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Gujarat High Court
Judgename :P.N.BHAGWATI, D.A.DESAI
RASIKLAL PATEL - Appellant
Versus
KAILASGAURI RAMANLAL MEHTA - Respondent
S.C.A.452 of 1968
Decided On : 09/23/1970
Gujarat Co-operative Societies Act, 1961 - Secs. 96 to 102 - Co-operative Society - Nominee - Claim - Petitioners preferred an appeal to the Co-operative Tribunal and so did the second respondent Society but both the appeals was unsuccessful and were dismissed by an order - Petitioners there upon preferred Special Civil Application challenging the validity of the original as well as appellate decision on various grounds - Held, While analysing the provisions of sec. 98 sub-sec. (3) we have already pointed out that the power conferred on the Registrar under that sub-section to suspend proceedings in regard to a dispute until the question at issue between the parties is tried in a regular suit is not an unfettered or unguided power despite the words if he thinks fit - The exercise of this power is conditioned by the requirement that the question at issue between the parties must be a complicated question of law and fact and it is implicit in the nature of the power and the scheme of the provision that even where the question is a complicated question of law or fact the power cannot be exercised unless it is a fit case for exercise of the power meaning thereby that having regard to its nature importance and complexity the question must be of such a nature that the interests of justice require that it should be allowed to be agitated before a Court of law rather than before the Registrar or his nominee under the special machinery provided by the Act - It is therefore not possible to condemn this power as discriminatory or violative of Article 14 - Ordered accordingly.
( 1 ) THESE two petitions raise an interesting question of law as to the Constitutional validity of secs. 96 to 102 of the Gujarat Co-operative Societies Act 1961 Special Civil Application No. 452/68 arises out of a dispute between a Co-operative Society and its members while Special C. A. No. 1188/69 arises out of a dispute between a Cooperate Society and a non-member. Since different considerations may apply in determining the constitutional validity of secs. 96 to 102 according as the dispute is between a Co-operative Society and a member or between a Co-operative Society and a non-member it is necessary to notice separately the facts of each petition.
( 2 ) RE:- Special Civil Application No. 452/68. The second respondent Society is a Co-operative Society registered under the Bombay Co-operative Societies Act 1925 and deemed to be registered under the Gujarat Cooperative Societies Act 1961 The petitioners are members of the second respondent Society and they claim to be allottees of plots Nos. 9a and 9 are sub-divisions of original Plot No. 9. This claim is disputed by the first respondent. Her case is that she is a member of the second respondent Society and the whole of Plot No. 9 has been allotted to her. It appears that the second respondent Society did not agree with the claim put forward by the first respondent and the first respondent therefore made an application to the Registrar of Co-operative Societies (hereinafter referred to as the Registrar) referring the dispute for adjudication under sec. 96 of the Gujarat Co-operative Societies Act 1961 The petitioners and the second respondent Society were joined as respondents and a declaration was sought that the first respondent was a member of the second respondent Society and Plot No. 9 was allotted to her and consequently allotment of plots Nos. 9a and B in favour of the petitioners was invalid. The Registrar referred the dispute to his nominee for adjudication and the nominee by an award dated 11th April 1966 upheld the claim of the first respondent and granted the reliefs claimed by her. The petitioners preferred an appeal to the Co-operative Tribunal and so did the second respondent Society but both the appeals was unsuccessful and were dismissed by an order dated 21st October 1917. The petitioners there upon preferred Special Civil Application No. 452 of 1968 challenging the validity of the original as well as appellate decision on various grounds.
( 3 ) RE :- Special Civil Application No. 1188/69 :- The second respondent Society is a Co-operative Society registered under the Bombay Co-operative Societies Act 1925 and deemed to be registered under the Gujarat Cooperative Societies Act 1961 The petitioner was admittedly at no material time an existing or past member of the second respondent Society. A certain dispute arose between the petitioner and the second respondent Society out of a contract resulting from acceptance of the petitioners bid for purchase of a lot of timber. The second respondent Society alleged that the petitioner had taken delivery of the timber purchased by him but had failed to pay the full purchase price and a sum of Rs. 1 978 ps. still remained to be paid by him. The second respondent Society accordingly by an application made to the Registrar referred the dispute arising out of non-payment of this amount for adjudication under sec. 96. The claim as originally formulated was made against the petitioners son since the contract was transferred to the sons name at the instance of the petitioner but realising that the real party liable for the dues was not the son but the petitioner himself the second respondent Society applied to the Registrar for amending its claim and the amendment being allowed the claim as finally referred to the nominee by the Registrar was a claim against the petitioner. The nominee by his award dated 21st July 1967 upheld the claim and directed the petitioner to pay to the second respondent Society a
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