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P.A. Narayanan Vs. S. Shankar and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. No. 5051 of 1976
Judge
Reported inAIR1981Bom339; 1980MhLJ707
ActsPresidency Small Cause Courts Act, 1882 - Sections 41, 46 and 46(1); Maharashtra Co-operative Societies Act, 1960 - Sections 91, 91(2) and 163(1); Bombay Rents, Hotel and Lodging House Rates Control Act, 1947; Bombay Government Premises (Eviction) Act, 1955; Bombay Municipal Corporation Act; Bombay Housing Board Act, 1948; Presidency Small Cause Courts (Maharashtra Amendment) Act, 1975; Presidency Small Cause Courts (Maharashtra Amendment) Act, 1976
AppellantP.A. Narayanan
RespondentS. Shankar and anr.
Appellant AdvocateA.P. Vaze, Adv.
Respondent AdvocateJ.P. Deodhar, Adv. for;D.R. Dhanuka, Adv.
Excerpt:
.....that belonged to the co-operative society, against the licensee - the registrar referred the matter as dispute to the officer on special duty as per the section 91(2) of the maharashtra societies co-operative act, 1960 - the court held that since the order of the registrar was not challenged, it had become final - therefore, the officer on special duty or the co-operative court could not entertain the contention of the licensee that there was no dispute as contemplated by section 91(1) of the act. - - the words 'irrespective of the value of the subject-matter of such suits or proceedings' clearly indicate that what was intended by the legislature was that suits, which were filed in different courts depending upon the value of the subject matter, should now he filed in the court..........the preceding under section 91 sine die. indeed, the order expressly states the pendency of the proceedings in the small cause court as the reason for adjourning the proceedings by the officer on special duty, and the dispute was kept pending 'until the question of fact and law is decided in small cause court.''3. it appears that after the landlord's ejectment application was rejected, the petitioner filed a suit on 22-8-1973 in the court of small causes for a declaration that he was a tenant. the landlord had applied to the officer on special duty for restarting the proceeding. this application was rejected by the officer on special duty on 8-10-1974. in a revision application filed against this order before the co-operative appellate court, the court directed the officer on special.....
Judgment:

Chandurkar, J.

1. The respondent No. 1, who is the owner of a flat in a building owned by the respondent No. 2, which is a Co-operative Housing Society, took a proceeding against the petitioner for possession of the flat on the ground that the petitioner, who was originally a licensee, was not entitled to be in possession because the licence was terminated. There is no dispute that under the provisions of Section 91 (2) of the Maharashtra Co-operative Societies Act, 1960, as it was then in force, the dispute was referred to the Officer on Special Duty by the Registrar for being dealt with. This dispute commenced on 15th March, 1969. Prior to that, however, on 21-7-1968 the respondent No. 1 (hereinafter referred to as 'the landlord') started ejectment proceeding under Section 41 of the Presidency Small Cause Courts Act against the petitioner. It may be stated that this application for ejectment was dismissed for default on 16-8-1973. The petitioner had also made an application for fixation of standard rent before the Small Cause Court in 1969 alleging that he was a tenant. The rent agreed, according to him, was originally Rupees 300/- per month. In that proceeding an order for payment of interim rent at Rs. 120/- per month was made.

2. In 1970, it appears that because the landlord's application for ejectment was pending, as also the application for fixation of standard rent by the petitioner was also pending, the Officer on Special Duty to whom the dispute was referred, made an order postponing the preceding under Section 91 sine die. Indeed, the order expressly states the pendency of the proceedings in the Small Cause Court as the reason for adjourning the proceedings by the Officer on Special Duty, and the dispute was kept pending 'until the question of fact and law is decided in Small Cause Court.''

3. It appears that after the landlord's ejectment application was rejected, the petitioner filed a suit on 22-8-1973 in the Court of Small Causes for a declaration that he was a tenant. The landlord had applied to the Officer on Special Duty for restarting the proceeding. This application was rejected by the Officer on Special Duty on 8-10-1974. In a revision application filed against this order before the Co-operative Appellate Court, the Court directed the Officer on Special Duty to re-examine the entire matter. Consequent upon this direction, the Co-operative Court to whom in the meanwhile the proceedings came to be transferred, decided on 2-8-1976 to proceed with the matter.

4. Before the Co-operative Court, one of the objections raised on behalf of the petitioner was that the Presidency Small Cause Courts Act had been amended by Maharashtra Act No. XIX of 1976 as a result of which a new Section 41 was substituted in place of the old Section 41 and, according to the petitioner, in view of the new provision now made in Section 41, the proper forum in respect of immoveable property in Bombay in a claim relating to recovery of possession between a licensor and a licensee was the Small Causes Court and, therefore, the Co-operative Court had no jurisdiction to deal with the dispute. This contention was negatived by the Co-operative Court which held that the overriding provision in Section 91 of the Maharashtra Co-operative Societies Act was unaffected by the amendment of the Presidency Small Cause Courts Act and that the only effect of the new provision was that while the jurisdiction to entertain suits in the City of Bombay before the amendment vested in the Small Cause Court, in the City Civil Court and in the High Court, depending upon the value of the property, after the amendment all the suits would have to be filed in the Small Cause Court. The Co-operative Court, therefore, fixed the dispute for a hearing. This order of the Co-operative Court was challenged before the Co-operative Appellate Court.

5. The Appellate Court held that since the Society was joined as a party to the dispute as a co-disputant, the dispute before the Co-operative Court was maintainable under Section 91 in view of the decision in Kamala Govindram v. Badri prasad Pande, : AIR1975Bom187 . The Appellate Court also held that having regard to the provisions of Section 163 of the Co-operative Societies Act the jurisdiction to deal with the dispute still lay with the Cooperative Court. The Appellate Court also rejected the contention that the Cooperative Court had no jurisdiction to review the order earlier passed by the Officer on Special Duty. Noticing the fact that the dispute was already 7 years old, it is by now more than 10 years old, the Appellate Court directed the Co-operative Court to take up the matter on top priority basis and dispose it of by the end of the year 1976. This order is now challenged by the petitioner in this petition.

6. Mr. Hattangadi appearing on behalf of the petitioner has substantially raised the same contentions which were raised before the Appellate Court, before us. It was argued by Mr. Hattangadi that in view of the new provisions in Section 41 of the Presidency Small Cause Courts Act, the claim for possession from the petitioner could be made only in the Presidency Small Cause Court and that the Co-operative Court had no justification to deal with the dispute. Section 41, which has been introduced in the Presidency Small Cause Courts Act by Maharashtra Act No. XIX of 1976, reads as follows :--

'41. (1) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, but subject to the provisions of Sub-section (2), the Court of Small Cause shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay, or relating to the recovery of the 'license fee or charges or rent therefor, irrespective of the value of the subject matter of such suits or proceedings.

(2) Nothing contained in Sub-section (1) shall apply to suits or proceedings for the recovery of possession of any immovable property, or of licence fee or charges or rent thereof, to which the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Municipal Corporation Act, the Bombay Housing Board Act, 1948 or any other law for the lime being in force, applies.'

The other material provision which requires to be considered while dealing with the objection raised by Mr. Hattangadi is in Section 46, which reads as follows :--

'46- (1) All suits and other proceedings cognizable by the Small Cause Court under this Chapter and pending in the High Court or the Bombay City Civil Court, on the date of coming into force of the Presidency Small Cause Courts (Maharashtra Amendment) Act, 1975, shall be continued and disposed of by the High Court or the City Civil Court, as the case may be as if this Act had not been passed.

'(2) All applications and other proceedings filed in the Small Cause Court under this Chapter and pending in that Court, on the date aforesaid, shall be continued and disposed of by the Small Cause Court, as if this Act had not been passed.'

7. Now, what is argued by Mr. Hattangadi it that the opening non obstante clause in Section 41 is worded as 'Notwithstanding any other law for the time being in force' and it provides that the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee relating to recovery of possession of any immovable property situated in Greater Bombay. The argument is that the words 'in any other law for the time being in force' must also include the provisions of the Maharashtra Cooperative Societies Act and, therefore, according to the learned Counsel, notwithstanding the provisions of the Maharashtra Co-operative Societies Act, even the dispute relating to possession of immovable property belonging to a Co-operative Society in the matter of possession must also be taken to the Small Cause Court and not before the Co-operative Court.

8. It is no doubt true that the provisions of Section 41 operative notwithstanding any other law for the time being in force -- and if one restricts his attention to only that part of the clause -- it is possible to hold that this will also include the provisions of the Cooperative Societies Act. On a closer scrutiny, however, it is quite clear that the object of inserting the new provision in Section 41 of the Small Cause Courts Act is a very limited object, the object being that irrespective of the value of the subject-matter of the immovable property, the suit is now required to be filed in the Small Cause Court. When the words in Section 41 provide that the forum now should be the Court of Small Causes notwithstanding any other law for the time being in force, it is intended to deal with suits which could otherwise have been filed in different forums depending upon pecuniary jurisdiction of those Courts. The words 'irrespective of the value of the subject-matter of such suits or proceedings' clearly indicate that what was intended by the Legislature was that suits, which were filed in different Courts depending upon the value of the subject matter, should now he filed in the Court of Small Causes.

9. At what proceeding Section 41 is directed, can also be ascertained from the provisions of Section 46(1), which is a saving provision. Section 46(1) provides that all pending proceedings in the High Court or the Bombay City Civil Court, on the date on which the amending Act has come into force, will be continued and disposed of by the High Court or the City Civil Court, as the case may be, as if the amending Act had not been passed. Similarly, all applications and proceedings filed in the Small Cause Court and pending in that Court under Chapter VII are also required to be disposed of by the Small Cause Court as if the amending Act had not been passed. In other words, there is a clear intention evidenced by the Legislature in the amending Act that it is prospective in character and it is to operate only on such suits which would, but for the amendment, have been filed either in the Bombay City civil Court or in the High Court, depending upon the value of the subject-matter of the suit. Section 41, as introduced by the amending Act, does not even remotely affect the provisions of Section 163 (1) of the Cooperative Societies Act, which is a complete bar in respect of the jurisdiction of the civil or revenue Court in respect of the matters enumerated therein and Clause (b) of which refers to 'any dispute required to be referred to the Registrar, or the Co-operative Court, for decision'. Before Section 41 is attracted, it has first to be found that there is jurisdiction in the Civil Court to entertain the dispute, and if the dispute, as in the present case, cannot be entertained by the Civil Court at all in view of the overriding provisions in Section 163 (1) of the Cooperative Societies Act, a further question as to whether the suit should be filed only in the Presidency Small Cause Court does not really arise. There is, therefore, no substance in the contention that as a result of the amended provision in Section 41, the Co-operative Court is divested of its jurisdiction to deal with the dispute between the petitioner and the landlord,

10. The second contention, which is now raised, is that the dispute essentially being one relating to a claim for possession against a licensee by a flat-owner in a building belonging to a Co-operative Housing Society, it does not fall under Section 91 of the Co-operative Societies Act. It is not possible to enentertain this contention at this stage. There is no dispute that originally the dispute has been referred by the Registrar under fee provisions of Section 91 (2) of the Co-operative Societies Act, which provides as follows :--

'When any question arises whether for the purposes of the foregoing subsection, a matter referred to for decision is a dispute or not, the question shall be considered by the Registrar, whose decision shall be final.'

The decision of the Registrar referring the matter originally to the Officer on Special Duty has now thus become final and could not be challenged before either the Officer on Special Duty or before the Co-operative Court which has now succeeded the Officer on Special Duty so far as the jurisdiction is concerned. In R. D. Pandit v. Mandayam Doate Raman, Spl. Civil Appln. No. 2058 of 1969 decided on August 10, 1979, a Division Bench of this Court, to which one of us (Chandurkar, J.) was a party, has taken the view, following the decision of another Division Bench of this Court in Satpalsingh v. Santdas (1971) 73 Bom LR 77 that the initial issue as to jurisdiction whether there is a dispute or not as contemplated by Section 91 of the Maharashtra Co-operative Societies Act, 1960 has first to be determined by the Registrar alone and such an issue cannot be raised or considered at all before the Registrar's nominees. It is also pointed out that in that decision that the jurisdiction of the Maharashtra State Co-operative Tribunal being coextensive with the jurisdiction of the Registrar's nominee, it cannot also in an appeal against the Award of the Registrar's nominee hear and decide the issue as to whether a dispute as contemplated by Section 91 (1) of the Act has arisen at all. We may point out that the decision in Mrs. Pandit's case is in a sense approved by the Supreme Court, because the application for special leave against that decision has been rejected by the Supreme Court. It is not, therefore, possible now to entertain a contention at the instance of the petitioner that there is in fact no dispute as contemplated by Section 91, because the order which is of the Registrar made under Section 91 (2) has now become final, because it was never challenged.

11. The last contention raised by Mr. Hattangadi is that the Co-operative Court should not have reviewed the order dated 9-10-1970 by which the proceedings were adjourned sine die. It is difficult to see how even this contention can be entertained. The application filed by the petitioner for reviving the proceeding was rejected by the Officer on Special Duty but that order was set aside in revision and it is thereafter that the Co-operative Court considered the matter afresh. Now, if the dispute between the parties is one which squarely falls under Section 91--and that fact cannot be challenged -- it is difficult to see how the petitioner can claim as a matter of right that the dispute should be adjourned sine die. No litigation is now pending so far as eviction is concerned in the Small Cause Court. The ground on which the proceedings were adjourned sine die by the Officer on Special Duty did not survive. In any case, on the finding that the issue as to jurisdiction cannot now be agitated, it is time that the matter is decided on merits. The dispute commenced in March 1969. It is almost 11 years that the dispute has remained undecided. There is no legal objection now left open which would disentitle the Co-operative Court from dealing with the dispute on merits. It is, therefore, not possible to interfere with the order directing the dispute to be dealt with on merits.

12. The petition must, therefore, fail and is dismissed with costs. Rule discharged. We, however, hope that the matter will be dealt with by the Cooperative Court expeditiously.

13. Petition dismissed.


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