LALCHAND MANRUPJI PARMAR Vs. KHEMCHAND MANRUPJI PARMAR

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India takes exception to the judgment and order passed by the Maharashtra state Co-operative Appellate Court, Bombay, dated january 27, 1989 in Appeal No. 52 of 1987. Briefly stated, the Petitioner, along with respondent No. 2, who happens to be his brother, were jointly allotted Plot No. 81 by the respondent No. 1 Society. The allotment was obviously subject to certain compliance's to be done by the allottees, inter alia, that the allottees should commence their unit within a period of six months after the allotment of shed is made. The joint allotment in favour of the petitioner and Respondent No. 2 was made some time in 1974. However, since the said requirement was not complied with, Respondent No. 1 Society had sent intimation to the Petitioner on 30th December 197s followed by letters dated 8th January 1979, 30th January 1979, 16th May 1979 and 30th July 1980. Eventually, the allotment came to be cancelled by the Board resolution dated 4th October 1980. It is relevant to note that the Petitioner at the relevant time, was one of the Directors in the management Board of the Respondent No. 1 society. After the cancellation of the Joint allotment, the Petitioner made application to the respondent No. 1 Society for allotting another plot and in his individual capacity which request was accepted and Respondent NO. 1, in turn, allotted Plot No. 46 some time in June 1991 to the Petitioner. In due course, respondent No. 1 threatened cancellation of the said allotment, for which reason the Petitioner immediately rushed to the Co-operative Court. by way of dispute, being Dispute No. 430 of 1981. In the said dispute, ad interim order was orated in favour of the Petitioner, which was eventually confirmed by judgment and order dated 3rd february 1983. After that order, the matter was finally resolved between the Petitioner and respondent No. 1 Society. As per the said agreement, Plot No. 46 has been finally allotted to the Petitioner and the Petitioner is enjoying the said plot. Incidentally, Plot No. 46, which has been allotted to the Petitioner admeasures around 10,500 sq. ft. , whereas the plot in question being Plot No. 81 admeasures. only 8,456 sq. ft. Be that as it may, it appears that since the Respondent No. 1 Society subsequently re-allotted Plot No. 81 in favour of the original Respondent No. 2 some time. in April 1984, the Petitioner, for reasons best. known to, him, decided to question not only the resolution canceling the earlier allotment but also resolution passed in favour of Respondent No. 2 re-allotting the same plot to Respondent No. 2 by way of present dispute, which came to be instituted only in October 1986. the Judge of the Co-operative Court, Raigad Ratnagiri at alibag, by judgment and order dated September 24, 1987, was pleased to allow the dispute as filed by the Petitioner by passing the following order: "1. The Opponent No 1 Society is directed to allot plot No. 81 in joint name of Disputant and opponent No. 2 subject to the payment of entire cost of construction of the shed jointly by disputant and Opponent No. 2 and subject to the production of no objection certificate by the disputant from Industries commissioner within three months from the date of issue of the order. 2. Parties to bear their own cost.

(2.) Against this decision, Respondent No. 1 society carried the matter in appeal, being appeal No, 52 of 1987, before the Maharashtra state Co-operative Appellate Court, Bombay. The appellate Court. however, allowed the appeal preferred by Respondent No. 1 Society The appellate Court reversed the finding reached by the First Court and, instead, took a view on reappreciation of evidence on record that the petitioner was afforded ample opportunity of being heard before the cancellation of allotment in respect of the disputed plot, vide Board resolution dated 4th October 1980. It has also found that in fact, the Petitioner was the director at the relevant time and was fully aware about the developments in that behalf. Accordingly, the appeal preferred by Respondent no. 1 Society came to be allowed. Against this decision, the present writ petition came to be filed by the Petitioner.

(3.) When this writ petition was pending, civil Application was filed by the Petitioner pointing out that certain relevant documents were not placed on record either by the Respondent No. 1 Society or by the Petitioner during the trial of the dispute. This Court by order dated 27th august 2003 allowed the said application in the interest of justice by permitting the Petitioner to amend the pleadings. In view of the amended pleadings, it was thought necessary to refer the matter to the Co-operative Appellate. Court for further evidence and also for inviting findings on the following two issues : " (1) As to whether the bye law which is sought to be relied upon pursuant to the amendment was prevalent at the relevant time and (2) As to whether the action taken by the Respondent Society is in contravention of the bye law now sought to be relied upon