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Gujarat High Court
Judgename :A.N.Divecha
ANJAR MUNICIPALITY - Appellant
Versus
ANJAR TALUKA CO-OPERATIVE SALES purchase UNION - Respondent
C.A. 280 of 1979
Decided On : 12/16/1991
Gujarat Municipalities Act, 1963 – Gujarat Cooperative societies Act, 1961 – Section 167 – Maharashtra Co-operative Societies Act, 1961 – Section. 91 (1) – original plaintiff of Regular Civil Suit decided by the learned Civil Judge qua present respondent has preferred this Second Appeal against the judgment and the decree passed by the learned Assistant Judge in Civil Regular Appeal hereby the lower Appellate Court was pleased to dismiss the appeal and to affirm the order passed by the learned Civil Judge below the application at dismissing the present appellants suit against present respondent facts giving rise to this appeal may be summarised thus present appellant is a Municipality constituted under the Gujarat municipalities Act, 1963 it claimed ownership of one piece of land admeasuring situated outside the Naka near the temple according to the present appellant suit land came to be vested in it under the relevant provisions, contained in the Gujarat Municipalities Act, 1963 suit land was sold by the Collector of Kachchh on behalf of the State Government to present respondent present appellant thereupon filed a suit against the present respondents for a declaration that the suit land belonged to it and for a further declaration that the order passed by the collector of selling the land to present respondent was null and void and for other incidental reliefs suit was filed in the Court of the Civil Judge it was registered as regular Civil Suit present respondent resisted the suit by raising a preliminary objection against its maintainability on the ground of want of the required statutory notice under Sec. 167 of the Gujarat Cooperative societies Act, 1961 it thereupon gave one application at in that regard –Held, connection a reference again deserves to be made to the aforesaid division Bench ruling of this Court in the case of M. G. Patel and Co. (supra ). Therein is dealt with the paramount idea underlying the provisions of Sec. 167 of the Act. It is held the paramount idea underlying the provisions of Sec. 167 of the Act is to pointedly bring to the notice of the Registrar, a public functionary, that he is under a legal duty to see that a litigation between a Co- operative Society on one hand and a private party on the other hand is averted as far as possible by exercise of his supervisory powers. Unless his pointed attention is drawn to this duty of his by means of a notice, which would clearly purport to be one under sec. 167 of the Act, though it may not specifically bear that label, he will not be prompted or inspired to invoke his supervisory jurisdiction and intervene to arrest the future filing of the litigation. "if no notice is served as required under Sec. 167 of the Act, the paramount object underlying it will be frustrated. Even at the cost of repetition, the paramount object underlying it is to see that the society is not unnecessarily dragged to a Court of law in a matter touching its business in that context of the matter, the expression "touching the business of the society" has received interpretation from this Court in its aforesaid Division Bench ruling in the case of M. G. Patel and Co. Division Bench ruling of this court is binding to me sitting as a single Judge. In my humble opinion, it provides a complete answer to the submission urged before me for the appellant in support of this appeal – Appeal is dismissed.
( 1 ) THE original plaintiff of Regular Civil Suit No. 153 of 1977 decided by the learned Civil Judge (S. D.) at Bhuj on 26/10/1977 qua present respondent No. 1 has preferred this Second Appeal against the judgment and the decree passed by the learned Assistant Judge of Kachchh at Bhuj on 21/03/1979 in Civil Regular Appeal No. 214 of 1977. Thereby the lower Appellate Court was pleased to dismiss the appeal and to affirm the order passed by the learned Civil Judge (S. D.) at Bhuj on 26/10/1977 below the application at Exh. 11 dismissing the present appellants suit against present respondent No. 1.
( 2 ) THE facts giving rise to this appeal may be summarised thus : the present appellant is a Municipality constituted under the Gujarat municipalities Act, 1963. It claimed ownership of one piece of land admeasuring 93. 3 sq. yds. situated outside the Ganga. Naka near the temple of Ambaji mata in Anjar (the suit land for convenience ). According to the present appellant, the suit land came to be vested in it under the relevant provisions, contained in the Gujarat Municipalities Act, 1963. The suit land was sold by the Collector of Kachchh on behalf of the State Government to present respondent No. 1 on 30/06/1976. The present appellant thereupon filed a suit against the present respondents for a declaration that the suit land belonged to it and for a further declaration that the order passed by the collector of Kachchh on 30/06/1976 selling the land to present respondent no. 1 was null and void and for other incidental reliefs. That suit was filed in the Court of the Civil Judge (S. D.) at Bhuj. It was registered as regular Civil Suit No. 153 of 1977. Present respondent No 1 resisted the suit by raising a preliminary objection against its maintainability on the ground of want of the required statutory notice under Sec. 167 of the Gujarat Cooperative societies Act, 1961 (the- Act for brief ). It thereupon gave one application at Exh. 11 in that regard. The learned Civil Judge (S. D.) at bhuj by his order passed below the application at Exh. 11 on 26th October,. 5977 in Regular Civil Suit No. 153 of 1977 was pleased to accept the preliminary objection raised by and on behalf of respondent No. 1 against maintainability of the suit and was pleased to order dismissal of the suit against present respondent No. 1. That aggrieved the present appellant. It therefore carried the matter in appeal before the District Judge of Kachchh at Bhuj. Its appeal came to be registered as Civil Regular Appeal No. 214 of 1977. It appears to have been assigned to the learned Assistant Judge of Kachchh at Bhuj. . By his judgment and decree passed on 21/03/1979 in Civil Regular Appeal No. 214 of 1977, the learned Assistant Judge of Kachchh at Bhuj was pleased to dismiss the suit. The aggrieved Appellant has thereupon preferred this Second Appeal questioning the correctness of the judgment and the decree passed by the lower Appellate Court in Civil Regular appeal No. 214 of 1977.
( 3 ) THE substantial question of law framed by this Court at the time of the preliminary hearing of this Second Appeal pertains to the requirement of the statutory notice under Sec. 167 of the Act before filing the suit against present respondent No. 1. Shri Mankad for the appellant has urged that no notice under Sec. 167 of the Act Was required to be given to respondent No. 1 before filing the suit for the simple reason that to purchase a property could not be said to be the business of the society. Again, runs the submission of Shri Mankad for the appellant, there was no direct dealing between the present appellant and respondent no. 1 giving rise to the Its between the parties, and as such Sec. 167 of the Act could not be attracted in the present case. As against this, Shri Shah for respondent No. 1 has submitted that the Courts below have rightly held that the suit against respondent No. 1 was hit by sec. 167 of the Act and it is not necessary for this Court to interfe
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