( 1 ) JUDGMENT REPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Letters Patent Appeal No. 194 of 2009 (Against the order dated 18-9-2009 in Writ Petition No. 3457 of 2009 ) 1. Shri Vijay Shamrao Bhokre, Age : Major, Occupation : Service. 2. Shri Sanjay Shamrao Bhokre, Age : Major, Occupation : Advocate. 3. Shri Satish Shamrao Bhokre, .. Appellants Age : Major, (Original respondent Occupation : Agriculture. nos.1 to 3 in Writ Petition ) All major, R/o. Kopargaon, District : Ahmednagar. versus 1. Shri Mumbadevi Jilla Nagari Sahakari Pat Sanstha Maryadit, Kopargaon, having its Head office At Old Municipality Road, Near Shivaji Statue at Kopargaon, Dist. Ahmednagar, through its Manager and Authorised Signatory Shri A.P. Patil, R/o. Kopargaon, Dist. Ahmednagar. 2. The Assistant Registrar, Cooperative Societies, At Kopargaon, Dist. Ahmednagar. ( 2 ) 3. The Special Recovery and Sales Officer, Maharashtra State Cooperative Pat Sanstha Federation, C/o. Mumbadevi Jilla Nagari Sahakari Pat Sanstha Maryadit, Bhagwan Mahavir Path at Kopargaon, Dist. Ahmednagar. 4. Shri Deepak Manikchand Pande, Age : Major, Occupation : Business, R/o. Janki Plaza at Kopargaon, .. Respondents Dist. Ahmednagar. (No.1 - Original petitioner and 5. Shri Pramod Haribhau Wani, Nos.2 to 5 - Age : Major, Original Occupation : Business, respondents ) R/o. Wani Society at Kopargaon, Dist. Ahmednagar. ....................... Mr. S.D. Kulkarni, Advocate, for the appellants. Mr. S.V. Advant, Advocate, for respondent no.1. Mr. K.B. Chaudhary, Assistant Government Pleader, for respondent no.2. Mr. C.V. Korhalkar, Advocate, for respondent no.3. Respondent nos.4 and 5 served (Absent). ........................ W I T H ( 3 ) Letters Patent Appeal No. 195 of 2009 (Against the order dated 18-9-2009 in Writ Petition No. 2776/2009 ) 1. Shri Vijay Shamrao Bhokre, Age : Major, Occupation : Service. 2. Shri Sanjay Shamrao Bhokre, Age : Major, Occupation : Advocate. 3. Shri Satish Shamrao Bhokre, .. Appellants Age : Major, (Original respondent Occupation : Agriculture. nos.1 to 3 in writ petition ) All major, R/o. Kopargaon, District : Ahmednagar. versus 1. Shri Mumbadevi Jilla Nagari Sahakari Pat Sanstha Maryadit, Kopargaon, having its Head office At Old Municipality Road, Near Shivaji Statue at Kopargaon, Dist. Ahmednagar, through its Manager and Authorised Signatory Shri A.P. Patil, R/o. Kopargaon, Dist. Ahmednagar. 2. The Assistant Registrar, Cooperative Societies, At Kopargaon, Dist. Ahmednagar. ( 4 ) 3. The Special Recovery and Sales Officer, Maharashtra State Cooperative Pat Sanstha Federation, C/o. Mumbadevi Jilla Nagari Sahakari Pat Sanstha Maryadit, Bhagwan Mahavir Path at Kopargaon, Dist. Ahmednagar. 4. Shri Deepak Manichand Pande. 5. Shri Pramod Haribhau Wani. .. Respondents (No.1 - Original Nos.4 & 5 Both Major, petitioner and Occupation : Business, Nos.2 to 5 - R/o. Kopargaon, Original Dist. Ahmednagar. respondents ) .......................... Mr. S.D. Kulkarni, Advocate, for the appellants. Mr. S.V. Advant, Advocate, for respondent no.1. Mr. K.B. Chaudhary, Assistant Government Pleader, for respondent no.2. Mr. C.V. Korhalkar, Advocate, for respondent no.3. Respondent nos.4 and 5 served (Absent). ........................ ( 5 ) CORAM : A.P. DESHPANDE & N.D. DESHPANDE, JJ. Date of reserving the judgment : 23rd February 2010 Date of pronouncing the judgment : 11th March 2010 JUDGMENT (Per A.P. Deshpande, J.) : 1. As both the Letters Patent Appeals are filed in the same set of facts, raising common question of law, the Letters Patent Appeals are heard together and are being disposed of by this common judgment. 2. The present appellants are the legal representatives of one Smt. Indumati Shamrao Bhokare. She was advanced mortgage loan by the respondent no.1. As the loan was not repaid, the respondent no.1 initiated proceedings under Section 101 of the Maharashtra Cooperative Societies Act, 1960 (For short, "the Act") before the Assistant Registrar, Cooperative Societies, Kopargaon. The Assistant Registrar issued a certificate in favour of the respondent no.1. The respondent no. 1 tried to execute the said certificate. Hence, the present petitioners instituted a suit for declaration in the court of Civil Judge (Junior Division), that the certificate obtained by the respondent no0.1 / Society is a nullity and hence, prayed for ( 6 ) injunction seeking to restrain the respondent no.1 from executing the certificate. The trial court granted the injunction, as prayed for, and restrained the Society from executing the certificate. Before the Civil Court, the respondent no.1 had objected to the maintainability of the suit and had contended that Civil Court has no jurisdiction as a special forum is constituted for dealing with the disputes under Section 101 of the Act in regard to certain category of Societies. The objection was rejected and the Civil Court held that it has jurisdiction. 3. Aggrieved by the order granting injunction and holding that it has jurisdiction to entertain the suit, the present respondent no.1 filed a Writ Petition in this court. During the hearing of the said Writ Petition, the learned Counsel for the present appellants had submitted that the main thrust of the appellants in the suit, for claiming the certificate to be nullity, is that the same was issued without adhering to the principles of natural justice and without affording an opportunity of hearing to the appellants. This court, in that view of the matter, set aside the certificate issued by the Assistant Registrar and remanded the matter back to the Assistant Registrar for affording an opportunity of hearing to the present appellants. Satisfied by the redressal of the grievance, the appellants withdrew the suit. After the remand, parties were heard and the Assistant Registrar, yet again issued a certificate in favour of the respondent no.1 for ( 7 ) a given sum of amount, being recoverable from the present appellants. This time, the present appellants chose to file a dispute under Section 91 of the Act and challenged the recovery certificate. The prayer made in the dispute is seeking a declaration that the certificate issued by the Assistant Registrar under Section 101 of the Act, is a nullity. Consequential prayers are also made, that the certificate ought not to be executed. Stay of the execution of the certificate was also asked for. The Cooperative Court initially granted ad interim injunction restraining the respondent no.1 from executing the certificate. 4. Aggrieved by the said order, the present respondent no.1 filed a Writ Petition in this court, questioning the jurisdiction of the Cooperative Court under Section 91 to entertain a dispute wherein a relief of declaration in regard to the certificate being nullity was asked for. The learned Single Judge of this court, by an interim order, stayed the proceedings on the file of the Cooperative Court, as a consequence of which, the ad interim order could not be further continued and hence the present appellants also filed a Writ Petition in this court bearing Writ Petition No. 3457/2009. Both the Writ Petitions were taken up for hearing simultaneously and the learned Single Judge allowed the Writ Petition filed by the respondent no.1 and held that a certificate issued under Section 101 of the Act cannot be challenged by filing a dispute under Section 91 of the Act. The ( 8 ) petition filed by the present appellants came to be dismissed in view of the findings recorded in the judgment delivered in the Writ Petition No. 2776/2009 filed by respondent no.1. The present Letters Patent Appeals are directed against the said two judgments and orders passed by the learned Single Judge. 5. Before we notice the submissions made by the learned Counsel for the respective parties, it is necessary to refer to the relevant provisions of the Act and the Rules so that the submissions can be better appreciated. 6. Section 101 of the Act is a special provision for recovery of arrears due to certain Societies as arrears of land revenue. Section 101 governs recovery of amount in regard to certain transactions by a class of Societies enumerated therein by way of arrears of land revenue. It envisages a summary procedure for issuing a certificate for recovery of the amount stated therein. The said Section begins with a non-obstante clause which reads thus : " Notwithstanding anything contained in Sections 91, 93 and 98..................., the Registrar may, after, making such inquiries as he deems fit, grant a certificate for the ( 9 ) recovery of the amount stated therein to be due as arrears. " When Section 101 was enacted, it provided that Registrar may, after, making such inquiries as he deems fit, grant a certificate, whereas by an amending Act of 24 1961, it provided thus : " The Registrar may, after making the inquiry, in such a manner as may be prescribed, grant a certificate for recovery of the amount. " Thus, the words "as he deems fit" came to be deleted and at its place, "as may be prescribed", came to be substituted. 7. Rules are also framed prescribing the procedure to be followed for grant of a certificate. Chapter VIII-A is inserted vide Government Notification, with effect from 18-5-2007. An elaborate procedure to be followed before grant of a certificate, is to be found in Rules 86A,B,C,D,E and F. Briefly stated, the application for grant of certificate for recovery is to be filed in a given format and the same need to contain the claim of dues of the society against the persons from whom the amount claimed is due. Such application is to be accompanied by list of papers, which amongst others include certified true copy of the extract ( 10 ) of account of dues, notice given by the Society to the member and other documents. On receipt of the application, the Registrar is obliged to issue a notice to the opponents calling upon the opponents to file written statement on a given date and the notice is required to be served by registered post acknowledgment due. The party served with the notice is permitted to appear before the Assistant Registrar, either personally or through an Advocate or his representative. The applicant Society is expected to prove the claim made in the application and the said position is clear from Sub-Rule 2 of Rule 86C. Parties are to be heard and are also expected to make a statement in defence. The applicant is expected to deal with the contentions raised in the defence. After taking into consideration the rival contentions, the Assistant Registrar is expected to issue a reasoned judgment and pass an order for grant or rejection of the application. It is only if the judgment is rendered in favour of the applicant, that the certificate in Form "V" is to be issued. We may hasten to add that these rules are framed and are inserted in the statute book, as late as, in the year 2007. But even before insertion of Chapter VIII-A, this court had read principles of natural justice in Section 101 itself, by adopting an interpretative process. 8. Sub-Section 3 of Section 101 of the Act provides that a certificate granted by the Registrar under sub-section (1) or (2) ( 11 ) shall be final and a conclusive proof of the arrears stated to be due therein , and the same shall be recoverable according to the law for the time being in force, for the recovery of land revenue. Thus, two features appearing in Section 101 need to be borne in mind. The first being, it opens with a non-obstante clause, "Notwithstanding anything contained in sections 91, 93 and 98 ......................" and secondly, that the certificate granted by the Registrar is final and conclusive proof of arrears stated to be due. It is clear that on account of non-obstante clause, Section 101 of the Act has an overriding effect on Section 91 and finality is attached to the certificate and conclusiveness is granted to the arrears stated in the certificate by virtue of Sub- Section 3 of Section 101 of the Act. 9. A certificate issued under Section 101 of the Act is not appealable under Section 152 of the Act. However, reference to Sub-Section 4 of Section 152 will not be out of place. Sub-Section 4 of Section 152 reads thus : " Save as expressly provided, no appeal shall lie against any order, decision or award passed in accordance with the provisions of this Act; and every such order, decision or award shall, whether expressly provided or not, be final, but shall, always be subject to the ( 12 ) provisions for revision in this Act; and where an appeal has been provided for, any order passed on appeal shall likewise be final, but be subject to such revision provisions. " Thus, orders and awards are again granted finality, of course, subject to an appeal and/or revision. Section 154 of the Act deals with revisionary powers of State Government and Registrar. Sub-Section 2A is specifically inserted by Maharashtra Act No. 41 of 2000, which reads thus : " No application for revision shall be entertained against the recovery certificate issued by the Registrar under section 101 unless the applicant deposits with the concerned society, fifty percent amount of the total amount of recoverable dues. " It can thus be seen that Sub-Section 2A of Section 154 of the Act postulates pre-deposit of fifty percent of the amount before revision could be entertained. A conjoint reading of Section 101 and Sub-Section 2A of Section 154 of the Act reveals the object in providing for a speedy summary remedy for a class of Societies for recovery of its dues. ( 13 ) 10. Section 163 of the Act bars the jurisdiction of the Civil Court in relation to the matters provided in Sub-Section 1. Sub-Section 3 of Section 163 lays down that all orders, decisions or awards passed in accordance with the Act or the rules shall, subject to the provisions for appeal or revision in this Act be final; and no such order, decision or award shall be liable to be challenged, set aside, modified, revised or declared void in any Court upon the merits or upon any other ground whatsoever. Sub-Section 3 of Section 163 of the Act, yet again, attaches finality to the orders, decisions and awards, subject to the appeal or revision under the provisions of the Act and no such order, decision or award is liable to be challenged, set aside, modified, revised or declared void, in any court, either upon merit or any other ground whatsoever. 11. In the first place, Section 101 of the Act attaches finality to the certificate issued which can be questioned only by filing a revision under Section 154. Having regard to the provisions of Section 163 of the Act, the only mode that is available is to file a revision. 12. The first question that arises for consideration is whether a dispute under Section 91 of the Act, challenging a certificate issued under Section 101 of the Act, is maintainable ( 14 ) as finality is granted to the same. The question, as to what is the effect when finality is given to an order passed under the Act, had fallen for consideration of Division Bench of this court, in the case of K.V. Sundaram and another Vs. Raj Rajeshwari Co-op. Housing Society Ltd. and others (1980 Mh.L.J. 4). In the said case, the subject matter was an order of expulsion passed under Section 35 of the Act. The same was challenged by filing a dispute under Section 91 before the Cooperative Court. An order passed under Section 35 is an appealable order under Section 152. A separate forum is carved out to deal with the cases falling under Section 35. In the said context, the Division Bench observed thus : " Now, when the finality is given under the Act to certain orders or decisions, then those decisions are not open to challenge under the very Act except in the manner provided by the Act. If the decision rendered in a proceeding under section 35 confirmed or modified under section 152, is allowed to be challenged under section 91, an anomaly will be created. The provisions under section 152(4) will then become otiose. Not only are orders referred to in section 152 given a finality under the Act but they are further made final under section ( 15 ) 163(3) of the Act and they cannot be challenged in any Court. There is, therefore, a clear indication in section 152(4) that the orders which are made final under that provision could be subjected to scrutiny only in the revisional jurisdiction under the Act and cannot be subjected to scrutiny or brought into question under any other provision under the Act. Thus notwithstanding the fact that section 91 does not expressly exclude the proceedings under section 35, on a harmonious construction of the provisions of sections 35, 152 and 154 on the one side and sections 91, 97 and 149 on the other, will have to be held that each one of these two sets of provisions must independently operate in their own fields and the correctness of the order under section 35 cannot, therefore, be subjected to scrutiny or adjudication in a proceeding under section 91. " Suffice it to note that even in the absence of specific exclusion, it is held by the Division Bench, that a dispute under Section 91 is not maintainable. ( 16 ) 13. Same question arose before Division Bench of this court, as to whether a certificate granted under Section 101 of the Act could be challenged under Section 91 of the Act by filing a dispute. Answering the question, in the negative, the Division Bench held in the case of Vasundhara Ashokrao Patil Vs. Rajaram Bapu Sahakari Bank Ltd., Sangli & others (2003(4) Mh.L.J. 315), that the provisions of Sections 91 and 101 are separate and distinct and act in different spheres. The Division Bench, after noticing the non-obstante clause with which Section 101 opens, held thus : " The opening words of Section 101, "Notwithstanding anything contained in sections 91, 93 and 98 gives overriding effect to the said section. Therefore, for recovery of loans, subscription, seasonal finance etc., it is not necessary for the Society to refer the dispute to the Cooperative Court under Section 91. The plain reading of Section 101 reveals that a special class of societies is carved out who can apply to the competent authority under Section 101 and those Societies alone can obtain recovery certificate in accordance with the said section. The provisions of Section 91 and 101 are separate and distinct ( 17 ) and act in different spheres. By virtue of Section 101, a summary and speedy remedy has been provided to certain types of Societies. Further it is to be noted that by virtue of Section 101, finality is attached to the certificate granted by the Registrar under this section. It is, therefore, clear that the certificate issued under Section 101 cannot be challenged under Section 91. Only remedy of the party aggrieved is to file revision application under Section 154 of the Maharashtra Cooperative Societies Act. Section 101 is a speedy remedy to recover the amount and when statute gives finality to the action or order, it can be challenged only in a manner prescribed by statute. Therefore, a dispute under Section 91 would be completely barred. We may mention that two learned Single Judges of this Court have taken a view that certificate under Section 101 is final and conclusive and the dispute to challenge the certificate cannot be filed under Section 91 (See Shri Kedarling Vikas Seva Scy. Ltd. Vs. Dinkar Bhimrao Raut & others, 2003(1) LJSOFT 106 = 2003(1) ALL MR 66 and ( 18 ) Bhusawal People's Bank Ltd. Vs. Vijay Ramdas Rane and others (Writ Petition No. 2277 of 2001 decided by Naik, J., on 30th/31st January 2002). " 14. The two judgments noticed by the Division Bench are in the case of Bhusaval People's Cooperative Bank Ltd., Bhusaval Vs. Vijay Ramdas Rane & others, in Writ Petition No. 2277 of 2001, delivered by Justice A.B. Naik on 30th and 31st January 2002, and in the case of Kedarling Vikas Seva Society Ltd. Vs. Dinkar Bhimrao Raut & others (2003(1) Mh.L.J. 152), by Justice A.M. Khanwilkar. There is one more judgment delivered by Justice B.P. Dharmadhikari, in the case of Pukhraj s/o. Mohanlal Vyas & others Vs. Sanmitranagri Sahakari Pata Sanstha Limited & another (2007(3) Mh.L.J. 575). This judgment places reliance on the Division Bench judgment referred to herein above, so also, the judgments of the two learned Single Judges, to hold that a dispute under Section 91 is not maintainable, calling in question the legality of a certificate issued under Section 101 of the Act. It will not be out of place to mention that the Division Bench in Vasundhara Patil's Case (supra) has taken the same view as was taken in the earlier judgment in K.V. Sundaram's Case (supra), though the earlier judgment was not brought to the notice of the court which decided Vasundhara Patil's Case. ( 19 ) 15. The judgments referred to herein above take into consideration two circumstances to hold that a dispute under Section 91 questioning the legality of a certificate issued under Section 101 is not maintainable. The two circumstances being (1) non-obstante clause in the opening part of Section 91, and (2) attachment of finality and conclusiveness to the certificate. We proceed to supplement one more reason in support of the conclusion and the same is "express exclusion" of the dispute by the proviso to Section 91. 16. Proviso to Section 91 reads thus : " Provided that, an industrial dispute as defined in clause (k) of section 2 of the Industrial Disputes Act, 1947, or rejection of nomination paper at the election to a committee of any society other than a notified society under section 73-IC or a society specified by or under section 73-G, or refusal of admission to membership by a society to any person qualified therefor or any proceeding for the recovery of the amount as arrear of land revenue on a certificate granted by the Registrar under sub-section (1) or (2) of section 101 or sub-section (1) of section 137 or ( 20 ) the recovery proceeding of the Registrar or any officer subordinate to him or an officer of society notified by the State Government, who is empowered by the Registrar under sub- section (1) of section 156, or any orders, decisions, awards and actions of the Registrar against which an appeal under section 152 or 152A and revision under section 154 of the Act have been provided, shall not be deemed to be a dispute for the purposes of this section. " 17. Section 91 of the Act classifies the disputes which are to be entertained by the Cooperative Court. However, the proviso excludes certain disputes by inserting a deeming fiction and the said disputes, amongst others, are industrial disputes, disputes relating to rejection of nomination paper at the election to a committee of any Society other than a notified society under Section 73-IC or a society specified by or under Section 73-G, or refusal of admission to membership by a society to any person qualified therefor, or any proceeding for the recovery of the amount as arrear of land revenue on a certificate granted by the Registrar under sub-section (1) or (2) of Section 101, or sub- section (1) of section 137 or the recovery proceeding of the Registrar or any officer subordinate to him or an officer of society notified by the State Government, who is empowered by ( 21 ) the Registrar under sub-section (1) of section 156, etc. Thus, though a dispute in regard to a certificate issued under Section 101 could be a dispute covered by Section 91 of the Act, however, by a deeming fiction, the proviso lays down that the said dispute "shall not be deemed to be a dispute" for the purposes of this section. Thus, on the one hand, Section 101 overrides Section 91, meaning thereby, it oust the operation of Section 91 and, on the other