1. Appellant is the original disputant before the Cooperative Court, Amravati whose dispute against the respondents was registered as R. A. M. Case No.198/1992 and is challenging the judgment and order made by the learned Single Judge of this Court dated 18.06.2002 in Writ Petition No.3916/2001 by which, it was held that the dispute filed by the appellant under section 91 of the Maharashtra Cooperative Societies Act (for short the 'MCS Act') was not maintainable.

FACTS:

2. The appellant, being a member of the Cooperative Housing Society, filed a dispute before the Cooperative Court, Amravati stating therein that though he paid all the amounts to the society for getting a plot from the society, he was not being given the plot and the possession thereof despite his repeated demands and despite making of the payments due. The Society, however, cancelled his membership and issued a letter to that effect received by him on 22.11.1991 and that the membership was cancelled for false reason and only due to the increase in prices of the plots. He, therefore, prayed for reliefs that he is a member of the society and the resolution passed by the Society to remove him from membership and consequent notice of removal dated 05.10.1991 be declared void with further relief to give vacant possession of the plot to him. The dispute was registered as R.A.M.Case No. 198/1992. The respondent no.1-housing society did not dispute that he was a member of the society but it is stated that action was taken against the appellant by resolution no.4 in annual general meeting held on 15.01.1989 and 19.03.1989 because he was defaulter in payment of money to the society and, therefore, he ceased to be a member. The society also raised objection as to the tenability of the Dispute under section 91 of the MCS Act. The Cooperative Court, after hearing the parties, dismissed the dispute filed by him by judgment and order dated 08.08.2000. The appellant carried an appeal before the cooperative appellate Court and the appellate court allowed the appeal preferred by him and issued necessary declaration and set aside the resolution dated 16.12.1990 and notice of expulsion dated 05.10.1991 and further directed to allot a plot after depositing the requisite amount demanded by the society from time to time. Feeling aggrieved thereby respondent no.1-society preferred Writ Petition No.3116/2001 in this Court.

3. The learned Single Judge heard the writ petition and framed only one question namely; 'whether the dispute under section 91 against an action under section 35 of the MCS Act was maintainable or not?' After hearing the parties, he held it to be not maintainable and allowed the writ petition by the impugned judgment and order, which is under challenge in the instant intra-court appeal. Needless to say that the learned Single Judge did not go into the merits of the matter.

SUBMISSIONS:

4. Mr. Mardikar, learned counsel for the appellant, argued that the dispute under section 91 of the MCS Act was maintainable and the decision in the case of K. V. Sundaram and anr...vs..Raj Rajeshwari Co-Op. Housing Society Ltd. and ors.; 1980 Mh. L. J. 4 relied upon by the learned Single Judge is clearly distinguishable but the learned Single Judge wrongly applied the same with full force thereby holding that the dispute under section 91 of the MCS Act was not maintainable. The learned counsel further argued that the learned Single Judge did not decide the matter on merits obviously because he found that the dispute itself was not maintainable and the controversy about it was covered by the decision on K.V. Sundaram & anr. (supra). Mr. Mardikar, learned counsel for the appellant, placing reliance on section 91 and 35 of the MCS Act pointed out to us the distinguishing features and the limited area covered by section 35 and the area covered by section 91 of the MCS Act. He urged this Court to decipher the two provisions and argued that the learned Single Judge committed e