Allowed

Sharad Prabhakarrao Pandav v. Subhash Ramchandra Deshmukh and Anr.

Bombay HC25 Jul 2014WP/867/2001

Case brief

AI extract

What is this about?

The High Court held that a dispute between two members regarding encroachment on a privately purchased plot does not touch the business of the society under Section 91 of the Maharashtra Co-operative Societies Act, 1960, declaring the Cooperative Court lacked jurisdiction.

What did the court decide?

The order of the Co-operative Appellate Court dismissing the jurisdictional objection is set aside. Appeal No. 119 of 1999 is allowed. It is declared that the Cooperative Court has no jurisdiction to

Sharad Prabhakarrao Pandav Vs Subhash Ramchandra… — Company and Corporate | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 867 OF 2001

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Sharad s/o Prabhakarrao Pandav, since died through his L.Rs.

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1A.	Smt. Rajani Sharad Pandav,
	Age: 50 years, Occ: Household, R/o. Plot No.7(A) Shree Nagar, Ulka Nagari, Garkheda Parisar, Aurangabad.
1B.	Mrs. Neelam Gajanan Khalikar, Age: 28 years, Occ: Doctor, R/o. Plot No.12, “Avdumbar Niws”, R/o. Chatrapati Nagar, Garkheda Parisar, Aurangabad.
1C.	Miss Sheetal Sharad Pandav, Age: 24 years, Occ: Engineer, R/o. Plot No.7(A) Shree Nagar, Ulka Nagari, Garkheda Parisar, Aurangabad..	...Petitioners
	versus
1.	Subhash s/o Ramchandra Deshmukh, Age: 50 years, Occ: Service, presently working as Inspector, Central Excise & Customs, Jalgaon, R/o. Plot No. 7-B, Shreenagar, Shri Samarth Krupa Sahakari Griha Nirman Sanstha Ltd. Garkheda Area, Aurangabad.
2.	Shri. Samarth Kripa Sahakari Griha Nirman Sanstha Ltd., Garkheda Area, Aurangabad, Through its Chairman, Shri. Namdeo s/o Tukaram Thote, Age: 62 years, Occ:Pensioner, R/o. Plot No. 19, Shreenagar, Shri Samarth Krupa Sahakari Griha Nirman Sanstha Ltd., Garkheda Area, Aurangabad.	...Respondents

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Mr. R.S. Deshmukh, Advocate for petitioner.

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Mr. H.V. Tungar, Advocate h/f Mr. C.R. Deshpande, Advocate for respondent No.1. Respondent No.2 : Served.

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CORAM : N.W. SAMBRE, J.

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DATE : 25TH JULY, 2014

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JUDGMENT :

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Petitioner, who is an opponent, before the Co-operative Court, Aurangabad, has questioned the order dated 20/10/2000 passed by the Co-operative Appellate Court, Aurangabad in Appeal No. 119 of 1999, whereby the Co-operative Appellate Court has dismissed the appeal of the present petitioner questioning the order of the Co-operative Court dated 13/12/1999 in favour of the respondents on the maintainability of the dispute.

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The facts as are necessary for deciding the issue are as

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under :

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Respondent No. 1 herein filed Dispute No. 438 of 1994

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under Section 91 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter shall be referred to as 'the Act' for sake of brevity)

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for possession of area 3' x 65' out of Plot No. 7 from C.T.S. No. 15737/7, particularly Plot No. 7-A.

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In the said Dispute, it is claimed that Plot No. 7 was sold by respondent No. 2 society to one Mr. Tandulwadikar, who upon no objection from the society, transferred it to the petitioner and respondent No.1 each getting 50% share in the said plot.

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It is claimed by respondent No.1 that the petitioner has encroached to the extent of 3' x 65' on his portion and as such, sought possession.

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An application questioning the jurisdiction of the Cooperative Court was moved by the present petitioner, which came to be decided by learned Co-operative Court on 13/12/1999 holding that the dispute is since touching the business and management of the society, therefore, the Co-operative Court has jurisdiction as the dispute is within ambit of Section 91 of the Act.

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An appeal to Maharashtra State Co-operative Appellate Court, Mumbai, Bench at Aurangabad by the present petitioner being Appeal No. 119 of 1999 suffered dismissal on 20/10/2000. As such, present petition.

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Mr. Deshmukh, learned Counsel for the petitioner has taken me through the provisions of Section 91 of the Maharashtra Co-operative Societies Act, 1960 and in the back ground of pleadings made in the Dispute has sought to urge that the dispute is between two members of the society and has nothing to do with the management or business of the society. So as to support his contention, he has invited my attention to the pleadings raised in the dispute. According to him, both the Courts below i.e. Co-operative Court and Co-operative appellate Court have lost sight of the said event i.e. society once having given no objection for execution of the sale deed in favour of petitioner and respondent, the society has hardly any right, interest in the suit property. According to him, the dispute for which cause is between the petitioner and respondent and not in between the society and the petitioner was appreciated by both the Courts below. In support of his contention, he has relied upon the judgment of this Court in the matter of Belganda Sahakari Sakhar Karkhana Ltd. Bhoras Dist. Jalgaon vs. Keshav Rajaram Patil reported in 1994(2) Mh.L.J. 1756 so as to draw support that the nature of dispute, is no way concerned the management or business of the society. In addition to above, he has also relied upon the judgment of this Court in the matter of Lokmitra Co-operative Housing Society Ltd. Garkheda, Aurangabad vs. Yojna Co-

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operative Housing Society, Garkheda, Aurangabad reported in 1991(1) Mh.L.J. 39 .

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Learned Counsel for respondent-society supports the orders passed by the Courts below and would urge that the orders passed by the Co-operative Court and Co-operative appellate Court are based on sound reasoning. In support of his contention, he has placed reliance upon the judgment of Apex Court in the matter of R.S.D.V. Finance Co.Pvt. Ltd. vs. Shree Vallabh Glass Works Ltd. reported in AIR 1993 SC 2094 so as to submit that ouster of jurisdiction of Co-operative Court cannot be interfered simplicitor.

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Having considered the rival contentions of the parties, it is required to be noted that admittedly the petitioner and respondent No.1 have purchased Plot No.7 each having 50% share out of total 3150 sq. ft. There is no dispute that the said purchase by the petitioner and respondent No.1 was upon no objection given by respondent society. Said Plot No. 7 as such was divided into two parts i.e. 7-A and 7-B each having area 1580 sq. ft. It is claimed by respondent herein that the petitioner has encroached upon the plot of respondent to the extent of 3' x 65' and as such, sought possession of the said property.

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The respondent though in the dispute has come out with a prayer against respondent No.2 society and other respondents to give possession to the disputant of the above referred disputed property, however it is required to be noted that the respondent at no point of time was assured by the society about handing over of possession, particularly when the property was purchased by the petitioner and respondent from one Mr. Tandulwadikar, who was original allottee and was in possession of the plot from the society.

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Based on the above, the petitioner appears to have raised objection about jurisdiction of the Court. The Co-operative Court while dealing with such objection and upon considering submissions of the parties, has noticed 50% share of each of the parties which is an admitted position, Co-operative Court then proceeded to pass order, which according to him, in the dispute which pertains to touching business and management of the society, however, there are no reasons mentioned in the order in support of such finding.

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In an appeal preferred by present petitioner, the Cooperative appellate Court while dealing with the contention has taken into account the above referred admitted position and upon considering the claim of the society in the written statement as

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regards the original allotment to the Mr. Tandulwadikar, bifurcation of the plot, no objection by the society, noticed that main business of the society is to allot plots to its members and nature of prayer in the dispute pertains to encroachment on the plot allotted by the society. According to the Co-operative appellate Court, the said aspect touches the business of the society and as such, rejected the appeal.

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At the outset, in my opinion, both the Courts below have lost sight of important aspect of the matter i.e. original allottee Mr. Tandulwadikar was put into possession of the property Plot No. 7 by respondent-society and who, upon no objection from the respondentsociety, has sold it to the petitioner and respondent No.1. The petitioner and respondent No.1 though admitted that each of them have 50% share in the said plot and respondent No.1 has encroached to the extent of 65' x 3' on his plot, in my opinion is only after the purchase of the property by the petitioner and respondent No.1 from Mr. Tandulwadikar and not from the society. Mr. Tandulwadikar has taken no objection from the society for sale of the plot and as regards measurement of the share of each of the party is concerned, in my opinion, each of the party i.e. the petitioner and respondent No.1 will be required to establish the same before the competent civil Court, upon adducing the evidence on the said aspect is not in regard to touching the business of the society. The

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petitioner and respondent No.1 became members of the society after purchase of plot in question from Mr. Tandulwadikar and are not original allottees. Apart from above, Mr. Tandulwadikar, the petitioner and and respondent No. 1 have not made any grievance about shortfalls in the measurement of the plot.

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In my opinion, the cause that is sought to be espoused before the Industrial Court is neither touching the business of the society nor within ambit of the management of the society. Appropriate reliance can be placed upon the judgment in the matter of Belganda Sahakari Sakhar Karkhana Ltd. Bhoras Dist. Jalgaon (supra) to paragraphs-16 and 19 of the said judgment, which read thus :

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“16. With the advantage of the aforesaid rulings at hand, one has, therefore, to conclude that the position of law as it boils down at present, is that the expression "any dispute" used in section 91(1) of the Act would mean a dispute arising out of the provisions of the Act and not a dispute which could arise independently of the provisions of the Act. Consequently, therefore, when the dispute has arisen between the society and a member about the matter which does out arise not of the provisions contained in the Act, that would not fall within the jurisdiction of the Co-operative Courts.

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Now, in the facts of the present case, the right of a

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member to contract with the society for the construction of a godown building, is not a right created by the Act. That right is subject to the jurisdiction of Civil Courts under common-law. If that right is sought to be excluded, there should be an explicit provision in the statute which purports to accrue such a jurisdiction. In the present case, section 91 does not exclude explicitly from the connotation of the term 'dispute' the civil rights arising in favour of a member, otherwise than under the Act. Therefore, the expression "any dispute", though used in the section could not be ascribed a meaning so as to include therein the disputes regarding the rights arising under the common-law. The object of the Maharashtra cooperative Societies Act is not to create in itself a complete Code for regulating all the relations between the cooperative societies and the members but the object is to regulate such relations only in respect of the matters which are regulated by the Act. The Preamble of the Act reads thus,---

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"WHEREAS, with a view to providing for the orderly development of the co-operative movement in the State of Maharashtra in accordance with the relevant directive principles of State policy enunciated in the Constitution of India, it is expedient to consolidate and amend the law relating to Co-operative Societies in that State;...."

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Thus the Act is intended to consolidate and amend the law relating to co-operative societies and not for the purpose of regulating all the transactions, whether falling within the purview of the common-law or the special

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statute, by the Legislation in question.”

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Apart from above, appropriate support can be drawn from the judgment of this Court in the matter of Lokmitra Cooperative Housing Society Ltd. Garkheda, Aurangabad (supra), particularly paragraph-11 of the said judgment, which reads thus :

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“11. The learned advocate for the respondent in this behalf has urged that the problem should be viewed in the following background.

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Here is a case where the plaintiff/society has claimed title over the plot allotted to it for which there is a property card. The defendant/society objected to the plotting on the land of the plaintiff/society on the ground that, land was allotted to the defendant/society. This is a dispute which relates to the title which is being challenged by the defendant/society. This is a question which relates to the rival title set up by both the societies and such question does not at all come within the phrase 'business of the society' The word 'business' with reference to the affairs of the society has been defined as the business of the society viz. activities of the society. Such business can be spelt out from the section of the Act, the Rules framed under the Act and the byelaws of the society. In this behalf no bye-laws are produced and the learned advocate for the petitioner relied on the above definition of the housing society and that, if provision is looked into, it only provides for

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allotment of plots and providing common amenities. The business of the housing society does not at all envisage the question of rival title against the other society. In that behalf, section 91, sub-section (1) sub-clause (c) will not come into operation at all. This is a case where the plaintiff is seeking title over the same plot over which even the defendant/society lays claim. By no stretch of imagination, it can be contended that the question of title over a plot would fall within the purview of 'dispute relating to business of the society'. Disputes regarding titles to properties between societies or erosion of any rights or inflicting encroachments by one society over the other or like disputes between third party and the society would certainly not fall within the scope of the phrase "dispute touching the business of the society". Such disputes shall have to be resolved by the Civil Courts and none else.”

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In view of above, in my opinion, the petitioner was justified in raising objection that the Co-operative Court has no jurisdiction to try and entertain the dispute in question, particularly when same is not touching the business and management of the society. Apart from above, the encroachment as alleged by one member on the property of another member, after the execution of sale deed in any case could be dispute between two members of the society and not touching the business of the society.

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As such, for the reasons stated herein above, the writ petition stands allowed. The order dated 20/10/2000 passed by the Member, Maharashtra State Co-operative Appellate Court, Mumbai, Bench at Aurangabad in Appeal No. 119 of 1999 is set aside and Appeal No. 119 of 1999 stands allowed. It is declared that the Cooperative Court has no jurisdiction to try and decide Dispute No. 438 of 1994.

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18. Rule is made absolute in above terms.

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Tupe/

Sharad Prabhakarrao Pandav v. Subhash Ramchandra Deshmukh and Anr.

Case brief

What is this about?

What did the court decide?

Sharad Prabhakarrao Pandav v. Subhash Ramchandra Deshmukh and Anr.

Case brief

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What did the court decide?

What the court decided

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