THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.17514 of 2009 25th November, 2009 Between :- Mrs. Meher Banu Feroz Ali Gilani .. Petitioner And The A.P.Cooperative Tribunal At Hyderabad Rep.by its Registrar At Hyderabad and others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.17514 of 2009 ORDER:- This Court issued rule nisi on 24-8-2009 and granted interim suspension in W.P.M.P.No.22974/2009 for a limited period which was extended subsequent thereto for a further limited period. 2. W.V.M.P.NO.3089/2009 is filed by the 3rd respondent to vacate the interim order. 3. At this stage, at the request of the Counsel on record, the Writ Petition itself is taken up for final hearing and after hearing the Counsel on record, the Writ Petition itself is being disposed of finally. 4. Heard Sri B.Madhava Reddy, the learned Counsel representing the writ petitioner, the learned G.P. for Cooperation representing R.1 and R.2 and Sri Ravi Kumar, representing R.3. 5. The Writ Petition is filed praying for the issuance of Writ of Certiorari and quash the impugned Judgment made in ARC No.21/2007, dt.10-12- 2008, as confirmed by the 1st respondent in CTA No.6/2009 dt.3-8-2009 and pass such other suitable orders. 6. Sri B.Madhava Reddy, the learned Counsel representing the writ petitioner had taken this Court through the relevant bye-laws and would maintain that the Secretary of the President shall be the Officer to sue or be sued on behalf of the society and neither the Secretary nor the President had deposed in favour of the society in question and in the absence of any acceptable evidence in this regard, the order made by the 2nd respondent, as confirmed by the 1st respondent cannot be sustained. While further elaborating his submissions, the learned Counsel also had drawn the attention of this Court to Section 61 of the A.P.Cooperative Societies Act, 1964 (hereinafter in short referred to as ‘the Act’ for the purpose of convenience) and would maintain that on a careful examination of the facts, the dispute would not fall within the ambit of Section 61 of the Act and on this ground also the Writ Petition to be allowed. The learned Counsel also further placed strong reliance on certain decisions to substantiate his submissions. 7. The learned G.P. for Cooperation however would maintain that the Arbitrator/Deputy Registrar/Divisional Cooperative Officer, Golconda Division, on appreciation of the evidence which had been placed before the said authority as Primary Authority recorded reasons in accordance with law since the dispute would fall within the ambit of Section 61 of the Act and made an order which in turn was confirmed by the A.P.Cooperative Tribunal, Hyderabad – 1st respondent, hence in the light of the convincing reasons recorded, by both the Primary Authority and also the Appellate Authority – A.P.Cooperative Tribunal, Hyderabad and in the light of the concurrent findings recorded by both the 2nd respondent and 1st respondent as well, this is not a fit matter to be interfered with under Article 226 of the Constitution of India. 8. Sri Ravi Kumar, the learned Counsel representing 3rd respondent had taken this Court through the contents of the counter affidavit filed along with W.V.M.P.NO.3089/2009 and would maintain that the grounds averred in the affidavit filed in support of the writ petition are unsustainable grounds. The Counsel also would maintain that it is not as though no evidence had been adduced before the Primary Authority, an Authorized Director was examined on behalf of the society, and apart from this aspect of the matter, several facts are not in controversy at all as well reflected from the order under challenge – the order made by the 2nd respondent which was confirmed by the 1st respondent, and hence in the light of the same, the Writ Petition to be dismissed. 9. Heard the Counsel and perused the order made by the Primary Authority – the 2nd respondent and also the Appellate Authority – A.P.Cooperative Tribunal, Hyderabad – the 1st respondent. 10. In the light of the submissions made by the Counsel on record, the question to be considered in the present Writ Petition is as hereunder:- “Whether the findings recorded and the orders made by the 2nd respondent, as confirmed by the 1st respondent, to be disturbed or to be confirmed in the facts and circumstances of the case?” 11. As already aforesaid, the writ petitioner had challenged the order made by the A.P.Co-operative Tribunal, Hyderabad, in C.T.A.No.6/2009 dt.3-8- 2009 wherein the order made by the 2nd respondent in A.R.C.No.21 of 2007 dt.10-12-2008 had been confirmed. 12. It is the case of the petitioner that the petitioner purchased Flat bearing No.B-73, Ground Floor in the 3rd respondent society, from one Rajab Ali Lakhani and the same was allotted in his favour by the society and the petitioner had been living in the said Flat since the date of purchase with the family. It is also the further case of the writ petitioner that the petitioner found that almost all the residents of the Ground Floor Flats of the society raised some constructions in the open area abutting their houses and certain difficulties in this regard also had been explained. The petitioner constructed a sump for storage of water for their use. It is further stated that the society filed A.R.C.No.21 of 2007 under Section 61 of the Act before the 2nd respondent i.e., Deputy Registrar/Divisional Cooperative Officer, Golconda, Hyderabad, with a request to demolish the construction said to have been made by the petitioner and to pass a Decree under Section 62 of the Act. 13. It may be appropriate to have a glance at Sections 61 and 62 of the Act and the said provisions read as hereunder:- Section 61. Disputes which may be referred to the Registrar:- (1) Notwithstanding anything in any law for the time being in force, if any dispute touching the constitution, management or the business of a society, other than a dispute regarding disciplinary action taken by the society or its Committee against a paid employee of the society, arises – (a) among members, past members and persons claiming through members, past members and deceased members; or (b) between a member, past member or person claiming through a member, past member or deceased member and the society, its Committee or any officer, agent or employee of the society; or (c)between the society or its Committee, and any past Committee, any officer, agent or employee, or any past officer, past agent, or past employee or the nominee, heir or legal representative of any deceased officer, deceased agent or deceased employee of the society; or (d) between the society and any other society, Explanation:- For the purpose of this sub-Section a dispute shall include – (i) a claim by a society for any debt or other amount due to it from a member, past member, the nominee, heir or legal representative of a deceased member, whether such debt or other amount be admitted or not; (ii) a claim by surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or other amount due to it from the principal debtor as a result of the default of the principal debtor whether such debt or other amount due to be admitted or not; (iii) a claim by a society against a member, past member, or the nominee, heir or legal representative of a deceased member for the delivery of possession to the society of land or other immovable property resumed by it for breach of the conditions of assignment or allotment of such land or other immovable property; (2) If any question arises whether a dispute referred to the Registrar under this Section is a dispute touching the constitution, management or the business of a society, such question shall be decided by the Registrar. (3) Every dispute relating to, or in connection with, any election to a Committee of a society shall be referred for decision to the Tribunal having jurisdiction over the place where the main office of the society is situated, whose decision thereon shall be final. (4) Every dispute relating to, or in connection with any election shall be referred under sub-Section (3) only after the date of declaration of the result of such election. Section 62. Action to be taken by the Registrar on such reference:-(1) The Registrar may, on receipt of the reference of a dispute under Section 61 – (a) elect to decide the dispute himself; or (b) transfer it for disposal to any person who has been invested by the Government with powers in that behalf; or (c)refer it for disposal to an arbitrator. (2) Where the reference relates to any dispute involving immovable property, the Registrar or such person or arbitrator may order that any person joined as a party who has acquired an interest in such property subsequent to the acquisition of interest therein by a party to the reference and any decision that may be passed on the reference by the Registrar or the person or the arbitrator aforesaid, shall be binding on the party so joined as if he were an original party to the reference. (3) The Registrar may, by order for reasons to be recorded therein, withdraw any reference transferred under Clause (b) of sub- section (1) or referred under Clause (c) of that sub-section and may elect to decide the dispute himself or transfer it to any other person under Clause (b) of sub-section (1) or refer it to any other arbitrator under Clause (c) of that sub-section. (4) The Registrar, such person or arbitrator shall decide the dispute in accordance with the provisions of this Act and the rules and the bye-laws and such decision shall, subject to the provisions of Section 76, be final. Pending final decision on the dispute, the Registrar, such person or arbitrator, as the case may be, may make such interlocutory orders as he may deem necessary in the interest of justice. 14. Further it is the case of the writ petitioner that the 2nd respondent made an order directing the petitioner to remove the alleged construction said to have been made illegal and the petitioner aggrieved by the same preferred an appeal before the 1st respondent in C.T.A.No.6 of 2009 and the same was confirmed even by the 1st respondent. Specific stand had been taken that the claim of the society is not a dispute which can be referred to the 2nd respondent under Section 61 (1) of the Act. Further specific stand had been taken that the 3rd respondent society failed to show as to how the petitioner had committed the breach of regulation under the provisions of the bye-laws. The relevant bye-laws also had been referred to and specific stand also had been taken that these are not applicable. The 3rd respondent had failed to examine the competent person and inasmuch as no competent person had represented the society in the Court, such evidence of P.W.1 should not have been accepted. Further, several other facts also had been narrated and certain instances also had been referred to inclusive of A.R.C.No.20/2007 in paras 11, 12 and 13 of the affidavit filed in support of the writ petition. 15. In the counter affidavit filed by the 3rd respondent, several of the facts had been denied. The 3rd respondent had taken a stand that the main objective of the society is to cater the housing needs of its Members and all its Members shall abide by the terms and conditions as stipulated under bye- laws, Rules and Regulations. In pursuance of its main objective, the society has constructed total number of 236 flats for the benefit of its members and they were allotted to eligible individuals who are members and share holders of the society. In the case on hand, initially one Rajab Ali Lakhani, who was the member of the society, was allotted Flat bearing No.B-73, Ground Floor in the society and afterwards, when the said Rajab Ali Lakhani sought for transferring his membership, the society has permitted the same and on which the petitioner had applied for society Membership which was accepted and approved by the Managing Committee. Accordingly, the petitioner had become a Member of the 3rd respondent society and she also obtained one share of the society vide Share Certificate S.R.Folio No.73, on 21-3-1999, from share No.1674, by paying requisite fees. Thereafter when the petitioner had cleared all due matters to the society, the society has executed Release Deed dt.14-9-1999 in favour of the petitioner vide document No.2232/99 in respect of flat bearing No.5-8-494/B/73, in ground floor, admeasuring 777 sq.ft., along with 22 sq.yds., of undivided share of land in premises No.5-8- 494, situated at Karimabad colony, Chirag Ali Lane, Hyderabad, with a condition that the relessee shall abide by bye-laws, Rules and Regulations of the society. 16. Further it is averred that the total 236 flats were constructed as per the lay-out plan approved by the Director of Town Planning Authority in an area of 4800 sq.yds., out of the total area of 15440 sq.yds., and the society had left sufficient open space for providing common amenities such as play ground, garden and for other common purposes. Further the society has also left 15-17 foot open space in the inner circles of the compound wall and in between the existing flats in order to safeguard the safety and security of inhabitants in case of emergencies, such as fire accidents and other vis major acts. Hence raising any kind of further constructions in the open space left by the society for the safety and benefit of Members of the society is highly prohibited and the society had taken appropriate action against the violators who have violated and contravened the sanctioned plan. It is also utterly false to say that the petitioner had constructed only a sump for storage of water as the water being supplied is insufficient. The petitioner had illegally encroached into 610 sq.ft., of open space left by the society and started making constructions beyond his flat area of 777 sq.ft., in an unlawful manner for which the society has objected and filed proceedings before the competent forum. 17. The 3rd respondent filing the A.R.C. before the 2nd respondent and appeal being preferred as against the order made by the 2nd respondent before the 1st respondent and the result thereof and the details in relation thereto also had been mentioned. Several of the other averments made in the affidavit filed in support of the writ petition had been denied and certain of the averments had been further explained. 18. These are the respective stands taken by the parties. 19. This Court had carefully gone through the reasons recorded by the 2nd respondent and also the reasons recorded by the 1st respondent as well while confirming the order made by the 2nd respondent. The 2nd made the following Order:- “In the result and by virtue of powers conferred on the undersigned under Section 62 of the APCS Act 7 of the 1964 (R/w G.O.Ms.No.34 (F&A) Cooperation (4) Dept dt.16-1-89) the Arbitration claim filed under Section 61 of the APCS Act 1964 in A.R.C.No.21 of 2007 is allowed and this Court direct the defendant/respondent to dismantle the additional built up area (illegal construction undertaken by him) to the extent 610 sq.feet along with water sump behind built up area 777 sq.feet in the ground floor of Flat No.B-73, with immediate effect. In the event of defendant not complied the lawful decree, (which is enforceable as civil Court) the plaintiff society is entitled to take steps for the execution of decree for dismantling the illegal construction as per the provisions laid down under Section 70(a) of the APCS Act 7 of 1964 in the interest of justice.: The Primary Authority – 2nd respondent in fact had settled the following issues:- 1) Whether the defendant has raised any illegal construction as contended in the plaint filed by the plaintiff society? 2) Whether the defendant is entitled to undertake such construction and regulation? 3) Whether the plaintiff society is entitled to any relief as claimed in the plaint filed by the plaintiff society? 4) If so, to what relief? and recorded reasons in detail while answering the issues. Aggrieved by the same, the writ petitioner carried the matter before the 1st respondent – A.P.Co-operative Tribunal, Hyderabad and the 1st respondent formulated the following points for determination at para 4:- (1) Whether Award passed in A.R.C.No.21 of 2007 is sustainable? (2) To what relief? The 1st respondent at paras 5 to 14 had dealt with the factual controversy, the findings recorded by the Primary Authority and also relied on certain decisions and after recording reasons, ultimately came to the conclusion that the appeal is devoid of merit and accordingly dismissed the same but directing the parties to bear their own costs. Aggrieved by the same, the present Writ Petition had been filed. 20. Bye-law No. 29(d) specifies “the Secretary/President shall be the Officer to sue or be sued on behalf of the society and all bonds shall be in the name of the Secretary/President”. Bye-law No.10 had been relied on and the same reads as hereunder:- SHARE CERTIFICATE: (a) The society shall issue a share certificate duly signed by the President and the Secretary of the society together with the seal of the society to every member for the shares taken by him after completely paid to the society the full value of such shares. (b) If a share certificate is lost or destroyed a duplicate certificate may be issued after giving such publicity of the facts as may be considered necessary by the Managing Committee. In case any objection is raised it will be gone into by the Managing Committee whose decision in this regard will be final. If any certificate is wormed out or damaged, the Board Committee may order the same to be cancelled and issue a duplicate certificate in lieu here of on surrendering such worn-out or damaged certificate a fee of rs.5/- shall be collected for every duplicate certificate issued under this bye-law.” 21. Section 61 of the Act already had been referred to above. Certain submissions were made in relation to the language in Section 61(1) of the Act “if any dispute touching the constitution, management or the business of a society”. Strong reliance was placed on D.M.CO-OP. BANK V. DALICHAND[1] wherein the Apex Court while dealing with Section 91(1) of the Maharashtra Cooperative Societies Act, 1961 observed at paras 11, 17 and 18 as hereunder:- Section 91 runs: "91. (1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, elections of the office bearers, conduct of general meetings, management or business of a society shall be referred by any of the parties to the dispute, or by a federal society to which the society is afflicted, or by a creditor of the society, to the Registrar, if both the parties thereto are one or other of the following: (a) a Society, its committee, any past committee, any past or present officer, any past or present agent, any past or present servant or nominee, heir or legal representative or any deceased officer, deceased agent or deceased servant of the society, or the liquidator of the society; (b) a member, past member or a person claiming through a member, past member or a deceased member of a society, or a society which is a member of the society;. (c) a person, other than a member of the society, who has been wanted a loan by the society, or with whom the society has or had transactions under the provisions of S. 45, and any person claiming through such a person; (d) a surety of a member, past member or a deceased member, or a person other than a member who has been granted a loan by the society under S. 45, whether such a surety is or is not a member of the society; (e) any other society, or the Liquidator of such a society. (2) When any question arises whether for the purposes of foregoing sub-section, a matter referred to for decision is a dispute or not, the question shall be considered by the Registrar, whose decision shall be final. (3) Save as otherwise provided under sub-section (3) of S. 93, no court shall have jurisdiction to entertain any suit or other proceedings in respect of any dispute referred to in sub-section (1 ). Explanation 1.- A dispute between the Liquidator of a society and the members of the same society shall not be referred to the Registrar under the provisions of sub-section (1 ). Explanation 2.- For the purposes of this sub-section a dispute shall include- (i) a claim for or against a Society for any debt or demand due to it from a member or due from it to a member, past member or the nominee, heir or legal representative of a deceased member or servant or employee, whether such a debt or demand be admitted or not; (ii) a claim by a surety for any sum or demand due to him from the principal borrower in respect of a loan by a society and recovered from the surety owing to the default of the principal borrower, whether such a sum or demand be admitted or not; (iii) a claim by a society for any loss caused to it by a member, past member or deceased member, by my officer, past officer or deceased officer, by any agent, past agent or deceased agent, or by any servant past servant or deceased servant, or by its committee, past or present, whether such loss be admitted or not; (iv) a refusal or failure by a member, past member or a nominee, heir or legal representative of a deceased member, to deliver possession to a society of land or any other asset resumed by it for breach of conditions of the assignment. " The answer depends on the words used in the Act. Although number of cases have been cited to us on similar expressions contained in various other Acts, both Indian and English, in the first instance, it is advisable to restrict the enquiry to the terms of the enactment itself, because the legislatures have been changing the words and expanding the scope of references to arbitrators or to the Registrars step by step. The sentence, namely, "notwithstanding anything contained in any other law for the time being in force" clearly ousts the jurisdiction of Civil Courts if the dispute falls squarely within the ambit of S. 91 (1 ). Five kinds of disputes are mentioned in sub-sec. (1); first, disputes touching the constitution of a society; secondly, disputes touching election of the office-bearers of a society; thirdly, disputes touching the conduct of general meetings of a society; fourthly, disputes touching the management of a society; and fifthly, disputes touching the business of a society. It is clear that the word "business" in this context does not mean affairs of a society because election of office-bearers, conduct of general meetings and management of a society would be treated as affairs of a society. In this sub-section the word "business has been used in a narrower sense and it 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. The question arises whether the dispute touching the assets of a society would be a dispute touching the business of a society. This would depend on the nature of the society and the rules and bye-laws governing it. Ordinarily, if a society owns buildings and lets out parts of buildings which it does not require, for its own purpose it cannot be said that letting out of those parts is a part of the business of the society. But it may be that it is the business of a society