1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.7840 OF 2009. 1. Raghunath S/o Bansi Dalvi, Age 61 years, Occ.Business, 2. Sanjay S/o Raghunath Dalvi, Age 35 years, Occ.Business, Both R/o Plot No.4-B, Ideal Cooperative Housing Society Limited, Burudgaon Road, Ahmednagar At present 29-A, Cooperative Industrial Estate, Kedgaon, Ahmednagar, Tq. and Dist. Ahmednagar. ... Petitioners. Versus 1. Ideal Cooperative Housing Society Limited, Burudgaon Road, Ahmednagar, Dist. Ahmednagar, through its Chairman/ Secretary 2. Sou. Rukhminibai Damodhar Phalke, Age 67 years, Occ. Nil. 3. Harischandra Krishnaji Mate, Age 57 years, Occ.Service, R.No.3 R/o Plot No.4-A, Ideal Cooperative Housing Society Limited, Dr.Colony, Burudgaon Road, Ahmednagar, 2 District Ahmednagar. ... Respondents. ... Mr.V.D.Hon, advocate holding for Mr.A.D.Shinde, advocate for the petitioners. Mr.V.B.Anjanwatikar, advocate for the Respondent No.1. Mr.Yuvraj V.Kakade, advocate for the Respondent Nos.2 and 3. ... CORAM : V.R.KINGAONKAR,J. Date : 02.02.2010. PER COURT 1. Rule, Rule made returnable forthwith and heard finally. 2. By this petition, the petitioners impugn judgment and order rendered by learned Member, Maharashtra State Cooperative Appellate Court, Mumbai, Bench at Aurangabad in Appeal No. 167/2009, whereby and whereunder it is held that the Cooperative Court has no jurisdiction to deal with the dispute regarding the alleged encroachment or act of nuisance allegedly caused by one member in relation to the house property of another member. 3 3. Question for determination in this petition is whether the dispute between two members of the Cooperative Housing Society, regarding encroachment by one of the member over property of another member and alterations caused in the property like opening of a door which allegedly causes nuisance to another member could be regarded as the dispute of which the Cooperative Court can take cognizance or that the said Court has no jurisdiction to entertain such a dispute the which is between two individual members and, therefore, the petitioners have been rightly relegated to the Civil Court. 4. Indisputably, the petitioners are owners of plot bearing No.4-B admeasuring 414.12 Sq.m. inclusive of certain constructed area which is being used for residential purpose. They are the members of Respondent No.1 Housing Cooperative Society. It is also undisputed that Respondent No.2 owns half of the plot No.4-B. Along with her, the Respondent NO.3 also resides in that house property being her son-in-law. 4 5. Briefly stated, the petitioners' case before the Cooperative Court is that the Respondent Nos.2 and 3 had started causing obstruction in their lawful possession. They fixed a new door opening in their property and closed a door from other side. Thus, they encroached over a part of the house property in plot No.4-B which is lawfully enjoyed by them. Consequently, they filed a dispute in the Cooperative Court at Ahmednagar. In their dispute (246/2008), the Respondent Nos.2 and 3 submitted an application (Exh.27) challenging jurisdiction of the Cooperative Court. The Respondent Nos.2 and 3 alleged that the dispute raised by the petitioners had no nexus with the business of the Cooperative Society. They contended that it was dispute between the two individual members of the Cooperative Housing Society and necessarily the Civil rights could be decided only by the Civil Court. They contended that the petitioners had not claimed any relief against Respondent No.1 Cooperative Housing Society and as such filing of the dispute in the Cooperative Court was impermissible. They submitted that the 5 Cooperative Court had no jurisdiction to entertain the dispute and as such sought dismissal of the claim put forth by the petitioners. The application was opposed by the petitioners. The Cooperative Court framed a preliminary issue pertaining to jurisdiction. The Cooperative Court came to the conclusion that it had jurisdiction to entertain the dispute. Feeling aggrieved, the Respondent Nos.2 and 3 preferred an appeal which came to be allowed by the learned Member of the Cooperative Appellate Court. The appellate Cooperative Court held that the dispute was between the members interse and it was not concerning the business of the Respondent No.1 - Cooperative Society. The appellate Court relied on observations in "Deccan Merchants Cooperative Bank Vs. Dalichand Jugraj Jain and others" AIR 1969 SCR 1320, in support of its finding. The appellate Cooperative Court, reversed the order of the Cooperative Court and directed to take further action inasmuch as there was lack of jurisdiction to entertain the dispute by the said Court. 6 6. Heard learned counsel. 7. Before I proceed to consider the rival submissions,let it be noted that the Respondent No.1 being the Housing Cooperative Society,its business is to look after welfare of the members of the Society and to ensure that their properties are being enjoyed in accordance with the bye-laws and the expectations of the society. The copy of 7/12 extract reveals that the agricultural land bearing S.No.5/1A, situated at Maliwada, stands in the name of the Respondent No.l Society. The learned counsel for the petitioners have placed on record copy of the bye-laws (marked "X"). On perusal of the bye-laws of the Respondent No.l Cooperative Society, it is amply clear that the main business of the Cooperative Housing Society is to construct buildings, sale or lease out the plots or to do all the activities necessary for the development of the Housing activities. It is pertinent to notice that the powers of the elected Committee are envisaged vide bye-law No.54(e) which reads as follows : 7 "...................................... ... (to hear the complaints and to deal with/decide the same)." 8. It is manifest that the Committee of the Cooperative Housing Society is empowered to deal with the grievances of the members. In other words, if the dispute arises between the two members, then any member may approach the Committee of the Respondent No.1 Housing Society as a first step in order to seek appropriate solution. Obviously, it is within the domain of the business of the Respondent No.1 society to deal with the dispute between the two members in respect of their properties/houses. It is worthwhile to note that the Respondent No.1 Cooperative Housing Society never disputed jurisdiction of the Cooperative Court. It was not the contention of the Respondent No.1 Housing Cooperative Society that the dispute between the petitioners on one hand and Respondent Nos.2 and 3 on the other hand does not touch its business activity. 8 9. The Appellate Cooperative Court mainly relied on observations in "Deccan Merchants Cooperative Bank Vs. Dalichand Jugraj Jain and others" (supra). In the given case, the Apex Court held that the word "business" as used in sub-section (1) of Section 91 was used in narrow sense and means the actual trading or commercial or other similar business activity of the society which the society is authorised to enter into under the Act and the Rules and its bye-laws and the word "business" does not mean all the affairs of the society but only those affairs which are contemplated under sub-section (1) of Section 91 of the MCS Act. It is important to mention here that sub-section (1) of Section 91 of the MCS Act is amended afterwards. The word touching the constitution appears in sub-section (1) of Section 91 of the MCS Act. It is obvious that if the dispute has some concern with the aims and objects of the Respondent No.1 Cooperative Society then the Cooperative Court will have jurisdiction to deal with such a dispute. As stated before, the Committee of the Respondent No.1 is authorised and empowered to decide 9 disputes between the members. Obviously, dealing with the disputes between the members of the Cooperative Housing Society is the activity which touches business of the Respondent NO.1 Cooperative Housing Society. Therefore, it can not be said that the dispute is not covered by Section 91(1) of the MCS Act. 10. The Apex Court in "M/s Anita Enterprises & another Vs. Belfer Co-op.Housing Society Ltd. & others" 2008(1) ALL MR 944, observed : "It is part of business of the Society to see that the house/flat allotted to a member remains in his occupation or in occupation of any other member and if any non-member intends a transfer in his favour, like the present one, he is required to obtain previous consent in writing either of the Society or its Managing Committee and in the event of consent being accorded, the Society shall admit him 10 as a nominal member in which eventuality only the transfer can be made in his favour. In the present case, under Section 91 of the Societies Act, the Society was well within its right to get a dispute adjudicated as to whether the member had, by inducting the tenants in the flat who were non-members, made a transfer in contravention of the provisions of Section 29(2) of the Societies Act. Thus the question regarding legality or otherwise of the creation of tenancy right by the member in favour of the appellants, which amounts to transfer of interest of a member in the property of the Society, can be decided by raising a dispute before the Cooperative Court." 11. Considering the legal position settled by the Apex Court in above referred case, it will have to be said that the dispute raised by the 11 petitioners could be tried by the Cooperative Court. There is no jurisdictional bar. Counsel for the Respondent Nos.2 and 3 submitted that the averments in the pleadings of the petitioners do not make out a case to infer that any relief was sought against the Respondent No.1 Cooperative Housing Society and, therefore, there was jurisdictional bar. I do not agree. The role of the Respondent No.1 Cooperative Housing Society is to adjudicate the disputes between the members if the complaints are received. If conduct of any member is found to be obnoxious and the member is unfit to continue then the Cooperative Housing Society has right to initiate appropriate action to cause removal of such a member. In other words, the Respondent No.1 has control over the internal activities of and relations between the members. In this view of the matter, the Appellate Cooperative Court was wrong in allowing the appeal and holding that the Cooperative Court had no jurisdiction to entertain the dispute. 12. In the result, the petition is allowed. The impugned judgment and order rendered by the 12 Appellate Cooperative Court is set aside. Rule made absolute accordingly. No costs. (V.R.KINGAONKAR,J.) asp/office/wp7840.09