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1986 DIGILAW 415 (CAL)

Sipra Mitra v. State

1986-10-01

Mookerjee, Susanta Chatterji

body1986
JUDGMENT 1. THE present Revisional application under Article 227 of the Constitution of India arises out of an order dated 25th March, 1986 passed by the learned Arbitrator, Calcutta metropolitan Area Housing in Dispute Case No. 16/cnan/1985-1986. By the order challenged, the petition filed by the petitioner/defendant no. 1 regarding non-maintainability of the instant dispute case was rejected. 2. BRIEFLY stated as it appears that: the present petitioner Sipra Mitra is a tenant under the Opposite Party No. 1, Profulla Kr. Sarkar in respect of Flat No. 43, "chaturanga" at 32, Gobinda Auddy Road, Calcutta. The Opposite Party No. 1 is a member of the Opposite Party no. 2, the Alipore. Adarsha Housing Society and has been allotted "the flat No. 48 as Housing property. An agreement was initially made between the Society, the Opposite Party No. 1 and the husband of the petitioner for two years from 1978-1980. Subsequently, another agreement was made after the expiry of the said period between the society, the petitioner and the Opposite Party No. 1 from 1980-1982. The said agreement expired on July 31, 1982. Since then no fresh agreement was made. However, the petitioner continued as a monthly tenant under the Opposite Party No. l in respect of the said flat. By notice dated 23rd. July, 1985, the Opposite Party No. l asked the petitioner to vacate and handover possession of the said flat on the expiry of the month of August, 1985 as the Opposite Party No. l reasonably required the said flat. Thereafter the Dispute Case No. 16/ cnan/1985-1986 was filed by the Opposite Party No. 1 under Section 86 of the West Bengal Co-operative Societies Act for recovery of khas possession in respect of the said flat by evicting the petitioner there from and for mesne profit from the month of September, 1985, and other decidental reliefs. On the 10th of February, 1986 the petitioner who was described as defendant no. 1 filed an application praying, inter-alia, that the issues with regard to the maintainability of the dispute case, the jurisdiction of the Deputy Registrar to entertain, try and decide the points as to whether the Civil Court has an exclusive jurisdiction to try and decide the case of eviction under Section 13 of the West Bengal Premises Tenancy Act, should be heard as preliminary point. It was prayed further that the preliminary issues may be decided before going into other paints or proceeding with or taking any further steps in the said dispute case. After considering the said petition, the learned Arbitrator found that in the present case, the Opposite Party No. 2, the Co operative housing Society provided housing accommodation to its members who have no house to reside at and the object of the society necessarily defined the nature of the affairs in the society. The initiation of the co-operative Society for removing an act of trespass by itself against a stranger from a flat allotted to a member can well be considered as a part of the affairs of the society. It was found also that the housing society has to see that the fiats are in occupation of its lawful members as per the Regulations incorporated in the byelaws of the said society. Thus it appeared to the learned arbitrator that the prayer for recovery of possession of the flat previously occupied by a person on the basis of an agreement since revoked, comes within the ambit of Section 86 of the West Bengali Co operative Societies Act as a dispute. It was further considered to be a special provision made in the said Act and the Rules framed there under to save the expenditure and shorten the time for legal proceeding concerned the co-operative. After discussing the submissions of the respective parties, the Learned arbitrator did not see any ground to admit the petition regarding non-maintainability of the dispute case and hence rejected the same. 3. AGGRIEVED, the petitioner has since filed the Revisional application. In support of the case of the petitioner, Mr. Ghose, the learned Advocate has canvassed that the Deputy Registrar of the Co-operative society, Calcutta Metropolitan Area (Housing) or any arbitrator appointed by him under Section 86 of West Bengal Co-operative Societies act, 1973 has no jurisdiction to entertain or try or to decide the subject, matter of the dispute. The dispute in the present case does not come within the purview of Section 86 of the said Act as the parties to the dispute are the member and his tenant. The dispute of a tenant with owner/landlord of a flat in Co-operative Society's building is not classified in Sub-clauses (a) to (d) of Section 86 (1) of West Bengal co-operative Societies Act. The dispute of a tenant with owner/landlord of a flat in Co-operative Society's building is not classified in Sub-clauses (a) to (d) of Section 86 (1) of West Bengal co-operative Societies Act. It was further submitted that Section 20 of the West Bengal Premises Tenancy Act, 1956 has the overriding effect and in terms of the first schedule of West Bengal Premises tenancy Act, the Dispute Case could be filed before the appropriate civil Court in the District of 24-Parganas. He has further argued that on letting out of a flat by a member of the Co-operative Society to a rank outsider, the dispute does not fall, in any way, within the wider scope and the meaning of the matters relating to the affairs of the Co-operative Society as envisaged under Section 86 of the West bengal Co-operative Societies Act. In support of his contentions, he has relied upon a number of reported decisions which have been discussed hereinafter. Mr. Chatterji, the learned Advocate appearing for the Opposite Party No. 1 submits that the petitioner came into possession of the flat on the basis of a tripartite agreement between the petitioner, the Opposite Party No. 1 and the Housing Society, the opposite Party No. 2 The petitioner was inducted as a tenant in respect of the said flat upon terms and conditions as stated thereto. It is argued that it will be clear from the Registered byelaws of the Opposite party No. 2 that the member may let out his flat but for such letting out, he has to obtain the permission of the Managing Committee of the Co-operative Society. Several Clauses including Clauses 52 (f) (1) and (p) of the Bye-law of the Co-operative Housing Society were referred to in order to ascertain the affairs of the Co-operative Society as to letting out of the flats and for their regulations. Thus the agreement was made within the scope of the bye-laws and the dispute as raised relates to the affairs of the society. The learned Advocate further submitted that in view of the Provision contained in Section 2 (Q), 86,87 and 132 (2) (b) of the West Bengal Co-operative Societies. Act, the instant dispute is not triable by any other Court except the special forum as provided in the said Co-operative Societies Act. 4. The learned Advocate further submitted that in view of the Provision contained in Section 2 (Q), 86,87 and 132 (2) (b) of the West Bengal Co-operative Societies. Act, the instant dispute is not triable by any other Court except the special forum as provided in the said Co-operative Societies Act. 4. HAVING heard the learned lawyers of the respective parties, we find that a short and an interesting point arises in the instant' case as to. whether the case of eviction made by a member of a Co-operative housing Society against a tenant inducted by him is governed by the provisions of West Bengal Premises Tenancy Act or by the Provisions of West Bengal Co-operative Societies Act. Our attention has been drawn to the case of Deccan Merchats co-operative Limited v. M/s. Dalichand Jugraj Jain and Ors. as reported in AIR 1969 Supreme Court Page 1320. It is really true although the nature of justice which society does can be ascertained from the objectives of the society, it cannot be said that whatever the society does or is necessarily required to do for the purpose of carrying out its objectives is part of its business. The word "touching" is fairly wide and would include any matter which relates to or concerns the business of a society, it is doubtful whether the word "affects" should also be used in defining the scope of the word "touching". The question is whether the dispute touching the assets of society would be a dispute touching the business of the society depends on the nature of the society and the rules and bye-laws governing the same. 5. THE word "dispute" covers only those disputes which are capable of being resolved by the Registrar under the Provision of West Bengal co-operative Societies Act. In the aforesaid decision, it was found out that the Maharastra Co-operative Societies Act was passed, in the name to shorten litigation, lessens its costs and to provide a quick procedure for the determination of the disputes relating to the internal management of the societies. But under the Rent Act, a different social objective was intended to be achieved and for achieving that social objectives, it is necessary that dispute between the landlord and the tenant should be dealt with by Court set up under the Rent act and in accordance with special Provision of the Rent Act. But under the Rent Act, a different social objective was intended to be achieved and for achieving that social objectives, it is necessary that dispute between the landlord and the tenant should be dealt with by Court set up under the Rent act and in accordance with special Provision of the Rent Act. The social objective does not impunge on the objective underlying the act. The two Acts can be harmonised best by holding that in matters covered by Rent Act, its Provision, rather than the Provision of Maharashtra co-operative Societies Act should apply. In view of these considerations it was held that Section 91 of the Maharastra Co-operative societies Act does not effect the Provision of 28 of the Rent Act. In the next case referred to us in AIR 1972, SC Page 2161, it was found out that Section 91 (l) (b) of Maharastra Co-operative Societies act should be interpreted to mean that a person claiming to be a member means that the claim should arise through the transaction or dealing which the members entered into with the society as a member. In another case, reported in the same volume of AIR 1972 SC at page 1893 the meaning of "touching" the business of sociey has elaborately been dealt with. The last case as reported in AIR 1982 sc page 1097 (O. N. Bhatnagar v. Rubbai Narsima) relied upon by both the sides to find force with the respective submissions that the instant case should be governed by the Rent Act as claimed on behalf of the petitioner and by the West Bengal Co-operative Societies Act as argued by the learned lawyer of the opposite party. In the said decision, the two types of the nature and objectives of the two types of Co-operative Societies such as co-owner type of co-operative societies and such as co-owner type of co-operative societies and co-partnership type of housing societies as prevalent in Maharashtra\ and their objectives were discussed., and as per the objectives the nature of transaction between a co-operative society and its members for the purpose of letting out a flat were dealt with. The cases reported in AIR 1969 sc page 1320 and AIR 1972 SC page 216 were distinguished on facts. The cases reported in AIR 1969 sc page 1320 and AIR 1972 SC page 216 were distinguished on facts. After going through the said reported decision, we find that in view of the nature of dispute between a member of a co-operative society and his inducted tenant, the Provision of Section 86 of West Bengal co-operative Societies Act are required to be closely looked into The said Section is quoted herein below : -Disputes to be referred to Registrar 1) Any dispute relating to the affairs of a co-operative society or of the liquidator of a society shall be referred to the Registrar if the parties thereto are among the following, namely :- (a) the society, it managing committee, any past or present officer agent or employee or the liquidator of the society; or (b) a member, past member or person claiming through member, past member or deceased members of the society; or (c) a surety of a member, past member or deceased member of the society, whether such surety is or is not a member of the society; or (d) any other co-operative society or any person (including a financing bank) having transactions with the concerned co-operative society or the liquidator of such society ; provided that nothing in this sub-section shall apply any dispute - (a) regarding disciplinary action taken by a society or its managing committee against its paid employees, or (b) between a society or its managing committee and its paid employees over terms and conditions of service of such employees and matters incidental or consequential thereto. (2) Any dispute mentioned in sub-section (1) other that a dispute relating to the recovery of money shall be referred to the Registrar within one month from the date of the cause of action. If we now look into the Provision of Section 91 of Maharastra co-operative Societies Act together with Section 28 of Bombay rent Act, and See 20 of West Bengal Premises Tenancy Act, the problems are clearly resolved. 6. SECTION 91 of Maharastra co-operative Societies Act 32, 1961 runs as folows : -. If we now look into the Provision of Section 91 of Maharastra co-operative Societies Act together with Section 28 of Bombay rent Act, and See 20 of West Bengal Premises Tenancy Act, the problems are clearly resolved. 6. SECTION 91 of Maharastra co-operative Societies Act 32, 1961 runs as folows : -. Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, elections of the office bearers, conduct of general meeting,' management or business of a society to which the society is affiliated, or by a creditor of the society, to the Registrar, if both the parties thereto one or other of the following : (a) a society, its committee, any past committee, any past or present servant or nominee, heir of legal representative or any deceased officer, deceased agent or deceased Servant of the society, of the liquidator of the society; (b) a member, past member or a person claiming through a member, past member or a deceased member of a society or a society which is a member of the society; (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 transactions under the provisions of Section 45, and any person claiming through such a person; (d) a surety of a member, past member or a deceased member, or a person other than a member who has been granted a loan by the society under Section 45,- whether or is not a member of the society; (e) any other society, or the Liquidator of such a society;; (2) When any question arises whether for the purposes of foregoing sub-section, dispute or hot, the question shall be considered by the Registrar, whose decision shall be final. (3) Save, as otherwise provided under sub-section (3) of Section 93, no court shall have jurisdiction to entertain any suit or other proceedings in respect of any dispute referred to in sub-section (1. Explanation 1 - A dispute between the Liquidator of a society and the members of the same society shall not be referred to the Registrar under the Provisions of sub-section (l)Explanation 2 - For the purposes of sub-section a dispute shall include - (i) a claim for or. Explanation 1 - A dispute between the Liquidator of a society and the members of the same society shall not be referred to the Registrar under the Provisions of sub-section (l)Explanation 2 - For the purposes of sub-section a dispute shall include - (i) a claim for or. against a Society for any debt or demand due to it from a member of due from it to a member, past member or the nominee, heir or legal representative of a deceased member or servant or employee, whether such a debt or demand be admitted or not; (ii)a claim by a surety for any sum or demand due to him, from the principal; borrower in respect of a loan by a. society and re-covered from the showing to the default of the principal borrower, whether such a sum or demand be admitted or not; (iii) a claim by a society for any loss caused to it by a member, past member or deceased member, by any officer, past officer or deceased officer, by any agent, past agent or deceased agent, or by any servant past servant or deceased servant or by its committee, past or present, whether such Joss be admitted or not; (iv) a refusal or failure by a member, past member - or a nominee, heir or legal representative of a deceased member, to deliver possession to a society of land or any other asset resumed by it for breach of conditions of the assignment". Section 28 of the Rent Act of Maharastra has all the similarly of Section 20 of West Bengal Premises Tenancy Act. 7. REGARD being had to the materials on record, the pleadings of the parties and the bye-laws of the opposite party no. 2 Housing Society and the nature of transaction amongst the parties, we find that AIR 1969 SC 1320 (Supra) is more applicable to the instant case. We have also considered the case of Sandhyarani v. Beldanga Co-operative society as reported in 87 CWN page 633, where the scope of said section 86 of West Bengal Co-operative Societies Act has been dealt with. We do not hold that if a member of a Co-operative society inducts a tenant his prayer for recovery of possession becomes an affair of the society and or such a dispute is covered by Section 86 of the west Bengal Housing Co-operative Society. We do not hold that if a member of a Co-operative society inducts a tenant his prayer for recovery of possession becomes an affair of the society and or such a dispute is covered by Section 86 of the west Bengal Housing Co-operative Society. We also hold that it was not the intention of legislature to deprive a tenant in a building owned by a co-operative society of the benefits given by the various provisions of Rent Act. It is truly said by the Hon'ble Supreme Court that under the Rent Act a different social objective is intended to be achieved. For achieving that social objectives, it is necessary that a dispute between the landlord and the tenant should be -dealt with by Courts set up under the Rent Act and in accordance with Special Provision of the Rent Act. This social objective does not impinge on the objectives underlying an Act. We do not find that the learned arbitrator has any jurisdiction to decide the dispute as to the eviction of the tenant as sought by a member of the Housing Co-operative Society. We find' substance in the contentions of the learned lawyers for the petitioner and we hold that there are material irregularities on the part of the learned Arbitrator in exercising jurisdiction in rejecting the petion filed by the petitioner alleging that the dispute case is not. maintainable in the said forum. Accordingly, we set aside the order challenged before us and we hold that the dispute case as aforementioned is not, maintainable before the learned arbitrator under the Provisions of the West Bengal Co-operative Societies Act. We, however do not express any opinion as to the merit of the case of the respective parties. Application allowed.