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Panjuman Hassomal Advani Vs. Harpal Singh Abnashi Singh Sawhney and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appeal. No. 2717 of 1970
Judge
Reported inAIR1975Bom120; (1974)76BOMLR729; 1975MhLJ29
ActsConstitution of India - Article 141; Maharashtra Co-operative Societies Act, 1961 - Sections 91; Code of Civil Procedure (CPC), 1908 - Order I, Rule 10
AppellantPanjuman Hassomal Advani
RespondentHarpal Singh Abnashi Singh Sawhney and ors.
Appellant AdvocateA. Government, Kripalani and ;L.A. Kripalani, Advs.
Respondent AdvocateP.L. Nain, Adv.
Excerpt:
precedent, doctrine of - one division bench of high court, whether can take contrary view to decision of another division bench of the same high court--erroneous understanding of binding decision of supreme court by earlier division bench, effect of--observations in later division bench decision in a different set of fact--effect of, on earlier division bench decision--maharashtra co-operative societies act (mah. xxiv of 1961), section 91--bombay rents, hotel and lodging house rates control act (bom. lvii of 1947), section 28--co-operative housing society when to be added as co-disputant at trial or appellate stage in dispute between member and his licensee.;normally, one division bench of a high court cannot take a view contrary to the decision given by another division bench of that.....desai, j. 1. the petitioner in this special civil application under articles 226 and 227 of the constitution of india was the 1st opponent in arbitration case no. abn/v.83 of 1970. which was a dispute under section 91 of the maharashtra co-operative societies bombay. in the said dispute raised by the 1st opponent in arbitration case no. abn/v.83 of 1970, which was a dispute under section 91 of the maharashtra co-operative societies act, 1961 before the district deputy registrar of co-operative societies. bombay in the said dispute raised by the 1st respondent to this special civil application (hereinafter referred to as the licensor), the petitioner (hereinafter referred to as the licensee) had contended that the dispute between him and the licensor did not touch the business of the.....
Judgment:

Desai, J.

1. The petitioner in this special civil application under Articles 226 and 227 of the Constitution of India was the 1st opponent in Arbitration Case No. ABN/V.83 of 1970. which was a dispute under Section 91 of the Maharashtra Co-operative Societies Bombay. In the said dispute raised by the 1st opponent in Arbitration Case No. ABN/V.83 of 1970, which was a dispute under Section 91 of the Maharashtra Co-operative Societies Act, 1961 before the District Deputy Registrar of Co-operative Societies. Bombay in the said dispute raised by the 1st respondent to this special civil application (hereinafter referred to as the licensor), the petitioner (hereinafter referred to as the licensee) had contended that the dispute between him and the licensor did not touch the business of the Jhulelal Co-operative Housing Society Ltd., who is the 2nd respondent to this special civil application, that he was a tenant of the licensor, that he was a tenant of the licensor, and that the court of Small causes at Bombay alone had the jurisdiction to entertain the dispute between him and the licensor. The preliminary point as to whether the dispute fell within the requirements of Section 91 of the Maharashtra Co-operative Societies Act) was decided by the Officer on Special Duty, who is the 3rd respondent before us, by his order dated 7th September 1970, holding that the dispute was one which fell within Section 91 of the Co-operative Societies Act, and accordingly he fixed the further hearing of the matter before himself. Being aggrieved by the said decision of the 3rd respondent, the licensee has preferred this special civil application, in which rule was issued and interim stay of further proceedings granted on 16th December 1970. In order to appreciate the rival contentions, certain facts are required to be stated.

2. The 2nd respondent before us is a co-operative housing society registered under the Co-operative Societies Act, and the licensor is a member of the said co-operative housing society, having been allotted flat No.2 in a building on plot No.500 16th Road, Khar Bombay 52. A leave and licences agreement was made in respect of the said flat between the licensor and the licensee, a copy of the said agreement is an need as Exhibit 'A' to this special civil application. In the said agreement the licensor is described as the owner of Flat No.2 and a licence is purportedly granted to the licensee in respect of the said flat initially for a period of eleven months, with an option to the eleven months, with an option to the licensee to renew the agreement for two further periods of eleven months each on the terms and conditions mentioned in the said agreement of which one was to pay compensation of Rs.350/- per month to the licensor, the compensation for each month being payable on the 7th day of the said month. Under the said agreement, the licensee was required to deposit with the licensor the sum of Rs. 1050/- which represents an amount equivalent to three months compensation under the said agreement. Again the agreement recites that on the expiry of the initial period of eleven months or such further periods (under the powers given to the licensee for extension), the licensee has to hand over peaceful possession of the premises in good and proper conditions to the licensor. We are not concerned with the other terms of the said agreement. According to the licensor, on the expiry of the initial period of eleven months, which was on 31st march 1969 the agreement was not renewed by the licensee. According to him, further, the licensee has also committed several breaches of the terms of the said agreement and also failed and neglected to pay as from 1st failed and neglected to pay as from 1st December 1968 the compensation due and payable by him to the licensor under the said agreement. Accordingly in June 1970 a dispute was sought to be raised before the District Deputy Registrar . Co-operative Societies. Bombay in which the licensor sought recovery of vacant possession of the said fault as also an order directing the licensee to pay to the licensor a sum of Rs. 6,300/- being the arrears of compensation and further compensation at the agreed rate of Rs. 350/- per month from 1st June 1970 up to he time when vacant possession of the said time when vacant possession of the said time when vacant possession of the said flat was recovered by the licensor. The Co-operative Housing Society was made the 2nd opponent to the said petition . and in the application (a copy whereof is an need as part of Exhibit 'B' Collectively to the special Civil application) It was alleged that the proceedings where necessitated by a letter of the said Jhulelal. Co-operative Housing Society dated 2nd march 1970. Which called upon the licensor to have the said flat vacated immediately by his licensee and occupy the same himself failing which a threat was given a cancel the membership and allotment of the licensor in respect of the said flat. The licensee filed his statement of preliminary objections which have been indicated earlier in this judgment . and this statement of objections is also part of Exhibit B. (Collectively) to this special civil application . As stated earlier the preliminary objection was decided in favour of the licensor by the Officer on Special Duty who is the 3rd respondent before us.

3. Mr. Kripalani on behalf of the petitioner to this special civil application has submitted that the matter is concluded in favour of the petitioner by an unreported decision of a Division Bench of this Court given in Kalavati Ramchand Malani v. Shankarrao (Special Civil Appeal. No. 1699 of 1969, decided by Deshpande & Dudhia, JJ. on 26-4-1973 (Bom). According to Mr. Kripalani the Division Bench in Kalawati's Case postulated three requirements for holding a similar dispute as one falling within the ambit of Section 91 of the Co-operative Societies Act: and according to him in the case before us none of those three requirements was satisfied. Accordingly it was submitted that the impugned order of the 3rd respondent was liable to be quashed and set aside and it ought to be held that the dispute between the licensor and the licensee as sought to be raised in the statement of dispute was not one within the purview of S. 91 of the Cooperative Societies Act. It becomes necessary therefore to see what the said Division Bench decision has decided.

4. In Kalawati's Case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom) the Division Bench was also dealing with a dispute between a licensor and a licensee pertaining to the premises held by the licensor as a member - tenant of a co-partnership type of housing society. One Miss Gool Chugani was the original purchaser of the disputed premises begin Flat No. 26 on the 5th floor of a building of the co-operative housing society and held it as a member thereof. She conferred a leave and licence to a concern and its proprietor in 1964. In January 1966 the 'owner' transferred her membership and right title and interest in the said society and the flat in dispute to the disputant who was the petitioner before the said Vision Bench. After revoking the leave and licence the disputant raised a dispute by an application dated 1st September 1967 before the District Deputy Registrar. Co-operative Societies Bombay, Claiming possession of the said flat and arrears of compensation from the two original licensees who were defendant 1 and 2 to the said application. The said society was also impleaded as the 3rd defendant in the said application. Before the Officer on Special Duty a preliminary point regarding the existence of a dispute under Section 91 of the Co-operative Societies Act was raised by the occupants. The Officer on Special Duty upheld the claim of the disputants by his order dated 14th February 1968 . Revision by the occupants to the Registrar. Co-operative Societies was rejected but the further revision to the State Government was allowed and the occupants plea was accepted by an order dated 5th July 1969 . It was the legality of that order which was challenged before the Division Bench consisting of Deshpande & Dudhia. JJ. We have been taken through the said judgment and it appears to us that all relevant judgments both reported and unreported of this Court and of the Supreme Court as had been delivered up to the date of the said decision have been noted and considered by the said Vision Bench. The Division Bench commences its discussion of the legal position with a reference to I. R. Hingorani v. Pravinchandra Kantilal Shah : (1965)67BOMLR306 , which was a decision given by the Bombay High Court disposing of three cases by a common judgment. The aggrieved parties in tow of these three matters went higher and the decision of the Division Bench of this Court in one of the tow cases was reversed by the Supreme Court in I. R. Hingorani v. P. K. Shah, : AIR1972SC2161 , but its decision in the third case which was also taken higher was confirmed in Deccan Merchants' Co-operative Bank v. Dalichand : [1969]1SCR887 . According to the Division Bench the judgment reported in : (1965)67BOMLR306 must be deemed to be overruled and no more a good law on any point. The Division Bench however noticed that the cases decided by the High Court did not reflect a unanimity as to what precisely was the ratio of the Deccan Merchants' Bank's case : [1969]1SCR887 . It then went on to consider for itself the said case and summarized the ratio in the following five propositions.

'(1) The word 'business' ('touching the business of the society' in section 91 (1) does not mean affairs of the society. The word has been used in a narrower sense meaning thereby actual trading or actual trading or commerce or other similar business activities which the society j is authorised by the Act and the rules made thereunder.

(2) While the nature of the business can be ascertained from the object of the society it is difficult to subscribe to the proposition that whatever the society does or is necessarily required to do for the purpose of carrying out its objects can be the part of its business.

(3) The word 'touching' is very wide and would include any matter which relate or concerns the business of the society but it is doubtful whether the word 'affects' is inclusive in the scope of the word 'touching'.

(4) Disputes between the landlord and tenant are outside the purview of Section 91 and the summary procedure provided under Section 91 of the Act only covers disputes relating to the internal management of the society.

(5) It is not enough that a dispute should touch the business of the society for attracting the provisions of Section 91 of the Act. It is also necessary that the capacity of the members in the transaction giving rise to the dispute should also be as such a member'.

According to the Division Bench further:

'Point (1) militates against the wide interpretation of Section 91 enunciated in : (1965)67BOMLR306 . Points (2) and (3) militate against the ratio of the Full Bench Judgment of this Court in Farkhundali's case : AIR1962Bom162 (FB). Point (4) affirms the ratio of the judgment of this Court in : AIR1962Bom154 (FB) Dr. Manohar v. Konkan Co-operative Housing Society to a certain extent. Point (5) affirms the ratio of the judgment of this Court in : AIR1952Bom445 Shayam Co-operative Housing Society Ltd. v. Ramibai Bhagwansingh Advani'.

5. The Division Bench then went on to apply the principles to the facts before it and went on to observe that it was difficult to conceive of any dispute touching the business of a society without the society itself feeling aggrieved and choosing to raise such dispute and being a disputant in the same. Secondly it was observed it was difficult to see how a member entering into a leave and licence agreement in favour of a third person can by his own act 'touch' the business of the society in its narrower sense unless the society objects and raises a dispute with regard thereto. It was conceded that such a dispute between a licensor and a licensee may 'affect' the business of the society , but it would still fall short of touching its business. It was further observed that it was difficult to conceive how a society can have any valid objection as long as an occupant licensee remains in possession of the premises complying with the conditions attached to the premises and with the requirements and demands of the society in the same manner in which a licensor-member could have complied, unless such licensing itself is specifically prohibited. According to the Division Bench, a society could not come into the picture in any dispute which exclusively affects and concerns the members and his licensee. We may state that in all seven propositions have been deduced by the Division Bench of which we have set out only the ones which appeared to be relevant for our purposes.

6. Before the said Division Bench strong reliance was placed by the licensor member on Satpalsingh Arora v. Santdas Prabhudas Malkani : (1971)73BOMLR777 , which was again a decision of a Division Bench of this Court later in point of item than Hingoran's case : (1965)67BOMLR306 . That decision according to the Division Bench did support the contention of the licensor. The Division Bench in Satipalisingh's case : (1971)73BOMLR777 , also considered the Supreme Court Judgment in Deccan Merchants Co- operative Bank's case. : [1969]1SCR887 and after considering the business of a co-operative housing the business of a co-operative housing the business of a co-operative housing society as is to be found in its bye laws, the Division Bench (in Satpalsingh's case : (1971)73BOMLR777 observed that the business of the society was of housing and in particular of leasing or subleasing of its tenement and that a dispute in which as plea was raised by the occupant that a tenancy had been created was one directly touching the business of the society . The Division Bench of Deshpande & Dudhia JJ. observes that the ratio of Satpalsingh's case : (1971)73BOMLR777 (supra) appears to militate against the ratio of Deccan Merchants Co-operative Banks case : [1969]1SCR887 (as formulated by the Division Bench in Kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom) and also appears to be in conflict with an earlier unreported judgment of a Division Bench of this Court consisting of Patel & Chitale JJ. (D/- 8-9-1969 in SCR No. 936 of 1969 (Bom) In this view of the matter the Division Bench considered the necessity of referring the matter before it to a fuller Bench but ultimately came to the conclusion that Satpalsingh's case : (1971)73BOMLR777 was no more good law in view of the later Supreme Court decision in the case of Messrs. Sabharwal Brothers v. Smt. Guna Amrit Thadani : [1973]1SCR53 .

7. It had been contended before the said Division Bench that the judgment of the Supreme Court in M/s. Sabharwal Brother's case : [1973]1SCR53 was based on certain assumptions or its peculiar facts and could not affect the ratio of Satpalsingh's case. Attention of the Division Bench was also drawn to para 9 of the report in (Sabharwal's case : (1971)73BOMLR777 which according to the Division Bench sounded somewhat out of turn with the entire trend of the earlier portion of and discussion in judgment. But these lines were held by the Division Bench as not having the effect of eroding the clear ratio of the judgment.

8. There was one another aspect of the matter decided by the Division Bench of Deshpande & Dudhia JJ., which may now be stated. According to the Division Bench even assuming such a dispute between a licensor and a licensee touches the business of a Co-operative housing society, it would not fall within the purview of Section 91 of the Co-operative Societies Act unless the disputant licensor further succeeded in showing that while entering into the leave and licence agreement with a non-member his capacity as a member was involved. Whilst considering this aspect of the matter the Division Bench observed as follows:

'The true view seems to be to us that after getting possession of the flat the member is free to deal with the same subject of course to the limitations imposed by the Act rules and bye-laws of the society. If there are no restriction on creating a licence in favour of any one, the membership of the member cannot even remotely come into the picture while granting licence. If granting leave and licence is prohibited by the society such act all the more ceases to be the act in the capacity of a member as he obviously acts de hors his capacity obligations and duties to the society obligations and duties to the society. As occupant of the flat in the society a member happens to deal in varieties of transaction with reference to the flat and acts in a variety of ways while enjoying the possession of the fiat. it is impossible to hold that in each of his acts capacity of the member can come into the picture, in the same manner as capacity of the Government servants or officers of the statutory bodies cannot be said to come into picture in regard to the acts unrelated to their duties and obligations. The true test would be. Is particular act required to be done by him as an obligation as member of the society? Where there is no such obligation the capacity of his being a member becomes absolutely irrelevant. Reliance by the learned advocates on the recitals in the agreement of leave and licence undertaking to comply with the rules, regulations and bye-laws of the society and the recitals indicating that a member could come to occupy the said flat pursuant to his membership of the society to our mind, are absolutely irrelevant Mr. Kothari's contention that a members right to allow anybody to occupy the flat as a licensee springs from his right to possession of the flat which in turn spring from his membership of the society is devoid of any merit...........'

9. Attention of the Division Bench was also drawn to an earlier unreported Division Bench judgment of Deshpande & Vidya. JJ. in Special Civil Application No. 1446 of 1971 with Civil Application No. 1657 of 1971 (decided on 16-12-1971 (Bom). In that special civil application a dispute between the licensor and the licensee was held to be one falling within the purview of Section of the Co-operative Societies Act. That conclusion as held justified in Kalavati's case. C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom). We will have occasion to refer to the said decision of Deshpande & Vaidya JJ. (delivered by Vaidya J.) since in our view it is on the basis of the facts mentioned therein, fully constant and compatible with the later Division Bench Judgment in Kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom).

10. Mr. nain on behalf of the 1st respondent submitted that the Division Bench consisting of Deshpande & Dudhia JJ. in their judgment given in kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom) has in the first instance wrongly approached the Supreme Court decision in Deccan Merchants Co-operative banks case, : [1969]1SCR887 . It was submitted that mere observations of the Supreme Court have been characterised and elevated as ratio decided. In the first place the observation in Deccan Merchants Co-operative Bank's case : [1969]1SCR887 which have been cited by the Division bench cannot be considered to be casual observations in any way and it is well settled that even the obiter of the Supreme Court is entitled to the highest respect. However we must not be taken to hold that in our view what the division Bench in kalavati's case C. A. No. 1699 of 1969, D/- 26-4-1973 (Bom) characterised as he ratio (of the Supreme Court decision) is not the real ratio but merely the obiter of the Supreme Court. Similarly it was contended that the Division Bench in Kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom) was totally in error in understanding the Supreme Court decision in Sabharwal's case : [1973]1SCR53 and holding on the authority of Sabharwala's case : [1973]1SCR53 that Satpalsingh Arora's case : (1971)73BOMLR777 was no longer good law. Our attention was drawn to the very passages in the judgment of Sabharwal's case : [1973]1SCR53 to which attention of the Division bench in Kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom) has drawn . Mr. Nain's submission was that if he was able to persuade us that the approach or the conclusion of the Division Bench in Kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom) were improper illogical or erroneous its conclusion regarding Satpalsingh Arora's case : (1971)73BOMLR777 was also suspect. and he invited us if we agreed with his line of reasoning to refer this matter to a Full Bench in view of the conflict (as he claimed) between various judgments of Division Benches of this Court.

11. now it is well settled that normally one Division Bench of a High Court cannot take a view contrary to the decision given by another Bench of that Court. In Sri Venkateshwara Rice, Ginning and Groundnut Oil Mill Contractor Co. etc. v. The State of Andhra Pradesh : [1972]1SCR346 , it has been observed that the later Bench before whom a question arises is bond by the earlier decision. Mr. Kripalani on behalf of the petitioner also drew our attention in this connection to Young v. Bristol Aeroplane Company Limited (1944) 1 KB 718 , where the following propositions have been set out in the head note:

'The Court of Appeal is bound to follow its own decisions and those of courts of co-ordinate jurisdiction, and 'full' court is in the same position in this respect as a division of the Court consisting of three members. The only exceptions to this rule are:

(1) The Court is entitled and bound to decide which of two conflicting decisions of its own it will follow :

(2) the court is bound to refuse to follow a decision of its own which though not expressly overruled, cannot in its opinion stand with a decision of the House of Lords;

(3) the Court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam e. g. where a statute or a rule having statutory effect which would have affected the decision was not brought to the attention of the earlier court'.

Now in the matter before us it is not possible to say that the decision of the Division Bench in Kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom) can be considered as given per incuriam. This was very fairly conceded by Mr. Nain A decision cannot be treated as given per incuriam merely because the Court had not the benefit of a full and exhaustive argument and as a general rule the only cases in which decisions should be held to be given as per incuriam are those given to be given as per incuriam are those given in ignorance of some inconsistent statutory provision or binding authorities. In the matter before us it cannot be said that the Division Bench in Kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom) has give its decision either in ignorance of the provisions of any statute or binding authorities i.e. the judgment of the Supreme Court. It was however, contended that the Division bench in kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom) had wrongly understood Sabhawarwal's case : [1973]1SCR53 and thereby erroneously came to the conclusion that the decision in Satpalsingh Arora's case, : (1971)73BOMLR777 which was bending begin a decision of a Division Bench of the Bombay High Court was no longer good law. But then, it is equally well settled that an interpretation (and equally a misinterpretation) of a binding decision of the Supreme Court will itself be binding subsequently on co-ordinate courts and must be got corrected by a higher Court and no co-ordinate Court on that ground may k refuse to follow an earlier decision, opining that in its view the said earlier decision had wrongly understood or improperly applied a decision of a higher Court. The proposition of law as to be found in Halsbury;s Laws of England (third edition) volume 22, at page 800 reads as follows. 'Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of Lords the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake'. Following this in our opinion the same salutary principle must be adopted and applied here. Both as to the true ratio of Deccan Merchants Co-operative banks case : [1969]1SCR887 and the effect of Sabharwal;s case : [1973]1SCR53 we must follow and apply what has been laid down by a co- ordinate Court viz. the Division Bench which decided Kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom) and any aggrieved party must be referred to the Supreme Court for the correction of errors (or what it contends are the errors) in the earlier decision.

12. As stated earlier a reference must now be made to the decision of Deshpande & Vaidya JJ. in Spl. Civil Appeal No. 1446 of 1971 D/- 16-12-1971 (Bom). That was also a dispute between a licensor and a licensee. Going through the judgment it is found that before the agreement of leave and licence was executed, the licensor and the licensee had jointly applied to the co-operative housing society to admit the proposed licensee as a nominal member of the said society and in that application the licensee had stated inter valid, that on the termination of the agreement to leave and licence he would peacefully leave the said flat; he had also agreed and undertaken to vacate the said flat in favour of the licensor or the managing committee of the society as directed by the society in the case of the licensor receiving any notice from the society for any breach of the terms l and bye-laws of the society. It also appears that certain shares were applied for to be issued in the joint names of the licensor and the licensee by the society. Thereafter the period of licence as extended from time to time expired and as on the expiry of such period the licensee failed to vacate the premises, the licensor served a notice on the licensee. The co-operative housing society also objected to the occupation of the flat by the licensee beyond the period of the license. Finally, a perusal of the facts as stated in the said judgment indicates as stated in the said judgment indicates that both the licensor and the co-operative housing society had preferred a claim before the District Deputy Registrar, praying that the dispute should be admitted and referred under Sections 91 to 96 of the Co-operative Societies Act and that the licensee shroud be ordered to hand over vacant and peaceful possession of the flat and pay arrears of compensation and mean profits. It is in these special circumstances that the Division bench in kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom) observed that the conclusion of the earlier Division bench (of Deshpande & Vidya JJ.) that his was a dispute within the purview of Section 91 of the Co-operative Societies Act was fully justified. In the earlier case initially at the stage of granting leave and licence specific approval of the co-operative housing society had been sought and in the entire transaction and even in the ultimate filing of the dispute the co-operative housing society appears to have been effectively interested. The facts as set out in the earlier judgment clearly fall within the categories indicated Kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom) and satisfy all the tests laid down by the later Bench which are required to be satisfied before it could be properly said that a dispute arises which is one within the meaning of Section 91 of the Co-operative Societies Act.

13. There is however, a still later judgment of a Division Bench of this Court, to which reference may now be made that is in Letter Patent Appeal No. 80 of 1972 (decided by Bhole & Mukhi. JJ. On 31-10-1973 reported in 76 Bom LR 375). That Letters Patent appeal was from a decision of Vaidya J. (which is reported in : AIR1974Bom87 , and the said division Bench expressed agreement with the view of vaidya. J. as well as a similar view expressed by Vimadalal J. in a matter arising on the Original Side (in Suit No. 567 of 1963). Now, in Letters patent Appeal No. 80 of 1972 D/- 31-10-1973 (Bom) the Division bench was considering the validity of a warrant of attachment of Flat No. 9 in a building belonging to Paresh Co-operative Housing Society Ltd., pursuant to this attachment, a sale ultimately took place and the flat was sold to one Bhupendra Shah in the k amount of Rs. 24,000/-. Before the sale was confirmed, however, the judgment debtor took out proceedings for setting aside the warrant of attachment and proclamation of the sale on the ground that the flat begin a flat in a co-operative housing society was not liable to be attached and sold. Vaidya. J. sitting singly, and the Division bench considered the scheme of the Co-operative Societies Act and the rules and bye-laws applicable to co-operative housing societies thereunder, and came to the conclusion that the order of attachment and the subsequent auction sale were clearly illegal and could never be sustained.

14. Now, is it possible to read the observations in the judgment of the Division Bench in Letters Patent Appeal No. 80 of 1972 D/- 31-10-1970 (Bom) as being in conflict with the earlier decision of the Division bench in Kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom) In the first place, it has to be realised that the Division bench in the Letters Patent appeal was dealing with a matter totally different from that being considered by the Division Bench in Kalavati's case was laying down on a consideration of the applicable authorities of this Court and of the Supreme Court the tests and the requirements which had to be met before it could be said that the dispute regarding the flat could be said to fall within the purview of Section 91 of the Co-operative Societies Act. In the later case the Division Bench was considering ta totally different question viz. Whether a flat in a building belonging to a co-operative Societies Act. In the later case the Division Bench was considering a totally different question viz. Whether a flat in a building belonging to a co-operative housing society and in the occupation of a member thereof was liable to be attached and sold in pursuance of a money decree. It is true that the scheme of co-operative housing societies and the basis of occupation of the flats by members of such co-operative housing societies have been fully discussed in the later judgment but those observations must be considered in their context and cannot be applied to a totally different context by the principle of logical extension. In State of Orissa v. Sudhansu Sekhar Misra : (1970)ILLJ662SC , it has been observed that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It would be impermissible, therefore, in our opinion to utilise the observation in the later Division Bench judgment (in the Letters Patent Appeal No. 30 of 1972 D/- 31-10-1973 (Bom) for the purpose of applying them to a different set of facts and thereby coming to the conclusion of the Division Bench in Kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom). We d have adverted to the later case at some length, because in a companion matter, which is to be heard by us immediately after the present matter, but we find that the Maharashtra State Co-operative Tribunal has purported to follow the later decision of the Division Bench in Letters Patent Appeal NO. 80 of 1972 D/- 31-10-1973 (Bom) in preference t the direct authority of the Division Bench in Kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom). We have adverted to the later case at some length because in a companion matter, which is to be heard by us immediately after the present matter, but we find that the Maharashtra State Co-operative Tribunal has purported to follow the later decision of the Division Bench in Letters patent Appeal No. 80 of 1972 D/- 31-10-1973 (Bom) in preference to the direct authority of the division bench in kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom). That appears to us to be an improper and impermissible approach Again it must be observed that the said Tribunal was inasmuch as we are bound by the decision of the Division Bench in kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom) and it would not be proper on its part to question the conclusions of the said Division bench or to find fault with its approach reasoning or reading of any Supreme Court decision and on that basis refuse to follow the same.

15. In the matter before us it is the admitted position that at or before the time of granting leave and licence the co-operative housing society was not in the picture at all. Similarly (although the letter dated 2nd March 1970 must k not be lost sight of ) the said society is not a co-disputant along with the licensor. On both the counts therefore, the matter is one directly covered by the decision of the Division bench in kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom) and following the said decision it will have to be held that the dispute which was sought to be raised by the disputant in Arbitration Case No. ABN/ V. 83 of 1970 was not one falling within ht purview of Section 91 of the Co-operative Societies Act. In this view of the matter, the decision of the 3rd respondent rejecting the preliminary objection of the petitioner-licensee is liable to be quashed and set aside.

16. Before concluding this judgment we would like to express our opinion as to whether it would be proper at the trial or appellate stage to permit either the co-operative housing society to be added as a co-disputant or for the same to be transposed from an opponent to a codisputant. In out view either of the course is permissible only if all other tests and requirements postulated by Kalavati's case C. A., No. 1699 of 1969 D/- 26-4-1973 (Bom) are otherwise satisfied but the claim or statement of dispute is liable to be rejected by the mere technical defect of the co-operative housing society not being a co-disputant along with the licensor. If the transaction had been one arrived at between the licensor and licensee with the previous approval of the co-operative housing society and if the co-operative housing society and if the co-operative housing society is effectively interested in ensuring that possession of the premises is recovered back from the licensee-occupant, then it seems to us that an order for adding the said co-operative housing society as a co-disputant or for transposing it from an opponent to a co-disputation would be in order. On the other hand a dispute cannot be brought within the purview of Section 91 of the Co-operative Societies Act merely by the idle formality of having the cooperative housing society as a co-disputant by the process of adding it as a party or transposition.

17. We would like to state further that nothing in the foregoing discussion must be construed so as to affect the right of a co-operating housing society to institute a proceeding against a member and/or an occupant claming through a member on the footing that in permitting the occupant to enter into and obtain possession of the flat the member had contravened some binding regulations of the said co-operative housing society. This cause of action in favour of the society is quite different from one being considered by us and would not appear to be covered by the requirements postulated in Kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom).

18. In the result the rule is made absolute in terms of prayer (b) and the proceedings pending before the Officer on Special Duty (or his successor) will stand Special Duty (or his successor) will stand quashed. In the circumstances of the case, however, the parties will bear their own costs of this special civil application.

19. Rule made absolute.


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