Disposed

M.Anjaiah v. B.D.L. Employees Mutually Aided Co.op. Housing

Telangana HC9 Dec 2009WP/23786/2009

Case brief

AI extract

What is this about?

Common order disposing two Writ Petitions challenging a Cooperative Tribunal's dismissal of interim applications seeking stay on house allotments and construction by a housing society. The court noted factual disputes regarding completion and occupation, gave liberty to apply for a commissioner, and directed the Tribunal to dispose of the main petition within eight weeks.

What did the court decide?

Liberty granted to move applications for a commissioner; Tribunal directed to dispose of the main operative petition within eight weeks; Writ Petitions disposed.

M.Anjaiah Vs B.D.L. Employees Mutually… — Labour and Industrial Disputes | Telangana HC (2009)

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THE HON'BLE SRI JUSTICE P.S.NARAYANA

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W.P.Nos.4361 and 23786 of 2009

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9th December, 2009

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Between :-

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M.Anjaiah .. Petitioners

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And

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BDL Employees Mutually Aided Coop.Housing Society Ltd. And others .. Respondents

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THE HON'BLE SRI JUSTICE P.S.NARAYANA

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W.P.Nos.4361 and 23786 of 2009

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COMMON ORDER:-

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Heard Sri Roopender, the learned Counsel representing the writ petitioner in both these Writ Petitions and Sri Nageswar Sree, the learned Counsel representing contesting respondents. 2. These two Writ Petitions are filed questioning the orders made in I.A.No.762/2008 and I.A.No.763/2008 in O.P.No.97/2008 on the file of the Cooperative Tribunal, Medak District. Several facts had been narrated in detail in the respective affidavits filed in support of the writ petitions and equally elaborate counter affidavits had been filed denying several of the averments. Several of the material papers, the allotment letters, the possession letters and also the applications also had been placed before this Court.

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3. Sri Roopender had taken this Court through the contents of the affidavits filed in support of the writ petitions and would point out that though a common order had been made, since orders had been made in two applications, two Writ Petitions had been filed. The learned Counsel also demonstrated how several of the respondents are

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ineligible and how they are entitled to for allotment letters. The learned Counsel also pointed out to the interim order made by this Court in W.P.No.4361/2009 and would maintain that despite the same, subsequent thereto, several allotments were made and these are only paper allotments and even as on this day, the construction alone is going on, and none had occupied any of these houses. The Counsel also would point out that when clearly these members are ineligible members, to make allotments in their favour itself being illegal, it would be just and proper, at least, to maintain status quo as on today i.e., to see that no further inductions are made, so that the allotments may be made to the eligible and proper persons and when such strong prima facie case had been made out, dismissal of such applications by the Cooperative Tribunal, Medak District (hereinafter referred to as ‘the Tribunal’ for the purpose of convenience) is not justified.

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4. On the contrary, Sri Nageshwar Sree had pointed out to the respective stands taken by the parties before the Tribunal and the reasons recorded by the Tribunal and would maintain that in the light of the interim order made in W.P.No.4361/2009, no further orders need be passed and the Tribunal may be directed to dispose of the main O.P. itself at an early date. The learned Counsel also specifically pointed out that the very membership of the petitioner had been transferred and the petitioner has no locus standi at all, even otherwise, in the light of the stand taken in para 15 of the counter affidavit in particular, it may not be just and proper to pass any interim order at this stage and hence the Writ Petitions are to be dismissed. 5. In view of the commonality of the questions involved in both these Writ Petitions, since these Writ Petitions had been filed challenging the common order made in I.A.No.762/2008 and I.A.No.763/2008 in O.P.No.97/2008, these Writ Petitions are being

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disposed of by this common order.

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6. The respective pleadings of the parties in both these Writ Petitions also are common. In W.P.M.P.No.5720/2009 in W.P.No.4361/2009 on 13-3-2009 this Court made the following order:“Any further steps taken by the respondents shall be subject to the result of the Writ Petition.”

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7. No doubt, elaborate submissions had been made in this regard that subsequent thereto several illegal allotments had been made and ineligible members had been inducted into certain houses. Whether all the allottees had occupied their respective houses or not, whether the construction of these houses already had been completed or not, these are the disputed questions of fact between the contesting parties. Be that as it may, suffice to refer to the respective stands taken by the parties in one of the Writ Petitions in view of the commonality referred to above.

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8. In W.P.No.23786/2009 it is averred that the petitioner filed O.P. No. 97 of 2008 on the file of the District Co-op. Tribunal, Medak District U/S. 37(1) b APMACS Act, 1995 alleging that the 1^st respondent society Managing Committee is indulged in illegal activities and acting as real estate brokers against the interest of society, violating the Bye laws as well as conditions and guidelines of 5^th respondent, ignoring the due process of law and thereby the object of the society for which it is established is defeated. The 1st Respondent society gave membership to ineligible persons by taking illegal pecuniary gains for their personal benefits and selfish motives. Due to their illegal activities the petitioner and other genuine members/Employees of BDL, Bhanur who are eligible houseless poor and downtrodden were deprived of their legitimate right to have a own house. The acts of the Managing Committee of the 1^st respondent society are illegal,

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arbitrary, malafide and against the aims and objects of enactment of APMACS Act. To protect the rights and interest of members of the 1^st respondent society (earlier BDL, Employees Housing Society, Bhanur) the petitioner herein filed O.P. before theTribunal under section 37 of the APMACS Act. The prayer of the petitioner in O.P. No. 97 of 2008 Tribunal is as hereunder:-

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1. To declare that the respondent No. 7 to 74 are ineligible members and consequently cancel the membership of respondent No. 7 to74 from the 1^st respondent society and further cancel the allotment of plots if any made to them.

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2. To declare the circulars dated 10.3.2003 and 24-5-2004 issued by the 1^st respondent society as illegal, arbitrary and against the objectives of the society and consequently cancel the membership and the process of allotment of plots if any made under the above circulars.

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3. Appoint an upright officer from the Co-operative Department under the supervision of the District Collector, Medak and direct him to take up the process of fresh eligible membership from the 934 members who paid Rs. 500/- for the membership and registration of 1^st respondent society and consequently allot plots afresh among the eligible members as per the conditions of the APIIC and also allot one plot to petitioner by canceling the membership of respondent No. 72.

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4. To remove the office bearers of the 1^st respondent society who are responsible for such illegal activities.

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9. Further it is also stated that the petitioner filed I.A. No. 762 of 2008 and I.A. No. 763 of 2008 seeking stay of the allotment of plots and stop the construction of houses to ineligible members by the 1st respondent society as per the list dated 13.2.2007 addressed by the 4th respondent to the 2nd respondent, illegal transferees and Members

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of BDBEMACHS Ltd., Kanchanbagh ( Madhava Reddy Society ) pending disposal of the O.P., and the Tribunal by its order dated 20.1.2009 dismissed the said I.As. holding that the petitioner is ceased to be a member of the society by virtue of transfer made by him and no prejudice is caused to his interests, rights and the petitioner is not entitled to agitate for other members and also against the irregularities committed by the 1^st respondent society under Sec. 37 of APMACS Act. The O.P. No. 97/08 is pending for adjudication. Aggrieved by the same the petitioner preferred the present Writ Petition. 10. It is also stated that the Common Order of the Tribunal is contrary to law and weight of the evidence and the Tribunal failed to appreciate the evidence in proper sense, biased and the order of the Tribunal is vitiated. The Tribunal without any evidence stepping in to the shoe of the 1st respondent and the order of the Tribunal is nothing but encouraging the illegal acts of the 1st respondent society and the very purpose of constitution of Co-operative Tribunal is vitiated. The Tribunal without framing a point ‘whether the petitioner is a member of the 1st respondent society prima facie’ ? and without the admission of the petitioner, arbitrarily held that the petitioner transferred his membership in favaour of third parties. Aggrieved by the said order the petitioner in the interest of himself and other members of the society/employees preferred the present Writ Petition by way of Writ of Certiorari.

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11. It is also averred that the BDL Bhanoor, Medal District Employees, in the year 2000 formed a Housing Society in the name and style of ‘BDL Employee’s Housing Society, Bhanur with an object of providing house sites to the industrial workers who are not holding any house or plots. The said society on 25-1-2000, issued a circular stating that “All of our Employees aware that BDL Housing society is

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to be registered with registrar of Societies, Sanga Reddy for the registration of Society caution deposit is to be made and all the interested Employees can enroll their names by paying membership fee to society promoters “

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12. The said circular was issued in the name of Chief Promoter S.Shankariah. The said society collected Rs. 500/- from 934 employees. The society issued receipts for Rs. 150/- out of which Rs. 100/- towards Membership Fee and Rs. 50/- towards Administrative charges and balance amount of Rs. 350/- was collected to meet the expenditure for procuring land and to run the affairs of the society. No receipt was given for collection of Rs. 350/- by the society. The Chief Promoter of BDL Employees Housing society made a representation dated 28.6.2000 to the Government requesting for independent house sites instead of Multistoried buildings and the same was rejected by the Govt. vide G.O.Ms. No. 528, dated 28.9.2000. After due persuasions by the management of BDL and BDL Housing Society, the Govt. of A.P. allotted 32 Acres of land through APIIC i.e. 5^th respondent herein for independent house sites to its employees instead of Multistoried flats. The Govt. of A.P. vide G.O. Ms. No. 18, Industries and Commerce (Inf) Department, dated 4.2.2003, referring the letter of the Deputy General Manager, BDL dated 22.2.2002, allotted land to the BDL Employee’s Housing Society and the said G.O. laid a condition that maximum plot area shall be 200 Sq.yds. Basing on the said G.O., on 14.05.2003 the 5^th respondent allotted Ac.31.605 to the BDL Housing Society in survey No. 267 P, 268 P, 269 P, 280 P and 285 P situated at BHEL, Ramchandrapuram, Medak District. The Managing Committee of BDL Employee’s Housing Society stated in circular dated 25.01.2000 as ‘the BDL Employee’s Housing Society is to be registered with the Registrar of Societies’ and

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basing on the same and also on the advise of the Govt. authorities to have a registered society, the BDL Employee’s Housing Society Managing Committee registered the 1^st respondent society under APMACS Act in the name of Style of Bharat Dynamics Bhanur Employees Mutually Aided Cooperative Housing Society Ltd., (BDBEMACHS Ltd) and was registered vide Regd. No. AMD/MDK/DCO/2002/55, dated 8.4.2002 at Sanga Reddy, with the promoters of BDL Housing Society as Board of Directors of registered society and the earlier chief promoter S. Shankaraiah as Secretary. For the registration of the 1^st respondent society, the management of the BDL Employee’s Housing Society has nominated the Chairman and Directors with almost several promoters of BDL Employee’s Housing Society as Board of Directors to the registered 1^st respondent society and the earlier chief promoter S. Shankaraiah as Secretary and the said Secretary is still continuing to the 1^st respondent society. 13. Further it is also stated that after registration of the 1^st respondent society, no separate membership drive was conducted. The Board of Directors of 1^st respondent society categorically stated that all the 934 members who paid Rs. 500/- shall be the members of the 1^st respondent society. There are approximately 1200 employees working in the BDL, Bhanur Unit, out of them 934 employees enrolled in the BDL Employee’s Housing Society by paying Rs. 500/-. The 1^st respondent society did not allow the other employees of the BDL, Bhanur who did not pay Rs. 500/- as members of the 1^st respondent society. The BDBEMACHS ( The 1^st respondent Society) on 27.9.2002 submitted list of 934 eligible members in the society to Senior Manager, APIIC and in turn the Executive Director APIIC,

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Gonela, I.A.S., by his letter dt. 28.9.02 addressed to the Principal Secretary, Industries and Commerce Department furnished list of 934 members of BDBEMACHS Ltd., and basing on the same, the Govt. of A.P., vide G.O.Ms. No. 18, and the Zonal Manager, APIIC, by his letter dt. 14.05.2003 addressed to M/s. BDL Housing Society, Bhanur and 1^st respondent society allotted land to the extent of AC.31.605 with specific conditions of allotment to the members. The condition from clause ‘a’ to ‘i’ are relevant for adjudication of this petition. 14. Sec. 6 of APMACS Act, 1995 states that a Society to be a body corporate and it is having perpetual succession and common seal and under ‘sub clause (2)’ all transactions entered into in good faith prior to registration, in furtherance of the objectives of the co-operative society shall be deemed to be transactions of the cooperative society after its registration.

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15. Therefore the 934 members of the BDL Employee’s Housing society prior to registration are deemed to be the members of the 1^st respondent society subject to the eligibility criteria that they shall not have availed House Building subsidy, not the member of any other Housing society and not having own house. The 1^st respondent society is moving around the said 934 employees of BDL, Bhanur only and they imposed self-prohibition not to approach other than 934 members of BDL Employee’s Housing Society. The 1^st respondent society determined to do activities to the said 934 members only even otherwise eligible. An amount of Rs. 350/- was collected from each member of the BDL Employee’s Housing Society to meet the expenditure for procuring land and to run the affairs of the society and they successfully procured land from Government vide G.O. Ms. No. 18 and also in formation of 1^st respondent society. The BDL Employee’s

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Housing Society is a bud and the bud is metamorphosed in to flower of BDBEMACHS Ltd (i.e. 1^st respondent society) at the cost of Rs. 350/of each member of BDL Employee’s Housing Society and the 1^st respondent society members are enjoying the fragrant of flower. These 934 members each invested Rs. 350/- and their investment was utilized in the formation of 1^st respondent society.

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16. The conditions laid down by the 1^st respondent society for allotment of plot are as hereunder:-

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a) The Individual should be an employee of BDL.

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b) Employee should not have availed HBA/interest subsidy from BDL company.

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c) Employee should not be a member belonging to any other housing society. d) Of both wife and husband are employed in BDL one of them only will be considered for membership provided either of them are not a member beneficiaryof any other similar society.

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17. The 1^st respondent society issued a circular dated 10.3.03 wherein it is categorically stated that ‘the total land of 32 Acres will accommodate 450 members only as per HUDA norms and each plot area admeasures 200 Sq.Yds.

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“ Keeping in view of the above we invite the Rs. 500/paid employees who are interested to build the house on need based, may please pay Rs. 32,020/- only as deposit towards land cost and Development charges initially. Only such employees will be given priority based on ‘first come first serve’ principle and ceiled about 450 members adjusting within sanctioned 32 acres of land as per the HUDA norms. The rest of the employee’s amount i.e. Rs. 500 will be paid back shortly. . . . The last date of depositing said amount in bank will be 203-2003”.

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18. It is also stated that the 1^st respondent society asked to pay Rs.

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32020/- only as deposit towards land cost and development charges initially not towards the membership fee and admission fee. The 1^st respondent society did not ask for new membership in their society at any point of time as already 934 members were enrolled in BDL Employee’s Housing Society and they are deemed to be the members of the registered 1^st respondent society. And there was no necessity for the 1^st respondent society to go for new membership enrollment. 19. It is further stated that in the said circular, the 1^st respondent society stated that there is provision only for 450 house plots for members as per the HUDA norms, so they cannot accommodate plots to 934 deemed members, therefore the 1^st respondent society declared to return rest of the employees’ amount. The 1^st respondent society is taken the liability of the BDL Employee’s Housing Society because both are one and the same, otherwise the 1^st respondent society did not come forward to return the Rs. 500/-. From this liability of return of Rs. 500/-, it is crystal clear that the amount of Rs. 500/collected is invested for the formation of the 1^st respondent society and procurement of land and the same money is used for running the affairs the 1^st respondent society. In the said circular nothing is mentioned about membership Fee amount of Rs. 2000/- and Rs. 20 towards admission fee. Except society office bearers, the other members out of 934 have no knowledge with regard to the bye law of membership fee amount of Rs. 2020/- till 2007 and when some of the members, who paid Rs. 500/-, filed cases before the Tribunal and the society never called for any separate membership for the registered society under APMACS Act.

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20. As per the By-laws of the 1^st respondent society - Clause 3.1 says that “Any Employee of the Bharat Dynamics Limited, Bhanur may

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be admitted by the board as a full-fledged member of the society on payment of at least one share of Rs. 2000/- and Rs. 20/- as entrance fee”. Clause 3.3 says that “The applicants have to apply for membership in such form as required and specified by the Board and submit it to the Chair person/secretary who will in turn place it before the Board for approval. The decision of the Board on this matter is final subject to the provision of the Act. The applications shall be disposed within 90 days from the date of application and decision together with reasons shall be communicated to the applicants”. 21. Further it is stated that the 1^st respondent society did not prepare any application form for membership and they did not take signature of any employee of BDL, Bhanur on it as there was no necessity for them, as already there are 934 members were enrolled in BDL Employee’s Housing Society in the year 2000 and the same members are being considered as the members of the 1^st respondent society. To become a member of the 1^st respondent society, the society has to collect at least one share of Rs. 2000/- and Rs. 20/- as entrance fee, subsequently only they are entitled to collect any amounts towards land cost, advance amount etc. But in the instant case the 1^st respondent society first collected Rs. 32020/- in one payin-slip. As per Bye-laws of the 1^st respondent society, every member has to pay initially Rs. 2020/- on pay-in-slip at Bank and the said payin-slip has to be enclosed along with the application form for membership and after accepting the membership only, the enrolled member has to pay other amounts such as land cost, advances etc., and the said procedure is not at all followed in the 1^st respondent society. That is the reason, the ineligible members were recruited in the 1st respondent society. The 1^st respondent society insisted that all

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the payments have to be made through pay-in-slip in Andhra Bank, Bhanur branch in SB A/c. No. 9048. The reason behind skipping of this procedure is that they do not require no more membership as already there are 934 members.

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22. It is also stated that the 1^st respondent society categorically stated that Rs.32020/- has to be paid in Andhra Bank, Bhanur Branch in SB A/c. No. 9048 from 10-3-2002 to 20-3-2003, but the 1^st respondent society closed receiving amount within one and half day. Thereafter they refused to receive deposit amount stating that already 541 employees have deposited the said amount. The petitioner with the help of Secretary managed the bank officials and paid money and some other employees were curtailed the chance of payment of Rs.32020/- because huge rush at the Bank counter. After processing, on 22.3.2003, the 1^st respondent society had displayed the list of 325 members as eligible and return back the amounts of 216 employees stating that they are ineligible as per the conditions laid in the circular. In view of the above, many members who paid Rs. 500/- in BDL Employee’s Housing Society were unable to pay money due to closing of receiving of money within 1 ½ day.

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23. Further it is averred that the 1^st respondent issued circular dated 22.3.2003 and categorically stated that “it is informed that after allotting members, leftover plots will be allotted afresh by intimating to the eligible members in future”. This statement clarifying that among eligible members in 934 members of the BDL Employee’s Housing Society being allotted plots, later if any plots remained un-allotted, such plots will be allotted afresh to the remaining 934 employees out of total strength of 1200 employees working in BDL, Bhanur. It is pertinent to mention that there are still 125 memberships/plots are

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vacant out of 450, to fill the same the 1^st respondent society will make another attempt. The petitioner had an opportunity to pay Rs. 32020/on 13.3.2003. In the above notice, the office bearers gave an undertaking that the existing members would be adjusted in the left over plots by initiating the allotment process afresh. In the guise of making such assurance, the members who paid Rs. 500/- kept quite otherwise would have agitated over the manner in which collection of Rs.32020/- was derailed abruptly within 1 ½ day ..

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24. It is further stated that the principle that “first come first serve” basis was invented by the office bearers of the 1^st respondent society to distribute the fruits of the society only to their select few. The entire mischief in the process to allot plots had been done by the office bearers taking advantage of this phrase. In fact, it had no nexus with the objects sought to be achieved by the society at all. The society could have worked out some other intelligible ratio for distribution of the house plots. The society having fixed the last date of depositing the said amount of Rs.32020/- in the bank as 20-3-2003, the society’s management had no authority to windup the collection of the same before 20-3-2003 even if the number of payments had increased from 450. By fixing the principle - first come first serve and winding up the collection of initial amount before 20-3-2003, the office bearers had played fraud upon the genuine members of the society. The principle of first come first serve does not apply to a co-operative society, the Model Byelaws says that any co-operative society initially have to complete the admission of membership before making any application to the Government for allotment of land and accordingly the 1^st respondent society before registration in the year 2000 made membership drive of 945 members by collecting Rs.500/- under BDL Housing Society and for registration of 1^st respondent society. The 1^st

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respondent society having taken membership they have to allot house sites by draw of lottery as per the directions of the effective and proper functioning for the cooperative societies in the state of A.P. 25. Further it is stated that a report is prepared by the Secretary of the 1^st respondent society with his own signature on 9.7.2003 and it is not circulated to any of the members and the same is kept with him only. If the same had been circulated, to whom it is circulated such particulars will be mentioned on the same. The important points in the report are:-

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1. Society conceived in the year 2000 with 934 members 2. Sensing the out come a Society was registered then to stake claim for the proposed land in the year April 2002.

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3. There are 325 members existing who have paid advance. 4. Based on the number of plots laid out the advances shall be collected from the original depositors who paid Rs. 500/- for promoting the society.

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26. The circular dated 10.3.2003 states that deposit Rs. 32020/towards land cost and development and there is no whisper with regard to byelaw membership on payment of at least one share of Rs. 2000/- and Rs. 20/- as admission fee, in the absence of the same no employee except the promoters of the 1^st respondent society no body no knows about it.

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27. It is also averred that the 1^st respondent society released another circular dated 24.5.2004 to fill the vacancies i.e. approximately 40 Nos. The said circular also declared the eligibility criteria and signed by the Secretary as hereunder:-

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1. First come first as per by law.

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. . . . . ., , ,

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5. Those who have paid 500/- and who have not withdrawn.

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7. The new becoming member has to pay Rs. 5000/- extra for the society miscellaneous expenditure in future.

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8. The initial amount to enroll in society is 32020 + 5000 = 37020/-.

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All the interested employees may please collect a PAY IN SLIP duly authorized by the Secretary against which the payment of such money will be only accepted by the authorities of Andhra Bank, BDL, Bhanur. Such interested employees will be given PAY IN SLIP after completion of all required formalities i.e. signing on Affidavit, Terms and conditions etc.

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The PAY IN SLIP will be issued at our office from 26-05-04 at 9.00 AM to 1.00 Noon onwards up to 02-06-04.

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- - -

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28. It is also stated that nowhere in By-laws, the principle of First Come First principle is mentioned and it is against the spirit and object of cooperative movement. Vide R.C. No. 21636/97/Housing (1) Published in A.P. Gazette, RS to Part II (Ext.), dated 3-12-1997 directions were given for effective and proper functioning of the Cooperative societies in the State. They are as hereunder:-

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1. Allotment of plots to the members must be done in an open and transparent manner with due and sufficient intimation to the members. They shall give reasonable opportunity to choose the size of the plots, to pay necessary dues and charges and also give them fair opportunity to participate and witness the draw of lots. The society shall give advance intimation to the concerned Deputy Registrar about the drawl of lots for allotment of plots, to enable the latter to send his officers to supervise the drawl of lots. 2. Housing societies which are exclusively registered for certain class or category of members ( Example Houseless employee), shall admit only that class or category of members but not others. All the Deputy Registrars are directed to see that right class of members alone are admitted and members who do not belong to that class or category shall be removed from the membership forthwith.

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3. Transfer of plot to any other member or non-member shall not be permitted by the society, except the legal heirs by inheritance. For any compelling reasons, if the member wants to transfer the plot, he shall surrender the same to the society which shall pay back to the member the fees and charges collected from him along with interest, from the date of possession of the plot by the member. The society shall accept such surrender of the plot and allot it to the other eligible members, according to seniority and recover the costs and charges, if any, for such transfer from the transferer. No member shall be allowed to transfer his plot without the concurrence of the Managing Committee and without registering the sale or transfer deed in his favour. Any transfer of plots in violation of the Bye-laws shall be treated as illegal and the transferee shall be treated as trespasser or encroacher.

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29. Further it is averred that the 1^st respondent society collected first time Rs.32020/- and for the second time collected Rs.37020/- and stated that Rs.5000/- towards miscellaneous expenditure. The society has to collect monies equally from all the members but not extra or excess from some members and the same is illegal, is nothing but looting money. Even in the second time process of enrollment also the 1^st respondent society stating as initial amount to enroll in the society is Rs. 37020/- and not towards share capital and admission fee. The APMACS Act does not fixed a fixed Share capital amount to a Co-operative society and the same had to be paid by the each member of the society. It is option to the respective Co-operative societies to fix the share capital and the 1^st respondent society malafidely fixed share capital as Rs.2000/- and the 1^st respondent society never issued any circular in respect of membership drive by paying share capital of Rs.2000/-. On 10.3.2003 issued circular for Rs. 32020, on 24.5.2004 for Rs. 37020/- and the same is illegal and void and the 1^st respondent

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society ought to have issued circular with regard to only membership drive by paying Rs.2020/- only. Instead of the same, demanding for payment of more than Rs.2020/- is against the aims and objectives of the Co-operative movement. The 1^st respondent society initially make drive for membership i.e. payment of amount of Rs.2020/- only, subsequently it has to go for payment of development charges, etc., and the same has not done by the 1^st respondent society and now claiming the Rs.500/- paid employee is not a member of the 1^st respondent society is not proper. After allotment of land to the BDL Employees Housing society, the 1^st respondent society promoters hatched a plan to minimize the members out of 934, because the allotted land will not cattle the needs of all 934 members, for that purpose they fixed Rs.2020/- as share capital and admission fee.

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30. It is also stated that the 1^st respondent society prepared out Terms and Conditions only on 24.5.2003 and the same is reflected in circular dated 24.5.2003. The said document discusses about the eligible 325 members list as is evident from the first and second paras of the said document. The said terms and conditions document no where exhibited.

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31. Again the society issued circular dated 24.5.2004 calling to fill the vacancies (approx. 40 members) and invited Rs.500/- paid members to pay Rs.37020/- by collecting pay in slip duly authorized by the Secretary from 26-5-2004 till 2-6-2004 and the last date for paying is 26-5-2005. The Board of Directors of society played fraud with the pay in slip system by directing in advance to their interested members to take DDs, pay in slip thereby giving membership to their choice and refused to give pay in slips to other members who paid Rs. 500/- at initial stage. As per the circular there are approximately 40 vacancies

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but the Respondent No. 1 gave plots to 56 employees. It is also stated that in order to checkmate the rush, they fixed a prohibition at the payment level it self by authorizing the Secretary of the society to issue pay-in-slips and the office bearers intimated about the issuance of circular to their henchmen much in advance to 24-5-2004 and they made all of them ready for payment of amount Rs.37020/- and managed to see that all of their henchmen to be paid. It is also stated that this Court may be pleased to consider one aspect as to how any ordinary employee would mop up an amount of Rs.37020/- within short time. Many of the members who paid in response to the circular dated 24-5-2004 constituted such of the members who were declared to be ineligible as per the circular dated 10-3-2003 and who do not qualify the criteria laid down by the society. The system of collecting pay-inslip from Secretary itself is illegal and the same was done by the office bearers to play fraud on genuine members to defeat their opportunity to secure plots as such the circular dated 24-5-2005 is bad in law and illegal, arbitrary and malafide and liable to be set aside. 32. Further it is averred that again on 11.1.2006 the secretary of the 1^st respondent society circulated a letter wherein they wanted to give membership to their well wishers and persons who helped them and on 26.8.2006 a list of 25 persons to whom the plots were given was displayed. All the above 25 persons are not eligible persons for membership of the society, but they were given membership, and some of the persons who were given membership have no knowledge about allotting membership in their favour. The office bearers of the 1^st respondent society in order to sell away the plots they gave membership on benami in their names without their knowledge. 33. It is also stated that immediately some of the members who paid Rs.500/- approached the Chairman/Secretary to cancel the said

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allotment and to allot the left over plots to the remaining eligible and waiting members who are patiently waiting till now through a representation dated 19-9-2006. But the chairman/Secretary did not considered their genuine request for which they approached the District Collector, Medak District on 28-8-2006 through a representation disclosing the illegal activities of the Management of the society by putting forward real facts before the Collector. Basing on the representation, the Collector ordered for enquiry into the allegations levelled against the Management and directed Sri Mohd Moulana, Asst. Registrar of the Joint Registrar office/Dist. Co-op. Officer, Medak to conduct enquiry and submit the report.

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34. Further it is averred that the said Enquiry Officer took up the enquiry, having feared with their illegal activities, during the course of enquiry the management of 1^st respondent society cancelled the admission accorded to 25 ineligible persons. The said EO submitted his enquiry report to the Collector and the Collector after due verification of the Enquiry Report addressed a letter to the Managing Committee of the society on 24-9-2006 stating that:-

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1) Advised to allot the plots to the eligible members on fulfillment of eligibility criteria as per the provisions of APMACS Act and registered By-laws of the society. 2) Instructed to allot plots to eligible members as per eligible criteria in the presence of District Co-op. Officer, Sangareddy. 3) Warned not to repeat such mistakes like admitting ineligible persons as members of the society in violation of rules and procedures.

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35. It is also stated that inspite of the order of the District Collector and representations given by them, the Managing Committee failed to consider their request and acting at their whims and fancies and continued their illegal activity of allotting plots to ineligible employees.

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It is also mentioned that the Managing Committee so far

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a) Never disclosed total number of plots

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b) Never disclosed total number of members.

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c) Never disclosed layout and no layout is prepared for entire land.

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d) Never disclosed any information in respect of the issues raised by the Members.

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e) And by violating the rules and procedures laid down in the Bye-laws the management is transferring the plots to the ineligible persons by taking withdrawal letters of allottees by undue influence or by way of paying goodwill amounts and by collecting huge amounts from the transferee.

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f) Allotting 2 to 3 plots to one person on Binami names.

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36. It is also stated that the APIIC, which allotted the land to the 1^st respondent society by letter dated 14.5.2003, allotted the land subject to certain conditions and the relevant conditions for the present petition are as hereunder:-

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(a) allotment shall be made by drawal of lots by the society and appraise APPIC from time to time.

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(b) Transfer of plot before 5 years from the date of allotment is not entertained.

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(c) The member – employee shall complete construction of house in two years from the date of allotment failing which the plot will be re allotted to other members of the society.

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The Managing Committee of the 1^st respondent society i.e. Chairman/Secretary and the Directors in collusion with each other with an ulterior motive violating the aims and objectives of the formation of the society and they are indulging in land business (real estate) and acting as real estate brokers by allotting plots to ineligible persons by taking illegal pecuniary gains and acting against the interest of the society for their personal benefits and selfish motives.

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37. It is further averred that violating the above conditions, the 1^st

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respondent society gave membership to the ineligible employees which can be established by the letter dated 13.2.2007 of the 4^th respondent in which the Senior Manager, (P & A) of Bharat Dynamics Limited addressed to DCO, Medak, enclosed the list of employees who have been sanctioned with interest subsidy on house building loan as on 13.2.2007, and as per the said list Serial No. 4, 10, 11, 15, 33, 40, 61, 80, 95, 96, 99, 100, 134, 142, 148, 149,156, 170,182, 195 to 197, 199, 211, 228, 235, 236, 243, 247, 250, 251, 269, 274, 280, 285, 287, 295, 298, 308, 330, 335, 343, 344, 347, 355, 356, 362 are all the employees who have already had houses and they are not eligible for membership of the 1^st respondent society. Inspite of the same, they have been given membership illegally and there are members who have not paid Rs. 500/- towards original membership and there are also some members who were not employees of the 4^th respondent as on formation of the 1^st respondent society and not paid Rs. 500/towards original membership.

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38. It is also stated that the 1^st respondent society, without any power to transfer the membership as per the conditions of the APIIC, illegally by violating the By-laws of the society, transferred the membership of 15 members in favour of some other employees, who are not at all members of the society and they have not paid Rs.500/towards original membership and Rs.32,020/- and some transferees are not employees of the 4^th respondent as on formation of the 1^st respondent society when many eligible members were waiting for their turn of allotment of plot, who’s staff Nos. and names are given below and these information is extracted from the material papers filed by the

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1^st respondent society as counters in the present case:

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1. 46664 Ch. Krishna in favour of V.S. Shanker, 42574

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2. 46088 A. Nageshwar Rao in favour of Ch. Tulsaiah, 46141

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3. 46061 S. Srinivas in favour of K. Venkateshwar Rao, 46449

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4. 46062 N. Subba Rao in favour of Ch. Gnaneshwar Rao, 46357

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5. 46188 M. Sunandhi in favour of M. Vinod Kumar, 46480

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6. 46211 A. Prabhaker in favour of M. Venkat Rao, 46787

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7. 46362 A. Srinivasa Reddy in favour of V. Kondal Reddy, 46756

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8. 46518 P. Srinivasa Rao in favour of PVN Yadhav, 46149

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9. 46602 Anja Goud in favour of G. Shashidhar, 46828

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10. 46689 M. Anjaiah in favour of S. Maheshwar, 46845

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11. 46840 Irfan Ahmed Khan in favour of M. Jayaprakash Rao, 46306

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12. 46893 Ch. Ravi Babu in favour of K. Raghava Rao, 47021

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13. 46031 RVSN Raju in favour of P. lalitha, 47010

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14. 46236 Shaik Mahaboob in favour of M. Srinivas, 46219

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15. 36398 B. Jaipal in favour of G. Ramulu, 36318

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39. Further it is averred that the employees of the unit of Bharat Dynamics Limited, Kanchanbagh, Hyderabad had also formed a society in the name and style of Bharat Dynamics Employees Mutually Aided Co-op. Housing Society Ltd., Kanchanbagh, Hyderabad vide Regd.No.AMC/HYD(U)/2000-(21) E.HSG and it is also known as Madhava Reddy Society, they procured a land at Miyapur, R.R. District and obtained layout and allotted plots and some of the employees who were allotted plots in the above society were also given membership for allotment of plots in the 1^st respondent society which is against the rules and regulations of APIIC as well as Bye-laws of the society. The list of the said members is given below.

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1. Tulasaiah Staff No: 46141 SL.No 85 in the list of membership of 1^st Respondent 2. M.Srinivas Staff No: 46219 SL.No 111 –Do3. M.Jayaprakash Staff No: 46306 SL.No 136 –Do-

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4. K Srinivasa Rao Staff No: 46454 SL.No 179 –Do-

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5. V.Kondal Reddy Staff No: 46756 SL.No 275 –Do-

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6. P.Srinivas Rao Staff No: 46786 SL.No 281 –Do-

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7. M.Venkat Rao Staff No: 46787 SL.No 282 –Do-

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8. M.Krishna Staff No: 46865 SL.No 325 –Do-

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9. P.Lalitha Staff No: 47010 SL.No 374 –Do-

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40. It is also stated that at the demand of the society, as per circular dt.10-3-2003 the petitioner paid Rs. 32,020/- on 13-3-2003 towards allotment of plot and also for development charges. Though the petitioner paid all the amounts at initial stage, the issuance of registration of the plots was getting unduly delayed due to various reasons. Added to the same the office bearers, more specifically the Secretary have been misleading and pressurizing the petitioner and informing that his dream of owning plot may not be materialized in view of the litigations and prolonged delay in getting all approvals from the Govt. Departments and insisted the petitioner to transfer his plot. The Secretary with a malafide intention to retrieve the plot from the petitioner and to sell the same under the guise of transfer to third party for huge amounts for his personal gains. The petitioner did not realize the fraud of the Secretary. In the year 2005 the Secretary herein insisted the petitioner that he cannot get any plot in near future and construct a house thereon and forced the petitioner to sign on some blank white papers, the petitioner without realizing the consequence and the hatched plan and ill motive of Secretary signed the same.

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41. Further it is stated that the Secretary by misleading and misrepresenting the petitioner and by playing fraud, obtained signatures on white blank papers and under the guise of such purported letters, the Secretary resorted to transfer the plot allotted to the petitioner. The petitioner, after realizing the malafide intention of Secretary, informed the President of the Society not to act upon the

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said letter which is obtained by playing fraud. Inspite of the same, the Secretary in collusion with Respondent No. 72 (proposed purchaser) omitted petitioner’s name from the eligible voters list and added the name of the Respondent No.72. That no share capital and no membership fee is refunded and there is no order of cancellation of membership is communicated to the petitioner, besides the amount of Rs. 32,020/- paid by the petitioner towards earnest money in respect of the house plot is also not refunded. No notice was issued to the petitioner while removing his name as a member of the society and also from the voters list and nothing is corresponded or communicated to the District Co-operative Department in respect of the same. Without the approval of the Managing Committee and General Body, the petitioner’s name had been removed and his removal information is not recorded in the minutes book. The Managing Committee not at all discussed petitioner’s issue of removal and if they would have discussed the same, the 1st respondent society ought to have mention the said date. The Secretary of the Society after thought that to after filing of the OP No. 97/08 prepared the cancellation letter dated 18.11.2004 and the same is not communicated to the petitioner. The mode of service is not mentioned on the said letter which indicates, the same is not served upon the petitioner at any point of time and they had not filed any acknowledgement. But the Secretary, without approval of the Managing Committee and General body, replaced petitioner’s name in 2005 list and added respondent No.72 name in his place. It is also stated that the membership transfer letter dated 7.9.04 is not written by the petitioner and the Secretary obtained his signature on white blank papers by playing fraud and the petitioner is not aware of the contents of the said letter at any point of time. The learned Judge of Court below without his admission held by the

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petitioner held that the petitioner wrote the membership transfer letter with his own handwriting and the learned Judge stepping into the shoe of the 1st respondent and the reasons are best known to him. In the said transfer letter, the date of receiving by the 1st respondent society is not mentioned and there is no stamp or seal of receiving by the 1st respondent society and further there is no initial of the office bearers, which indicates that it is a letter prepared for the purpose of filing counter in OP No. 97/08. The purported sale agreement dated 26.7.2004 alleged to be executed by the petitioner is not a valid agreement as it is obtained by force and coercive and the said sale agreement does not contain the words that “ this agreement is executed with free will and consent without coercion and undue influence” and in the absence of the same, it is believed that the same was obtained by fraud. The said agreement contains only one witness i.e. the signature of the Secretary B. Shankaraiah, he him self fraudulently obtained the petitioner’s signatures on white blank papers, except him there is no other independent witness is available. Further no schedule of property is mentioned and the future allotment of plot is mentioned in the agreement and any future allotments is executed in agreement they are null and void and the said agreement is no value before the eye of law. Only the Secretary B. Shankaraiah stood as witness and there was total 15 such illegal transfers made by the 1st respondent society.

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42. The Co-operative Law says that resignation/transfer letters shall be sent to the society through Registered Post only and no other mode of service is recommended. In the case on hand, the 1st respondent society did not state in which mode the said letter had been received by them and in the absence of the said information, adverse inference can be drawn that the said letter is not sent according to due process

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of law and that therefore the resignation/transfer is bad in law. Mutual exchange of plots/houses between the members is entitled but not transfer of plot/house from a member to a non-member is not permitted as per the Co-operative law, and if the same is permitted, the very purpose of cooperation is defeated.

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43. Further it is also stated that the Respondent No. 72 is not a member of the society. Neither respondent No.72 paid Rs. 500/towards membership fee nor paid Rs. 32020/- towards share capital, allotment and land development charges. As such the Respondent No. 72 is not entitled for allotment of any plot or membership. The Secretary had no right or authority to transfer any plot to employees and particularly to Respondent No.72 who is not a member of the society when many members are waiting for their chance for allotment of plot. Therefore the transfer of the membership in favour of the Respondent No. 72 is illegal, arbitrary and against the Bye-laws of the society and against the conditions laid down by APIIC.

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The Model Bylaw is made under section 3 of the APCS Act, 1964 way back in the year 1964 and the said bye laws state that ‘If any member did not require plot/house, he should surrender the said plot/house to the society and in turn the society will allot the same to the next member of the society who is on waiting list. Violating the same any allotment/nomination/transfer is made is illegal and such transfer is void ‘. In petitioner’s case the same had been not followed by the 1st respondent society inspite of knowing this aspect very well alleging his interest is transferred.

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Bye law No.4.2 states that

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The members who are allotted plots/ houses shall be entitled to withdraw form membership within 5 years of their admission as members. However, if they transfer/lease out their land or house under

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the contract of the housing to any other member of the society it self on mutually agreed conditions they may with draw their membership.

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The said bye law categorically states that the members who are allotted plots/ houses, but in petitioner’s case no plot/house is allotted and he was allotted with only membership vide letter No. 334, dated 13.3.2008. The said bye law permitting to alienate the plot/house but not membership letter. Therefore the bye law 4.2 will not applicable to petitioner’s case and the alleged transfer is not subject to the provisions of by-law No.4.2. The APIIC allotted land with conditions way back on 14.5.2003 vide Lr. No. 20/PTC/BHEL Lands/2003 and the condition ‘g’ states that ‘Transfer of plot before 5 years from the date of allotment is not entertained’. Even after 5 years also, if any transfer is to be effected that has to be done with prior permission of the APIIC. This illegal transaction was encouraged by the Secretary for the purpose of illegal gains and such person is not entitled to continue as Secretary. The bye law 4.2 is contrary to the conditions of APIIC. The Model Bye laws say that Cooperative society shall have latest copy of Act and Rules, and it is their duty to change/modify/remove the bye laws which are contrary to the Act, rules and conditions.

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The byelaw No. 28.2 states that ‘Share capital and thrift deposits subscribed by a member, shall be refundable only on their cessation of membership of the society .

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As per Bye laws, there is no provision of transfer of share capital. The Model Bylaw states that “ No member shall, at any time, transfer any share or shares held by him. Should a member cease to be eligible for membership, the society shall remove his name from the list of the members and arrange to pay back within a reasonable period to such member, the share capital paid by him together with dividend

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declared, if any, after deducing any sums due from him to the society.’ The impugned transfer letter dated 18.11.2004 created by the 1st respondent society states that petitioner’s share capital had been transferred in favour Respondent No. 72. When categorically, there is no provision to transfer of share, then the said transfer letter is null and void and not binding on the petitioner.

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44. It is also stated that bye law No. 3.1 states that “ Any employee of the Bharat Dynamics limited, Bhanur may be admitted by the board as a full-fledged member of the society on payment of atleast one share of Rs. 2000/- and Rs. 20/- as entrance fee and continue to be retained as a member once admitted unless otherwise disqualified as per byelaws ; if he “. The Respondent No. 72 is neither paid Rs. 500/- in the year 2000 in view of Sec. 6.2 of APMACS Act nor paid Rs. 2020/- at the alleged admission time as per bye law. The Managing Committee (Board) did not made any approval, discussion, resolution in respect of admission of Respondent No. 72. If they would have done so, they would have filed the resolution copy, minutes and at least disclose the date of meeting of Board for the said purpose and in the absence of the same, the Secretary simply created a bogus transfer letter dated 18.11.2004 for the purpose of filing counter in the above O.P. in the year 2008.

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45. Further it is stated that the action of the 1st^t respondent more particularly the action of the Secretary of the society had resorted to misleading statements, coercive tactics, misrepresentation and thus played a fraud on the petitioner by taking signatures on blank papers and thereby fabricating a document as if the petitioner relinquished his rights. Further it is stated that the petitioner approached the respondents thereafter a number of times but the same went in vain. The 3rd respondent assured the petitioner to settle the dispute

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amicably and advised him not to take any coercive steps, that is why the petitioner was silent for some time without initiating any action under law, finally he vexed with their attitude. In fact, the Secretary of the 1^st respondent is refusing even to meet the petitioner and to respond to his demand for which he got issued a legal notice dated 17.9.2007 and the same was received by the 1^st respondent society and did not choose to reply nor appointed any committee to settle the dispute as per By-laws.

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46. Further it is also stated by the petitioner that the action of the Respondent No. 1 in deleting his membership from the society and including the name of the Respondent No.72 without any orders of cessation of membership of the petitioner and without refunding the membership fee, share capital or any amount paid by him is highly illegal, arbitrary and against the Bye-laws of the society and violative of article 14, 16 & 21 of the Constitution of India and principles of natural justice.

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47. The 1^st respondent society on 3-7-2006 entered into development and construction agreement with M/s. Miranda Homes Pvt. Ltd., for construction of independent houses on the land allotted without any title and proceeding with the construction of independent houses to the ineligible members which is against the objectives of the society for which the society is formed. The construction was stopped due to some disputes between the construction company and 1^st respondent society. The 1^st respondent society by misrepresenting the real facts, obtained housing loans from HDFC Bank, Hyderabad branch in the name of the individuals, ineligible members as top up loans without any allotment of plots to the individuals. 48. The above chronological events would show that the society’s

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functioning had been derailed by the present office bearers by a clandestine design and they resorted to illegal activities and it is being put to serve illegal purposes. The society does not have any title to the land alloted to it by the Govt. of A.P. through APIIC and the society can only act as a custodian to such property. The office bearers cannot allot plot to its henchman at the cost of genuine members.

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49. The Chair person of the 1st Respondent society addressed a letter dated 20.7.02 to the Executive Director of 5th respondent, wherein he assured that all of its members will be allotted independent plots in sanctioned land and in contrary, the 1st respondent society providing plots to very few selected. It is further stated that the managing committee of the society i.e. Chairman, Secretary and the Directors in collusion with each other with an ulterior motive violating the aims and objectives of the formation of the society and they are indulging in land business (real estate) and acting as real estate brokers by allotting plots to ineligible persons by taking illegal pecuniary gains and acting against the interest of the society for their personal benefits and selfish motives. Due to their illegal activities the petitioner and other genuine members were deprived of their legitimate right. The 1^st respondent society indulging in gross irregularities and committed illegal acts against constitution, management of affairs and with the business of the society and the acts of the managing committee are highly illegal, arbitrary and against the aims and objects of enactment of APMACS Act, and the Tribunal grossly failed to protect the rights of the members of the society.

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50. Several grounds had been specifically averred in the affidavit filed in support of the writ petition. The main grievance of the petitioner appears to be that several of these parties are ineligible members and hence the very allotments are illegal.

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51. In the counter affidavit filed by the 1^st respondent, it is stated that the petitioner Society was established in the year 2002 with an object to promote economic, social, betterment of its members through self help mutual aid and obtaining loans etc., in accordance with principles of Cooperation and it was registered in the office of the Registrar of Mutually Aided Cooperative Society in Medak, Sangareddy, under Section 5 of the A.P.Mutual Aided Coop. Society Act, 1995, with registration No.AMC/MDK/District Cooperative Officer/2002/55, dt.8-42002. As per the bye-law of the Society any employee of BDL, Bhanur may be admitted as full fledged member of the Society on payment of at least one share of Rs.2,000/- and Rs.20/- as entrance fee. Initially at the time of registering Society with the Registrar of Mutually Aided Coop. Society, about 25 employees at BDL, Bhanur became members by paying to share capital amount and the entrance fee. At present there are about 375 members in the 1^st respondent Society. 52. Further it is stated that as per Section 37 of the A.P.Mutual Aided Coop. Society Act, 1995 if any dispute arises among the members, between the members and the Cooperative Society touching the constitution, management or business of the Cooperative Society and matters connected therewith or incidental thereto may be referred to the Tribunal for a decision provided the disputing parties exhaust all the remedies that may be available in the bye-laws for the settlements of the disputes. The petitioner being not member of the respondent Society is not entitled to invoke the said provisions apart from filing the present petition. Therefore, the present petition is liable to be dismissed.

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53. It is also averred that some of the employees working in M/s.Bharat Dynamics Limited, Bhanur formed a Society under the name and style of M/s.BDL Housing Society, an unregistered Society,

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for the purpose of meeting the demand of the employees working in Bhanur to have a own house. The said Society invited applications from the employees working in Bhanur Unit to enrol themselves as members of the said Society by paying the membership fee to the Society promoters. Accordingly, a large number of employees advanced certain amounts to the said Society and the said Society made certain efforts to identify vacant lands and approached the APIIC for allotment of the lands surrendered by M/s.BHEL for providing housing facilities by constructing multistoried buildings for Industrial Workers in the area of BHEL. M/s.APIIC in turn requested the Government seeking permission for construction of independent houses instead of multistoried buildings. The Government vide G.O.Ms.No.528, 28-9-2000 rejected the said request. Thereafter the said Society failed to take any further course of action and thus became defunct.

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54. Further it is stated that thereafter some other employees including some of the promoters of the earlier Society continued their strive to provide houses to the employees working in Bhanur Unit to the extent possible and in that process formed this respondent Society and got the same registered with Register of Mutually Aided Coop. Societies for Medak District in the year April, 2002. Because of the struneous efforts put forward by the respondent Society and the Management of M/s.BDL, Bhanur, the Government issue G.O.Ms.No.18, dt.4-2-2003 permitting the APIIC to allot the land vested with APIIC Limited, Ramachandrapuram village, Medak District to the respondent Society subject to certain conditions mentioned therein for the cost fixed by the APIIC Limited. Accordingly, the respondent Society was allotted total land admeasuring Ac.31.605 by APIIC through proceedings No.ZO/PTC/BHEL.Lands/2003, dt.14-5-2003.

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Part of the land situated at Gas station admeasuring 16.72 and part of the land situated behind the temple near Ryothu Bazar, admeasuring Ac.2.79 and part of the land situated near ESI Hospital admeasuring Ac.12.095. The land situated at Gas Station and behind Temple near Ryothu Bazar was allotted at the cost of Rs.10.00 lakhs per acre and the land near at ESI Hospital was allotted at the cost of Rs.12.00 lakhs per acre. The respondent Society paid the total cost of the said land to APIIC on different dates amounting to approximately Rs.4.00 crores including interest for delay caused in paying the said amount. 55. It is also averred that the employees of the BDL conducted a meeting on 18-2-2002 at 5.30 p.m., in Community Centre and decided to form a body with 25 members to meet the demand of the employees to have own house and formed the respondent Society by passing a resolution to that effect and also approved the bye-laws and elected the office bearers unanimously. As stated above, if an employee of Bhanur Unit is interested in purchasing a plot and or construction a house can be admitted by the Board as full-fledged member of the Society on payment of at least one share of Rs.2000/- and Rs.20/- as entrance fee and continue to be retained as member once admitted unless otherwise disqualified as per bye-laws, subject to satisfying other conditions mentioned in bye-law No.3.1. The respondent Society accordingly issued circular dt.10-3-2003 inviting the employees those who had paid Rs.500/- earlier to the other Society to pay Rs.32,020/- towards land, construction and development charges initially. In fact, the said sum of Rs.32,020/- included Rs.20/- towards admission fee and Rs.2,000/- towards share capital. It was made clear though the said circular that those who came first served first and there is ceiling of 450 members to be adjusted with the land of Ac.32.00 as per the norms. The employees desirous becoming members of

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Society were advised to deposit the said amount of Rs.32,020/- in the Andhra Bank, BDL, Bhanur Branch, in favour of respondent Society and to submit the receipts issued by the Bank to the respondent Society office fixing the last date for depositing the amount in the Bank as 20-3-2003. The respondent Society intimated the Manager, Andhra Bank, BDL, Bhanur Branch, vide letter dt.11-3-2003 to accept the deposit of Rs.30,020/- from individual employees only up to 450 employees. The respondent Society in view of the clarifications sought by some of the employees clarified vide Circular dt.11-3-2003 that the payment of Rs.32,020/- pertains to Rs.20/- towards admission fee, Rs.2000/- towards share capital and Rs.30,000/- towards land cost and development charges. Though the respondent Society requested the Andhra Bank to receive the deposits for 450 employees the Bank received deposits from 541 employees and thereafter stopped receiving the same. After scrutiny of the said applications about 185 applications were rejected as they did not fulfil the eligibility criteria and about 37 employees have withdrawn their applications voluntarily and thus the respondent Society provided membership to 319 employees. As there are further vacancies, the respondent Society issued another circular dt.24-5-2004 to fill up the same and enrolled about 56 employees as members of the respondent Society. Thus the respondent Society admitted about 375 employees as full-fledged members and allotted plots/houses to the said 375 members. 56. It is also stated that in response to the circular dt.10-3-2003, the petitioner submitted his application for allotment of house site by paying membership fee and advances towards land cost amounting to Rs.32,020/-. The petitioner was accordingly admitted as member of the respondent Society on acceptance of his application. 57. It is averred that as things stood thus, the petitioner through his

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representation dt.7-9-2004 informed the 1^st respondent Society that he entered into an understanding with a co-employee Mr.Maheshwar, St.No.46845, as such he would like to transfer his primary membership to Mr.Maheshwar and requested to accept the said replacement of membership. He further informed that Mr.Maheshwar will reimburse him the advance paid to the respondent Society and Mr.Maheshwar will pay the balance cost of construction to the respondent Society. The petitioner also forwarded a sale agreement dt.26-7-2004 entered between the petitioner and Mr.Maheshwar along with receipt. In pursuance of the said request, the 1^st respondent Society informed the petitioner that as per his request his primary membership was transferred in favour of Mr.Maheshwar by cancelling his membership with letter BDBEMACHS/2004 dt.18-11-2004. The petitioner signed the said proceedings in token of his acceptance of the same and never made any objection of what so ever nature in this regard. The petitioner accordingly ceased to be a member of the respondent Society as early as on 18-11-2004. The petitioner therefore can have no cause of action against the respondent Society, that too more particularly after a long lapse of over 3 years.

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58. It is also stated that thus the said transfer of allotment was done as per the request of the petitioner and the respondent Society acted as per his request only and in accordance with the bye-laws of the Society and thus there is no illegality as alleged by the petitioner. Equally there is no fraud as alleged by the petitioner and the said allegations made in this regard are hereby denied. The present petition is filed with an ulterior motive with all concocted statements and there are no bonafides. Therefore the present petition is liable to be dismissed.

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59. Further it is averred that the main O.P. was fileld lbt petitioner

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before the Cooperative Tribunal, Hyderabad, against the respondent Society making various allegations. The allegation made by the petitioner that he is a member of BDL Employees Mutually Aided Coop. Housing Society Limited as on presenting the O.P. is totally false and incorrect. The petitioner had not filed any proof whatsoever to substantiate the same. The petitioner cannot have any dispute against the respondent Society as he is not member of the Society as he ceased to be so as early as 18-11-2004.

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60. It is further averred that the petitioner applied for membership pursuant to circular dt.10-3-2003 seeking admission into Society and also became a member. The petitioner subsequently withdrawn the said membership by making an application vide letter dt.7-9-2004 accordingly the petitioner’s membership was cancelled by the Society. Therefore, the petitioner cased to be a member of the respondent Society since 2004 onwards. The petitioner Society is therefore not entitled to question the affairs of the Society as he is no longer member of the Society. For the said reason he can not have any grievance regarding the affairs of the Society. Being the past member if the petitioner had got any claim or he is entitled to any benefit and if the same was denied by the Society the petitioner can make a claim for the same after exhausting the remedy available under bye-law No.42. The petitioner is not entitled to file the main O.P., which is in the nature of public interest litigation. It is also stated that some of the employees earlier filed O.P.No.16/2007 and the same is pending on the file of the Tribunal. In the said O.P. the petitioners therein filed I.A.No.89/2007 and 665/2008 and 763/2008. The Tribunal vide order dt.3-11-2008 dismissed the said I.A.No.89/2007 and I.A.No.665/2008 in O.P.No.16/2007. The petitioner’s therein questioned the said order dt.3-11-2008 made in I.A.No.89/2007 and

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I.A.No.665/2008 in O.P.No.16/2007 before this Court and the same was numbered as W.P.No.26835/2008. This Court declined to interfere with the order dt.3-11-2008 made by the Tribunal at the admission stage itself. This Court accordingly disposed of the said W.P.No.26835/2008 vide order dt.12-12-2008 without interfering with the orders made by the Tribunal. The said petitioner therein got filed the present petition by catching up a past member having failed in their attempt to interfere with the affairs of the respondent Society. In this view, the main petition as well as the Interlocutory Applications lack bonafides, apart from the same, it is a clear instance of abuse of process of law. Therefore the same are liable to be dismissed. 61. It is also further averred that the very proceedings in the O.P. reflects that fully aware of circulars dt.10-3-2003, 11-3-2003, 11-3-2003 and 24-5-2004. Inspite of being aware of the same and inspite of being aware that the construction of houses commenced during November, 2005, the petitioner had not raised any objection at any point of time. In fact many of the employees were not interested to become members during the year 2002-2003 on the ground that the location of the land was not in a prime area. It is only after raise in prices of land during 2005-06 and thereafter suddenly ever one become interested and by the said time members were already admitted and only small quantity of land was available and it was decided to construct multistories complex to cater to the need of more number of employees. In the instant case, the petitioner having joined Society as a member as per circular dt.10-3-2003 and having withdrawn from the membership on his own accord approached the Tribunal with malafide intention and with oblique motive without giving any reasons for abnormal delay in approaching to the Tribunal. Further there is no whisper in pleadings that the petitioner had made

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any attempt to resolve his alleged grievances by taking up the issue with the respondent Society or any other authority. The same demonstrates lack of bonafides and merit in the claim of the petitioner. 62. Further it is stated that the members of the respondent Society applied for loan individually from HDFC Bank by entering into individual loan agreements. The total cost of the project for construction and development originally planned was Rs.21,48,22,500/-, the construction of the houses was given to a construction company by7 name M/s.Miranda Homes Pvt.Ltd. In between for some time the Contractor stopped the work on the ground that there is a steep increase in the cost of various material as such sought increase in payment. The said issue was subsequently resolved and the Contractor resumed the work and promised to complete the work by about December, 2008. The total cost of project got excalated to Rs.31,20,60,000/-. The total amount paid to the Contractor as on today is about Rs.18,61,00,000/- which works out to about 55 to 60% of the cost of the project. The entire project i.e., construction and development is almost coming to an end within a short period of 3 to 4 months and the members had already incurred huge expenditure. The deductions are being made from the salaries of the members by the Management towards the discharge of loan amount received from HDFC Bank. In fact some of the members of the respondent Society are retired, some of them are reaching to the age of retirement in short period and some of them are likely to be retired within a period of 2 to 3 years. The petitioners are fully aware of the aforesaid facts and circumstances and it is not that suddenly every thing materialized in the year 2008 when the petitioner filed the main O.P. Therefore, absolutely there is no merit in the present petition filed seeking injunction against the respondent Society from constructing

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the houses. This is nothing but trying to bring undue pressure on the respondent Society to cause frustration and harassment to the members of the Society.

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63. It is further specifically averred that during the pendency of the matter, the 1^st respondent allotted houses by drawing lottery on 5-42009. The allotment letters were issued on 9-4-2009 consequent to the same, the physical possession was also delivered to members who complied with the stipulations specified by the 1^st respondent vide letter dt.20-8-2009. In all 210 members received possession of the houses. The remaining members are likely to receive possession in about 2 to 3 weeks time. Some of the individuals also applied for power connection to their invidiaul houses.

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64. Further it is averred that the houses are being constructed by the members of the respondent by receiving the loans individually from the HDFC Bank. The Society only carrying out the liaison work by locating a suitable contractor and overseeing the construction work. If any injunction has to sought to stop the construction, it can be sought against the individual members and not against the respondent Society. The petitioners have not made the members who have received the loans for constructing the houses as parties to this petition, as it is their interest which will be effected adversely by grant of injunction prayed by the petitioner. In this view the present petition is totally misconceived and not maintainable and the same is liable to be dismissed.

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65. It is also stated that the petitioner had not stated even remotely as to how he is affected by the said construction. In fact, the petitioner is no way affected by the construction of the houses by the members of the Society. The petitioner had not made out any prima-facie case nor balance of convenience is in their favour nor any damage much less

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an irreparable damage is being suffered by the petitioner.

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66. Further it is stated that the Tribunal after duly considering the entire material available on record and after applying its mind to the facts of the case, made the order impugned in the Writ Petition. The said order made by the Tribunal is legal, valid, bonafide and justified and the same warrants no interference.

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67. Further it is averred that it is not true and correct to say that the 1^st respondent Society Management Committee indulged in illegal activities acting as real estate brokers against the interest of the Society violating the bye-laws and guidelines of the 5^th respondent ignoring the due process of law thereby object of the Society for which it was established is defeated and the said allegation is hereby denied. Equally it is not true and correct to say that the 1^st respondent Society gave membership to ineligible persons by taking illegal pecuniary gains for personal benefits and selfish motives and the said allegation is hereby denied. The allegation that the petitioner and other genuine employees of BDL, Bhanur, deprived of their legitimate right to have own house is totally incorrect, false, misleading as such the same is hereby denied. On the other hand, the petitioner having had become member by duly remitting a sum of Rs.32,020/- i.e., Rs.50/- towards admission fee, Rs.2,000/- towards share capital and Rs.30,000/- towards land cost and development charges had sold away the same to a co-employee Mr.Maheswar and thereby derived profit from the same. The petitioner accordingly ceased to be a member of the 1^st respondent Society. The petitioner thus having derived profit by becoming member of the petitioner Society and thereafter ceased to member of the Society is raising various false and baseless allegations at the behest of others who are not the members

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of the 1^st respondent Society. The same, therefore, reflects and demonstrates the character and conduct of the petitioner and the petitioner does not deserve any indulgence nor equities from this Court. It is not true and correct to say that the acts of the 1^st respondent Society are illegal, arbitrary, malafide and against the aims and norms of the Enactment of APMACS Act and the said allegation is hereby denied.

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68. It is further stated that the Society which was founded earlir to the formation of 1^st respondent Society had no connection with that of the 1^st respondent Society. The allegation that after registration of the 1^st respondent Society no separate membership drive was conducted is totally incorrect and the same is hereby denied. Equally it is not true and correct to say that the Board of Directors of the 1^st respondent Society categorically stated that all the 934 members who paid Rs.500/- to the earlier Society shall be the members of the 1^st respondent Society and the said allegations are hereby denied. On the other hand, as stated above, bye-law No.3.1 of the 1^st respondent Society deals with membership and to become a member, an employee has to pay Rs.20/- towards entrance fee and he must obtain at least one share of Rs.2,000/- and must have paid the cost for land and development charges. In fact the petitioner complied with the said conditions prescribed by bye-law No.3.1 while becoming member and subsequently relinquished his membership and thereby ceased to be member of the 1^st respondent Society as early as 18-11-2004. Therefore the contrary allegations raised in this regard are hereby denied. The respondent Society had shown all the names of the 934 employees to show that there are adequate number of employees who are interested in securing own house so as to impress upon the

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authorities to allot sufficient land to meet the requirement of the Society. The 1^st respondent Society further keeping in view the interest shown by the 934 employees earlier to the formation of the 1^st respondent, had also offered membership to said 934 employees and who ever paid entrance fee, share capital amount, land cost and development charges from amongst the said 934 employees were alone admitted as members. Therefore, there is no merit in the contrary allegation made by the petitioner and the same are hereby denied.

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69. It is also stated that the reference made to Section 6 of the APMACS Act has no bearing to the facts and circumstances of the present case. It is further stated that it is not true and correct to say that 934 members who paid money to earlier Society are deemed to be the members of the 1^st respondent Society and the said allegations are hereby denied. As stated above, as the earlier Society failed in their effort to get the land allotted in favour of the Society, some of the individuals received back the amount of Rs.500/- paid by them and some of them have became members of the 1^st respondent Society. Therefore all the 934 individuals who paid amount of Rs.500/- to the earlier Society cannot claim any continuity in the respondent Society. Both the societies are independent and separate entities. 70. It is further stated that Rs.32,020/- comprises of Rs.20/- towards admission fee, Rs.2000/- cost of one share and Rs.30,000/- towards the land cost and development charges. The same was duly clarified vide circular dated 11-3-2003. In any case, the petitioner paid the said sum and received a certificate to the effect that he became member of the 1^st respondent Society. Therefore the contrary allegations made in regard are only after thought solely made at the behest of some third

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parties.

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71. It is also stated that except the Society Office bearers and other members have no knowledge with regard to bye-law of the 1^st respondent which prescribed membership fee amount of Rs.2020/- till 2007 until some employees filed cases before the Tribunal is totally false and incorrect. The bye-laws are in existence ever since the formation of the 1^st respondent Society and the petitioner cannot claim ignorance inspite of being member of the 1^st respondent Society for some period. It is not true and correct to say that 934 employees who joined earlier Society are being considered as members of the 1^st respondent Society and the said allegation is hereby denied.

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72. Further it is averred that the 1^st respondent Society gave instructions to Andhra Bank, Bhanur branch to receive deposit amounts only from 450 employees. But, the Bank received the deposit amount from 541 employees and out of the said 541 employees, 185 employees’ applications were rejected and 37 employees have withdrawn their applications voluntarily. The allegations that the Office bearers gave an undertaking that existing members would be adjusted in the left over plots by initiating allotment process afresh and in view of the same, the members who paid Rs.500/- to the earlier Society kept quite etc., is totally false and incorrect. The said allegation is made only for the first time solely as an afterthought.

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73. It is also averred that the allegation by not receiving number of deposits from higher number of employees, the Office bearers played fraud is totally incorrect, misleading and the same is hereby denied. The 1^st respondent Society came to a conclusion that it can serve only 450 members depending upon the quantum of land allotted to it by the Government. Therefore, the 1^st respondent Society had decided to

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have only 450 members to whom it can render service. Therefore the question of there being any fraud being played by the Office bearers’ does not arise. The other contentions raised in this regard are liable to be rejected.

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74. Further it is also stated that the petitioner refers to an alleged report dt.9-7-203 and to have been prepared by the Secretary of the 1^st respondent Society and also contended that the said alleged report was not circulated and was kept with him only. The petitioner while stating so however refers to some points of the said alleged report. It is well established principles that if any document is prepared and if it is not circulated or if it is not forwarded to the addressee, to whom the same was to be communicated, such document cannot have any value until the same is circulated or communicated. Therefore, the reference made to the same which is snot communicated and circulated can have no bearing or any relevance.

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75. It is also stated that though the 1^st respondent Society issued circular dt.11-1-2006 to admit members, no employee was admitted as member in pursuance of the said circular. The District Collector categorically stated that 212 employees are eligible to become members and that 1^st respondent can give an originally in accordance with the bye-laws of the Society to become members.

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76. It is further stated that it is not true and correct to say that 1^st respondent Society gave membership to ineligible members and transferred membership and given membership to the employees who have enrolled themselves in another Society etc., and the said allegations are hereby denied. The respondent Society imposed the condition on all the members that they should submit an affidavit that they are not the members of any Society and subject to the same, an employee was admitted as a member.

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77. It is also stated that the allegations made by the petitioner that due to the pressure brought on him by the Secretary, he signed on some blank papers and the same were used to transfer his plot and membership to a third party for huge amounts for his personal gains by the Secretary and he did not realise the fraud of the Secretary etc., are totally incorrect and the same are raised for the first time even though the transfer took place in July, 2004.

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78. Further it is averred that it is not rue and correct to say that the cancellation letter dt.18-1-2004 was prepared after filing the O.P.No.97/2008 and the same was not communicated to the petitioner and the said allegation is hereby denied. The petitioner is raising the contentions with regard to the alleged fraud, force and coercion brought on him for executing sale agreement dt.26-7-2004 for the purpose of filing this case and the said contentions raised by him after long lapse of time, that too after receiving the money under the said agreement itself shows that those contentions are devoid of merit. 79. It is also averred that each and every employee to whom membership was given was allotted with plot, however, the plot allotted to the members was not identified nor the plot were numbered and number wise allotment was not made. The petitioner withdrew from the membership. Therefore the allegation that no plot was allotted to him and therefore bye-law No.4.2 will not be applicable to the petitioner’s case is totally incorrect.

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80. Further it is stated that it is not true and correct to say that the removal of the petitioner from the membership is highly illegal, arbitrary and against bye-law of the Society and violative of Article 14, 16 and 21 of the Constitution of India and principles of natural justice and the said allegation is hereby denied. Equally it is not true and correct to say that the petitioner approached the respondent number of times,

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third respondent assured to settle the dispute amicably and advised the petitioner not to take coercive steps etc., are totally incorrect. The allegation that the Secretary of the 1^st respondent Society refused to meet the petitioner is also totally incorrect and the same is hereby denied.

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81. Ample material had been placed before this Court and elaborate submissions had been made by both Sri Roopender, the leaned Counsel representing the writ petitioner and also Sri Nageswar Sree, the learned Counsel representing the contesting respondents. 82. As can be seen from the common Order which is under challenge, the Tribunal after recording the respective stands taken by the parties formulated the following points for determination at para 9 as hereunder:-

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1) Whether allotment of the plots/houses by the 1^st respondent Society can be stayed?

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2) Whether the 1^st respondent Society can be restrained in construction of the houses in favour of the staff referred in the petition?

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3) To what relief?

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83. The Tribunal answered the points and ultimately came to the conclusion that there are no merits in these applications and the applications were dismissed without costs. Exs.P.1 to P.37 and Exs.R.1 to R.36 also had been relied on. It is no doubt true that voluminous material had been placed before the Tribunal and the Tribunal also recorded certain reasons. The main ground of attack is that several of these respondents are ineligible members and allotments cannot be made at all in their favour. Certain averments were made in this regard. There is no proper explanation by the contesting respondents and on the contrary the contesting respondents are taking a stand that since the petitioner had transferred

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the membership, the petitioner has no locus standi. No doubt, certain decisions had been relied upon and Section 37 of the A.P. Mutually Aided Co-operative Societies Act also had been relied on.

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84. As can be seen from the interim order made by this Court in W.P.No.4361/2009 in W.P.M.P.No.5720/2009 on 13-3-2009 it was specified “any further steps taken by the respondents shall be subject to the result of the Writ Petition”. It appears, subsequent thereto, certain steps had been taken. In the light of the factual controversy, especially in the light of the stand taken in para 15 of the counter affidavit relating to the subsequent events, without acceptable material before this Court, it may not be possible to record appropriate findings relating to the under-noted aspects:-

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1) Whether actual allotments in fact had been completed and whether actually constructions of all the houses also had been completed?

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2) Whether in fact such allottees already had occupied their respective allotments.

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85. No doubt, Sri Roopender also made a request that it may be appropriate to appoint a Commissioner even to inspect since the construction is under progress, since a false stand had been taken by the contesting respondents in these Writ Petitions. In the light of these factual controversies between the parties, liberty is given to the petitioner to move appropriate applications in this regard also before the Tribunal. It is also made clear that all the subsequent steps taken and the illegality or otherwise of those steps may also have to be decided while deciding the main O.P.

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86. In view of the urgency pleaded, let the Tribunal dispose of the O.P. itself within a period of eight weeks from the date of receipt of this order.

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87. Accordingly, the Writ Petitions are disposed of. No order as to costs.

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________________________ Justice P.S.Narayana 9^th December, 2009 smr

M.Anjaiah v. B.D.L. Employees Mutually Aided Co.op. Housing

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M.Anjaiah v. B.D.L. Employees Mutually Aided Co.op. Housing

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