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2002 DIGILAW 1124 (PAT)

Radha Krishna Jaiswal v. Sheela Kanchan

2002-10-22

NAGENDRA RAI

body2002
Judgment 1. Defendant No. 3/petitioner is aggrieved by order dated 8.2.2002 passed in Title Suit No. 11 of 1998 by the Execution Munsif, Patna rejecting the objection with regard to maintainability of the suit raised by him and holding that the dispute in the suit is not within the purview of Section 48 of the Co-operative Societies Act, 1935 (hereinafter referred to as the Act) and as such the same is not barred under Section 57 of the Act. 2. Admitted fact is that defendant No. 1 Lalit Niketan Sahkari Grih Nirman Samiti Ltd. who is opposite party No. 2 in this civil revision application is a society registered under the Act and opposite party No. 3 Kameshwar Prasad Singh arrayed as defendant No. 2 in the suit is the Secretary of the said Committee. According to bye laws of the Society its business is to acquire lands in its name and then by sub-dividing into smaller plots sell them to its members. The said Society acquired survey plot Nos. 2911 and 2915 in the town of Patna and divided into sub-plots and sold to its members including plaintiff/ opposite party No. 1 and defendant No. 3/ petitioner. The Plot No. B-26 was sold to the plaintiff/ opposite party No. 1 and plot No. B-29 was sold to defendant No. 3/ petitioner. 3. The dispute between the plaintiff/ opposite party No. 1 and defendant No. 3/ petitioner is that both are claiming the portion of aforesaid Survey Plot Nos. 2911 and 2915 as their land. In other words, a piece of land is claimed by plaintiff/ opposite party No. 1 as B/26 whereas the same. piece of land is claimed by defendant No. 3/petitioner as B-29. 4. The plaintiff/ opposite party No. 1 filed the aforesaid suit out of which the present matter arises on 11.2.1998 for declaration of title and other consequential reliefs over the said land. The defendant No. 3/ petitioner appeared and filed an application under Section 9 under Order XIV Rule 2(2) of the Code of Civil Procedure challenging the maintainability of the suit on the ground of a legal bar created by Section 57 of the Act as the dispute was entertainable by the Registrar in view of the provision contained under Section 48 of the Act. The said prayer was rejected by the Court below on 1.7.1998. The said prayer was rejected by the Court below on 1.7.1998. Against the said order the petitioner filed Civil Revision No. 2016 of 1998 before this Court and the same was allowed on 24.12.1998 by which the order of the court below was set aside and the court below was directed to frame separate issue with regard to maintainability and decide the same. Thereafter the Court below framed a issue as to whether the suit as framed is maintainable or is barred under Section 57 of the Act. The Court below decided the aforesaid issue as a preliminary issue and has rejected the same by the impugned order. 5. The dispute between the parties is about the identity of the land. According to learned counsel appearing for the petitioner, the function of the Society in terms of the bye laws is to acquire lands and to give it to its members and as such if the dispute arises after the lands are sold to its members as to its identity, the said dispute touches the business of the society as it is a part of the business of the society to see that the members of a registered society are put in possession over the land given to them and at any rate it relates to the affairs of a registered society which is included within the meaning of the business of a registered society. 6. The learned counsel appearing for the opposite party on the other hand submitted that once the Society has purchased the land and sold to its members and thereafter dispute arises as to identity of the land between the members that dispute cannot be said to be touching the business of affairs of a registered society. 7. The only question for consideration is as to whether the dispute with regard to which the suit has been filed is covered by Section 48 of the Act or not and as such the suit is barred under Section 57 of the Act. 8. 7. The only question for consideration is as to whether the dispute with regard to which the suit has been filed is covered by Section 48 of the Act or not and as such the suit is barred under Section 57 of the Act. 8. Section 48 of the Act provides inter alia that if any dispute touching the business of a registered society (other than a dispute regarding disciplinary action taken by the society or its managing committee against its paid servant) arises amongst members, past members, persons claiming through members, past members or deceased members and sureties of members, past members or deceased members, whether such sureties are members or non-members; or between the members, past members etc. or between the society or its managing committee and any past or present officer, agent or servant of the society, such dispute shall be referred to the Registrar. 9. Section 57 of the Act runs as follows. 57. Bar of jurisdiction of Court. (1) Save in so far as expressly provided in this Act; no Civil or Revenue Court shall have any jurisdiction in respect of any matter concerned with the winding up or dissolution of a registered society or suspension of the Managing Committee of a registered society under this Act, or of any dispute required by Section 48 to be referred to the Registrar or of any proceedings, under Chapter Vll-A. (2) While a society is in liquidation, no suit or other legal proceeding shall be proceeded with or instituted against the liquidator as much or against the society or any member thereof on any matter touching the affairs of the society, except by leave of the Registrar and subject to such terms as he may impose. (3) No order of the State Government, District Judge, Registrar, a person appointed to assist the Registrar, liquidator, or an arbitrator or arbitrators purporting to be one, which under any provision of this Act is declared to be final shall be liable to be challenged, set aside, modified, revised, or declared void in any Court upon merits or upon any ground whatsoever except want of jurisdiction. 10. According to said section subject to the provisions made in the Act, no Civil or Revenue Court shall have any jurisdiction in respect of any dispute required by Section 48 to be referred to the Registrar. 11. 10. According to said section subject to the provisions made in the Act, no Civil or Revenue Court shall have any jurisdiction in respect of any dispute required by Section 48 to be referred to the Registrar. 11. Thus, conjoint reading of Sections 48 and 57 of the Act show that in case of any dispute touching the business of a registered society arises amongst the members shall be decided by the Registrar and no Civil or Revenue Court shall have any jurisdiction with regard to the same. 12. The Act is a comprehensive one and it contains a complete mechanism for redressal of the dispute between the Society and members and past members etc. Section 57 of the Act clearly bars the Civil and Revenue Court to entertain the dispute mentioning therein including a dispute which is required to be determined under Section 48 of the Act. Thus, if any dispute is covered by Section 48 of the Act, then the dispute has to be referred to the Registrar and the jurisdiction of the Civil Court will be barred with regard to the same. The dispute which can be said to be the touching the business of a registered society not only includes the business of a registered society but it also includes the affairs of a registered society. A wider meaning has been given to the aforesaid provision. This Court has occasioned to consider the aforesaid provision in several cases. A Division Bench of this Court in the case of Ramashanker Tewari V/s. Gopal Banerjee & others, reported in 1971 BLJR 671, held that the expression "if any dispute touching the business of a registered society" cannot be given a narrow meaning and even the affairs of a registered society is included within the dispute touching the business of a registered society. The said view has been affirmed by a Full Bench of this Court in the case of TISCO Oriya Co-operative Credit Society Ltd. V/s. The Assistant Registrar, Co-operative Society Jamshedpur Circle and another, reported in AIR 1975 Patna 208 : [1975 PLJR 290]. 13. The said view has been affirmed by a Full Bench of this Court in the case of TISCO Oriya Co-operative Credit Society Ltd. V/s. The Assistant Registrar, Co-operative Society Jamshedpur Circle and another, reported in AIR 1975 Patna 208 : [1975 PLJR 290]. 13. A learned Single Judge of this Court in the case of Bihar Co-operative Bank Employees Union V/s. Ranchi-Khunti Central Co-operative Bank Ltd. & Ors., reported in 2000 (4) PLJR 179 relying upon the aforesaid two judgments of this Court has held that the business used in Section 48 includes the affairs of a registered society. 14. Thus, if the dispute concerns the business of a registered society which as stated above includes the affairs of a registered society then the suit with regard to the same is barred under Section 57 of the Act. 15. Coming to the facts of the case, admittedly in this case the societys business is to acquire the land and sold to its members. The Society has sold the land to both its members, namely, defendant No. 3/petitioner and plaintiff/ opposite party No. 1 and the dispute is as to identity of the land. As the object of the society is to acquire land and sold it to its members, then it is the duty of the society that the members are put in possession over the land sold to them. In other words, identification of the land and putting the members in possession over the land sold to them is a part of the business of the registered Society or at any rate it relates to the affairs of registered society. It cannot be said that it has no connection with the business of a registered society. Thus, I am of the considered view that the Court below has committed jurisdictional error in rejecting the objection raised by defendant No. 3/petitioner. The dispute is fully covered by Section 48 of the Act and thus, the suit is barred under Section 57 of the Act. 16. In the result, the civil revision application is allowed.