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1965 Supreme(Bom) 27
IN THE HIGH COURT OF BOMBAY
(H. K. Chainani C. J. and H. R. Gokhale J.)
I. R. HINGORANI - Petitioner
V.
PRAVINCHANDRA K. SHAH - Respondent
Advocates Appeared
For petitioner - G. N. Vaidya.
For respondent No. 1 - C. J. Shah instructed by Parmanand and Co.
For respondents Nos. 3 to 5 - V. H. Gumaste, Addl. Govt. Pleader.
In Special C. Appln. No. 1249 of 1964 :
For petitioner - P. B. Sawant.
For respondent No. 1 - A. M. Setalwad instructed by Little Co.
For respondent No.3 - B. R. Naik.
For respondent No. 4 - C. R. Dalvi.
In M. P. No. 312 ,of 1964:
For petitioner - F. S. Nariman instructed by Chimanlal Shah and Co.
For respondents No.1 and 2 - A. M. Setalvad instructed by Little and Co.
For respondent No.3 - B. R. Naik.
The expression "claiming through a member" in Section 91 of the Maharashtra Co -operative Societies Act means deriving such title or rights through a member as the member possessed or had acquired by reason of his being a member or in his capacity as a member.
Headnote:
CO -OPERATIVE SOCIETIES ACT - SECTION 91 - DISPUTE - REFERENCE - JURISDICTION OF REGISTRAR - INTERPRETATION OF SECTION 91 - MEANING OF "CLAIMING THROUGH A MEMBER" - PERSONS COVERED BY SECTION 91.
Fact of the Case:
In three applications, the issue was whether the Registrar or Assistant Registrar was bound to hear the petitioners before making orders referring disputes to his Nominees. The petitioners were in occupation of flats belonging to Co -operative Housing Societies. The societies claimed possession of the flats and also arrears of compensation. The Registrar referred the disputes to his Nominee without hearing the petitioners.
Finding of the Court:
The Court held that the Registrar or Assistant Registrar was bound to hear the parties before making the orders referring the disputes to his Nominees. The Court also held that the disputes in the first two applications were disputes within the meaning of Section 91 of the Maharashtra Co -operative Societies Act (the Act) and that the order passed in each case by the Assistant Registrar, Co -operative Societies, referring the dispute for decision to his Nominee, was correct. However, the Court held that the dispute in the third application was not a dispute within the meaning of Section 91 and that the order made by the Assistant Registrar referring the dispute between the petitioners and respondent No.3 to his Nominee for decision was set aside.
Issues: 1. Whether the Registrar or Assistant Registrar was bound to hear the petitioners before making orders referring disputes to his Nominees. 2. Whether the disputes in the first two applications were disputes within the meaning of Section 91 of the Act. 3. Whether the dispute in the third application was a dispute within the meaning of Section 91 of the Act.
Ratio Decidendi: 1. The Court held that the Registrar or Assistant Registrar was bound to hear the parties before making the orders referring the disputes to his Nominees because the Registrar's satisfaction about the existence of a dispute within the meaning of Section 91 was equivalent to his decision within the meaning of sub -s. (2) of s. 91 of the Act. 2. The Court held that the disputes in the first two applications were disputes within the meaning of Section 91 of the Act because they touched the business of the societies concerned and both the parties to the dispute were one or other of the persons mentioned in cls. (a) to (e) of sub -s. (1) of s. 91. 3. The Court held that the dispute in the third application was not a dispute within the meaning of Section 91 of the Act because the petitioners could not be said to be claiming through a member of the Bank as a member.
Final Decision: The Court discharged the rule issued in each application in the first two applications and set aside the order made by the Assistant Registrar referring the dispute between the petitioners and respondent No.3 to his Nominee for decision in the third application.
CHAINANI C. J. -These three applications have been heard togther, because they raise a common question in regard to the interpretation of s. 91 of the Mahararhtra CQ -operative Societies Act (hereinafter referred to as the Act ). The facts in application No. 2048 of 1963 are as under. Respondent No.1 in this application is a member of Shalimar Co -operative Housing Society. As such member he is the holder of a flat on the fifth floor of Shalimar building, which belongs to the society. On April 24, 1959, there was a leave and licence agreement between the petitioner and respondent No.1, by which respondent No. 1 allowed the petitioner to occupy his flat on payment of monthly compensation of Rs. 250 for a period of eleven months. Respondent No. 1 subsequently revoked the leave granted to the petitioner to occupy the flat and on March 8, 1963, called upon the petitioner to hand over Possession of the premises and also to pay arrears of compensation due from him. AJJ the petitioner did not vacate the flat, respondent No.1 made an application to the Registrar that the dispute should be decided under the provisions of the Act. In this application he asked for possession of the flat, Rs. 3,250 as arrears of compensation and also future compensation until possession had been delivered. The Assistant Registrar, after going through the application madeby respondent No.1, passed an order that a dispute within the meaning of s.91 (I) of the Act existed and, therefore, referred this dispute for decision to the nominee mentioned in his order. Notice was then issued to the petitioner. He appeared before the nominee and filed a written statement, in which he contended that the nominee had no jurisdiction to decide the dispute. It appears that the petitioner thereafter addressed a letter to the Assistant Registrar in the matter. On November 12, 1963, he was informed by the Assistant Registrar that the question whether the matter fell within the purview of s. 91 of the Act had been already considered before referring the same to the Registrars nominee and that consequently the petitioners application had been filed. Thereafter the petitioner filed the present special civil application in this Court, in which he has prayed that the order of reference made by the Assistant Registrar as well as the proceedings pending before the nominee should be quashed.
2. In the other application No. 1249 of 1964, respondent No.3 is a member of the Nirmal Co -operative Housing Society, respondent No.4. As a member of the Society respondent No.4, he had been allotted a flat on the second floor of the societys building. On August 23, 1960, respondent No.3 gave the flat. on leave and licence basis to the petitioner. On the same day the petitioner addressed a letter to respondent No.3, in which the terms of agreement are mentioned. In this letter he has stated that permission had been given to him to occupy the flat from August 23, 1960, on leave and licence basis on payment of Rs. 125 per month for the use of the premises. On November 27, 1963, the society respondent No.4 gave a notice to respondent No.3 calling upon respondent No.3 to quit, vacate and deliver peaceful possession of the flat to the society, as he had not been residing in the flat allotted to him and had parted with its possession in contravention of by -law 78. On February 3, 1964, respondent No.3 gave a notice to the petitioner cancelling and revoking the leave and licence granted to him to occupy the flat and called upon him to quit, vacate and deliver peaceful possession of the flat to respondent No.3. In July 1964, he made an application to the Registrar requesting that the dispute may be referred for decision under ss. 91 to 96 of the Act. He asked for an order directing the petitioner. to quit, vacate and deliver vacant and peaceful possession of the flat. He also prayed for arrears of compensation as well as future compensation. On 1\l1gust 4, 1964, the Assistant Registrar pas
