Velagacharla Jayaram Reddy & Ors. vs M.Venkata Ramana & Ors. etc.

2.1 In the instant case, at this stage before this Court, certain parties have been deleted and the appellant who was a former President of the Society is alone prosecuting these appeals. However, what will have to be noted is the frame of the dispute, the parties to the dispute at the point in time when it was raised and the context in which it was done. Defendant No.2, a member of the society who was allotted a plot in another layout formed by the N.G.O. Society, sought for an exchange of the plot. Accordingly, the earlier allotted plot was surrendered to the Society by the defendant No.2. In lieu thereof, the Society allotted the plot measuring 3.25 cents to defendant No.2 and a sale deed dated 07.04.2000 was also executed and registered. Former office bearers of the Society who were members of the N.G.O society, were amongst the plaintiffs. Jayanagar Housing Welfare Society was a society in the larger layout plan and therefore seeking to sustain the facilities available in the layout by contending that the plot allotted to the defendant No.2 was a vacant area reserved as parking area. Plaintiffs No.4 and 5 were however not the members of the Society but were purchasers of commercial plots bearing No. 27, 35, 36 and had constructed shops thereon. The plot allotted to the defendant No.2 is located in front of the shops belonging to the plaintiffs No.4 and 5 in plots No.27, 35 and 36. Though they contend that it is a vacant plot retained in the layout as parking area and are seeking to espouse a cause, their conduct needs to be noted. They had earlier requested the NGO Society to allot the plot in their favour but are presently aggrieved when it is allotted to another claimant. Plaintiffs No.4 and 5 however seek to explain their conduct by stating that they had sought to purchase the plot and retain it as a parking area. Such an explanation cannot be accepted on face value. If in fact a plot was earmarked in the layout plan as a parking area, it is the bounden duty of the authorities concerned to maintain the same as such. It is difficult to fathom that a private individual who owns shop premises in the layout would invest money and purchase the vacant plot to retain it as a parking area for the benefit of the general public. If that be so, plaintiffs No.4 and 5 apart from being non-members who could not have invoked the provisions of the APCS Act, were also rival claimants and competitors for allotment of the same plot which is the subject matter of dispute. The members i.e. former office bearers had made a common case with the non-members who were otherwise interested in allotment of the same plot. In furtherance of the same, the plaintiffs had sought for a declaratory relief to declare the registered sale deed dated 07.04.2000 as null and void. Hence, keeping in perspective the subject matter, the relief sought and the parties involved, the High Court was justified in its conclusion. [Paras 9, 10][1029B-H; 1030-A-B]

2.2 Whether it was before the authorities under the A.P.C.S Act or if the parties were relegated to the jurisdictional Court under the Civil Procedure Code, grant of relief would have arisen only if there was definite material to indicate that the plot in question was reserved as a parking area in the layout plan and that the same therefore being a civic amenity area, had on formation of the layout, vested in the Municipal Corporation along with the roads, drains and open areas for the purpose of retaining it as such and maintaining the same. There is no such document on record. Secondly, the person seeking relief from the Court should approach the Court with clean hands. In the instant case, plaintiffs No.4 and 5 had made attempts to secure allotment of the same plot allotted to the defendant No.2, in their favour though presently, it is sought to be explained that it was to be retained for parking, which is an explanation which cannot be accepted. Therefore, the challenge by the said plaintiffs to the allotment made in favour of the defendant and the same cause being supported by the other plaintiffs, cannot be considered to be bonafide. That apart, as noted, there is no definite material to delineate from the layout plan that it was a parking area. As per the case set up and also the finding recorded by the original authority, the plot has been shown as commercial plot/vacant plot. Keeping in view the location of the property owned by the plaintiffs No.4 and 5, the original authority had deemed it fit to keep the disputed plot vacant for being maintained as a parking area which is only an assumption based on the own analogy of the Divisional Co-operative Officer and amounts to modifying the approved layout plan. [Paras 11, 12][1030-C-G]

2.3 Notwithstanding the analogy based on an assumption which is unsustainable, in order to render a quietus to the issue, this Court through the order dated 29.10.2021, had sought for a report from the District Judge, Kadapa on the whole conspectus of the matter. An exhaustive Report dated 06.11.2021 has been submitted on all aspects of the matter which has been carefully perused. The said Report nowhere indicates that the plot in question was reserved or earmarked as a parking area. On the other hand, it has been referred to as the area earmarked for commercial purpose. It is stated that as per the given layout plan it is in one of the commercial areas out of three slots allotted for commercial purpose. Hence, the said report coupled with the discussion by the Divisional Co-operative Officer, will disclose that it was not earmarked as a parking area in the layout plan but was only deduced so by the Divisional Co-operative Officer in the course of his discussion in the award. [Para 13][1033-C-E]

2.4 Insofar as the allotment of the plot made to the defendant No.2 is concerned, the District Judge has noted that the defendant No.2 was a member of the Society and Rule 42 relating to the allotment procedure has been noted in detail. The procedure followed in that regard by seeking permission from the Divisional Co-operative Officer vide letter dated 07.05.1999 and the permission accorded to proceed in terms of Rule 42 (4) of the Society Rules is referred. Pursuant to the same, the Board of Directors held a meeting on 06.04.2000, wherein allotment was made by passing a resolution to that effect. The decision to allot was made after cancelling the allotment of plot No.3354 which had been made earlier in favour of the defendant. Since Rule 42

(4) required that Board Resolution be approved by General Body and the resolutions for the years 1995-2000 were not traced, it has been commented in the Report that the Board resolution is without authorisation. Non-availability of the General Body resolution at this juncture, as observed by the District Judge, cannot be held to be fatal in the facts and circumstances of this case. That is for the reason that the competent authority in appropriate proceedings has not referred to this aspect. The undisputed position is also that the defendant No.2 (respondent herein) is a member of the Society and being entitled to allotment of a plot, had earlier been allotted plot No-3354 at another location. It is on surrender of that plot that the present allotment was made in his favour, though the plot is of a slightly bigger dimension. The order of the Divisional Co-operative Officer indicates that the price for allotment was fixed keeping in view the market value. The allotment being of the year 2000, construction has also been raised. More than two decades have elapsed by now. Any intervention or action at this juncture will not be justified. [Paras 14, 15][1033-F-H; 1034-A-C]