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Ram Singh Madhosingh Vs. the Assistant Registrar, Co-operative Societies, Dist. Indore and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 86 of 1966
Judge
Reported inAIR1973MP158
ActsMadhya Pradesh Co-operative Societies Act, 1961 - Sections 64(1) and 64(3)
AppellantRam Singh Madhosingh
RespondentThe Assistant Registrar, Co-operative Societies, Dist. Indore and anr.
Appellant AdvocateK.A. Chitaley, ;A.M. Mathur, ;V.S. Dabir and ;Ravindra Kumar Verma, Advs.
Respondent AdvocateK.K. Adhikari, Dy. Govt. Adv. (for No. 1) and ;G.M. Chaphekar, Adv. (for No. 2)
DispositionPetition partly allowed
Cases ReferredCentral Bank Ltd. v. Addl. Industrial Tribunal
Excerpt:
- - 15. the order of attachment passed by the assistant registrar was challenged before us on other grounds as well but it is not necessary to consider them because the order appears to be without jurisdiction and as such wholly illegal......use and occupation of an area covered by the quarry lease in favour of the society, it is still a claim touching the business of the society. we are, however, unable to accept this contention. 8. the expression 'touching the business' in section 64 is no doubt of wide import but in the context in which it is used it means a dispute concerning or relating to the business of the society and not one altogether divorced from such business or having a remote bearing thereon. 9. in gokul prasad mouiilal bharat v. laxmansingh. air 1962 madh pra 265, the expression 'touching the business of a society' occurring in section 43 of the cooperative societies act, 1912 was considered by a full bench. the following observations in paragraph 7 of the judgment in that case are pertinent: 'a dispute.....
Judgment:
ORDER

1. This is a petition under Articles 226 and 227 of the Constitution of India.

2. The petitioner has installed a stone crushing machine at Jawahar Tekri, Indore and it is there since 1961-62. The land occupied by the petitioner for the purposes of the machine falls within the area in respect of which the society holds lease from the State Government for stone quarry. On 18-12-1963 the society (respondent No. 2) demanded surface rent from the petitioner for the area occupied by the crushing machine at the rate of Rs. 27/- per day for 30.000 square feet or less subiect to an additional charge of Re. 1/- per day for 1000 square feet above this. The basis of this demand is the deparmental order Annexure A. The contention of the petitioner is that this demand is illegal and that the society can at the most claim rent on the basis of dead rent. Respondent No. 2 submitted a claim under Section 64 of the Madhva Pradesh Co-operative Societies Act (hereinafter referred to as 'the Act') before the Assistant Registrar. Co-operative Societies (respon-dent No. 1) for the recovery of Rs. 23,360,00 as surface rent for the period from 1-6-1963 to 31-3-1965 vide Annexure 'B'. On 5-2-1966 the petitioner filed an application under Section 67 (2) of the Art for permission to be represented by a legal practitioner vide Annexure 'D'. This application was rejected by respondent No. 2 vide order (Annexure E) dated 5-2-1966. On 15-2-1966, the respondent No. 2 filed an application before the respondent No. 1 under Section 68 of the Act supported by an affidavit for an attachment before the award (vide Annexures 'F' and 'G'). On the basis of this application the respondent No. I passed an order of attachment of the stone crushing machine and other equipments of the petitioner (vide Annexure 'H'). Being aggrieved thereby the petitioner has filed this petition.

3. The main contention of the petitioner is that the dispute between the parties does not fall within the definition of dispute as given in Section 64 (2) of the Act, and as such the Assistant Registrar (respondent No. 2) was not competent to entertain the claim of the respondent No. 1 and to pass the impugned order of attachment. He has, therefore, prayed that the order of attachment be quashed and so also the proceedings before the respondent No. 1. It is further prayed that the demand of the respondent No. 2 be declared to be illegal and void.

4. Miscellaneous Petitions Nos. 85 of 1966, 84 of 1966. 87 of 1966, 88 of 1966, 89 of 1966, 90 of 1966 and 91 of 1966, which have been filed on similar grounds for similar relief, have been heard together along with this petition as common questions of law and fact are involved in them and they will be considered in this order.

5. The main point urged by the learned counsel for the petitioner is that the Assistant Registrar had no jurisdiction whatsoever to entertain the claim in the society (respondent No. 2) under Section 64 of the Act. The nature of the dispute and the parties to such dispute over which the Registrar is competent lo exercise jurisdiction are specified in Sub-sections (1) and (2) of Section 64 of the Act. As laid down in Sub-section (1) of Section 64 the dispute must be touching the constitution, management or business of a society or the liquidation of a society. The various clauses of sub-section (1) specify the parties to the dispute. Unless both the conditions are fulfilled or, in other words, the parties are of the description given in Section 64 and the dispute is of the nature specified thereunder, the Registrar would not be competent to adjudicate the dispute. We have, therefore, to see if both these conditions are fulfilled in this case.

6. It was urged by Shri G. M. Chaphekar, learned counsel for the society that the dispute in question touches the business of the society because the petitioner has been allowed to continue stone crushing operations on the area leased out to the Society by the State Government as its agent or sub-agent. We do not, however. find any foundation for such a contention in the material on record. The application which was submitted by the society to the Registrar under Section 64 states as under in paragraph 3 of the application:

^^oknh laLFkk dks lnj [knku yht ij izkIr gksusij izfroknh ls muds }kjk O;kIr mi;ksx ,oa miHkksx dh tkus okyh Hkwfe ds {ks=Qyij 'kklu }kjk Lohd`r jsV %nj% ls dj olwy djus dk vf/kdkj izkIr gksus ls izfroknhdks rnuqlkj lwpuk nsdj ekaxuh dh xbZA layXu izfrfyfiA izfroknh ds oknh ds yht {ks=esa yxHkx ']OOO oxZQhV Hkwfe vius dCts es j[kdj rFkk 'kj e'khu yxkdjmi;ksx esa ysrs vk jgsa gSa**

Thus it would appear that the case of the society as laid before the Registrar Is that because the petitioner is occupying some portion of the land which is held on lease by the society from the Government, the society is entitled to recover rent at the rate determined by the State Government. Thus it is clear that the Society is claiming rent or damages for use and occupation at the rate determined by the Government. Such a claim cannot be treated as one touching the business of the society. The business of the society as indicated in paragraph 2 is to take a quarry-lease and to recover tax or royalty and to supply material etc. The amount claimed by the society can-pot be described either as tax or royalty and it does not concern supply of material or taking of quarry lease. The claim, therefore, cannot be said to be concerning the business of the society.

7. Shri Chaphekar, learned counsel for the society, further urged in the alternative that even if the claim of the society is treated as one for damages for use and occupation of an area covered by the quarry lease in favour of the society, it is still a claim touching the business of the society. We are, however, unable to accept this contention.

8. The expression 'touching the business' in Section 64 is no doubt of wide import but in the context in which it is used it means a dispute concerning or relating to the business of the society and not one altogether divorced from such business or having a remote bearing thereon.

9. In Gokul Prasad Mouiilal Bharat v. Laxmansingh. AIR 1962 Madh Pra 265, the expression 'touching the business of a society' occurring in Section 43 of the Cooperative Societies Act, 1912 was considered by a Full Bench. The following observations in paragraph 7 of the judgment in that case are pertinent:

'A dispute touching, that is to say, having reference or relation to, regarding or concerning, the business of a co-operative society must necessarily have some connection with the business of the society. A dispute divorced altogether from the business of the society cannot be regarded as one touching the business of the society.'

10. In Deccan Merchants Co-operative Bank Ltd. v. Dalichand Jugraj Jain, AIR 1969 SC 1320, their Lordships while dealing with the expression 'touching the business of a society' in Section 91(1) of the Maharashtra Co-operative Societies Act, 1961, considered the import of the word 'business' in this connection and observed as under in paragraph 17.

'It is clear that the word 'business' in this context does not mean affairs of a society because election of office-bearers, conduct of general meetings and management of a society would be treated as affairs of a society. In this sub-section the word 'business' has been used in a narrower sense and it means the actual trading or commercial or other similar business activity of the society which the society is authorised to enter into under the Act and the Rules and its bye-laws.'

It is, therefore, clear that the word 'business' in this context must be construed in a narrower sense as including within its purview only the actual trading or commercial or other similar business activities which the society is authorised to enter into under the Act. Their Lordships further observed in paragraph 22 that although the word 'touching' is very wide so as to include matters relating to or concerning the business of a society but expressed a doubt whether it would include anything, which affects the business. Their Lordships further added that the word 'dispute' covers only such disputes as are capable of being resolved by the Registrar or his nominee. The aforesaid decision was followed by their Lordships in Co-operative Central Bank Ltd. v. Addl. Industrial Tribunal, Andhra Pradesh, Hyderabad, AIR 1970 SC 245.

11. We have carefully examined the nature of the dispute as indicated in the application of the society before the Registrar vide Annexure B, and we must say that it does not disclose that the claim relates to of concerns the business of the society as indicated thereunder.

12. It is further pertinent to note that the petitioner being a stranger, the Registrar would be competent to exercise jurisdiction in relation to a dispute with him only if he falls within the purview of Clause (c) of Sub-section (1) of Section 64 which reads as under:

'64. (1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, management or business of a society or the liquidation of a society shall be referred to the Registrar by any of the parties to the dispute if the parties thereto are among the following:--

(a) ...... ...... ...... ...... ...... ...... ......

(b) ...... ...... ...... ...... ...... ...... ......

(c) a person other than a member of the society who has been granted a loan by the society or with whom the society has or had business transactions and any person claim-ing through such a person.'

There is absolutely nothing to suggest that the society had any business transactions with the petitioner. Shri Chaphekar, learned counsel for the society urged that there was a business transaction with him but we cannot lake note of such an argument without any foundation for it in the record. There is nothing in the application (Annexure B) to show that the petitioner had any kind of business transaction with the society. Even in the return filed on behalf of the society, there is nothing to support such a contention. It is therefore, obvious that the petitioner does not fall within the purview of Clause (c) of Sub-section (1) of Section 64 of the Act. We may here mention that it is not the case of the society that the petitioner falls under any other category specified in Sub-section (1) of Section 64 of the Act.

13. Thus from the material on record it is clear that both the conditions required by Section 64 are not fulfilled in this case and as such the Registrar had no jurisdiction whatsoever to adjudicate upon a dispute of this nature. Shri Chaphekar, learned counsel for the society urged that if this objection had been raised by the petitioner before the Assistant Registrar the society would have amended the application (Annexure B) and staled all material facts to show that the dispute falls within the purview of Section 64 of the Act. We leave that option open to the society. It is, however clear that in the absence of any material on record to show that the Registrar was competent to exercise jurisdiction under Section 64 of the Act, the order of attachment passed by him cannot be sustained and must be quashed society should get an opportunity to amend its application so as to bring its claim within the purview of Section 64. Whether such an amendment would be permissible or not, it is not necessary for us to consider. That would be a matter to be considered by the Assistant Registrar, Cooperative Societies. We are therefore, of the opinion that it would suffice to quash the order of attachment without quashing the entire proceedings as a whole.

14. It is true that under Sub-section (3) of Section 64 of the Act, the Registrar is competent to decide whether the dispute falls within the purview of Section 64 of the Act and such decision cannot be called into question in any Court, but this provision is no bar to the exercise of this Court's jurisdiction under Article 226 of the Constitution. Since the application before the Registrar did not indicate that the dispute was of the nature specified in Section 64 of the Act, it was highly improper for the Assistant Registrar to adjudicate upon it without satisfying himself as to his jurisdiction in the matter. Since it appears that there was total lack of jurisdiction on the part of the Assistant Registrar, the order of attachment passed by him cannot be allowed to stand.

15. The order of attachment passed by the Assistant Registrar was challenged before us on other grounds as well but it is not necessary to consider them because the order appears to be without jurisdiction and as such wholly illegal. The order is, therefore, liable to be quashed but we do not consider it proper to quash the entire proceedings because it was submitted before us that is the objections which have been raised by the petitioner in this Court were not expressly raised before the Assistant Registrar, the

16. The petition is, therefore, partly allowed and the order of attachment (Annexure H) dated 15-2-1966 is hereby quashed. In the circumstances of the case, we do not make any order as to costs of this petition. The security amount shall be refunded to the petitioner. Other connected petitions shall be disposed of accordingly.


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