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Judgment
S. Radhakrishnan, J.—Heard the learned Counsel for the Appellants and the Respondents. The Appellant No. 1, Appellant No. 9 and the Respondent No. 1 since deceased, their legal heirs are already brought on record.
The brief facts of this case are that one Yallappa Suryavanshi (husband of deceased Appellant No. 1), was allotted Plot No. K10 (now renumbered as A115), by the Respondent No. 2 Society. It appears that the scheme was that the allottee was to pay a certain amount towards the construction of premises and the balance was to be paid in installments. It is also an admitted position that the said Yallappa Suryavanshi had paid to the Respondent No. 2 Society, a sum of Rs. 750/- towards the construction of the said premises. It appears that a small tenement admeasuring about 400 sq. ft. was constructed on the said plot. Suddenly, the Respondent No. 2 seems to have inducted one Yashwant Sakharam Lohar Respondent No. 1, who is now dead and being represented by his legal heirs in this appeal. Since the said Society Respondent No. 2 had illegally inducted Yashwant Sakharam Lohar - Respondent No. 1 in the said premises, the said Yallappa Suryavanshi had called upon Yashwant Sakharam Lohar to hand over possession of the said premises by his notice dated 19th August, 1974. The said notice was replied by Yashwant Sakharam Lohar contending therein that he was a protected tenant under the provisions of Bombay Rent Act and therefore he was not liable to be evicted therefrom.
It appears that the said Respondent No. 2 Society was formed for the backward class persons and admittedly the said Yallappa does not belong to the backward class. The said Yashwant Sakharam Lohar was paying certain amounts to the Respondent No. 2 Society, which has been credited by the said Society in the account of the Yallappa. It appears that the Yallappa had filed a dispute u/s 91 of the Maharashtra Cooperative Societies Act, 1960 being the Arbitration proceeding bearing No. ABN/176/1974-75 seeking possession of the aforesaid premises. The said dispute was filed before the Officer on Special Duty, namely the Cooperative Court, against the said Yashwant Sakharam Lohar and the Respondent No. 2 Jawahar Nagar Co-operative Housing Society Ltd. Ultimately the said Yallappa had succeeded and the Award came to be passed in the aforesaid case bearing No. ABN/176/1974-75 on 24th February, 1975. Against the said Award, Yashwant Sakharam Lohar had filed an Appeal before the Co-operative Appellate Court, being an Appeal No. 221 of 1975, which was dismissed on 18th February, 1977.
In the meanwhile, the said Yallappa had died and therefore his legal heirs had filed an execution application being Regular Darkhast No. 258/ 78 for execution of the said Award passed by the Officer on Special Duty. Thereafter, the said Yashwant Sakharam Lohar realised that pursuant to the aforesaid Darkhast he would be evicted from the said premises and hence, he filed a Regular Civil Suit No. 47 of 1978 before the Second Joint Civil Judge, Jr. Divn. Kolhapur, for two reliefs, namely, (i) for a declaration by the said Civil Court that the Award dated 24th February, 1975 passed by the Officer on Special Duty in the case bearing No. ABN/176/1974-75 was a nullity, and that (ii) for an injunction restraining the said Yallappa from dispossessing him. This suit was contested and ultimately the same was dismissed by the learned Second Joint Civil Judge, Jr. Divn. Kolhapur by his judgment and order dated 31st July, 1980.
Having failed to secure any relief from the Civil Court, the said Yashwant Sakharam Lohar had approached the Lower Appellate Court viz. the Assistant Judge at Kolhapur by way of a Regular Civil Appeal No. 119 of 1980. The learned Assistant Judge at Kolhapur had finally allowed the said appeal and passed an order by way of a declaration that the Award passed in Arbitration Proceeding bearing No. ABN/176/1974-75 and thereafter confirmed in an Appeal No. 21/1975 by the Maharashtra State Cooperative Appellate Court, to be a nullity, as being passed without jurisdiction. Accordingly, the present Appellants were restrained from executing the said Award against the said Yashwant Sakharam Lohar.
Being aggrieved by the aforesaid Lower Appellate Court''s order, the present Appellants have filed this Second Appeal No. 255/83 raising a substantial question of law as under:-
That the decision of the Lower Appellate Court is a nullity having regard to the fact that the suit initiated by Respondent No. 1, being the Regular Civil Suit No. 47/1978, itself was without jurisdiction, firstly on the ground that Section 91(3) of the Maharashtra Co-operative Societies Act, 1960 clearly prohibits such a Civil Court to have any jurisdiction and secondly in view of the provisions of Section 163(3) of the said Act which clearly provides that the Civil Court has no jurisdiction whatsoever to grant such a declaration as sought to be done by the Lower Appellate Court.
Mr. Naik, the learned Counsel for the Appellants has fairly stated that he is not pressing the issue with regard to the want of notice u/s 164 of the Maharashtra Co-operative Societies Act, the issue of limitation and the issue of compensation. The learned Counsel for the Appellants has strongly contended that the original dispute filed before the Officer on Special Duty was very much within the scope of Section 91(1)(a) & (b) of the Maharashtra Co-operative Societies Act, 1960. Mr. Naik, the learned Counsel for the Appellants has further contended that, primarily, the dispute was raised against the Respondent No. 2 Society, of which the said Yallappa was undisputedly a member. The case of the said member was that the Respondent No. 2 Society has failed to hand over possession of the said premises back to its member, and as the said premises was in possession of Yashwant Sakharam Lohar, the said Yashwant Sakharam Lohar was also impleaded as a party in the said dispute before the Officer on Special Duty, Mr. Naik also contended that merely because the said Yashwant Sakharam Lohar is neither a member of Respondent No. 2 Society, or nor a licensee of the said Yallappa, does not mean that the Co-operative Court had no jurisdiction to entertain the dispute tinder Section 91 of the Maharashtra Co-operative Societies Act, 1960. In fact the learned Counsel for the Appellants has brought to my notice the provisions of Section 94(3)(a) of the Maharashtra Co-operative Societies Act, which reads as under:-
If the Co-operative Court is satisfied that a person, whether he be a member of the society or not, has acquired any interest in the property of a person who is a party to a dispute, it may order that the person who has acquired the interest in the property may join as a party to the dispute; and any decision that may be passed on the reference by the Co-operative Court shall be binding on the party so joined, in the same manner as if he were an original party to the dispute.
Mr. Naik therefore contended that the aforesaid provision makes it abundantly clear that even in the case of a person who is not a member of the Society, but has acquired some interest in the property can be made a party in the said dispute. Mr. Naik contended that merely because the said Yashwant Sakharam. Lohar is neither a member of the Respondent No. 2 Society or nor a licensee of Yallappa does not mean that the Co-operative Court had no jurisdiction to entertain the dispute u/s 91 of the Maharashtra Co-operative Societies Act. In this context, Mr. Naik also relied upon the judgment of the Apex Court in Puran Singh Sahni Vs. Sundari Bhagwandas Kripalani (Smt) and Others, . In this case the Supreme Court has very categorically held that a tenant co-partner can file the eviction proceedings against the occupant and the said dispute is within Section 91 of the Maharashtra Co-operative Societies Act, 1960. Mr. Naik, the learned Counsel for the Appellants has further contended that the Officer on Special Duty as well as the Maharashtra State Co-operative Appellate Court had the jurisdiction to entertain the dispute with regard to the said premises and that the said Award was proper and valid in law.
Mr. Naik, the learned Counsel for the Appellants has further contended that once the Co-operative Court determines the dispute u/s 91 of the Maharashtra Co-operative Societies Act, 1960, no Civil Court can have any jurisdiction to entertain any suit or any other proceeding with regard to such dispute. The learned Counsel has further pointed out the provisions of Section 163(3) of the Maharashtra Co-operative Societies Act, 1960, which reads as under:
All orders, decisions or awards passed in accordance with this Act or the rules shall, subject to the provisions of appeal or revision in this Act, be final; and no such order, decision or award shall be liable to be challenged, set aside, modified, revised or declared void in any Court, upon the merits, or upon any other ground whatsoever.
Mr. Naik, the learned Counsel for the Appellant thereafter brought to my notice that the said Section 163(3) as it stood originally contained the words "except for want of jurisdiction" at the end of the aforesaid Section 163(3) after the words "other ground whatsoever". Mr. Naik pointed out that by Maharashtra Act No. XXVII of 1969 the aforesaid words "except for want of jurisdiction" were specifically deleted. The same Amending Act came into force on 1st July, 1971. In fact, the statement of objects and reasons annexed to the Bill seeking the aforesaid amendment, very clearly mentions that Section 163 is proposed to be amended so as to debar the parties from challenging in any Courts, the orders, decisions or awards passed under the Act or rules on the ground of "want of jurisdiction". Mr. Naik contended that if the amendment had not been there, and if Section 163 as it stood prior to the said amendment had been there, the Civil Court could have possibly entertained such suit on the ground of "want of jurisdiction".
Mr. Naik, the learned Counsel for the Appellants further contended that, the argument put on behalf of Yashwant Sakharam Lohar was that the Officer on Special Duty as well as the Co-operative Appellate Court did not have jurisdiction to entertain the dispute and the Award was passed for want of jurisdiction and therefore the Civil Court should declare the same as void, cannot be sustained. Mr. Naik contended that in view of the express amendment by Maharashtra Act No. XXVII of 1969, the argument canvassed on behalf of Respondents that the Civil Court had jurisdiction to entertain and declare void any such award or decision or order passed under the Maharashtra Co-operative Societies Act, 1960, cannot be sustained.
Mr. Naik, the learned Counsel for the Appellants therefore raises a substantial question of law viz. whether the Lower Appellate Court at all had any jurisdiction whatsoever to entertain such a suit or appeal on the face of an express and clear prohibition u/s 91(3) as well as Section 163(3) of the Maharashtra Co-operative Societies Act, 1960. Mr. Naik therefore contended that on the face of an express bar u/s 91(3) and Section 163(3) of the Maharashtra Co-operative Societies Act, 1960, the Lower Appellate Court had no authority whatsoever to grant a declaration that the said Award was void. Mr. Naik therefore contended that if at all any challenge was to be made the only remedy that could have been open to the said Yashwant Sakharam Lohar was to file the writ petition under Articles 226 and 227 of the Constitution of India.
Mr. Naik has very strongly contended that in view of the aforesaid substantial question of law this Court ought to interfere even though this is a second appeal, and set aside the Lower Appellate Court''s order.
On the other hand Mr. Railkar, the learned Counsel for the legal heirs of Respondent. Yashwant Sakharam Lohar has strongly contended that the original dispute which was filed before the Officer on Special Duty was not within the scope of Section 91 of the Maharashtra Co-op. Societies Act, 1960. According to him, the Co-operative Court had no jurisdiction whatsoever to entertain the said dispute filed by the Yallappa Suryavanshi. He further contended that even the Maharashtra State Co-operative Appellate Court had no jurisdiction. According to Mr. Railkar, as his client Yashwant Sakharam Lohar was not a member of Respondent No. 2 Society and he was not inducted in the premises by Yallappa, the Co-operative Court had absolutely no jurisdiction to entertain the said dispute. He further stated that once the Co-operative Court had no jurisdiction to entertain, then the Award passed therein and later on upheld by the Appellate Court, was void inasmuch as it was passed without jurisdiction. Therefore, according to Mr. Railkar, ex facie, the Award as well as the order confirming the said Award by the Appellate Court were void and without jurisdiction. He has submitted that his client Yashwant Sakharam Lohar was right in approaching the Civil Court for a declaration that the said Award was void, and accordingly his client had filed the said regular civil suit suit and later on the civil appeal before the Lower Appellate Court. Mr. Railkar contended that if the dispute is not within the purview of Section 91 of the Maharashtra Co-operative Societies Act, 1960, then the bar u/s 91(3) as well as u/s 163(3) of the said Act, has no application. According to him if the dispute itself was beyond the scope of Section 91, then the Civil Court automatically could have jurisdiction to declare such an award as void as the same was passed without jurisdiction.
Mr. Railkar, the learned Counsel for the Respondents has further contended that the aforesaid judgment of the Supreme Court as was referred to by the learned Counsel for the Appellants, pertains to a case wherein the licensee was brought in by the disputant, whereas in the instant case his client was not inducted into the premises by Yallappa but was inducted in by the Society. Hence, the learned Counsel contended that the aforesaid judgment of the Supreme Court has no application to the present case.
After having heard both the learned Counsel at length, and after having perused the judgment of the trial Court in Regular Civil Suit No. 47/78 dated 31st July, 1980 as well as the judgment of the Lower Appellate Court dated 16th April, 1982 in Regular Civil Appeal No. 199 of 1980, the following picture emerges.
Admittedly, Yashwant Sakharam Lohar was not inducted in the premises by the said Yallappa Suryavanshi, but he was inducted in by Respondent No. 2 Society. It is also an admitted position that only Yallappa was a member of Respondent No. 2 Society, and Yashwant Sakharam Lohar was not a member of the said Society.
The basic issue and the substantial question of law raised by Mr. Naik, the learned Counsel for the Appellants, in this appeal is that on the face of the provisions of Section 91(3) and Section 163(3) of the Maharashtra Co-operative Societies Act, 1960 as amended, whether any Civil Court can at all entertain any civil proceeding to declare such an award as void. As pointed out by Mr. Naik, the provisions of aforesaid Section 91(3) of the Act, very clearly bars the Civil Court''s jurisdiction to entertain any suit or other proceeding in respect of any dispute which comes u/s 91(1) of the said Act. No Civil Court can entertain the matter which has already been entertained by the Co-operative Court. Apparently, the object of this provision is to prevent any parallel proceedings regarding a specialised law providing a special forum like a Co-operative Court which obviously cannot be interfered with by the Civil Court.
As contended by Mr. Naik, the learned Counsel for the Appellants, the provisions of Section 163(3) of the said Act makes it abundantly clear that all orders, decisions and awards passed under this Act, shall be final and no such orders, decisions and awards can be challenged and declared void by any Civil Court on any ground whatsoever. In fact, prior to the Amending Act No. XXVII of 1.969, Mr. Railkar was right that on the ground of want of jurisdiction the Civil Court could possibly entertain and declare the award as void. Now in view of the amendment, very categorically excluding the words "except for want of jurisdiction", obviously, even if one were to contend that the Co-operative Court had no jurisdiction to pass such an award, it cannot be declared void by the Civil Court on the ground of want of jurisdiction. The proposition of law is extremely clear. Especially in view of the aforesaid amendment thereby removing the words "except for want of jurisdiction" from Section 163(3) of the Maharashtra Co-operative Societies Act, 1960 the Civil Court can have no jurisdiction whatsoever to declare any award as void, whether it is within jurisdiction or for want of jurisdiction.
In view of the aforesaid facts and circumstances, and in view of the aforesaid view I have taken with regard to the substantial question of law. I allow the Second Appeal with costs, and set aside the Lower Appellate Court''s order dated 16th April, 1982 passed in Regular Civil Appeal No. 199 of 1980. Accordingly Trial Court''s order dated 31st July, 1980 passed in Regular Civil Suit No. 47 of 1978 stands confirmed.
On the application of learned Counsel for Respondents, this order is stayed for a period of eight weeks from today. The learned Counsel for the Respondents states that his clients will not part with possession or create any third party rights with regard to the suit premises.
Parties to act on an ordinary copy of this order duly authenticated by the Section Officer. Issuance of certified copy is expedited.