1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2331/2010. Anna s/o Bajaba @Gajaba Waghe - PETITIONER VERSUS 1) Bhagwat Vishwanath Gorde & Ors. -RESPONDENTS ***** Mr.RN Dhorde,Advocate for Petitioner; Mr.VD Hon, Advocate for Respondent No.1; Mr.NR Bhavar, Adv. for Respondent No.2; Mr.KS Patil,AGP for Respondent No.4. WITH WRIT PETITION NO.2332 OF 2010. Anna s/o Bajaba @Gajaba Waghe - PETITIONER VERSUS 1) Sanjay Diwanrao Shelke & Ors. -RESPONDENTS ***** Mr.RN Dhorde,Advocate for Petitioner; Mr.VD Hon, Advocate for Respondent No.1; Mr.NR Bhavar, Adv. for Respondent No.2; Mrs.SD Shelke,AGP for Respondent No.4. WITH WRIT PETITION NO. 2333 OF 2010. Anna s/o Bajaba @Gajaba Waghe - PETITIONER VERSUS 2 1) Ramchandra Dada Bothe & Ors. -RESPONDENTS ***** Mr.RN Dhorde,Advocate for Petitioner; Mr.VD Hon, Advocate for Respondent No.1; Mr.NR Bhavar, Adv. for Respondent No.2; Mrs.SD Shelke,AGP for Respondent No.4. WITH WRIT PETITION NO. 2334 OF 2010. Anna s/o Bajaba @Gajaba Waghe - PETITIONER VERSUS 1) Shivaji Sitaram Lahare & Ors. -RESPONDENTS ***** Mr.RN Dhorde,Advocate for Petitioner; Mr.VD Hon, Advocate for Respondent No.1; Mr.NR Bhavar, Adv. for Respondent No.2; Mr.KS Patil,AGP for Respondent No.4. WITH WRIT PETITION NO.6639 OF 2010. 1) Shri Ganesh Gramin Bigar Shethi Sahakari Pat Sanstha, Ltd. Sakuri, Tq. Rahata, Through its Manager and Anr. - PETITIONERS VERSUS 1) Shivajirao s/o Sitaram Lahare and Ors. - RESPONDENTS ***** Mr.NR Bhawar, Adv. for petitioners; Mr.VD Hon, Adv. for Respondent No.1; 3 Mr.RN Dhorde, Adv. for Respondent No.2; Mr.KS Patil, AGP for Resp.No.3 ----- WITH WRIT PETITION NO.6648 OF 2010. 1) Shri Ganesh Gramin Bigar Shethi Sahakari Pat Sanstha, Ltd. Sakuri, Tq. Rahata, Through its Manager and Anr. - PETITIONERS VERSUS 1) Ramchandra s/o Dada Bothe and Ors. - RESPONDENTS ***** Mr.NR Bhawar, Adv. for petitioners; Mr.VD Hon, Adv. for Respondent No.1; Mr.RN Dhorde, Adv. for Respondent No.2; Mr.KS Patil, AGP for Resp.No.3 ----- WITH WRIT PETITION NO.6655 OF 2010. 1) Shri Ganesh Gramin Bigar Shethi Sahakari Pat Sanstha, Ltd. Sakuri, Tq. Rahata, Through its Manager and Anr. - PETITIONERS VERSUS 1) Sanjay s/o Diwanrao Shelke and Ors. - RESPONDENTS ***** Mr.NR Bhawar, Adv. for petitioners; 4 Mr.VD Hon, Adv. for Respondent No.1; Mr.RN Dhorde, Adv. for Respondent No.2; Mr.VG Shelke, AGP for Resp.No.3 ----- WITH WRIT PETITION NO.6661 OF 2010. 1) Shri Ganesh Gramin Bigar Shethi Sahakari Pat Sanstha, Ltd. Sakuri, Tq. Rahata, Through its Manager and Anr. - PETITIONERS VERSUS 1) Bhagwat Vishwanath Gorde and Ors. - RESPONDENTS ***** Mr.NR Bhawar, Adv. for petitioners; Mr.VD Hon, Adv. for Respondent No.1; Mr.RN Dhorde, Adv. for Respondent No.2; Mr.VG Shelke, AGP for Resp.No.3 ----- WITH WRIT PETITION NO.6671 OF 2009. 1) Shri Ganesh Gramin Bigar Shethi Sahakari Pat Sanstha, Ltd. Sakuri, Tq. Rahata, Through its Manager and Anr. - PETITIONERS VERSUS 1) Narayan s/o Dnyaneshwar Karle and Ors. - RESPONDENTS ***** 5 Mr.NR Bhawar, Adv. for petitioners; Mr.VD Hon, Adv. for Respondent No.1; Mr.RN Dhorde, Adv. for Repondent No.2; Mrs.SD Shelke, AGP for Resp.No.3 ----- WITH WRIT PETITION NO.6771 OF 2010. Anna s/o Bajaba @Gajaba Waghe - PETITIONER VERSUS 1) Narayan s/o Dnyaneshwar Karle & Ors. -RESPONDENTS ***** Mr.RN Dhorde,Advocate for Petitioner; Mr.VD Hon, Advocate for Respondent No.1; Mr.NR Bhavar, Adv. for Respondent No.2; Mrs.SD Shelke,AGP for Respondent No.4. ***** CORAM : K.U.CHANDIWAL,J. DATE : 4th October,2010. COURT’ORDER: 1) Rule. Rule made returnable forthwith by consent of learned counsel for respective parties and heard extensively. 2) By consent, the petitions are finally heard and disposed of together since all the 6 petitions raise identical question of law and fact. 3) Respondent No.1 filed Regular Civil Suits before the learned Civil Judge, Senior Division, Kopargaon, seeking declaration and various other reliefs against – Shri Ganesh Gramin Bigar Sheti Sahakari Pat Sanstha, Ltd. Sakuri, a non-agriculture credit cooperative society, its Chairman and the so-called whistle blowers, defendant nos.4 and 5 in the said proceedings. 4) An application was moved by defendant no.5 before the learned Judge to frame a preliminary issue and consequently, the learned Civil Judge, Sr.Division, Kopargaon on 17.7.2007 framed the preliminary issue to the effect – “whether this Court has jurisdiction to try and entertain present suit and interim application.” 5) The learned Judge, after hearing the parties to the litigation in extenso and on analysis of the evidence adduced by the plaintiff(Respondent No.1 in the writ petition), came to the conclusion that the Civil Court has jurisdiction. The said order of the learned Judge is questioned by set of five writ petitions one by original defendant no.5 and other by 7 original defendant nos. 1 and 2, the society and its chairman. 6) The group of Writ Petitions by defendant nos. 1 and 2 are Writ Petition Nos.6639/2010; 6648/2010; 6655/2010; 6661/2010; 6671/2010 and 6771/2010. 7) Before adverting to other writ petitions, let us channelize these writ petitions and their maintainability. It is a matter of record, in the proceedings initiated by respondent no.1, the petitioner-society did not object to the jurisdiction of civil court as it seldom made an application, seeking challenge to jurisdiction of the court. Preliminary issue, referred above, was framed at the instance and behest of the original defendant no.5. The order of the learned judge is dated 17.7.2007 while the same is questioned by the petitioners in July 2010, when the civil court’s proceedings are indeed ripe for hearing. No plausible explanation is offered by these petitioners for inordinate delay, seeking protection in terms of Article 227 of the Constitution of India. When the petitioners herein did not agitate the issue of jurisdiction before the learned Judge in the suits by Respondent no.1, it was not open for the petitioners to challenge the same, inviting the 8 scope of Article 227 of Constitution. On this ground, without further dissecting facts in these five writ petitions, they are dismissed with costs. 8) Now the controversy revolves to the application moved by defendant no.5 before the learned Judge, seeking framing an issue of jurisdiction and getting the same decided. 9) At the outset, it is clarified that the observations of the learned Judge made in the order dated 29.12.2008, while deciding the jurisdictional issue much less virtually deciding fate of plaintiff’s case, were uncalled for. The learned Judge certainly should have acted within the ambit of his powers and should not have travelled beyond that to brand the defendants as totally dishonest litigants. There may be apparent falsity in the documents prepared by the defendant/society, however, since the issue of jurisdiction was involved, the limitations, which were portrayed before the learned Judge, should have been considered by him. 10) Political baron and mentor getting disturbed by their disciples and stooge not stepping the dictates and shoes of the mentor, has invited action by the Credit Co-op. society. 9 A very unhealthy state of affairs is apparently projected. The activities narrated hereinafter, prima facie, illustrate as to how in clandestine manner the documents, at the Credit Cooperative society, are forged and fabricated to boost to clasp hands of the mentor to keep his subordinate servile to promote his actions in the functioning of cooperative movement. Now, brunt of exposure is, all these office-bearers of the society are facing criminal prosecutions. 11) The plaintiff(Respondent No.1 in WP), being under thumb of the political baron, was expected by kingpin to resign as the Director/Chairman of the sugar factory. The rebellion approach of plaintiff has invited wrath A notice, purportedly in terms of Section 73(ff) of The Maharashtra Cooperative Societies Act, 1960, was issued, intimating the plaintiff as to why disqualification should not be caused in respect of the membership of the sugar factory, to de-throne the said sugar factory. This being uncalled and unparalleled exercise from the officials, the plaintiff rushed the Civil Court, challenging the said action of the Joint Director of Sugar, Ahmednagar, dated 30.4.2007. Notice, that has been issued by the society is dated 1.6.2007. Taking these two aspects, it is apparent, lodging of plaint by Respondent No.1 10 is dated 6.6.2007 and prior to the society raising the dispute. 12) Few aspects, though the learned Judge has considered while dealing with the plea of jurisdiction of civil court, needs attention. Both the parties were allowed and directed to lead evidence. The loan documents were basically with the defendant society. The plaintiff adduced evidence based on certified copy available to him. The defendant (petitioner in writ petition) did not bother to step in witness box,nor controverted the contentions raised by the plaintiff in the subject suit. This has been observed by the learned Judge at paragraph 6 of his order. 13) The learned Judge also found and is not controverted that 51 stamp papers in denominations of Rs.100/- each were purchased by Shri B.R.Bawke from the Stamp Vendor – Ankush Bhagvat Gandhi on 25.11.2005. One of such stamp was for plaintiff. A meeting for disbursement of loan was convened on 6.2.2006, while the agenda was published on 1st February, 2006 in which subject of meeting was mentioned, passed resolution regarding membership and for disbursement of loan to members to purchase cows. It was only on 6th February, 2006, the plaintiff 11 and others have purportedly applied for membership and also for loan and no resolution could be taken on 1st February, 2006 or there was no occasion to purchase of stamp papers on 25.11.2005 for plaintiff (this miserable aspect, the learned Judge has recorded in paragraph 9), will have to be explained in a better footing while addressing the issues framed in the proceedings initiated by Respondent No.1. 14) The alleged membership of Respondent No. 1 for Co-op. Credit Society (petitioner in WP No. 6639/2010)is against the bye-laws as the plaintiffs are not residing or carrying their activities within the territorial jurisdiction of the society at Sakuri. None of the plaintiffs or defendants are residing in the precincts of Sakuri to attract jurisdiction of the credit cooperative society. These aspects, to repeat, will have to be again addressed in the on-going litigation. 15) The basic concern and criterion for the issue will be, the plaintiff’s allegations, as a whole, will have to be gone into. It is the plaintiff’s contention that without availing any loan facility or without making any application for loan of Rs.75,000/- to purchase cows, the loan is allegedly shown to be disbursed and 12 overdue. The plaintiff categorically and candidly demonstrated, at no point of time, he was in need of money for purchase of cows and that too paltry sum of Rs.75,000/-. This is more so, as Mr.Hon, learned Counsel, has pointed, each of the plaintiffs has a good yield of sugarcane crop in their agricultural fields. Had there been any such need of finance, they were benedicted to avail facilities as loan or advance from the sugar factory of which they are members. 16) Taking survey of the matters, I find that though several questions are raised by Mr.Dhorde, learned Counsel for the petitioners, they are seldom to be considered at this stage of the matter, as the basic concept is, the jurisdiction of a court is to be decided upon the plaint allegations and not upon the set of documents which the defendant desires to produce. 17) The scope of Section 91 of the Maharashtra Cooperative Societies Act, 1960 was also tried to be coined. Section 91 of the Act, reads as under : “91. Disputes (1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, elections of the committee or its officers 13 other than 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 affiliated or by a creditor of the society to the cooperative Court 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 of any deceased officer, deceased agent or deceased servant of the society, or the Liquidator of the society or the official Assignee of a de-registered society; (b) a member, past member of a person claiming through a member, past member of a decreased member of society, or a society which is a member of the society or a person who claims to be a member of the society; (c) a person other than a member of the society, with whom the society, has any transactions in respect of which any restrictions or regulations have been imposed made or prescribed under sections 43, 44 or 45, and any person claiming through such person.” 18) Section 163 of the Maharashtra Cooperative Societies Act, 1960 decides the jurisdiction. The scope of Section 163 and the provisions of Section 91 of the Act, if read 14 conjointly, it is apparent, Section 163 bars jurisdiction of civil court in respect of any dispute required to be referred to the Cooperative Court for decision. The nature of controversy in the present lis is challenge to the notice issued by the Joint Director of Sugar, dated 30th April, 2007, as at no point of time, the plaintiff (Respondent No.1 in WP) allegedly had availed the loan facility from the credit cooperative society and it was a calculated move to oust them from the coveted post of Director of the sugar factory. He was not a member of said society. 19) The dispute, as stated in the present lis, does not concern registration of the society or of its bye-laws or the amendments of its bye- laws or resolution of the committee of the society or the management of the society on resolution thereof. It also does not cover to winding up the resolutions of the society. The relief, which the plaintiff has sought, is a declaration. Section 91 of the Act, as stated above, has in-built limitations and since the plaintiff (Respondent no.1) has basically come with a case that he never applied to become a member of the society, nor got the loan, he could not have sought to submit to the jurisdiction of the Cooperative court in terms of Section 91 of 15 the said Act to raise a dispute. 20) The society’s subsequently raising the dispute, in terms of Section 91 of the Act against each of the plaintiffs (Respondent No.1), is later in time. 21) However, the relief sought before the civil court by each of the respondents, being in the nature of challenge to the notice dated 31st April, 2007 and seeking declaration of the action of disbursement of loan by way of membership of the society, Civil Court had jurisdiction to attend the controversy. In the matter of Bhulabai Desai Vs. State of Madhya Pradesh (A.I.R. 1969 SC 78),the following principles were laid down for exclusion of jurisdiction of civil court: “(1) Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the 16 court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. 17 (5) Where the particular Act contains no machinery for refund of, tax collected in excess of constitutional limits or illegally collected a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit,does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.” 22) In the result, The Writ Petitions lack merit, and dismissed with costs. Rule discharged. Ad interim relief vacated. 23) At this stage, learned Counsel for petitioners prays for extension of interim relief. In the set of situation, the prayer for extension of interim relief cannot be countenanced, as the matter is dragged for 3 years before the learned Judge, which is at the stage of recording evidence. (K.U.CHANDIWAL) JUDGE bdv/