2000 in favour of 2nd respondent and the society preferred C.T.A.
against the said award and the Tribunal dismissed the same by way of
judgment dated 30.11.2006.
3. Challenging the said judgment rendered by the Tribunal, confirming
the Award of 1st respondent, the present Writ Petition has been filed. This
Court, while issuing rule nisi on 27.4.2007, granted interim suspension of the
impugned order and the same was made absolute on 12.11.2009. In view of
the death of the 2nd respondent, 3rd respondent who is the son of 2nd
respondent, came on record. A counter affidavit is filed by 3rd respondent,
denying the averments and allegations in the affidavit filed in support of the
Writ Petition and in the direction of justifying the impugned orders.
4. Heard Sri P.Girish Kumar, learned counsel for the petitioner, learned
Government Pleader for respondent No.1 and Sri K.V.Bhanu Prasad, learned
counsel for respondent No.3 apart from perusing the material available on
record.
5. Contentions of Sri P.Girish Kumar, learned counsel for petitioner:
(1) The judgment rendered by the Cooperative Tribunal confirming the
award passed by the 1st respondent is erroneous and contrary to law and
opposed to the very spirit and object of the provisions of the A.P. Cooperative
Societies Act, 1964 and the Rules made thereunder.
(2) The claim of the 2nd respondent is hopelessly barred by limitation since
the 2nd respondent did not raise the claim within three years as per Article
113 of the Limitation Act and in view of Rule 49 of the A.P. Cooperative
Societies Rules, 1964 (for short the Rules).
(3) The succession certificate produced by the 2nd respondent would not
give any right to the 2nd respondent to claim allotment of plot.
(4) Since the society followed the procedure as stipulated under Rule 17
of the Rules, the 2nd respondent is not entitled for any relief.
(5) Since the 2nd respondent initially asked for refund of Rs.10,000/-, no
relief can be granted.
(6) Late Chalapathi Rao did not nominate anybody, as such no body is
entitled to claim the allotment.
6. Contentions of Sri K.V.Bhanu Prasad, learned counsel for 3rd Respondent
(1) The claim made by 2nd respondent was within time before 1st
respondent and the objection contra raised by the petitioner society is
untenable and unsustainable.
(2) The impugned action on the part of the petitioner society is in
contravention of the mandatory provisions of Section 28 of A.P. Cooperative
Societies Act and the Rules 17 and 49 of the Rules framed thereunder.
(3) The finding of fact recorded by the primary authority and the appellate
authority cannot be disturbed, nor it can be interfered with since the primary
authority and the appellate authority assigned cogent and convincing reasons
for arriving at the conclusion in favour of unofficial respondents.
(4) The succession certificate produced by the 2nd respondent would
demonstrate the interest of the 2nd respondent in the claim.
In support of his contentions and submissions, the learned counsel for
3rd respondent places reliance on the judgments in MT.BOLO v.
MT.KOKLAN AND OTHERS , STATE OF PUNJAB AND OTHERS v.
GURDEV SINGH, ASHOK KUMAR and HEINZ INDIA PVT LTD v.
STATE OF U.P. .
7. In the light of the above pleadings, submissions and contentions, now
the point which arises for consideration of this Court is - whether the
judgment rendered by the Tribunal in C.T.A.No.28 of 2001 dated 30.11.2006,
confirming the Award dated 30.12.2000 passed by 1st respondent in
A.R.C.No.5 of 1997 is in conformity with the provisions of the A.P.
Cooperative Societies Act, 1964 and the Rules framed thereunder and
whether the same warrants any interference of this Court by way of judicial
review under Article 226 of the Constitution of India?
8. The material made available before this Court manifestly show that the
Joint Registrar/District Cooperative Officer-1st respondent herein passed
Award under Section 62(4) of the A.P. Cooperative Societies Act on
30.12.2000. While noticing the failure on the part of the society in filing the
counter and after thoroughly referring to the written arguments filed by the
society on 7.2.2000, the 1st respondent passed the impugned order. It is
significant to note at this juncture that the petitioner society at any point of
time did not dispute the relationship of 2nd respondent with late Chalapathi
Rao as sister. The 1st respondent herein in the impugned order dealt with
the aspect of limitation raised by the petitioner society and also the impact
and effect of provisions of Section 28 of the Act and Rule 17 of the Rules and
also the succession certificate produced by the 2nd respondent. The Tribunal
also meticulously and thoroughly and in detail considered the entire material
available on record and passed the impugned order by assigning cogent and
convincing reasons. The Tribunal, after taking into consideration the
pleadings available on record, framed the following two points for
consideration.
(1) Whether the dispute raised by Smt.Leela Rao (2nd respondent
herein) is barred by limitation?
(2) Whether there are any illegalities or infirmities in the impugned
award and if so, the impugned award is liable to be set aside?
9. A reading of the judgment rendered by the Tribunal manifestly
discloses that the Tribunal recorded categoric findings on the conduct of the
society and found fault with the attitude exhibited by the society at
paragraphs 12 to 16 of the impugned judgment. It is also to be noted that
the Tribunal recorded a well reasoned finding on the aspect of limitation
raised by the society in an elaborate manner at paragraphs 31 to 37 and
eventually disapproved the contention and also deprecated the action of the
society in failing to adhere to the provisions of Section 28 of the Act and Rule
17 of the Rules. At this juncture, it may be appropriate to refer to Section 28
and Rule 17 of the Rules. Section 28 of the A.P. Cooperative Societies Act,
1964 reads as under:
Section 28 - Transfer of interest on death of a member
(1) On the death of a member, the society shall transfer his share or
interest to the person or persons nominated in accordance with the
rules, or if no person has been so nominated to such person as may
appear to the committee to be the heir or legal representative, as the
case may be, becoming a member of the society, subject to such
conditions as may be prescribed:
Provided that nothing in this sub-section shall prevent a minor or a
person of unsound mind from acquiring by inheritance or otherwise the
share of interest of a deceased member in a society.
(2) Notwithstanding anything in sub-section (1), any such nominee, heir,
or legal representative, as the case may be, may require the society to
pay to him the value of the share or interest of the deceased member as
ascertained in the manner prescribed.
(3) A society shall pay all other moneys due to the deceased member
from the society to such nominee, heir or legal representative, as the
case may be, subject to such conditions as may be prescribed.
(4) All transfers and payments made by a society in accordance with the
provisions of this section shall be valid and effectual against any demand
made upon the society by any other person.
Rule 17 of A.P. Cooperative Societies Rules, 1964 reads as under:
17. Procedure to be adopted when no nomination is made:
(1) If no nomination has been made by a member, the society shall, on
the death of a member by a notice exhibited at the office of the society
invite claims or objections for transfer of the share or interest of the
deceased member to an heir to legal representative within the time
specified in the notice.
(2) After considering the objections or claims if any, received in this
behalf and after making such inquiries the committee considers
necessary, it shall decide as to the person who in its opinion is the heir
or legal representative of the deceased member, and to proceed to
transfer the share or interest of the deceased member to such person,
only.
(3) In case of payment of the value of the share or interest or other
moneys due to die deceased member, the committee shall obtain
sureties for the amounts involved in such payments from two members
of the society.
10. From a reading of the provisions of Section 28, it would be very much
evident that there is an obligation on the part of the society to transfer the
share of a member and interest in favour of a nominee and in the absence of
such nominee, to such person as may appear to the committee to be the heir
or legal representative of the deceased member. Rule 17 of the Rules
mandates the society to exhibit at the office of the society a notice inviting
claims or objections for transfer of the share or interest of the deceased
member to a heir or legal representative within the time specified in the
notice. This provision also obligates the society to consider the objections
and claims, if any, and to cause enquiry and to take a decision with regard to
heir or legal representative of the deceased member and to transfer the
share or interest of the deceased member in favour of such person.
11. In the instant case, the petitioner society did not produce any
evidence to show that the procedure as contemplated above was followed.
In the absence of any material, this Court has absolutely no hesitation to
come to a conclusion that the petitioner society did not adhere to the
provisions of Section 28 of the Act read with Rule 17 of the Rules. Having
failed to follow the statutory mandate as referred to above, in the considered
opinion of this Court, it would never be open to the petitioner society to deny
the benefit to the unofficial respondents herein.
12. Coming to the aspect of limitation, the learned counsel for petitioner
contends that the claim of the second respondent is barred by limitation. On
the other hand, it is the contention of the learned counsel for the 3rd
respondent that it is within time and to bolster the same the learned counsel
has placed reliance on the judgments MT.BOLO v. MT.KOKLAN, STATE OF
PUNJAB AND OTHERS v. GURDEV SINGH, ASHOK KUMAR and HEINZ INDIA
PVT LTD v. STATE OF U.P.
13. In MT.BOLO v. MT.KOKLAN (1 supra), the Privy Council held as under:
There can be no right to sue until there is an accrual of the right
asserted in the suit and its infringement or at least clear and
unequivocal threat to infringe that right by the defendant against whom
the suit is instituted.
14. In STATE OF PUNJAB v. GURDEV SINGH (2 supra), the Honble
Supreme Court at paragraph 4 held as under:
4. First of all, to says that the suit is not governed by the law of
Limitation runs afoul of our Limitation Act. The statute of Limitation was
intended to provide a time limit for all suits conceivable. Section 3 of the
Limitation Act provides that a suit, appeal or application instituted after
the prescribed "period of limitation" must subject to the provisions of
Section 4 to 24 be dismissed although limitation has not been set. up as
a defence. Section 2(j) defines the expression' 'period of limitation'' to
mean the period of limitation prescribed in the Schedule for suit, appeal
or application. Section 2(j) also defines,' 'prescribed period'' to mean the
period of limitation computed in accordance with the provisions of the
Act. The Court's function on the presentation of plaint is simply to
examine whether, on the assumed facts, the plaintiff is within time. The
Court has to find out when the "right to sue" accrued to the plaintiff. If a
suit is not covered by any of the specific articles prescribing & period of
limitation, it must fall within the residuary article. The purpose of the
residuary article is to provide for cases which could not be covered by
any other provision in the Limitation Act. The residuary article is
applicable to every variety of suits not otherwise provided for. Article 113
(corresponding to Article 120 of the Act 1908) is a residuary article for
cases not covered by any other provisions in the Act. It prescribes a
period of three years when the right to sue accrues. Under Article 120 it
was six years which has been reduced to three years under Article 113.
According to the third column in Article 113, time commences to run
when the right to sue accrues. The words "right to sue" ordinarily mean
the right to seek relief by means of legal proceedings. Generally, the
right to sue accrues only when the cause of action arises, that is, the
right to prosecute to obtain relief by legal means. The suit must be
instituted when the right asserted in the suit is infringed or when there is
a clear and unequivocal threat to infringe that right by the defendant
against whom the suit is instituted (See: (i) Mt. Bole v. Mt. Koklam and
Ors. and (ii) Gannon Dunkerley and Co. v. The Union of India :
1970CriLJ741 .
15. According to Rule 49(2) of the Andhra Pradesh Cooperative Societies
Rules, 1964, the period of limitation for referring a dispute, touching the
constitution, management or business of a society to the Registrar under
sub-section (1) of Section 61 of the Andhra Pradesh Cooperative Societies
Act, 1964 shall be regulated by the provisions of the Limitation Act, 1963 as if
the dispute is a suit and the Registrar, a Civil Court. As per proviso to Rule
49 (2) of the Rules, the period of limitation for the disputes, falling under
Section 61 (1) (a) of the Act is six years. The dispute in the instant case
does not fall under the proviso to Rule 49 (2) read with Section 61 (1) (a) of
the Act, as such, the period of limitation for raising and entertaining the
dispute is required to be examined in the light of the provisions of Article 113
of the Limitation Act. The period of limitation for institution of any suit for
which no period of limitation is prescribed elsewhere in the schedule is three
years from the date on which the right to sue accrues.
16. In the light of the above provisions of law, now it is required to be
examined whether the claim made or dispute raised in the instant case is
within the time or not. In the present case, the second respondent got
issued Ex.A.11 legal notice dated 16.12.1996 to the society, intimating that
she would institute a suit in the event of failure to transfer the plot in her
name after receiving the balance amount towards the cost of the plot.
Responding to the said legal notice, the society issued Ex.A.12 reply dated
14.02.1997, stating that the society received Ex.A.11 legal notice and the
committee studied the issue and decided to seek the views of the previous
office bearers of the society at the time of allotment of plot to Sri Chalapathi
Rao in view of the legal implications involved and that the opinion of the
elders among the journalists fraternity was also being solicited and that they
were not in a position to take any haste decision in the matter. In view of
the same, it can be safely concluded that till the date of issuance of Ex.A.12
reply dated 14.02.1997 the petitioner society did not deny the claim of the
second respondent. Even as per the society, the General Body of the society
passed a resolution on 28.09.1997, cancelling the provisional allotment in the
name of Sri Chalapathi Rao while directing the Managing Committee to
construct a memorial in the name of Sri Chalapathi Rao. Material available
on record vividly shows that the second respondent herein raised the dispute
in the year 1997 by way of ARC.No.5/1997, and the Society came forward
with a petition on 24.11.1997 saying that the claim was barred by limitation.
Therefore, in the considered opinion of this Court, the cause of action arose
for the second respondent herein to raise the dispute only in the year 1997.
In view of the said denial, the right to sue accrued to the respondent against
the society only in the year 1997 ie., the year in which the society declined to
accede to the request of the second respondent. Therefore, by any stretch
of imagination, it cannot be contended that the claim is barred by limitation
and the contention raised contra by the petitioner society is liable to be
rejected as being devoid of any merit. Having failed to follow and adhere to
the provisions of Section 28 of the Act and Rule 17 of the Rules, it is not at
all
open for the petitioner society to deny the claim.
17. The learned counsel for the petitioner contends that the impugned
orders are arbitrary and liable to be set aside. Resisting the said contention
and while contending that the concurrent finding of fact recorded by the
preliminary and appellate fact finding authorities cannot be interfered in the
absence of any perversity, the learned counsel for the third respondent relied
on the decision of the Honble apex Court in HEINZ INDIA PVT LTD v. STATE
OF U.P. (3 supra) (in Civil Appeal No.1476/2006 dated 23.03.2012), at
paragraphs 19 to 22 held as under:
19. The Market Committee and the Director have recorded concurrent
findings of fact to the effect that the Petitioners had failed to establish
that no sale of the stocks of ghee had taken place within the Mandi limits
at Aligarh. The statutory presumption that any transfer of stocks from
within the Mandi area, was pursuant to a sale was thus held to have
remained unrebutted. A challenge to the above finding would necessarily
raise the question as to the scope of judicial review of such findings. We
need to sail smooth over that aspect before examining the validity of the
orders within the permissible parameters of judicial review.
The power of judicial review is neither unqualified nor unlimited. It has
its own limitations. The scope and extent of the power that is so very
often invoked has been the subject-matter of several judicial
pronouncements within and outside the country. When one talks of
'judicial review' one is instantly reminded of the classic and oft quoted
passage from Council of Civil Service Unions (CCSU) v. Minister for the
Civil Service (1984) 3 All ER 935, where Lord Diplock summed up the
permissible grounds of judicial review thus:
Judicial Review has I think developed to a stage today when, without
reiterating any analysis of the steps by which the development has come
about, one can conveniently classify under three heads the grounds on
which administrative action is subject to control by judicial review. The
first ground I would call 'illegality', the second 'irrationality' and the third
'procedural impropriety'.
By 'illegality' as a ground for judicial review I mean that the decision-
maker must understand correctly the law that regulates his decision-
making power and must give effect to it. Whether he has or not is par
excellence a justiciable question to be decided, in the event of dispute,
by those persons, the judges, by whom the judicial power of the State is
exercisable.
By 'irrationality' I mean what can by now be succinctly referred to as
'Wednesbury unreasonableness'. It applies to a decision which is so
outrageous in its defiance of logic or of accepted moral standards that no
sensible person who had applied his mind to the question to be decided
could have arrived at it. Whether a decision falls within this category is a
question that judges by their training and experience should be well
equipped to answer or else there would be something badly wrong with
our judicial system....
I have described the third head as 'procedural impropriety' rather than
failure to observe basic rules of natural justice or failure to act with
procedural fairness towards the person who will be affected by the
decision. This is because susceptibility to judicial review under this head
covers also failure by an administrative tribunal to observe procedural
rules that are expressly laid down in the legislative instrument by which
its jurisdiction is conferred, even where such failure does not involve any
denial of natural justice.
20. The above principles have been accepted even by this Court in a
long line of decisions handed down from time to time. We may,
however, refer only to some of those decisions where the development
of law on the subject has been extensively examined and the principles
applicable clearly enunciated. In Tata Cellular v. Union of India: (1994) 6
SCC 651, this Court identified the grounds of judicial review of
administrative action in the following words:
The duty of the court is to confine itself to the question of legality. Its
concern should be:
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law,
3. committed a breach of the rules of natural justice,
4. reached a decision which no reasonable tribunal would have reached or,
5. abused its powers.
Therefore, it is not for the court to determine whether a particular policy
or particular decision taken in the fulfilment of that policy is fair. It is
only concerned with the manner in which those decisions have been
taken. The extent of the duty to act fairly will vary from case to case.
Shortly put, the grounds upon which an administrative action is subject
to control by judicial review can be classified as under:
(i) Illegality: This means the decision-maker must understand correctly
the law that regulates his decision-making power and must give effect to
it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
Reference may also be made to the decision of this Court in State of
Punjab v. Gurdial Singh: (1980) 2 SCC 471 where Krishna Iyer, J. noticed
the limitations of judicial review and declared that the power vested in
the Superior Courts ought to be exercised with great circumspection and
that interference may be permissible only where the exercise of the
power seems to have been vitiated or is otherwise void on well
established grounds. The Court observed:
The court is handcuffed in this jurisdiction and cannot raise its hand
against what it thinks is a foolish choice. Wisdom in administrative action
is the property of the executive and judicial circumspection keeps the
court lock-jawed save where the power has been polluted by oblique
ends or is otherwise void on well-established grounds. The constitutional
balance cannot be upset.
There is almost complete unanimity on the principle that judicial review
is not so much concerned with the decision itself as much with the
decision-making process. (See Chief Constable of North Wales Police v.
Evans (1982) 3 All ER 141). As a matter of fact, the juristic basis for such
limitation on the exercise of the power of judicial review is that unless
the restrictions on the power of the Court are observed, the Courts may
themselves under the guise of preventing abuse of power, be guilty of
usurping that power. Justice Frankfurter's note of caution in Trop v.
Dulles 356 U.S. 86 (1958) is in this regard apposite when he said:
All power is, in Madison's phrase, 'of an encroaching nature'. Judicial
power is not immune against this human weakness. It also must be on
guard against encroaching beyond its proper bounds, and not the less so
since the only restraint upon it is self-restraint.
21. That the Court dealing with the exercise of power of judicial
review does not substitute its judgment for that of the legislature or
executive or their agents as to matters within the province of either, and
that the Court does not supplant 'the feel of the expert' by its own
review, is also fairly well-settled by the decisions of this Court. In all such
cases judicial examination is confined to finding out whether the findings
of fact have a reasonable basis on evidence and whether such findings
are consistent with the laws of the land. (See Union of India v. S.B.
Vohra, : (2004) 2 SCC 150, Shri Sitaram Sugar Co. Ltd. v. Union of India
: (1990) 3 SCC 223, and Thansingh Nathmal and Ors. v. Supdt. of Taxes
and Ors. Dhubri : AIR 1964 SC 1419.
22. In Dharangadhra Chemical Works Ltd. v. State of Saurashtra and
Ors.: AIR 1957 SC 264, this Court held that decision of a Tribunal on a
question of fact which it has jurisdiction to determine is not liable to be
questioned in proceedings under Article 226 of the Constitution unless it
is shown to be totally unsupported by any evidence. To the same effect
is the view taken by this Court in Thansingh Nathmal's case (supra)
where this Court held that the High Court does not generally determine
questions which require an elaborate examination of evidence to
establish the right to enforce which the writ is claimed. We may while
parting with the discussion on the legal dimensions of judicial review
refer to the following passage from Reid v. Secretary of State for
Scotland (1999) 1 All ER 481, which succinctly sums up the legal
proposition that judicial review does not allow the Court of review to
examine the evidence with a view to forming its own opinion about the
substantial merits of the case.
Judicial review involves a challenge to the legal validity of the
decision. It does not allow the court of review to examine the
evidence with a view to forming its own view about the substantial
merits of the case. It may be that the tribunal whose decision is
being challenged has done something which it had no lawful
authority to do. It may have abused or misused the authority which
it had. It may have departed from the procedures which either by
statute or at common law as a matter of fairness it ought to have
observed. As regards the decisions itself it may be found to be
perverse or irrational or grossly disproportionate to what was
required. Or the decision may be found to be erroneous in respect
of a legal deficiency, as for example, through the absence of
evidence, or of sufficient evidence, to support it, or through account
being taken of irrelevant matter, or through a failure for any reason
to take account of a relevant matter, or through some
misconstruction of the terms of the statutory provision which the
decision maker is required to apply. But while the evidence may
have to be explored in order to see if the decision is vitiated by such
legal deficiencies it is perfectly clear that in case of review, as
distinct from an ordinary appeal, the court may not set about
forming its own preferred view of evidence.
18. In the absence of any perversity, element of excess of jurisdiction,
error of law, violation of principles of natural justice, abuse of process of
law,unreasonableness and procedural impropriety, this Court is not inclined to
exercise power of judicial review under Article 226 of the Constitution of India
to disturb the concurrent findings of fact recorded by the statutory
authorities. The succession certificate made available by the second
respondent herein manifestly shows the interest of the second respondent in
the subject property and the absence, if any with regard to the particulars of
the property in the said certificate would not disentitle the second respondent
from claiming the right in the subject property in view of the reasons in the
preceding paragraphs. There is absolutely no evidence on record made
available by the society to demonstrate that they followed the mandatory
requirements of the provisions of Section 28 of the A.P. Cooperative Societies
Act and Rule 17 of the A.P. Cooperative Societies Rules, 1964. It is also
noteworthy that the society is also not disputing the status of the second
respondent as sister of the deceased, Sri Chalapathi Rao. In the absence of
such element, having failed to follow the procedure under the statute, in the
opinion of this Court, the society cannot deny the reasonable claim of the
respondents herein. It is also to be noted that Ex.A.4 dated 15.12.2002
shows that the second respondent paid a sum of Rs.1,000/- and as per the
counsel for the third respondent the society received the said amount and the
amount is lying with the society right now.
19. Before parting with the judgment, it may be appropriate to mention
that the deceased Sri Chalapathi Rao was a great journalist who was
produced by this country and this is not the way of respecting the family
members of such a great personality.
20. For the aforesaid reasons and having regard to the principles laid
down in the judgments referred to above and keeping in view the object and
intention behind the provisions of law referred to above, writ petition is
dismissed and the petitioner society shall make necessary arrangements for
registration of the plot in favour of the third respondent herein, within a
period of two months from the date of receipt of a copy of this order.
______________
A.V.SESHA SAI, J
Date: 4.8.2014
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