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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.S. SONAK, J.
N. Jethani & Anr. – Appellants
Versus
Shivaji Co-operative Housing Society Limited, Pune & Ors. – Respondents
Writ Petition Nos. 1497 of 1992 & 5476 of 1990
Decided On : 22-01-2015
A civil suit was accordingly instituted in the Civil Court seeking inter alia declaration as to title and restoration of possession. The suit was resisted by the encroacher by contending that the cause of action pleaded would constitute a dispute under Section 91 of the said Act and consequently the jurisdiction of the Civil Court would be ousted. In such context, this Court held that the issues of declaration and restoration of possession qua an encroacher upon the property of the society could legitimately be gone into by the Civil Court, as the same would not constitute a dispute under Section 91 of the said Act. The dispute, which the society has raised in the present case was against its own member, i.e., Gupte in the matter of attempted alienation of property without permission of the society and in breach of the bye-laws of the society. The petitioner was impleaded in such dispute, precisely because, the petitioner claims through Gupte. Section 91 of the said Act contemplates a dispute touching the constitution, management or business of the society, if the parties thereto are (inter alia) society, a member or a person claiming through a member.
Accordingly, it was observed that a suit of such nature would not fall within the jurisdiction of the Cooperative Court under Section 91 of the said Act. As noted earlier, in the present case the society had lawfully allotted Plot No. 32 to Gupte (member of the society). The dispute very clearly related to the premises which were lawfully allotted by the society to its member. The petitioner, in the present case, had laid claims to the superstructure, through Gupte (member of the society).
So far as writ petition instituted by the society is concerned, the same deserves to be accepted. The society in the present case, had promptly raised the dispute in the matter of attempted alienation of property and the erection of superstructure. The Co-operative Court as well as the Appeal Court has found merit in dispute raised by the society. The attempted alienation and erection was without permission of the society and contrary to its bye-laws. In such a situation, there was no warrant for the Appeal Court to require the society to pay to the petitioner the market value of the superstructure put up. At the highest, if the Appeal Court desired to make some equitable order, then such liability could have been imposed upon Gupte, who has accepted some consideration from the petitioner, in lieu of permission to erect the superstructure. Gupte was admittedly the member of the society and had made attempts to alienate the property without permission of the society and in breach of its bye-laws. The society has not obtained any consideration either from Gupte or the petitioner, in the matter of attempted to alienation or the erection of superstructure. Accordingly, that portion of the impugned judgment and order dated 12 October 1990, to the extent it directs the society to pay the market value of the superstructure to the petitioner is liable to be interfered with and set aside. Similarly, although the impugned judgment and order is not clear, it is necessary to clarify that payment of such market value, could never have been made the condition precedent for demolition of the superstructure or restoration of the terrace space to Navathe.
1. Both these petitions take exception to the judgment and order dated 12 October 1990 made by the Maharashtra State Co-operative Appellate Court, Bombay, partly allowing the petitioner's appeal against judgment and award dated 28 August 1989 made by Cooperative Court No.II, Pune.
2. The Writ Petition No. 5476 of 1990 is directed against the entire judgment and order dated 12 October 1990, whereas, Writ Petition No.1497 of 1992 , which is preferred by Shivaji Co-operative Housing Society Limited (Society) is directed against that portion of the impugned judgment and order which requires the Society to pay to the petitioner the value of structure put up by the petitioner on terrace of bungalow in plot No.32. Accordingly, both the petitions are taken up for disposal together.
3. The Society, which is a 'Tenant Ownership Cooperative Housing Society' deemed to have been registered under the Maharashtra Cooperative Societies Act, 1960 (said Act) had allotted Plot No.32 to Shri. S.P. Gupte (respondent No.2) in Writ Petition No. 5476 of 1990 for purposes of construction of a residential bungalow. On 2 July 1979, Gupte entered into an agreement for grant of lease of Terrace space of the bungalow, so as to enable the petitioner to put up a super structure thereon. The agreement stated that such lease would have a term of 79 years. In pursuance of such agreement, Gupte entered into Lease dated 12 December 1980 with the petitioner, which however, indicates that the term of lease shall be ten years alongwith option of renewal for further term extending, in entirety to 79 years. There is nothing on record to indicate that the term of lease was ever extended beyond ten years. The petitioner put-up a super structure admeasuring approximately 700 sq. feet upon the terrace. There is dispute as to whether such super structure was completed or not. However, there is no dispute that the super structure was not actually occupied by the petitioner.
4. In April 1983, the Society raised a dispute being Dispute No. 503 of 1984 before the Cooperative Court, Pune, inter alia, against Gupte and the petitioner, primarily seeking demolition of the super structure put up by the petitioner. On 13 March 1982, an order was made by the Co-operative Court to maintain status quo with regard to the construction of super structure. This was challenged by the petitioner by way of writ petition before this Court, which challenge did not meet with any success. Soon thereafter, Gupte assigned and transferred his rights, title and interest in Plot No.32 and the bungalow thereon, in favour of Shri. A.S. Navathe (respondent NO.3). In 1984 or thereabouts, the Society permitted such transfer/assignment by Gupte in favour of Navathe. The petitioner, on 17 November 1984 applied for injunction from the Co-operative Court, to restrain such transfer/assignment by Gupte to Navathe. The petitioner, thereafter, i.e., on 11 February 1985 filed written statement in Dispute No.503 of 1984, raising, inter alia, the plea that such dispute could not be adjudicated under Section 91 of the said Act.
5. The Cooperative Court, by judgment and award dated 28 August 1989 overruled the petitioner's preliminary objection as to maintainability and directed demolition of super structure and restoration of possession of the terrace to Navathe. The petitioner appealed and the Appeal Court, vide impugned judgment and order dated 12 October 1990 has only partly allowed the petitioner's appeal. The directions as to demolition of super structure and restoration of possession to Navathe has been maintained, but the Society was directed to pay the market value in respect of the superstructure to the petitioner. As noted earlier, both the petitioner and the Society have impugned judgment and order dated 12 October 1990 made by the Appeal Court, to the extent it affects their interest.
6. This Court on 17 June 1991 had made an order of status quo by way of interim relief. It is the petitioner's case tha
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