High Court
Legal Reasoning
1995-wp-128-2022IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL APPLICATION NO. 2303 OF 2025 IN WP/128/2022...WITHWRIT PETITION NO. 128 OF 2022Kashinath s/o Trimbakappa Jirge,Age: 81 years, Occu: Pensioner &Ex-Chairman Ketki SahakariGraha Nirman Sanstha MaryaditNideban, Tq. Udgir, Dist. Latur.R/o Presently residing at GorakshanSanstha, near D.C.C. Bank Head Office,Latur, Tq. & Dist. Latur.…..PETITIONER(Ori.Respondent No.2)VERSUS1.Gangadhar s/o Manmathappa SwamiAge: 55 years, Occu: Tax Consultant.2.Bhagwat s/o Ganpatrao Sontakke,Age: 55 years, Occu: Agril.3.Laxmibai Nagnath Acharya,Age: 60 years, Occu: Household.4.Rajiv Somnathappa Malbhage,Age: 50 years, Occu: Service.5.Laxmikant Dnyanoba Devshetwar,Age: 49 years, Occu: Business.6.Sow. Varsha Balaji Jagalpure,Age: 45 years, Occu: Business.7.Pradeep Manikrao Pattewar,Age: 58 years, Occu: Service 2995-wp-128-20228.Vivek Manikrao Pattewar,Age: 55 years, Occu: Service9.Ushabai Baburao Bolegave,Age: 48 years, Occu: Service.10.Mahaling Sanganbassappa Devarshe,Age: 45 years, Occu: Business11.Chamapawati Sangambassaya Devarshe,Age: 65 years, Occu: Household.12.Anita Dhananjay Hale,Age: 47 years, Occu: Service13.Subhash Govindrao Jadhav,Age: 55 years, Occu: Agril.14.Sanjay Vishwanath Chapole,Age: 50 years, Occu: Service.15.Veerbhadra Mallikarjun Todkar,Age: 55 years, Occu: Service.16. Shivkannya Ramakant Malbhaage,Age: 53 years, Occu: Service17.Vijayanand Purushottam Patil,Age: 35 years, Occu: Business18.Vishwanath Sambhaji Thonte,Age: 55 years, Occu: Agril.19.Tippa Vishwanath Aradwad,Age: 53 years, Occu: Business.All R/o Ketki Sangmeshwar SahakariGrah Nirman Sanstha Maryadit,Nideban, Tq. Udgir, Dist. Latur. 3995-wp-128-202220.Sayyad Samad Sayyad Umar Hashmi,Age: 45 years, Occu: Business,R/o Jai Jawan Hotel, near CityPolice Station, Udgir, Tq. Udgir,Police Station, Udgir, Tq. Udgir,Dist. Latur.21.Sayyad Rasul Sayyad Rahim,Age: 47 years, Occu: Business,R/o jai Jawan Hotel, Near CityPolice Station, Udgir, Tq. Udgir, Dist. Latur.22.Ketki Sangmeshwar SahakariGrah Nirman Sanstha maryadit,Nideban, Tq. Udgir, Dist. Latur.Through its Liquidator,C/o Assistant Registrar, Co-operativeSocieties, Udgir, Tq. Udgir,Dist. Latur.23.Jaidavi Virnath Kudmule,Age: 55 years, Occu: Household.24.Suchitra Kashinath Jirge,Age: 45 years, Occu: Household.25.Sangmeshwar Kashinath Jirge,Age: 51 years, Occu: Business26.Umadavi Chandrakant Almale,Age: 53 years, Occu: Household.27.Ashadevi Anil GondhaleAge: 49 years, Occu: Household,Resp. No. 22 to 26 R/o Jirge Niwas,Shivaji Chowk, Udgir, Tq. Udgir,Dist. Latur.…..RESPONDENTS(Resp. nos.1 to 19 – Orig. disputants,20 to 27 – Orig. respondents)
Legal Reasoning
4995-wp-128-2022…..Mr. B. N. Patil, Advocate for petitionerMr. M. S. Deshmukh h/f Mr. U. L. Momale, Advocate forrespondent nos.1 to 19Mr. K. P. Rodge, Advocate for respondent nos.23 to 27.…..CORAM:ROHIT W. JOSHI, J. DATED:11TH JUNE, 2025JUDGMENT :-.Rule. Rule made returnable forthwith.2.Heard finally with the consent of the parties.3.Learned Counsel for the respondent no.26 informs thatthe respondent no.26 expired around the year 2014. Thepetitioner, who is her father, steps have not been taken forbringing her legal representatives on record. It is obvious thatthe petitioner being father of respondent no.26 is aware aboutthe demise of respondent no.26 as well as particulars of herlegal representatives.4.In that view of the matter, the petition is dismissedagainst respondent no.26 as abated.5.The present petition is preferred by the originalopponent no.2 challenging the judgment and award passed bythe learned Co-operative Court, Latur in dispute no.321 of2015 dated 08.09.2017 and the judgment and award dated 5995-wp-128-202217.07.2019 passed by the learned Member, Maharashtra StateCo-operative Appellate Court, Mumbai, bench at Aurangabadin Appeal No.162 of 2017.6.The present petitioner is opponent no.2 in the disputebefore the learned Co-operative Court, the respondent nos.1to 19 are the original disputants. The disputants had fileddispute no.321 of 2015, claiming to be members ofrespondent no.22, which is a registered Co-operative HousingSociety. The respondent no.22 is opponent no.1 and 5, in theoriginal dispute as opponent no.1, it is sued through itsChairman and as opponent no.5, it is sued through itsAuthorised Officer. At the relevant time, the presentpetitioner/opponent no.2 was Chairman of the opponentno.2/Society. The opponent nos.6 to 10 are children ofopponent no.2, to whom plots in the society came to beallotted by the opponent no.1 acting through the opponentno.2 as its Chairman. The opponent no.3 and 4 had enteredinto an agreement of sale with respect to plot nos.15 and 16in the layout of the opponent no.1/Society.7.According to the disputants, plot nos.15 to 16 arereserved for open space in the sanctioned layout of the 6995-wp-128-2022opponent no.1/Society. The said agreement was entered intobetween the opponent nos.3 and 4 as purchasers of opponentno.1/Society as seller. The agreement is signed and executedby the opponent no.2 in his capacity of Chairman of theopponent no.1/Society.8.The prayers in the dispute are that the opponent nos.1and 2 should maintain and upkeep the reserved plots reservedfor open space specified in the dispute as plot-A i.e. plotnos.15 and 16 for the same purpose. The other prayer is thatfour plots described as plot-B in the dispute i.e. plot nos.9, 10,13 and 14 should not be transferred to the opponent no.3 and4 or any third person.9.The opponent nos.1 and 2 filed a common writtenstatement opposing the dispute. The opponent nos.1 and 2specifically contended that the disputants were not membersof the opponent no.1/Society and that they had merelypurchased some plots in the layout of the Society frommembers of the Society. In the alternate, it was alsocontended that although, the disputants claim to be nominalmembers, they had not deposited the prescribed fee andtherefore, could not be considered to be legal or valid 7995-wp-128-2022members of the Society. In view of the same, it wascontended that the dispute was not maintainable and wasliable to be dismissed for want of jurisdiction. 10.The opponent nos.1 and 2 had filed an applicationseeking framing of preliminary issue on the point ofjurisdiction on the ground that the disputants were notmembers of the opponent no.1/Society. The said applicationwas initially rejected by the learned Co-Operative Court. Thesaid order rejecting the application for framing preliminaryissue was challenged by the opponent nos.1 and 2 by filingRevision Application No.54 of 2015. Vide judgment dated05.01.2016 passed by the learned Co-operative AppellateCourt, the learned Appellate Court framed two issues aspreliminary issues on the point of jurisdiction and directed thelearned Co-operative Court to adjudicate the same accordinglyby granting opportunity to the parties to lead evidence on thepreliminary issues, if they so desire.11.The learned Co-operative Court decided the applicationfor framing preliminary issues filed by the opponent nos.1 and2 vide order dated 30.03.2016. It was held that thedisputants were admitted as nominal members of the society 8995-wp-128-2022and therefore, dispute filed at their behest was maintainable.Apart from this, it is also held that the disputants wereclaiming right through persons who were admittedly membersof the Society at some point of time and on this ground also itwas held that dispute at their behest will be maintainable.12.Having decided the preliminary issues in favour of thedisputants, the learned Co-operative Court proceeded todecide the matter on merits and has allowed the dispute videjudgment and award dated 08.09.2017, inter alia restrainingthe opponent nos.1 and 2 from transferring the plots of theSociety to any non member. A declaration was also grantedthat plot nos.15 and 16 were reserved plots of the Society. 13.This judgment and award dated 08.09.2017 came to bechallenged by the opponent no.1/Society by filing an appealunder Section 97 of the Maharashtra Co-operative SocietiesAct, 1960. The said appeal came to be registered as AppealNo.162 of 2017. The appeal is filed by the opponentno.1/Society through the opponent no.2, acting as itsChairman. 14.It is necessary to state that the opponent no.2 did notfile appeal challenging the judgment and award in his 9995-wp-128-2022individual capacity. 15.The learned Co-operative Appellate Court has dismissedthe appeal vide judgment and award dated 17.07.2019. Theopponent no.2 has challenged both the judgment and awardsby filing the present petition. The opponent no.1/Society hasaccepted the award passed by the learned Co-operativeAppellate Court in as much as it has not chosen to challengethe said award.16.At the outset, the learned Counsel for the respondentnos.1 to 19/original disputants raises the preliminaryobjection that the opponent no.2 does not have right tochallenge the award passed by the Co-operative AppellateCourt on the ground that although, the learned Co-operativeCourt has passed an award restraining the Society and theopponent no.2 in his personal capacity from transferring theplots of the society to non members, the opponent no.2 didnot challenge the said award in his personal capacity by filingappeal. It is argued that since, he has accepted the awardpassed by the first Court, i.e. the Co-operative Court, he doesnot have right to file a petition challenging the award passedby the learned Co-operative Appellate Court. 10995-wp-128-202217.Admittedly, petitioner is not owner of the suit plots. Bythe impugned judgment and award passed by the learned Co-operative Court, the opponent no.1/Society and the petitionerhave been restrained from transferring the suit plots to anynon member. The plots could not be transferred by thepetitioner in his individual capacity. The petitioner is nolonger Chairman of the opponent no.1/Society, which is underliquidation and is now been managed and looked after by aliquidator. In view of the aforesaid, the petitioner does nothave locus standi to challenge the impugned judgments andawards in his individual capacity.18.The learned Counsel for the petitioner/opponent no.2counters the submission stating that although, normally inview of alternate remedy, a petition challenging an awardpassed under Section 91 may not be entertained, since theobjection raised by the petitioner/opponent no.2 pertains tojurisdiction of Co-operative Court, the judgment and awardpassed by the learned Co-operative Court is challengeddirectly in the present petition filed before this Court for thefirst time, although, alternate remedy to file appeal was notavailed. He contends that alternate remedy does not oust 11995-wp-128-2022jurisdiction of this Court in exercise of its writ jurisdictioneither under Article 226 of the Constitution of India orsupervisory jurisdiction under Article 227. He elaborates thesubmission stating that alternate remedy does not bar theremedy of this Court either under Article 226 or 227, but it isonly a self-imposed restriction and that, this self-imposedrestriction should be done away with in the present case sincethe judgment and award passed by the learned Co-operativeCourt is without jurisdiction. 19.Although, the learned Counsel for the petitioner iscorrect in his submission that alternate remedy does not barthe jurisdiction of this Court to entertain petition either underArticle 226 or 227 of the Constitution of India, it is wellsettled that jurisdiction under Article 226 and/or 227 shouldnot normally be exercised if an equal efficacious alternateremedy is available. In the present case, the opponentno.1/Society had availed the remedy of appeal under Section97 of the Co-operative Societies Act. This appeal waspreferred by the opponent no.1/Society acting through theopponent no.2, who had acted in his capacity of Chairmanwhile prosecuting the said appeal. Since, the opponent no.2 12995-wp-128-2022was representing the opponent no.1/Society in the saidappeal, he could have filed the appeal in his individualcapacity as well. There is no explanation in the petition fornot filing the appeal in personal capacity.20.In the considered opinion of this Court, it will not beprudent to entertain petition against the judgment and awardpassed by the Co-operative Court at his behest, since, he hasnot filed the appeal challenging the said judgment and award.21.Although, the petition need not be entertained, in viewof the above, it will be appropriate to deal with thesubmissions canvassed by the petitioner on the ground ofjurisdiction. The contention of the petitioner with respect tojurisdiction of the learned Co-operative Court is that thedisputants were not members of the opponent no.1/Societyand therefore dispute at their behest was not maintainable.Referring to Section 91 of the Co-operative Societies Act, thelearned Advocate contends that the Co-operative Court is aCourt of limited jurisdiction, its jurisdiction is circumscribedby the subject matter provided under Section 91 as also theparties who must fall under any one of the different clausesunder Section 91 of the Co-operative Societies Act. 13995-wp-128-202222.In this context, it must be mentioned that the learnedCounsel for the petitioner does not dispute that the subjectmatter of the dispute was touching the business of the Society.His objection is that disputants do not fall under any of thecategories under Section 91-1(a) to 91-1(e) of the Co-operative Societies Act. In this regard, it will be appropriateto refer to the written statement of the opponent nos.1 and 2,wherein it is stated that the disputants are not members of thesociety/opponent no.1, but they are merely persons who havepurchased plots in the layout of the Society from erstwhilemembers. The pleadings in the written statement willdemonstrate that the petitioners fall within the parameters ofSection 91-1(b) of the Act in as much as they are personsclaiming through members or past members of the Society.The said statement, which appears in the pleadings of theopponent no.2/petitioner is fully binding on him. In view ofthe said admission in the written statement, the contentionraised by the learned Counsel for the petitioner that dispute atthe behest of the disputants was not maintainable is liable tobe rejected. 14995-wp-128-202223.As regards the opponent nos.3 and 4, undisputedly theyare not members of the opponent no.1/Society, they are alsocovered by Section 91-1(b) as much as they were claimingthrough the society. It needs to be mentioned that although,agreement of sale by itself does not confer right over anyimmovable property, it creates an inchoate right to enforce theagreement. In the considered opinion of this Court, theopponent nos.3 and 4 also fall within the parametersprescribed under Section 91-1(b) of the Co-operative SocietiesAct.24.Even if, it is assumed that the opponent nos.3 and 4 donot answer the description of Section 91-1(b), a prayer forinjunction against the Society and its Chairman/opponentno.2 restraining them from transferring any plot in the layoutof the Society to a non member will fall within the jurisdictionof the Co-operative Court under Section 91 of the Co-operative Societies Act.25.The objection pertaining to jurisdiction of the Co-operative Court is therefore liable to be rejected.26.Apart from the aforesaid aspect of the jurisdiction of thelearned Co-operative Court, the petitioner has not canvassed 15995-wp-128-2022any other contention before this Court during the course ofhearing.27.In view of the aforesaid, the objection pertaining tojurisdiction is liable to be dismissed and is dismissedaccordingly.28.In the result, Writ Petition Stands dismissed with noorders as to costs. Rule stands discharged accordingly. 29.At this stage, learned Counsel for the petitionercontends that the interim order granted in the present petitionvide order dated 22.03.2022 be continued for a period ofeight weeks in order to enable him to assail the order beforeHon’ble Apex Court. The prayer is strongly opposed by thelearned Counsel for the respondent nos.1 to 19/originaldisputants.30.Having regard to the fact that the Society has notchallenged the award and has accepted the same, coupledwith fact that the plots which are sought to be transferred arenot owned by the petitioner but the Society, I am not inclinedto entertain the request. The prayer for extension of interimorder is therefore rejected.
Decision
16995-wp-128-202231.Pending Civil Applications, if any, stands disposed of.( ROHIT W. JOSHI, J. )Rushikesh/2025