1 WP.6484.98 N 6485.98 - Section 91(1).doc ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6484 OF 1998 ALONGWITH WRIT PETITION NO. 6485 OF 1998 Mohd. Manzoor Md. Hashim. ... Petitioner in both the Petitions Versus Ashraf G. Kinikar and others. ... Respondents in both the Petitions -------- Mr. G.S.Hegde i/b M/s. Hegde and Associates for the Petitioner. Mr. R.D.Soni i/b M/s. Ram and Company for the Respondent No.1. Mr. R.A.Shaikh for the Respondent Nos.2 and 3 in Writ Petition No. 6484 of 1998 and for the Respondent Nos.3 and 4 in Writ Petition No. 6485 of 1998. -------- CORAM : A.S.OKA, J. DATE ON WHICH SUBMISSIONS ARE HEARD : 24 th August, 2011. DATE ON WHICH JUDGMENT IS PRONOUNCED : 9 th November, 2011. 2 WP.6484.98 N 6485.98 - Section 91(1).doc JUDGMENT : 1 These two petitions which arise out of a common judgment and award made by the Co-operative Court as well as the Co- operative Appellate Court are taken up together for final hearing. The parties are referred to with reference to their respective status in Writ Petition No.6484 of 1998. 2 The Petitioner filed a dispute being Dispute No.329 of 1993 in the Co-operative Court at Bombay. The dispute was filed against the Respondents in the Writ Petition No.6484 of 1998. Another dispute being Dispute No.228 of 1993 under Section 91 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as “the said Act”) was filed by the Respondent No.1 in the Co- operative Court at Bombay. The said dispute was initially filed only against the Respondent No.4 – Society in Writ Petition No.6484 of 1998. By amendment, the Petitioner as well as the Respondent Nos.2 and 3 were impleaded in the said dispute as Opponent Nos.2 to 4. Both the disputes relate to Flat No.B-1/202 on the second floor of a 3 WP.6484.98 N 6485.98 - Section 91(1).doc building vesting in the Respondent No.4 – Co-operative Society. The said flat has been hereinafter referred to as the suit flat. The Respondent No.4 – Co-operative Society is a Tenant Co-Partnership Co-operative Housing Society. 3 The Respondent No.2 is the widow of the builder, who constructed the said building and the Respondent No.3 was the constituted attorney of the Respondent No.2. It is alleged that the Petitioner was enrolled as a member of the Respondent No.4 – Society. It is alleged that the Petitioner became a member of the proposed Society on 8 th February, 1979. The Petitioner claims on the basis of the agreement for sale dated 7 th December, 1985 executed in respect of the suit flat by the builder which was registered on 4 th February, 1986. It is alleged that the consideration under the said agreement was paid by the Petitioner to the builder. It is alleged that the Petitioner was an employee of the Bhabha Atomic Research Centre ( BARC ). It is alleged that he obtained a loan from his employer in the sum of Rs.63,000/- for payment of the price of the suit 4 WP.6484.98 N 6485.98 - Section 91(1).doc flat. Reliance is placed on the letters allegedly written by the Respondent No.3 confirming the agreement executed by the builder in favour of the Petitioner. It is alleged that the builder did not get the Society registered and ultimately, the flat purchasers including the Petitioner got the Respondent No.4 – Society registered on 12 th June, 1989. It is alleged that the Petitioner being a member of the Respondent No.4 – Society, is holding the shares of the Respondent No.4 – Society. It is alleged in the dispute filed by the Petitioner that the Respondent No.1 acting in collusion with the Respondent No.3 got prepared a sale agreement in respect of the suit flat, which is illegal and void. An apprehension is expressed that the Respondent No.1 on the basis of the said agreement may illegally trespass upon the suit flat. In the dispute, the substantive prayer is for declaration that the Respondent No.1 has no right, title or interest in respect of the suit flat. The dispute filed by the Petitioner was amended by incorporating the prayer for perpetual injunction restraining the Respondent No.1 from disturbing the possession of the Petitioner over the suit flat. There is 5 WP.6484.98 N 6485.98 - Section 91(1).doc no final relief sought against the other Respondents and only the interim relief was sought against the other Respondents. 4 The dispute filed by the Petitioner was contested by the Respondent No.1. However, the other Respondents did not contest the dispute. 5 It appears that the aforesaid dispute was filed by the Petitioner in September 1993 and in July 1993, the Respondent No.1 filed a dispute being Dispute No.228 of 1993 in the same Court. In the said dispute, which was initially filed only against the Respondent No. 4, the substantive prayer was for declaration that the Respondent No.1 was entitled to a share certificate from the Respondent No.4 – Society. A prayer was made seeking a direction against the Society to issue share certificate to the Respondent No.1. A prayer for perpetual injunction was initially made restraining the Society from handing over the possession of the suit flat to a third party. Later on, the dispute was amended. The Respondent No.1 is relying upon the agreement 6 WP.6484.98 N 6485.98 - Section 91(1).doc for sale dated 8 th May 1986 executed by the builder. It was contended that as per the letter of possession issued by the builder, the Respondent No.1 entered the suit flat and started residing therein. It is alleged that the Respondent No.1 completed the internal work by spending a substantial amount. It is alleged that there were no necessary amenities in the suit flat and therefore, the office bearers of the Respondent No.4 – Society asked the Respondent No.1 to hand over the possession of the suit flat to the Society to enable the Society to carry out plumbing and electrical work. It is alleged that in November 1991, the Respondent No.1 being a Central Government Employee was allotted a residential quarter and therefore, he shifted to the said residential quarter. It is alleged that the Petitioner has no right in respect of the suit flat. Therefore, a prayer was added in the dispute for declaration that the Petitioner has no right, title or interest in respect of the suit flat and the agreement dated 7 th December, 1985 has been duly cancelled. The dispute filed by the Respondent No.1 was contested by the Petitioner by filing a written statement. However, 7 WP.6484.98 N 6485.98 - Section 91(1).doc the other opponents in the dispute did not contest the dispute. 6 It must be stated here that on the application for temporary injunction filed by the Petitioner in his dispute, on 15 th July, 1993, an ex-parte injunction was granted restraining the Society from handing over the possession of the suit flat to a third party. By the order dated 29 th April, 1994, the application for temporary injunction was rejected and the ad-interim relief was vacated. In the appeals preferred against the interim orders passed in both the disputes, the Co-operative Appellate Court directed expeditious disposal of the disputes while setting aside the interim order. Both the disputes were disposed of by a common judgment and order. The Co-operative Court held that the Petitioner failed to establish that he was a member of the Respondent No.4 – Society and that the agreement dated 7 th December, 1985 executed by the builder was still subsisting. 7 The Co-operative Court held that the agreement dated 8 th May, 1986 executed by the builder in favour of the Respondent No.1 8 WP.6484.98 N 6485.98 - Section 91(1).doc will prevail over the agreement relied upon by the Petitioner and that the Respondent No.1 was entitled to a share certificate from the Respondent No.4 – Society. The Co-operative Court directed the Respondent No.4 to issue the share certificate to the Respondent No. 1. The Co-operative Court directed the Petitioner and the Respondent No.4 – Society to hand over the possession of the suit flat to the Respondent No.1. Injunction was granted restraining the opponents in the dispute filed by the Respondent No.1 from creating third party rights in respect of the suit flat. Thus, the dispute filed by the Petitioner was dismissed and the dispute filed by the Respondent No.1 was allowed. The appeals preferred by the Petitioner were dismissed by the Co-operative Appellate Court. The Petitioner has challenged the order dismissing his dispute by filing the Writ Petition No.6484 of 1998. The other petition is filed by the Petitioner for challenging the award made by the Co-operative Court in the dispute filed by the Respondent No.1. 8 The learned counsel appearing for the Petitioner submitted 9 WP.6484.98 N 6485.98 - Section 91(1).doc that the dispute filed by the Respondent No.1 was not maintainable in law inasmuch as on the date of filing of the dispute, the Respondent No.1 was not a member of the Respondent No.4 – Society and therefore, the dispute filed under Section 91 of the said Act was not maintainable. He relied upon a decision of this Court in the case of Ramchandra Harischandra Vatkar Vs. Jawaharnagar Co-operative Housing Society Ltd. and another [2003 (1) Mh.L.J. 54]. He also relied upon a decision of this Court in the case of Dnyaneshwar s/o. Pundalikrao Date Vs. Samata Co-operative Housing Society Ltd., Khamgaon & Anr. [2004 (2) ALL MR 368]. He submitted that the Petitioner being a member of the Respondent No.4 – Society was entitled to the reliefs claimed in the dispute as the Respondent No.1 had no right in respect of the suit flat. He invited attention of the Court to the evidence on record and submitted that no rights can be claimed by the Respondent No.1 on the basis of the agreement set up by him. He pointed out that there is no evidence on record to show that the Respondent No.1 was put in possession of the suit flat and on the 10 WP.6484.98 N 6485.98 - Section 91(1).doc request made by the Respondent No.4 – Society, he handed over the possession of the suit flat to the Society. He submitted that admittedly, the Petitioner is in possession of the suit flat and the Respondent No.1 could not establish his case that the Petitioner forcibly entered the suit flat. He submitted that the Petitioner being a member of the Respondent No.4 – Society, the dispute filed by him was maintainable under Section 91 of the said Act. 9 The learned counsel appearing for the Respondent No.1 submitted that the Respondent No.1 was entitled to membership of the Respondent No.4 – Society on the basis of the agreement for sale executed by the builder in his favour, which is prior in point of time to the agreement set up by the Petitioner. He submitted that the dispute filed by the Respondent No.1 was maintainable inasmuch as under Section 91 of the said Act, the Co-operative Court has power to order ejectment of unauthorized occupants from the premises of the Society. He placed reliance on a decision of the Apex Court in the case of Electrical Cable Development Association Vs. Arun Commercial 11 WP.6484.98 N 6485.98 - Section 91(1).doc Premises Co-operative Housing Society Ltd. and another [1999 (1) Mh.L.J.546]. He also placed reliance on a decision of the Apex Court in the case of Sanwarmal Kejriwal Vs. Vishwa Cooperative Housing Society Ltd. and others [(1990) 2 SCC 288]. He submitted that as the Respondent No.1 is claiming title on the basis of the agreement executed in his favour by the builder, which is prior in point of time, the order of dispossession has been passed against the Petitioner on finding that the Petitioner is in an unauthorized possession. His submission is that the dispute filed by the Petitioner was not maintainable in the Co-operative Court under Section 91 of the said Act. I have also heard the learned counsel appearing for Respondent Nos.2 and 3. 10 I have given careful consideration to the submissions. The first question will be regarding maintainability of both the disputes under Section 91 of the said Act and the jurisdiction of the Co- operative Court to entertain the disputes. 12 WP.6484.98 N 6485.98 - Section 91(1).doc Sub-Section (1) of Section 91 of the said Act reads thus: “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 other than elections of committees of the specified societies including its officer, 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 affiliated or by a creditor of the society, to the co-operative 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 deregistered society; (b) a member, past member of a person claiming through a member, past member of a deceased 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; (d) a surety of a member, past member or deceased member, or surety of a person other than a member with whom the society has any transactions in respect of which restrictions have been prescribed under section 45, whether such 13 WP.6484.98 N 6485.98 - Section 91(1).doc surety or person is or is not a member of the society; (e) any other society, or the Liquidator of such a society or de-registered society or the Official Assignee of such a de-registered society. 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 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.” In the case of Ramchandra Harischandra Vatkar (supra), this Court made a reference to Section 91 of the said Act and in the paragraph No.5 of the said decision, this Court held thus: “5. On plain language of this provision it is seen that the dispute could be maintained only when both parties to the dispute were persons as notified in any of the clauses (a) to (e) of sub-section (1) of Section 91. Insofar as the 14 WP.6484.98 N 6485.98 - Section 91(1).doc respondent No.2 is concerned, going by the allegation in the dispute, he does not fit into any of the categories specified in clauses (a) to (e).” (underline supplied) In paragraph No.6, this Court observed thus: “6. .... As observed earlier the legal position is no more res integra. The jurisdiction of the Court would not depend on the defence taken by the opposite side in the reply or written say filed before the Court, but the Court will have to address itself strictly on the basis of the plaint or dispute as presented by the plaintiff/ petitioner before the Court.” 11 The perusal of the dispute filed by the Petitioner shows that the only substantive relief prayed for is only as against the Respondent No.1, which is a relief of declaration that the Respondent No.1 has no right, title, interest or possession of whatsoever nature in respect of the suit flat and for injunction. In the dispute, the Petitioner has averred that he was a member of the Respondent No.4 – Society and he was holding the shares of the Respondent No.4 – Society. It is alleged that the Respondent No.1 was claiming a right in respect of the suit flat on the basis of the agreement for sale executed by the builder, which was illegal and void. The allegations in substance in the dispute 15 WP.6484.98 N 6485.98 - Section 91(1).doc filed by the Petitioner are that the Respondent No.1 has no right in respect of the suit flat. There is no assertion that either the Respondent No.1 is a member or past member of the Respondent No. 4 – Society or that he is claiming through a member of the Respondent No.4 – Society. On plain reading of Sub-Section (1) of Section 91 of the said Act, the Respondent No.1 does not fall in any of the clauses (a) to (e) of Section 91 of the said Act. The same is the case with the widow of the builder and her Constituted Attorney. As held by this Court only when both the parties to the dispute were persons notified in any of the clauses (a) to (e) of Section 91 of the said Act that a dispute could be maintained. The Petitioner did not claim any final relief against the Respondent No.4 – Society in the dispute. Therefore, on the face of it, the dispute filed by the Petitioner was not maintainable and the Co-operative Court had no jurisdiction to entertain and try the dispute. 12 Now turning to the dispute filed by the Respondent No1, originally the relief was claimed only as against the Respondent No.4 16 WP.6484.98 N 6485.98 - Section 91(1).doc – Society of declaration that the Respondent No.1 was entitled to a share certificate. Perusal of the original dispute as well as the amended dispute show that the Respondent No.1 is claiming on the basis of the agreement for sale dated 8 th May, 1986 executed by the builder in respect of the suit flat. The Respondent No.1 claims that he was put in possession of the suit flat. It is alleged that the Respondent No.1 had paid necessary charges in connection with the registration of the Society to the builder and that the Respondent No.1 has paid necessary share money to the Respondent No.4 – Society. It is alleged that the possession of the suit flat was handed over by him to the Respondent No.4 – Society. Admittedly, the Respondent No.1 was not the member of the Respondent No.4 – Society on the date of dispute filed by him. In the entire dispute, there is no assertion either that the Petitioner is a member of the Respondent No.4 – Society or that the Petitioner is claiming through a member or past member or a deceased member of the Respondent No.4 – Society. In paragraph No.9 of the dispute, there is a bald assertion that the dispute is 17 WP.6484.98 N 6485.98 - Section 91(1).doc between the members of the Society. In fact, the second prayer in the dispute is for a direction to the Respondent No.4 – Society to issue the share certificate to the Petitioner. The first prayer is for declaration that the Respondent No.1 is entitled for a share certificate. There is no averment in the dispute filed by the Respondent No.1 that he was a member of the Respondent No.4 – Society or that he was claiming through a member of the Respondent No.4 – Society. Obviously, the Respondent No.1 does not fall in any of the clauses (a) to (e) of Sub- Section (1) of Section 91 of the said Act. A declaration has been granted that the Respondent No.1 is entitled to a share certificate and a direction has been issued to the Respondent No.4 to issue the share certificate. As held by this Court, for deciding the issue of jurisdiction, only the averments made in the dispute will have to be considered. There is no averment made in the dispute filed by the Respondent No. 1 that he was a member of the Respondent No.4 – Society on the date of institution of the dispute. In the circumstances, the dispute filed by the Respondent No.1 was not maintainable in the Co-operative Court. 18 WP.6484.98 N 6485.98 - Section 91(1).doc 13 Thus, both the disputes were not maintainable under Section 91 of the said Act. Therefore, no fault can be found with the impugned judgments and orders by which the dispute filed by the Petitioner has been dismissed. However, that part of the impugned judgments and orders by which the dispute filed by the Respondent No.1 was allowed will have to be set aside only on that ground the dispute was not maintainable under Section 91 of the said Act. 14 Remedies of both the parties of filing appropriate proceedings for claiming appropriate reliefs will have to be kept open. All questions regarding the rights of the parties to the suit flat are kept open which shall be decided in the appropriate proceedings. 15 Hence, I pass the following order: i. The Writ Petition No.6484 of 1998 is rejected only on the ground that the dispute filed by the Petitioner was not maintainable under Section 91 of the said Act ; 19 WP.6484.98 N 6485.98 - Section 91(1).doc ii. The Writ Petition No.6485 of 1998 is allowed by setting aside the impugned judgment and award; iii. The dispute filed by the Respondent No.1 stands dismissed ; iv. It will be open for the parties to adopt appropriate remedies for establishing their rights ; v. It is made clear that no adjudication has been made on the rights of the parties inasmuch as only the finding recorded by this Court is that both the disputes were not maintainable under Section 91 of the said Act ; vi. Subject to what is observed above, rule issued in the Writ Petition No.6484 of 1998 is discharged with no order as to costs ; vii. Subject to what is observed above, the rule issued in the Writ Petition No.6485 of 1998 is made absolute on above terms with no order as 20 WP.6484.98 N 6485.98 - Section 91(1).doc to costs ; and viii. To enable the parties to file appropriate proceedings, the parties are directed to maintain status-quo as of today in respect of the suit flat for a period of three months from today. [ A.S.OKA, J ]