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Supreme Court on Housing Cooperatives
The Apex Court has delivered several judgements on various disputes connected with the working of housing cooperatives. These decisions have direct bearing on the working of housing cooperatives and also shaping the future enactments in the country. Some of the important judgements of the Supreme Court are referred below for the benefit of the readers:
  1. The Supreme Court after considering the various provisions of West Bengal Cooperative Societies Act, held that the appellant being one of the legal heirs of the deceased member of the society was entitled to succeed to the estate of the deceased member of the society and the right title and interest of the deceased member of the society in the apartment of the society devolved upon his heir subject to recovery of full cost. (Gayatri De Vs. Mousumi Cooperative Housing Society Ltd., and others - Civil Appeal No.3523 of 1998 decided on 16th April, 2004).
  2. in Hindu Law, a Father has no power to gift the ancestral immovable or coparcenary property. He can, however, make a gift within reasonable limits of ancestral immovable property for pious purpose. (R. Kuppayee & Anr. Vs. Raja Gounder – Civil Appeal No.16757 of 1996 decided on 10th December, 2003).
  3. A member of a housing cooperative constituted under Maharashtra Cooperative Societies Act, 1960, who has made the payment earlier in time is entitled to preference in allotment of tenement over the other members who made the payment subsequently. (Narayan Dadu Narayankar Vs Chandabai B. Sonawane and Others – Civil Appeal No.1491 of 1993 decided on 3rd October, 2002).
  4. Under Gujarat Cooperative Societies Act, 1961, an unregistered society cannot maintain the suit for specific performance of agreement to lease and is not competent to acquire, hold and dispose of property in absence of such registration. (Maneklal Mansukhbhai Cooperative Housing Society Ltd. Vs. Rajendra Kumar Maneklal Shah & Anr. - Civil Appeal No. 4398 of 1997 with C. A. No. 1362 of 1980 decided on 1st August, 2001).
  5. The activity relating to the services rendered by the employees of the housing society for cleanliness and other services cannot be the activity that would be ‘industry’ and ‘employees’ workmen within the meaning of Industrial Disputes Act. It was held that such activity can not be treated as industry within the meaning of the Industrial Disputes Act. (Management of Som Vihar Apartment Owners Housing maintenance society ltd. Vs. Workmen, C/o.Indian Engg.& Genl. Mazdoor - Civil Appeal No. 6565 of 1997 decided on 22nd February, 2001).
  6. The bye-laws of a cooperative housing society registered under the Gujarat Cooperative Societies Act, 1961, restricting membership to members of one community was legal when the Act or Rules do not prohibit it. (Zoroastrian Cooperative Housing Society Ltd. Vs. District Registrar of Cooperative Societies and others – AIR 2005 SC 2306).
  7. A cooperative housing society constituted under West Bengal Cooperative Societies Act, cannot cancel the membership of any of its members and admit another member on the very next day, without following the statutory provisions. (Subrata Mukherjee Vs. Uttara Cooperative Housing Society & Others - Civil Appeal No.11525 of 1995 decided on 20th September, 2000).
  8. under the provisions of Chandigarh Housing Board Regulations, 1979, the wife of an allottee of commercial-cum-residential plot who has carried out the construction, is not eligible for allotment of another residential plot on the plea that neither she nor her husband nor any of her dependent relations owned residential plot or house in the Union Territory of Chandigarh. (Chandigarh Housing Board & Anr. Vs. Narinder Kaur Makol - Civil Appeal No. 3728 of 2000 decided on 13th July, 2000).
  9. A temporarily appointed Accounts Assistant in Assam State Housing, called for interview for a regular post, if not selected, cannot challenge the selection of other candidates on the ground that no written test was held as decided earlier by the employer in their internal record before starting recruitment. (Assam State Housing and Anr. Vs. Purna Chandra Bora & Anr. Civil Appeal No. 783 of 1991 decided on 23rd April, 1999).
  10. “Seniority cum payment” should be the criteria for allotment of flats by a cooperative housing society registered under the Delhi Cooperative Societies Act, 1972 to its members and not “seniority” irrespective of default in payment of dues. (Myurdhwaj Cooperative Group Housing Society Limited. Vs. Delhi Cooperative Tribunal and Others (Mrs. Veena Kumar Respondent No.3) - Civil Appeal No. 16790 of 1996 decided on 14th July, 1998).
  11. The settlement of claims by a cooperative society alongwith its members for ejectment of licensee upon rejection of his license is covered within “Dispute touching upon business of a cooperative society” under Section 91 of Maharashtra Cooperative Societies Act, 1960. (M/s.Electrical Cable Development Association Vs. Arun Commercial Premises Cooperative Housing Society Ltd – Civil Appeal No.4260 of 1992 decided on 6th May, 1998).
  12. An individual is not entitled to get the allotment of a second plot or 2nd house if he or any of the members of his family is in possession of a plot or house within the Municipal limits. (Bihar State Housing Board and others Vs. Satya Narayan Prasad (Dead) by LRs and others - Civil Appeal No.395 of 1987 decided on 28th January, 1998).
  13. A member having incurred disqualification by joining another cooperative society of the same class under Delhi Cooperative Societies Act ceases to be a member of either of the two societies. (Jagdish Singh Vs. Lt. Governor, Delhi and others (Dronacharya Cooperative Group Housing Society and Tribal Cooperative Housing Society) - Civil Appeal No.1866 of 1997 (Arising out of S.L.P.(C) No.12624 of 1996) decided on 11th March, 1997).
  14. in view of a valid nomination made by allottee of a flat of a cooperative housing society under the provisions of West Bengal Cooperative Societies Act, the nominee is entitled to get the possession of the flat, but the dispute as to the title of the flat if any, has to be decided by the appropriate forum. (Usha Ranjan Bhattacharjee and others Vs. Abinash Chandra Chakraborty and others (Manicktala Cooperative Housing Society Limited, Calcutta) - Civil Appeal No.1983 of 1977 arising out of S.L.P. No.5918 of 1996 decided on 11th March, 1997).
  15. the action of the State Government of Maharashtra in allotting a plot to the society was arbitrary when there was neither any lay-out of the area nor was there anything on record to show that a plot for allotment was available. (Angarki Cooperative Housing Society Ltd. Vs. State of Maharashtra and others - Civil Appeal Nos.16942 and 16943 of 1996 decided on 31st December, 1996).
  16. the list of members of housing cooperative society registered under Delhi Cooperative Societies Act, 1972 as prepared by an Administrator appointed by the High Court in the event of continuous disputes and infighting in the society should be treated as final for allotment of plots by the society. In case number of claimant members exceed the number of plots available, all the members as per the final list should be provided with a plot each by carving out fresh plots (of smaller size) equal to the total number of members, out of land actually allotted. The fresh plots must conform to the category in which each member is placed. (Lt.Col.Surinder Kumar Dutt and Others Vs. Shakti Cooperative House Building Society Ltd., and Others, Delhi - Civil Appeal No.430 of 1993 decided on 3rd February, 1993).
  17. in the case of Delhi Cooperative Societies Act, 1972, it was decided that the criteria for allotment of land to the societies should be “First come-First Served” with the date of registration of the societies with the Registrar of Cooperative Societies. The affected persons and group housing societies were entitled to ‘legitimate expectations’. (Navjyothi Cooperative Group Housing Society etc. Vs. Union of India & Others - special leave petition (civil) no. 10857 of 1991 (with Writ Petition Nos.665/91 and 667/91 decided on 17th September, 1992).
  18. In respect of allotment of plots in the area other than identified earlier, members of the cooperative housing society are entitled for interest on their deposits from NOIDA through their cooperative housing society. (U.P. Residents Employees Cooperative House Building Society and Ors. etc. Vs. The New Okhla Industrial Development Authority and Anr. etc. - Contempt petition no. 259 of 1991 with 1.a.nos. 3, 6, 7, 10 and 12 with contempt petition no. 246 of 1991 (in Civil Appeal No.5502 of 1983) decided on 15th January, 1992).
  19. The powers exercised by the Registrar under the Bihar Cooperative Societies Act to remove the injustice caused to the members in a just and reasonable manner, cannot be termed as colourable exercise of power. (Kuver Nath Lal Vs. Postal Cooperative House Construction Society Limited and Others, Patna - Civil Appeal No.1104 of 1978, decided on 30th July, 1991).
  20. The action of the Bombay Municipal Corporation in demolition of unlawful construction of upper eight floors of the building constructed in violation of upper development limit as permissible under “Floor Space Index” was in order and within their jurisdiction. (Pratibha Cooperative Housing Society Limited and another Vs. State of Maharashtra and others - special leave petition (civil) no. 5383 of 1990 decided on 9th May, 1991).
  21. Decided that the Bombay cooperative court has jurisdiction to decide the dispute of illegal occupation of a flat by non-member through a member of the society in case the illegal occupant refuses to vacate the plot. (Sardar Mohan Singh Ahluwalia of Bombay Vs. Maitrai Park Cooperative Housing Society Limited & Other, Bombay -Civil appeal no. 1399 of 1986 decided on 19th September, 1988).
  22. In case non-recovery of loans advanced to members, the Government has first to proceed against the property mortgaged and sell the property. Only in case the entire amount could not be realized then the Government could proceed against the borrower personally. (State of Punjab and others Vs. S.Dharam Singh (Dead) by Successor Desa Singh and another - civil appeal no. 625 of 1972 decided on 29th august, 1985).
  23. In the matter whether a decree can be corrected by the Court in exercise of its powers under Section 152 as well as under Section 151 of the Code of Civil Procedure, the Supreme Court allowed the amendments in the decree stating that the Court has the power to do so under Section 152 read with Section 151 of Civil Procedure Code and it would not amount to going beyond the decree. (Niyamat Ali Molla Vs. Sonargon Housing Cooperative Society Ltd. & Ors. - Civil Appeal No.4876 (arising out of SLP (C) No.10373 of 2006) decided on 12th October, 2007).
  24. On the issue of whether the consumer would br entitled for compensation for delayed of residential flats by the development authority, the Supreme Court found that there was no deficiency in service on the part of the development authority entitling consumer for any compensation by way of interest or otherwise keeping in view the manifold increase in the value of flats (houses were delivered in 1997 at a price agreed in 1986) as well as the fact that the development authority was not negligent. The Apex Court set aside th eorder of the National Consumer Disputes Redressal Commission (awarding interest @ 18% p.a.) and directed the development authority to complete the process of execution and registration of sale deed in respect of the concerned flats without any extra cost. (Bangalore Development Authority Vs. Syndicate Bank - Civil Appeal No.5462 of 2002 decided on 17th May, 2007).
  25. The cooperative housing society which was offered to purchase 100 flats as per the scheme introduced by the authority for bulk purchase of flats constructed by the Maharashtra Housing and Area Development Authority would be entitled to allotment of these flats in favour of the society under the said scheme. (Powai Plant Cooperative Housing Society (proposed) Vs. Pooja Estate Consultant & Construction and others – Civil Appeal No.2506 of 2007 (Arising out of SLP(C) No.15495-96 of 2005) with Maharashtra Housing and Area Development Authority and Another Vs. Pooja Estate Consultant & Construction and Others – Civil Appeal No.2507 of 2007. (Arising out of SLP(C) No.19846-847 of 2005) decided on 14th May, 2007).
  26. The cooperative banks established under the Maharashtra Cooperative Societies Act, 1960, A.P.Cooperative Societies Act, 1964 and Multi-State Cooperative Societies Act, 2002 transacting the business of banking do not fall within the meaning of “Banking Company” as defined in Section 5(c) of the Banking Regulations Act, 1949. Therefore, the provisions of Recovery of Debts Due to banks and Financial Institutions Act, 1993 by invoking the doctrine of incorporation are not applicable to the recovery of dues by the cooperative banks from their members. Cooperative Banks constituted under the Cooperative Societies Act enacted by the respective States would thus be justified in enforcing the machinery for recovery of debts from its members under the provisions of such Cooperative Societies Acts of various States. (Greater Bombay Cooperative Bank Ltd. Vs. M/s.United Yarn Tex. Pvt. Ltd. & Others – Civil Appeal No.432 of 2004 with C.A. Nos. 433/2004, C.A. No. 434/2004, C.A.No. 436/2004, SLP(C) Nos. 15651-15652/2005, SLP(C) No. 5592/2004, SLP(C) 5598/2004, SLP(C) No. 5890/2004, C.A. No. 36/2006, C.A. No. 37/2006, C.A.No.38/2006, C.A. No. 916/2006, C.A.No.2819/2006, C.A. No. 2820/2006, C.A. No. 2821/2006, C.A.No.2822/2006 and SLP(C) Nos.25246-25247/2005, C.A.No. 6069/2005, C.A.No.6077/2005 and SLP(Crl.) No.2071/2006-Not on board) decided on 4th April, 2007.
  27. A member of an Army Welfare Housing Organisation, a society registered under the Societies Registration Act, 1860 is entitled for an allotment of a dwelling unit by Housing Board in Chandigarh on the ground that Army Welfare Housing Organisation is NOT a Government or Semi-Government Organisation or Municipal Corporation or Improvement Trust. Acquisition of any property through any other source or through any other agency is NOT prohibited (Chandigarh Housing Board Vs. Major Gen.Devender Singh (Retd.) & Anr. – Civil Appeal No.7171 of 2000 decided on 14th March, 2007).
  28. Since the notice under Sub-Section (5) of Section 17 of the Bangalore Development Authority Act (12 of 1976) relating to acquisition of land was NOT served upon the Plaintiff, its effect could only be examined in a Writ Petition filed under Article 226 of the Constitution before the High Court and not by the Civil Court (Commissioner, Bangalore Development Authority Vs. K.S. Narayan – Civil Appeal Nos.8307 of 2002 with 8310, 8308, 8315, 8311, 8312, 8314, 8313 and 8309 of 2002 decided on 11th October, 2006).
  29. The application for renewal of licence for private markets has to be filed within the stipulated period. The question of renewal of licence retrospectively after the expiry of the period during which the society had un-authorisedly carried on activities is not contemplated in law. (Corporation of Kochi Vs. Elamkulam Village Cooperative Society Ltd. and Anr. – Civil Appeal Nos. 4982 and 4983 and 3212 of 2006 decided on 29th August, 2006).
  30. The Kangra Central Cooperative Bank constituted under Himachal Pradesh State Cooperative Societies Act, 1968 IS NOT a “State” within the meaning of Article 12 of the Constitution of India. Therefore, no writ will lie against any order passed by the Bank. The Bank was thus made NOT amendable to the writ jurisdiction of the High Court. (S.S.Rana Vs. Registrar of Cooperative Societies & Anr. – Civil Appeal No.6052 of 2004 decided on 25th April, 2006).
  31. Though the High Court has jurisdiction to try issue both of facts and law under Article 226 of the Constitution, when the petition raised complex/disputed questions of facts requiring investigation by adducing evidences, the High Court should ordinarily deny to entertain such question based on disputed facts. Ultimately, such question is one of discretion which is to be exercised by the High Court in conformity with the above judicial principle. (New Okhla Industrial Development Authority Vs. Kendriya Karamchari Sahakari Grih Nirman Samiti – Civil Appeal No. 1569 of 2004 – From the final judgement and order dated 5th August, 2003 of the High Court of Judicature at Allahabad in CMWP No.39842/2001 decided on 24th April, 2006).

  32. Such Power has been specially conferred by the rule making authority on the specified society to change the name of its delegate and to intimate the said change to the Collector. The Word ‘MAJORITY’ in the bye-laws of the society does not mean 51% or more votes but it only means that a member must obtain majority votes and when out of 14 members present in the meeting, 12 participated in voting and 7 voted in favour of the appellant and 5 in favour of another person, it can not be held that the appellant did not get majority as he got only 7 and not 8 votes. (Pundlik Vs. State of Maharashtra and Ors. - Civil Appeal No.5290 of 2005 decided on 25th August, 2005).

  33. A Writ petition can be maintainable only if it is established that the mandatory provision of the statute is validated. The society is not a department of the State nor is a creation of the Statute but is merely governed by the statute. Therefore, the dispute of the rival group regarding their claim in relation to parking space would NOT be the subject matter of the Writ Petition under Article 226 of the Constitution. (Supriyo Basu and Ors. Vs. West Bengal Housing Board and Ors - Civil Appeal No. 1766 of 2002 decided on 5th August, 2005).

  34. The interim injunction at the initial stage of the project would result in total collapse of the entire project which will also affect the contributions made by other co-purchasers. Accordingly, keeping in mind the rate of inflation, escalation of the prices of inputs, construction materials and labour charges, the Court should be slow in issuing interim injunction relating to the schemes which are based on costing. (M.P. Housing Board Vs. Anil Khiwani – Civil Appeal No.1731 of 2005 decided on 14th March, 2005).

  35. The discretion vests with the Central Registrar to condone the delay in challenging the election and once the discretion has been exercised fairly and if such decision does not suffer from any patent or flagrant error, the High Court could NOT be justified in interfering with the exercise of discretion by the Central Registrar (N.Balaji Vs. Virendra Singh & Ors. - Civil Appeal No.6522 of 2004 from judgement and order dated 19th December, 2003 of Delhi High Court in CWP No.3706 of 2003 decided on 5th October, 2004).

  36. There was no infringement of fundamental right. The facts in each case has to be investigated and the terms of the contract has to be determined on the evidence and thus the Writ Petition under Article 32 is NOT an appropriate remedy for resolving the contractual dispute (Defence Enclave Residents Society Vs. State of UP and Ors. - Writ Petition (C) No.344 of 2000 etc. with Writ Petition (C) Nos. 185/2001, 349/2002 and 303 of 2003 decided on 20th September, 2004).

  37. The action of the Special Land Acquisition Officer in not excluding similarly situated land from the acquisition in the notification was discriminatory and thus hit by Article 14 of the Constitution of India. The High Court was justified in quashing the whole proceedings including the Notification under Section 4(1) of Land Acquisition Act, 1894.(BEML Employees House Building Cooperative Society Vs. State of Karnataka and Ors. - Civil Appeal No.6288 of 2000 from judgement and order dated 17th April, 1998 of Karnataka High Court in WA No.67 of 1997 decided on 10th September, 2004).

  38. In the matter of whether a non-speaking arbitration award is liable to be set aside and whether the contractor is entitled to interest on delayed payment and at what rate, the Apex Court held that since the award was passed under the provisions of Arbitration act, 1940, the High Court was NOT justified in setting aside the award on the grounds that the award was not supported by the reasons. The award was a valid award. However, the rate of interest is reduced from 18% to 10% p.a. The Arbitrator has power to award interest. (Rejendra Construction Company Vs. Maharashtra Housing and Area Development Authority & Ors – Civil Appeal Nos.5045-5046 of 2005 arising out of SLP (C) Nos.10963-64 of 2003 decided on 12th August, 2005).

  39. The Constitutional validity of Security Interest Act, 2002 is upheld but the requirement of pre-deposit of 75% of the amount claimed before entertaining an appeal under Section 17 of the Act is an offensive, onerous and arbitrary condition and is thus invalid. The requirement of pre-deposit under Section 17(2) of the Act is ultra-vires of Article 14 of Constitution of India. This condition is therefore invalid and is struck down. (Mardia Chemicals Ltd. etc. etc. vs. Union of India & Anr. - (With W.P.(C) Nos.140/2003, 649, 673/2002, T.C.(C) No.10/2003, W.P.(C) No.322/2003, T.C.(C) No.46/2003, W.P.(C) No.643/2002, T.C.(C) No.12 (2003), W.P.(C) No.48/2003, C.A.No.2177/2004, W.P.(C) Nos.176, 190, 219/2003, C.A.No.2181/2004, W.P.(C) No.147/2003, T.P.(C) No.326/2003, W.P.(C)No.279, 231/2003, C.A.No.2176/2004, W.P.(C) No.292/2003, C.A.Nos.2175, 2174/2004, T.P.(C)No.403/2003, W.P.(C) No.379/2003, C.A.No.2173/2004, T.C.(C) No.11/2003, W.P.(C) No.366/2003, 541/2002, C.A.No.2172/2004, W.P.(C) Nos.477, 496, 499/2003, T.P.(C) No.756/2003, W.P.(C)Nos.545, 557/2003, C.A.Nos.2171, 2180/2004, W.P.(C) Nos.590/2003, 13/2004 and 546 of 2003) decided on 8th April, 2004).

  40. The tenants in occupation have preferential rights over Inamdars under the provisions of Karnataka (Personal and Miscellaneous) Inams Abolition Act, 1954 and it is only on the failure of the tenants to claim such rights that the Inams can claim occupancy rights (REMCO Industries Workers House Building Cooperative Society Vs. Lakshmeesha M. and Ors. Civil - Appeal No.992-993 of 1997 decided on 28th August, 2003).

  41. when the lands were sought to be acquired mala fide and not for public purpose, ground of delay in filing the writ petition or the petitioner having acquiesced in the proceedings by participating in the enquiry under Section 5 (A) of the land acquisition act have no substance and even if the land holders accepted money offered by the cooperative society, the settlement on the basis thereof can not be validated when the basic notification under which the land was sought to be acquired itself is vitiated. (The Vyalikaval House Building Coop. Society Ltd. by its Secretary Vs. V. Chandrappa & Ors. - Civil Appeal No.2086-2087 decided on 2nd February, 2009).

  42. The Government was not justified in invoking urgency clause under Section 17(4) of the Land Acquisition Act, 1894 by dispensation with the enquiry and hearing of the objection under Section 5 (A) of the Act when the valuable rights of the applicant was in danger. (ESSCO Fabs Pvt. Ltd. & Anr.Vs. State of Haryana & Anr. with Panipat Teachers (Recognised Schools) Housing Cooperatives Ltd. & Anr. Vs. State of Haryana & Ors. - Civil Appeal No. 6580 with 6581 of 2008 arising out of SLP (C) No. 15449 with 15544 of 2004 with Contempt Petn. (C) No. 30 of 2007 in C.A. No. 6580 of 2008 decided on 7th November, 2008).

  43. In respect of eligibility for allotment of plot in a cooperative society governed by the provisions of Delhi Cooperative Societies Act and Rules framed thereunder, the Apex Court held that:

    A person who has already been allotted a house in Delhi earlier would not be entitled to allotment of another plot by the cooperative societies under the Rules and Bye-laws of the society.

    A person whose father had been allotted a property in Delhi by Authorities earlier, would not be eligible and qualified for membership of a cooperative society for allotment of a plot.

    A person would not be eligible for allotment of a plot after the death of her husband particularly when the husband of such person was not eligible for allotment of a plot.

    A person who did not submit a formal application for enrolment as member of the society can not be considered as a lawful member eligible for allotment of a plot on the basis that some money was deposited by him with a member of the society.
    (O.P.Choudhry Vs. Rehabilitation Ministry Employees Cooperative House Building Society and Ors. - Civil Appeal Nos.2634-35 of 2003 with Nos.2643-44, 2642, 2641, 2645-52 of 2003 and 6979 of 2001 decided on 2nd April, 2003).

  44. If an appeal is pending before the High Court or Supreme Court against the Order of the reference court challenging the enhancement of compensation, the applications under Section 28(A) of the Land Acquisition Act, 1894 has to be kept pending till such appeal is finally decided by the superior court. This is for the reason that till such appeal is finally disposed of, no finality is attached to the Order of the reference court enhancing amount of compensation. (Kendriya Karamchari S.G.N. Samiti Ltd., Noida Vs. State of U.P. & Anr; with V. Singh vs. State of U.P. & Anr., Vijay Singh vs. State of U.P. & Anr. ; Charan Singh vs. State of U.P. & Anr.; Ajay Singh vs. State of U.P. & Anr.; Ram Singh vs. State of U.P. & Anr. - Civil Appeal Nos. 6850-6851 with 6854-6855 with 6852-6853 with 6856-6857 with 6858-6859 with 6860, 6861 with 6862 of 2003 decided on 7th November, 2008).

  45. In respect of a complaint filed before the MRTP Commission alleging that the Ghaziabad Development Authority (GDA) first allotted land and thereafter cancelled the allotment arbitrarily and the decision of the Commission on the matter, the Apex Court: (a) affirmed the findings of the MRTP Commission that the act of the GDA amounted to "unfair trade practice".

    (b) held that the MRTP Commission was in error in directing the GDA to handover possession of plot to the respondent as none of the provision of the MRTP Act indicated that the Commission had the authority to direct the allotment of plot as it would be assuming that the MRTP Commission has powers of Civil Courts as the direction to allot amounted to grant of specific relief. The Supreme Court remanded the appeal back to the MRTP Commission for consideration of compensation to the respondent.(Ghaziabad Development Authority Vs. Ved Prakash Aggarwal - Civil Appeal No. 794 of 2001 decided on 14th May, 2008)    .

  46. The Apex Court held that the Financial Corporation can exercise its right to sell the property of the sick unit only in respect of mortgaged property and not with respect to any other properties of the sick unit and thus interpreted that the scope and effect of Section 29 of the State Financial Corporation Act, 1951 was limited to the extent of property mortgaged to the Financial Corporation only. (Ormi Textiles & Anr. Vs. State of U.P. & Ors. - Civil Appeal No. 3054 of 2008 arising out of SLP (Civil) No. 17139 of 2006 decided on 28th April, 2008).

  47. In an issue whether, the services rendered by an employee to the State Cashew Development Corporation Limited came within the ambit of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 for the purpose of family pension scheme to which such an employee had made contributions during tenure of employment, the Supreme Court held that Regional Provident Fund Commissioner who is the person responsible for Pension Scheme is "Service Giver" within the meaning of Section 2(1)(O) of the Consumer Protection Act, 1986 and the respondent lady is a consumer within the Section 2(1)(d)(ii) in as much as by becoming the member of the scheme and contributing to the same, she was availing service rendered by the Regional Provident Fund Commissioner for implementing of the scheme. The Apex Court accordingly upheld the orders passed by the National Commission directing the release of pension benefit to the employee. (Regional Provident Fund Commissioner Vs. Bhavani - Civil Appeal No.6477 of 2001 with C.A. Nos.2916 to 2919 of 2008 (arising out of SLP (C) No.15469 of 2005, SLP (C) No.16573 of 2006, SLP (C) No.20260 of 2006 and SLP(C) No.8661 of 2004 and C.A.No. 2629 of 2006 decided on 22nd April, 2008).

  48. The Financial Corporation shall have right to takeover the management or possession of the industrial concern under Section 29 of the State Financial Corporation Act, 1951 but it does not empower the Corporation to proceed against the surety even if some properties are mortgaged or hypothecated by it. The right of the Financial Corporation in terms of Section 29 of the Act has to be exercised against the defaulting party but there can not be any default as envisaged in Section 29 by the surety or guarantor. The liability of the surety or a guarantor to repay the loan of the principal debtor arises when a default is made by the latter. (Karnataka State Financial Corporation Vs. N.Narasimahaiah & Ors. - Civil Appeal Nos.610-612 of 2004 decided on 13th March, 2008).

  49. The Supreme Court held that Rule 17 of DDA (Disposal of Developed Nazul Land) Rules, 1981 was applicable only to Nazul Land and the appellant/DDA had no where contented that the land in issue was a Nazul land hence Rule 17 does not apply. The Apex Court further held that the last proviso to Section 87 of the Delhi Cooperative Societies Act, 2003 makes it clear that cessation of membership of cooperative housing society, in case of another allotment in a cooperative society, is not applicable where the property devolves by way of inheritance. (Delhi Development Authority Versus Arjun Lal Satija and Ors. - Civil Appeal No.5373 of 2007 - (Arising out of SLP (C) No.4024 of 2006) decided on 23rd November, 2007).
  50. The Supreme Court in a detailed judgement after discussing the historical fact allowed the appeal of the transferee landlady and held that Section 14(1)(e) of Delhi Rent Control Act, 1958 is violative of the doctrine of equality embedded in the article 14 of the Constitution of India in so far as it discriminates between the premises let for residential and non-residential purposes when the same is required by the landlady for occupation for herself or for any member of her family depending on her and restricts the latter’s right to seek eviction of the tenant from the premises let out for residential purpose only. As a result, an eviction petition would be maintainable in Delhi for eviction of the tenants from the commercial premises on the ground of bonafide requirement of the landlord. (Satyawati Sharma (Dead) by LRS Vs. Union of India & Another - Civil Appeal No.1897 of 2003 with C.A.No.1898 of 2003 and C.A.No.5622 of 2006 decided on 16th April, 2008)
  51. The Supreme Court finally held that the lands have been acquired in terms of the provisions of the Land Acquisition Act, 1894. The said acquisition has been upheld and the amount of compensation has been deposited. Award had been passed and therefore the court can not go beyond the award. Accordingly, the Supreme Court directed the authorities to continue with the planned development of the plots for the cooperative society by removing the purchasers pendente lite and also by removing the construction raised by them on some portion of the acquired land. The Court also rejected the objection that such purchasers would suffer irreparable loss if the construction is removed. (Bihar Finance Service H.C. Cooperative Society Ltd. Versus Gautam Goswami & Ors. - Contempt Petition (C) No. 44 of 2005 decided on 5th March, 2008).

  52. The Status of a member in case of Tenant Co-partnership Housing Society is not that of a tenant within the meaning of Section 5(11) of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947. There is no relationship of landlord and the tenant between the society and the member. Though he is not owner of the flat allotted in law, he enjoys almost all the rights which a owner enjoys including the right to transfer provided he had occupied the property for one year and the transfer is effected in favour of a person who is already a member or in favour of a person whose obligation is accepted for the membership by the society, or to a person who is deemed to be a member under sub-section (1)(A) of Section 23 of the Maharashtra Cooperative Societies Act, 1960. (Anita Enterprises & Anr. Vs. Belfer Cooperative Housing Society Ltd. & Ors.- Civil Appeal Nos. 2990-2991 of 2005 with C.A Nos. 2992-2995 of 2005 decided on 14th November, 2007).
  53. The Hon'ble Supreme Court upheld the findings of the High Court (each member of the society is entitled to cast his vote despite of the definition of family in the bye-laws of the society which means a group of persons including husband, wife, father, mother, sister, brother, son, daughter, son-in-law, brother-in-law, sister-in-law, daughter-in-law, grandson/grand­daughter). relying upon Section 27 of the Maharashtra Cooperative Societies Act, 1960, the Supreme Court held that all members of the said family admitted as members of the society would be entitled to vote.(Veena Kumari Tondon Vs. Neelam Bhalla and Others - Civil Appeal No. 5130 of 2007 (Arising out of SLP (C) No. 525 of 2005 decided on 2nd November, 2007).

  54. The Supreme Court allowed the appeal and set aside the decision of the High Court holding that Land Acquisition Act, 1894 is a ex-proprietary legislation and its provisions should be strictly complied particularly in case of acquisition of land under Part-VII of the Land Acquisition Act, 1894 made for the Companies other than Government Companies and Public Corporations. The Hon’ble Supreme Court also held that there was no compilations of Rule 4 of the Land Acquisition (Companies) Rules, 1963 and in such case the exercise of jurisdiction under Part-VII must be held to be erroneous. (Devinder Singh & Others Versus State of Punjab & Others - Arising Out of s.l.p. (civil) no. 9954 of 2006 with civil appeal no. 4844 of 2007, Arising out of s.l.p. (civil) no. 10182 of 2006 decided on 12th October, 2007).

  55. The Supreme Court declined to interfere with the order passed by the High Court and held that since the deposit subsequently made by the original allottee was not accepted by New Okhla Indusrial Development Authority (NOIDA) and in the meanwhile third party right has been created by issuance of the fresh allotment order, the appeal preferred by allottee is to be dismissed. However, the original allottee was given liberty to withdraw the deposits made by it in favour of the NOIDA towards the balance premium amount. (Skyline Contractors Pvt. Ltd. & Anr. Versus State of U.P, & Ors – Civil Appeal No.4272 of 2008 (Arising out of SLP (C) No.7722 of 2007) decided on 9th July, 2008).

  56. In an issue whether an office bearer of a cooperative society guilty of favouring a non-member for illegal gains by allotment of plot by hatching conspiracy is liable to be guilty only under Cooperative Law or also under the IPC, the Supreme Court set aside the order of the High Court while allowing the appeal and held that the complaint was maintainable against the office bearers under section 109 of the Karnataka Cooperative Societies Act, 1959, as well as under various other provisions of the Indian Penal code (IPC) under which the cognizance was taken by the judicial magistrate.(K.ashoka Vs. N.L.Chandrashekar & Ors. - Criminal Appeal Nos.733-734 of 2009 arising out of SLP (CRI) Nos.7687-7688 of 2007 – decided on 15th April, 2009).

  57. The Hon’ble Supreme Court held that directions of the High court with respect to recovery of the excess amount paid to employees unauthorizedly by the Managing Committee was not correct and was accordingly set aside, however, because of the hardship put forth by the concerned employees, the Supreme Court directed the recovery of the excess amount paid in 24 monthly installments. (Registrar Cooperative Societies, Haryana & Ors. Vs. Israil Khan & Ors. - Civil Appeal No.3668 of 2007 with Civil Appeal Nos.3669, 3670, 3671, 3675, 3676 and 3677 of 2007 – decided on 8th October, 2009).

  58. Turning down the plea of the respondent that there is no concluded contract signed between them for arbitration, the Supreme Court held that in the absence of signed agreement between the parties, it will be possible to infer from the various documents duly approved and signed by the parties in the form of exchange of email, letters, telex, telegrams and other means of telecommunication if the intention of the parties was to arbitrate any dispute which might arise in relation to the transactions between them. The Apex Court further held that once the contract is concluded oral or in writing, the mere fact that a formal contract has to be prepared and signed by the parties could not affect either the acceptance of the contract so entered into or thereof. The Court accordingly appointed a retired judge of Supreme Court as the Sole Arbitrator to resolve the dispute between the parties. (Trimex Internal Fze Ltd., Dubai Vs. Vedanta Aluminium Limited, India - Arbitration Petition No.10 of 2009 - decided on 22nd January, 2010).

  59. The Supreme Court held that the definition of “consumer” as amended by the amendment Act No.62 of 2002 does not include a person who avails of any services for commercial purpose. If the services of the transporter/carrier has been availed of for any commercial purpose after the said amendment came into force, the person availing the services will not be a consumer and consequently complaint will not be maintainable in such cases but the said amendment shall not apply to complaint filed before the amendment came into force i.e. 15.3.2003. Since in this case, the complaint has been filed prior to the date of amendment, the complaint was maintainable and the complainant company was entitled to damage for deficiency in services. The Supreme Court also rejected the contention of the company that the presumption under Section 9 of the carriers Act, 1986 would not be available in the proceedings under the Consumer Protection act, 1986 and even in absence of proof of negligence, the carrier would be liable to compensate for the loss suffered by the consignee. The District forum was thus justified by directing the carrier to pay compensation for the deficiency in services (Economic Transport Organisation, Delhi vs. M/s.Charan Spinning Mills (P) Ltd., and Anr. - Civil appeal No.5611 of 1999 - decided on 17th February, 2010).

  60. In a matter dealing with the right of a landlord to seek possession of his property let out to a tenant who was forcibly evicted by a third person not being the landlord, the Supreme Court held that the land lady was competent to maintain the suit for recovery of possession of her property and accordingly the appeal of the defendants was disallowed (Sadashiv Shyama sawant (D) through LRS & Ors. Vs. Anita Anant Sawant – Civil Appeal No.1930 of 2010 arising out of SLP(C) No.10418 of 2008 – decided on 22nd February, 2010).

  61. In a matter dealing with the liability of the quarantor/surety for enforcement of a decree obtained by the bank against the principal borrower, the Supreme Court held that a decree holder can execute the decree against the guarantor without waiting for proceedings against the principal borrower since the guarantor’s liability is co-extensive with that of the principal borrower and is not in the alternative. Both principal debtor and surety are liable at the same time to the creditor (Industrial Investment Bank of India Vs. Bishwanath Jhunjhunwala – Civil Appeal No.4613 of 2000 – decided on 18th August, 2009).

  62. The Supreme Court upon consideration of the issues raised in this matter held that Manohar Lal did not approach the Court by disclosing true facts particularly the fact that he had been allotted lands in commercial area by the Ghaziabad Development Authority (GDA) on the instructions of the Chief Minister of Uttar Pradesh contrary to the Land Policy. The Supreme Court also held that the order passed by the State Government to allot land in contravention of the interim order of the High Court is not enforceable. The appeal was allowed. (Manohar Lal (D) by LRs vs. Ugrasen (D) by LRs & Ors. with Ghaziabad Development Authority Vs. Ugrasen (D) by LRs & Ors. – Civil Appeal Nos.973 with 974 of 2007 – decided on 3rd June, 2010).

  63. The Hon’ble Supreme Court set aside the order of the High Court and restored the orders passed by the Appellate Authority as well as the Revisional Authority holding that in the situation (where the applicant did not send acceptance nor did deposit the amount on time nor did execute the hire-purchase agreement), the applicant was not entitled to be handed over the possession of the flat and the forfeiture of the earnest money was in terms of the statutory provisions. The applicant herself had defaulted in complying with the conditions of the allotment, thus she did not have any right to get the flat allotted. (Greater Mohali Area Development Authority & Anr. Vs. Manju Jain & Ors. – Civil Appeal No.6791 of 2010 arising out of SLP (C) No.6427 of 2008 – decided on 19th August, 2010).

  64. After examining the various provisions of Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act (MOFA) and the provisions of the Agreement entered between the parties the Supreme Court held while rejecting contentions of the promoter that they were entitled to sell garage/stilt parking areas as separate flat to the owners who intend to use it as parking areas. The Supreme Court further held that if a promoter did not fully disclose the common areas and facilities, the promoter did so at his own peril. Stilt parking space would not cease to be portion of common areas and facilities merely because the promoter could not describe the same as such in their advertisement and agreement with the flat buyers. It further held that the promoter had no right to sell any portion of such building which is 'flat' within the meaning of Section 2(a-1) and the entire land and building had to be conveyed to the organization. The only right remains with the promoter is to sell unsold flats. The appeal of the promoter was thus dismissed upholding the judgment of the High Court that under the MOFA, a builder can not sell parking space/stilt flats as independent flats or garage.(Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Cooperative Housing Society Ltd. - Civil Appeal Nos. 2544 to 2548 of 2010, Civil Appeal No. 2449 of 2010 and Civil Appeal No. 2456 of 2010 - decided on 31st August, 2010).

  65. In an issue whether a guarantor can be dragged into an arbitration proceeding even if such guarantor is not party to the agreement between the lender and the borrower, the Supreme Court set aside both the awards against the guarantor holding that since there was no arbitration agreement between appellant/guarantor and the lender the impleadment of the guarantor in the arbitration proceedings and the award against him in such arbitration cannot be sustained. If the lender wanted to enforce the alleged guarantee of the appellant, it was open to the lender to do so in accordance with law. (S.N. Prasad Vs. M/s. Monnet Finance Ltd. & Ors. - Civil Appeal No. 9224 of 2010 (Arising out of SLP(C) No. 17114/2008) with Civil Appeal No. 9225 of 2010 (Arising out of SLP(C) No. 17115/2008 - decided on 22nd October, 2010)

  66. The Supreme Court set aside the order of the appellate bench of the High Court but keeping the fact that a domestic enquiry was conducted and the employee was found guilty, the Supreme Court did not interfere with that part of the order directing reinstatement. The Apex Court observed that the employee had shown lack of interest in his work and even after the re-joining, the said employee did not show any sign of improvement. The Supreme Court, therefore, though did not interfere with the order of reinstatement since in the meanwhile the directions of the High Court had been given effect. The Apex Court, however, modified the order of the payment of back wages and held that the said employee would be entitled to the full wages and other benefits only for a limited period between 6-12-2007 and 15-12-2009. As far as the payment of full wages during suspension period, the Supreme Court held that since he was paid subsistence allowance, this would be considered in the final order to be passed in the disciplinary proceedings which had already been initiated by the society against the said employee. (Kallakurichi Taluk Cooperative Housing Society Ltd. Vs. M. Maria Soosai & Ors. -Civil Appeal No. 4357 of 2010 (Special Leave Petition (C) No. 18834 of 2007 - decided on 6th May, 2010)
  67. While dealing with the first issue whether HUDA should charge only the actual land cost plus development charges for the plots allotted to the oustees/land users and not the market price, the Supreme Court held that where the scheme itself specifies the price to be charged for allotment and whether the claimant has not challenged the scheme, the terms of the scheme cannot be ignored. The scheme of HUDA contemplates allotment of plots only in terms of scheme i.e. at the normal allotment rate. The land losers, therefore, have to pay normal rate. The land losers, therefore, have to pay normal allotment rate for the plots allotted to them under the scheme and cannot claim allotment of plots at the acquisition cost plus developmental charges or at any other lesser price.
    While replying to the second issue i.e. what is the meaning of the words “normal allotment rate” used in the development scheme for allotment of land to the oustees, the Supreme Court held that the scheme provided that land loser shall be given the first option to buy the plots before inviting the applications from the general public. This means that the prices to be charged will be rate which is equal to the rate i.e. fixed when the sector was floated for allotment. The claim, therefore, should be allotted plots under the scheme at the initial price at which the sector plots were offered for sale after acquisition. The Supreme Court accordingly held that the HUDA could charge for the allotted plots only at the rate of E 1032 per sq. mtr. And not at any other rate. The appeal by the land losers was thus partly allowed by the Supreme Court. (Brij Mohan & Ors. Vs. Haryana Urban Development Authority & Anr. - Civil Appeal No.1 of 2011 arising out of Special Leave Petition (C) No.24629 of 2009 – decided on 3rd January, 2011).
  68. The Supreme Court held that the resolution passed by the Society cannot be given effect unless the approval is accorded by the Registrar as mandatorily required by the Delhi Cooperative Societies Act, 1972 and the Rules framed thereunder, the Supreme Court thus allowed tye Appeal of the expelled members and held that deemed approval was not legally permissible under the provisions of the Delhi Cooperative Soceities Act, 1972 and the Rules framed thereunder. (Sant Lal Gupta & Ors. Vs. Modern Cooperative Group Housing Society Ltd., & Ors. - Civil appeal No.9439 of 2003 - decided on 18th October, 2010).
  69. The Supreme Court remanded the matter back to the High Court for fresh consideration and also held that when statutory remedy is available, same should be availed off. The Supreme Court also explained the meaning of the word “deemed” occurring under Section 25(2) of the Delhi Cooperative Societies Act, 1972. The Apex Court held that deeming provision create a legal fiction. Upon the opinion expressed by the Division of British Court, the Supreme Court held that "when a statute enacts that something shall be deemed to have done, which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purpose and between what persons the statutory fiction is to be restored. After ascertaining the purpose full effect must be given to the statutory fiction and it should be carried to its logical conclusion and to that end it would be proper and even necessary to assume all those facts on which alone the fiction can operate". (Hindustan Cooperative House Building Society Ltd. Vs. Registrar Cooperative Societies & anr. - Civil Appeal No.957 of 2009 (arising out of SLP (C) No.9866 of 2007 decided on 12th February, 2009).
  70. In the issue as to whether an amendment under Order 6 Rule 17 of the Code of Civil Procedure, 1908 may be allowed in a pending matter after 18 years of the institution of the suit and when such amendments affect the original nature and character of the suit, the Hon’ble Supreme Court while allowing the appeal of the Cooperative Society held that the amendment if allowed would introduce a new case. In fact the applicant had sought to alter the basic character of the suit and such amendment was not permissible in law. The Supreme Court accordingly upheld that the order passed by the Trial Judge disallowing the amendment application and set aside the order of the High Court. (Alkapuri Cooperative Housing Society Ltd. Vs. Jayantibhai Naginbhai - Civil Appeal No.154 of 2009 [Arising out of S.L.P.(C)No.9931 of 2008] - decided on 9th January 2009)
  71. The Supreme Court considered the crucial opinion as to the maintainability of the suit of specific performance and held that when the first respondent himself on 3.2.1991 refused to acknowledge the right of the appellant over the land by giving a public notice on 3.2.1991, the cause of action arose for the appellant to institute the Suit for specific performance. The Court held that the period of limitation prescribed in the Article 54 of the Limitation Act, 1963 for specific Performance is 3 years from the date fixed for performance or if no such date is fixed when the appellant had notice that the performance is refused. Finally, the Supreme Court held that the plea of specific performance cannot be granted to the appellant and accordingly the appeal preferred by the appellant housing cooperative was dismissed. (Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Regd.) Vs. Ramesh Chander & Others - Appeal No.8982 of 2010 (Arising out of SLP (Civil) No.1518 of 2008 - decided on October 19, 2010)
  72. In the issue whether a member of the cooperative societies was entitled to refund of the entire Earnest Money with interest accrued thereon if such members desire to have such refund in view of delay in allotment of land to the cooperative society by the Housing Board, the Supreme Court dismissed the appeals and directed the Housing Board to refund the amount due to the complainant within a period of 3 months from the date of receipt of the directive of the Supreme Court which concurred with findings of the National Consumer Commission. (Chandigarh Housing Board Vs. Avtar Singh and Others – Civil Appellate Jurisdiction Civil Appeal No. of 2010 (Arising out of SLP(C) No. 21740 of 2007) with C.A. No. of 2010 [arising out of SLP(C) No.831/2008] C.A. No. of 2010 [arising out of SLP(C) No.832/2008 ] C.A. No. of 2010 [arising out of SLP(C) No.834/2008 ] C.A. No. of 2010 [arising out of SLP(C) No.24815/2007] C.A. No. of 2010 [arising out of SLP(C) No.422/2008] C.A. No. of 2010 [arising out of SLP(C) No.25308/2007] C.A. No. of 2010 [arising out of SLP(C) No.25310/2007] C.A. No. of 2010 [arising out of SLP(C) No.25313/2007] C.A. No. of 2010 [arising out of SLP(C) No.25315/2007] C.A. No. of 2010 [arising out of SLP(C) No.810/2008] C.A. No. of 2010 [arising out of SLP(C) No.829/2008] C.A. No. of 2010 [arising out of SLP(C) No.830/2008] C.A. No. of 2010 [arising out of SLP(C) No.833/2008] C.A. No. of 2010 [arising out of SLP(C) No.836/2008] C.A. No. of 2010 [arising out of SLP(C) No.837/2008] C.A. No. of 2010 [arising out of SLP(C) No.839/2008] C.A. No. of 2010 [arising out of SLP(C) No.841/2008] C.A. No. of 2010 [arising out of SLP(C) No.864/2008] C.A. No. of 2010 [arising out of SLP(C) No.1011/2008] C.A. No. of 2010 [arising out of SLP(C) No.1030/2008] C.A. No. of 2010 [arising out of SLP(C) No.1309/2008] C.A. No. of 2010 [arising out of SLP(C) No.1311/2008] C.A. No. of 2010 [arising out of SLP(C) No.1343/2008] C.A. No. of 2010 [arising out of SLP(C) No.1344/2008 - Decided on 22nd September, 2010).
  73.

    In the issue whether a Land Lord is entitled to enhancement of rents for the premises which are in occupation of tenants at a meager rent for long years, the Supreme Court while dismissing the appeal, framed following guidelines and norms as illustrated below to avoid unnecessary litigation: (i) The tenant must enhance the rent according to the terms of the agreement or at least by ten percent, after every three years and enhanced rent should then be made payable to the landlord. If the rent is too low (in comparison to market rent), having been fixed almost 20 to 25 years back then the present market rate should be worked out either on the basis of valuation report or reliable estimates of building rentals in the surrounding areas, let out on rent recently; (ii) Apart from the rental, property tax, water tax, maintenance charges, electricity charges for the actual consumption of the tenanted premises and for common area shall be payable by the tenant only so that the landlord gets the actual rent out of which nothing would be deductible. In case there is enhancement in property tax, water tax or maintenance charges, electricity charges then the same shall also be borne by the tenant only; (iii) The usual maintenance of the premises, except major repairs would be carried out by the tenant only and the same would not be reimbursable by the landlord; (iv) But if any major repairs are required to be carried out then in that case only after obtaining permission from the landlord in writing, the same shall be carried out and modalities with regard to adjustment of the amount spent thereon, would have to be worked out between the parties; (v) If present and prevalent market rent assessed and fixed between the parties is paid by the tenant then landlord shall not be entitled to bring any action for his eviction against such a tenant at least for a period of 5 years. Thus for a period of 5 years the tenant shall enjoy immunity from being evicted from the premises; (vi) The parties shall be at liberty to get the rental fixed by the official valuer or by any other agency, having expertise in the matter, and (vii) The rent so fixed should be just, proper and adequate, keeping in mind, location, type of construction, accessibility with the main road, parking space facilities available therein etc. Care ought to be taken that it does not end up being a bonanza for the landlord (Mohammad Ahmad & Anr. Vs. Atma Ram Chauhan & Ors.- Civil Appeal No. 4422 of 2011 (arising out of SLP (C) No. 6319 of 2007 - decided on 18th October, 2010).

  74. In the issue whether suit for redemption of mortgage shall be referred to arbitration under Section 8 of the Arbitration and Conciliation Act, 1996 or should the court itself decide the matter since redemption of mortgage would result in creation of right-in-rem, the Supreme Court finally held that the suit filed by the SBI Home Finance Ltd., was for the enforcement of mortgage of the flat by sale and thus High Court should have entertained the suit which cannot be referred to the arbitration under Section 8 of the Arbitration and Conciliation Act, 1996.(Booz Allen and Hamilton Inc. Vs. SBI Home Finance Ltd. & Ors. - Civil Appeal No. 5440 of 2002 - decided on 15th April, 2011).

  75. The Supreme Court held that the Cess levied under the Building and Other Construction Workers Cess Act 1996 is a fee meant to provide the welfare fund. There exist nexus between Cess levied and the purpose of levy and the element of “Quid-Pro-Quo” exist. Thus Supreme Court upheld the decision of High Court that the said Act is constitutionally valid and is within the competence of the Parliament.(M/s Dewan Chand Builders & Contractors Vs. Union of India & Ors.- Civil Appeal No. 1830 of 2008 with Civil Appeal No. 1831 of 2008 and Civil Appeal No. 1832 of 2008 - decided on 18th November, 2011)

  76. The Supreme Court held that the dispute arising out of the decision of the society to alienate its property is not covered by Section 163 of the Maharashtra Cooperative Societies Act, 1960 and also that the suits were not barred under Section 91 of the Maharashtra Cooperative Societies Act, 1960.(Margret Almeida & Ors. etc. etc. Vs. The Bombay Catholic Cooperative Housing Society Ltd. & Ors. etc. etc. - Civil Appeal Nos.1175-1177 of 2012 (Arising out of SLP (C) Nos.28611-28613 of 2011 with Civil Appeal No.1178 of 2012 (Arising out of SLP (C) Nos.29507 of 2011) Civil Appeal Nos.1179-1180 of 2012 (Arising out of SLP (C) Nos.30143-30144 of 2011 - decided on 30th January, 2012)

  77. In the issue, whether the Haryana Housing Board could ignore the time limit of 7 years specified in clause 2 (w) of the Hire Purchase Tenancy Agreement executed by the appellants as per the requirement of Regulation 11 (4) of the Housing Board, Haryana (Allotment, Management and Sale of Tenements) Regulations, 1972 framed by the Board in exercise of the power conferred upon it under Section 74 of the Haryana Housing Board Act, 1971 and demand additional price from them after 10 years of the allotment of tenements, the Supreme Court allowed the appeal and the order passed by the High Court was set aside and demand notices issued by the Estate Manager, Housing Board, Sonepat requiring the allottees to pay additional price were quashed. (Ishwar Dass Nassa & Ors. Vs. State of Haryana and Ors. and Pyare Lal and Ors. Vs. State of Haryana and Others - Civil Appeal No.4211 of 2004 with Civil Appeal No.4209 of 2004 - decided on 12th December, 2011)

  78. In the context of Section 31 of the Arbitration and Conciliation Act, 1996 the word “payment” means extinguishment of the liability by satisfaction of the award. deposit of the awarded amount in the court is payment to the credit of the award holder. Once the awarded amount was deposited by the appellant housing and urban development authority before the High Court on 24th May, 2001, the liability of the post award interest from said date came to an end and thus the High court was not justified in directing to pay interest @ 18% p.a. beyond 24th May, 2001. The Supreme Court accordingly modified the High Court Order and directed the Housing and Urban Development Authority to pay interest @ 18% p.a. for post award period from the date of the award till 24th May, 2001. (H.P.Housing & Urban Development Authority & Anr. Vs. Ranjit Singh Rana - Civil Appeal No. 2751 of 2012 - Arising out of S.L.P. (C) No. 26581 of 2009 - decided on 12th March, 2012)

  79. In the issue about what would be the rate of interest payable to a person when the amount deposited by him is refunded on his becoming unsuccessful in the draw of lots, the Supreme Court held that in view of Regulation 45 of the Bihar State Housing Board (Management and Disposal of Housing Estate) Regulations, 1993 the complainant was entitled to interest of 5% p.a. only and not @18% p.a. as claimed (Bihar State Housing Board Vs. Arun Dakshy - Civil Appeal No. 7225 of 2002 - decided on 23rd August, 2005).

  80. The Supreme Court held that the lease hold rights being limited in nature and different from ownership right, a lessee is not entitled to the entire amount of compensation for the acquired land and held that claimant namely the lessee would be entitled to 20% of compensation and solatium and the rest 80% to the State since the property belonged to the State. (Kiran Tandon Vs. Allahabad Development Authority and Anr. - Civil Appeal Nos. 6493-6494 of 1998)(With Civil Appeal No. 1831/2004 @ R. P.(C) No. 408/99 in SLP (C) No. 10943/98 - decided on 23rd March, 2004)

  81. The Supreme Court held that there was no time period prescribed for allotment of flats which in any case were allotted within two years from the issuance of the brochure. The Supreme Court also held that in view of the terms of the contract and affidavit of undertaking given by the allottees, the Bareilly development Authority (BDA) was entitled to collect the enhanced price from the allottees and the allottees are bound to pay in terms of their own undertakings. However, in the facts and circumstances of this case that the allottees under the scheme belonged to middle income group and taking into account the financial status of the allottees the Supreme Court reduced the rate of interest from 18% to 9% per annum and directed the allottees to pay simple interest @ 9% per annum on the enhanced price of the flats. The enhanced price of the flat was directed to be paid in 6 equal monthly instalments together with accrued interest payable on diminishing balance on or before the 10th of every succeeding month commencing from April, 2004. It was also held that if the allottees commit any two defaults in the payment of instalments on the enhanced price, the interest shall be recovered from them by the BDA @ 18% per annum (Bareilly Development Authority Vs. Vrinda Gujarati and Ors. - Civil Appeal No. 3706 of 1998 - decided on 26th February, 2004).

  82. The Supreme Court held that the parties have entered into an agreement where it was agreed that the interest would be paid @ 1% per month on delayed payment of bills that are paid after 3 months which comes to 12% per annum. The contractor therefore is entitled to pre-reference interest @12% per annum . The Supreme Court also held that the arbitrator can exercise his jurisdiction under section 34 CPC and can grant pendente lite interest @18% per annum . However, in facts of this case, the Supreme Court formed an opinion that the interest of justice should be served if the cooperative society is directed to pay to the contractor pre-reference and pendente lite interest @12% per annum . (B.L. Gupta Construction (P) Ltd. Vs. Bharat Cooperative Group Housing Society Ltd. - Civil Appeal Nos. 2902-03 of 2002 – decided on 5th November, 2003).

  83. The Supreme Court held that there was no time period prescribed for allotment of flats which in any case were allotted within two years from the issuance of the brochure. The Supreme Court also held that in view of the terms of the contract and affidavit of undertaking given by the allottees, the Bareilly development Authority (BDA) was entitled to collect the enhanced price from the allottees and the allottees are bound to pay in terms of their own undertakings. However, in the facts and circumstances of this case that the allottees under the scheme belonged to middle income group and taking into account the financial status of the allottees the Supreme Court reduced the rate of interest from 18% to 9% per annum and directed the allottees to pay simple interest @ 9% per annum on the enhanced price of the flats. The enhanced price of the flat was directed to be paid in 6 equal monthly instalments together with accrued interest payable on diminishing balance on or before the 10th of every succeeding month commencing from April, 2004. It was also held that if the allottees commit any two defaults in the payment of instalments on the enhanced price, the interest shall be recovered from them by the BDA @ 18% per annum (Bareilly Development Authority Vs. Vrinda Gujarati and Ors. - Civil Appeal No. 3706 of 1998 - decided on 26th February, 2004).

  84. The Supreme Court held that the parties have entered into an agreement where it was agreed that the interest would be paid @ 1% per month on delayed payment of bills that are paid after 3 months which comes to 12% per annum. The contractor therefore is entitled to pre-reference interest @12% per annum . The Supreme Court also held that the arbitrator can exercise his jurisdiction under section 34 CPC and can grant pendente lite interest @18% per annum . However, in facts of this case, the Supreme Court formed an opinion that the interest of justice should be served if the cooperative society is directed to pay to the contractor pre-reference and pendente lite interest @12% per annum . (B.L. Gupta Construction (P) Ltd. Vs. Bharat Cooperative Group Housing Society Ltd. - Civil Appeal Nos. 2902-03 of 2002 – decided on 5th November, 2003).

  85. In the issue when a decree drawn out of compromise entered into between two parties stipulates payment of certain sum by one party to other party within six months from the date of compromise and the decree holder party without waiting for six months, moves pre-maturely to the Court for execution of the decree, are such execution proceedings maintainable?. The Apex Court held that the Executing Court did not commit any error by entertaining the Execution Petition. The learned Single Judge in Civil Revision has annulled the orders of the Executing Court being without any jurisdiction. While doing so, he had not dealt with other objections raised by the judgment debtors on the ground that they were raised for the first time though the said objections were raised in a different context. The Court, therefore, set aside the order passed in civil revision and remitted the matter to the High Court to deal with the objections on merit and dispose of the case within six months without unnecessary adjournments. (Pushpa Sahakari Awas Samiti Ltd. Vs. Gangotri Sahakari Awas Samiti Ltd., & Ors. - Civil Appeal No.8297-8298 OF 2004 - decided on 30th March, 2012).

  86. In the issue as to whether acquisition of land pursuant to notification under Section 4 of the Land Acquisition Act, 1894 shall be valid if no notice has been served on the interested persons before passing award? While allowing the appeal the Supreme Court held that the Government has not disputed the fact that they have not issued any public notice as required under the Land Acquisition Act, 1894. They only stated that such notification had seen published in the official gazette. The Supreme Court, therefore, held that since the mandatory requirements as required under Section 4(1) of the Land Acquisition Act, 1894 had not been complied with by the State Government while acquiring the lands, the entire acquisition proceedings requires to be declared as null and void. The Supreme Court however finally restricted the claim of the interested persons only to the 50% of the land in question and directed the State Government to hand over the 50% of the vacant possession of the land to the interested persons. (Kulsum R. Nadiawala Vs. State of Maharashtra & Ors. - Civil Appeal No. 4473 of 2000 - decided on 17th April, 2012)

  87. While dealing with the question regarding forum which is appropriate for deciding the issue of defaults by members and the consequent effect of such defaults, the Supreme Court held that the High Court in the writ jurisdiction could not be a proper forum in view of an effective alternative forum provided in the Cooperative Societies Act by way of arbitration before he Registrar or his nominee. (The New Friends Cooperative House Building Society Ltd. Vs. Rajesh Chawla and Ors. - Civil Appeal No. 538 of 2004 - decided on 21st April, 2004)

  88. In the appeal as to when the second respondent was occupying the premises in question as a licensee from 1.2.1973 and whose license was subsisting on that day whether he became a deemed tenant by virtue of provision of 14(2), 15(2), 15(A) of the Rent Control Act and whether he could be evicted in the purported exercise of power under Section 91 of the Maharashtra Cooperative Societies Act without taking recourse to the provision of the Rent Control Act in spite of express bar engrafted under section 28 thereof, the Supreme Court allowed the appeal and held that since the license of the second respondent was subsisting, he became a protected tenant under the Rent Control Act and could not be evicted by initiating a proceeding under section 91 of the Cooperative Societies Act and by passing order therein by circumventing the provision of the Rent Control Act. The proceeding therefore under section 91 of the Maharashtra Cooperative Societies Act, 1960 was held not maintainable. (Narendra K. Kochar Vs. Sind Maharashtra Cooperative Housing Society Ltd. and Others - Civil Appeal No.5790 of 1998 from the Judgement and Order dated 10.7.1998, 14.7.1998 and 17.7.1998 of the Bombay High Court in WP No.1554 of 1991 - decided on 9th July, 2002)

  89. In the issue as to whether an unregistered society can maintain the suit for specific performance of agreement to lease and whether such unregistered society is competent to acquire, hold and dispose of property in absence of such registration, the Supreme Court, in appeal by the society, took notice that the society was a unregistered society on the date of agreement and Section 37 of the Gujarat Cooperative Societies Act, 1961 provided that a society on its registration shall be a body corporate by the name under which it is registered with perpetual succession and a common seal and with a power to acquire, hold or dispose of property, to enter into contracts, to adjudicate and defend suits etc. In view of the aforesaid provision of law, the Supreme Court dismissed the appeal of the society holding that society was not competent to file a suit for specific performance for agreement to lease. (Maneklal Mansukhbhai Cooperative Housing Society Ltd. Vs. Rajendra Kumar Maneklal Shah & Anr. - Civil Appeal No. 4398 of 1997 with C. A. No. 1362 of 1980 - decided on 1st August, 2001)

  90. In the issue as to whether the Multi-State Cooperative Society can be granted licence by Reserve Bank of India (RBI) for carrying out a banking business, the Supreme Court in appeal on behalf of the appellant bank held that no cooperative society can carry on banking business unless it is a state cooperative bank or a central cooperative bank or a primary cooperative bank under the NABARD Act and accordingly no licence can be issued by the RBI. It further held that RBI cannot grant banking licence to any cooperative bank unless a declaration is obtained under the NABARD Act regarding the same being a state cooperative bank or central cooperative bank or primary cooperative bank. (The Apex Cooperative Bank of Maharashtra & Goa Ltd. Vs. The Maharashtra State Cooperative Bank Ltd. & Others - Banking Laws – Banking Regulation Act, 1949 – Section 5(b), 22 & 56 – National Bank for Agriculture and Rural Development Act, 1981 Section 2(u) – Multi-State Cooperative Societies Act, 1984 - C.A. No.439 of 1997 with C.A. No. 8478 of 2003 (Arising out of S.L.P. (C) No.4877 of 1997 - Maharashtra State Cooperative Bank Ltd. & Anr. Vs. State of Maharashtra & Ors. - decided on 29th October, 2003).

  91. In a case relating to inheritance of share in property of the father by three sons in their joint family, the Supreme Court held that: (i) an unregistered Will written by the testator under genuine signatures & proper and procedural attestation as per Law subsequent to the writing & registration of an earlier Will can be enforced in Law. Court has to satisfy that it is the last & final Will of the testator signed it of his own free will in full senses; (ii) specifically non-mentioning of revocation of earlier Will and its date does not make the subsequent last & final Will suspicious. The absence of a recital in the last and final Will that earlier Will was revoked/cancelled is not relevant as once the execution of the last Will is held as duly proved, the earlier Will automatically becomes REDUNDANT because the last Will represents the last wish of the testator; (iii) Registration of Will is not compulsory as per Law. No inference can be drawn against the genuineness of a Will on the grounds of non-registration; (iv) presence of the beneficiary heir cannot with the testator at the time of the execution of a Will in which nothing was inherited to the other heirs cannot be a decisive issue relating to genuineness and validity of a Will; and (v) reason of devotedly serving father and mother during old ages is justified for bequeathing father’s share in joint family property by father to the serving son (heir) to the exclusion of other two sons. (Mahesh Kumar (Dead) by LRS. Vs. Vinod Kumar and others - Civil appeal Nos. 7587-7588 of 2004 - decided on 13th March, 2012).

  92. The Supreme Court held that it will be a dangerous preposition to be laid down as one of the law that any individual/authority can ignore the order of the Civil Court by assuming authority upon itself to decide that the order of the Civil Court is one by coram non-judice. The appropriate course in such a case is for the aggrieved person first to approach the Civil Court itself, invite its attention to the relevant provision of law and call it upon to adjudicate upon the question of its own jurisdiction and to effect or recall its order if be one which he did not have in jurisdiction to make, so long as this is not done, the order of the competent Court must be obeyed and respected by all concerned. A judicial order not invalid on its face must be given effect entailing all consequences till it is declared void in a duly constituted judicial proceeding. (Prakash Narain Sharma Vs. Burmah Shell Cooperative Housing Society Ltd. - Civil Appeal No. 5180 of 2002 (Arising out of SLP (C) No. 16854 of 2001 - decided on 21st August, 2002).

  93. In the issue as to whether a party/his predecessors in interest who are cultivator in possession of land recorded as ‘Shamilat Deh’ for a pretty long time on payment of nominal rent under Tenancy Act is joint owner/co-sharer not to acquire occupancy rights or is co-tenant to acquire occupancy rights under Punjab Tenancy Act, the Supreme Court held that the party will acquire the status of joint owners/co-shares and as such cannot acquire occupancy rights under Punjab Tenancy Act. (Tara Chand & Ors. Vs. Gram Panchayat Jhupa Khurd & Ors. - Civil Appeal Nos. 8845-8850 of 2003 - decided on 6th November, 2012).

  94.