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Judgment
A.P. Sen, J.
This revision u/s 115 of the Code of Civil Procedure, filed by the defendant, is directed against an order of the Second Additional District Judge, Raipur, dated 26th September 1968, holding that the subject-matter in dispute is not covered by section 82 (1) (c) of the Madhya Pradesh Co-operative Societies Act (No. XVII of 1961) (hereinafter referred to as the ''Act''), inasmuch as it was not a dispute required to be referred to the Registrar u/s 64(1)(c) of the Act.
The material facts are these. The State Bank of India Employees'' Housing Co-operative Society Limited, Raipur is a ''Housing Society'' within the meaning of section 2 (n) of the Act, as its object is to provide its members with residential accommodation, and is also a Society'' as defined in section 2(z), as it is registered as a co-operative society under the Act. By virtue of a sale deed dated 5-1-1966, the society purchased a piece of land in Dumar Talab, Raipur, from, the plaintiff, Naval Shankar and Kanti Lal, who have now filed this suit for ejectment of the Society from the portions delineated by letters DHID and FEHGF in the plaint map, alleging that it has encroached upon these areas which are outside the property conveyed under the deed. The Society thereupon raised an objection to the maintainability of the suit, and, accordingly, a preliminary issue was framed on the question of jurisdiction.
The revision must be dismissed on the short ground that the learned Judge has rightly held that the jurisdiction of Civil Court to entertain a suit of this kind is not barred under the terms of section 82 (1) (c) of the Act. That section reads:
Save as provided in this Act. no civil or revenue Court shall have any jurisdiction in respect of any dispute required to be referred to the Registrar.
While interpreting this section, the general rule as regards construction of statutes excluding the jurisdiction of Civil Courts must be kept in view. The ordinary rule of construction is that statutes affecting the jurisdiction of Civil Courts, i. e., ousting their jurisdiction, must be very strictly construed. Every presumption should be made in favour of the jurisdiction and its exclusion is not to be readily inferred, but must be either explicitly expressed or clearly implied. [See, AIR 1940 105 (Privy Council) ]., Now, the bar of jurisdiction u/s 82 (1) (c) is in respect of any dispute ''required to be referred'' to the Registrar. The disputes which are so required to be referred are enumerated in section 64 ibid. The relevant portion of that section reads:
Notwithstanding anything contained In any other law for the time being in force, any dispute touching the business 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:
(c) a person other than a member of the society with whom the society has or had business transactions and any person claiming through such a person.
(Italics mine)
The short questions for consideration in this case are-
(1) Whether the suit is in respect of any dispute touching the business of the defendant society within the meaning of section 64 (1) : and
(2) If so, whether, by reason of the purchase of the land in its favour, the society had any business transaction with its vendors, the plaintiffs herein.
It is common ground that the main object with which the defendant society has been incorporated is to provide housing accommodation to its members, and it is, therefore, urged that acquisition of any land, by purchase or otherwise, by the defendant society is in the course of its ordinary business and necessarily any dispute touching its assets would fall within the ambit of section 64 ibid. The contention cannot be accepted, for the reasons that I shall presently state.
As to the first, the phase ''touching the business of a society'' had been interpreted by a Full Bench of this Court in Gokul Prasad Moujilal Bharat Vs. Laxman Singh Maha Singh and Others, in these words:
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.
The meaning of the expression ''any dispute touching the business of a society has also been interpreted by their Lordships of the Supreme Court in the Deccan Merchants Co-operative Bank Limited v. Messrs. Dalkhand Jugraj Jain and others Civil Appeal No. 368 of 1907, decided on 29-8-1968, stating:
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 sob-section, the word ''business'' has been used in a narrow 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.
In regard to the question whether a dispute touching the assets of a society would be a dispute touching the business of the society, their Lordships further Stated:
This would depend on the nature of the society and the rules and bye-laws governing it. Ordinarily, if a society owns buildings and lets out parts of buildings which it does not require for its own purpose it cannot be said that letting out of those parts is a part of the business of the society. But it may be that it is the business of a society to construct and buy houses and let them out to its members.
In the present case, the society is a housing society formed with the object of providing residential accommodation to its members. Now, the nature of business which a society carries on has necessarily to be ascertained from the object for which the society is constituted, but it is difficult to subscribe to the proposition that whatever the society does in the course of its activities can be said to be part of its ''business''. By no stretch of imagination, an act of trespass by a housing society over another''s land can be treated as acquisition of such land for the purposes of providing residential accommodation to its members, which normally is its business. As already stated, the word ''business'' in the context means any ''trading or commercial or other similar business activity'' of the society. As earlier mentioned, the word ''business'' has been used in a narrower sense and it means the actual trading, 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 by-laws. In that view, any dispute as a result of purchase of land by a housing society cannot be said to be a dispute touching its business, unless it were shown that it owns buildings and lets them out as a part of the business of the society.
As a logical consequence, the second question answers itself. Section 64 (1) employs the expression ''has or had business transactions'', and the use therein of the word ''transaction'' in the plural clearly suggests a "continued course of dealing", i. e. a trading or commercial activity between a society and a non-member giving rise to a dispute which still remains outstanding. Now, the mere acquisition of a certain piece of land by the defendant society by means of a deed of conveyance in its favour would not be any such business transaction falling within the ambit of that section, as the purchase of land for a price need not of necessity be a trading or commercial activity, i.e., one entered with the motive of earning profits which is a sine qua non of any business, profession or trade. The legal connotation of the words ''trade'' and ''business'' is now well settled. ''Trade'' means ''exchange of goods for goods or goods for money'' or ''any business carried on with a view to profit, whether manual or mercantile, as distinguished from the liberal arts or learned professions and from agriculture'', while ''business'' means ''an enterprise which is an occupation as distinguished from pleasure''. [See, Secretary, Madras Gymkhana Club Employees'' Union Vs. Management of the Gymkhana Club, . In consequence, the mere act of encroachment by a housing society of an area outside its purchase, apart from being not a dispute touching its business, cannot also be regarded as one arising as a result of any business transaction that it has or had with its vendors within the meaning of section 64 (1)(c) of the Act. That is because an act of encroachment by such a society can never be treated as something done in the normal course of its business. Suffice it to say that if the alleged encroachment is not proved, the present suit would fail. On the contrary, if it were established, the suit would still be outside the purview of section 64 (1) (c) for reasons already stated. In either event, Civil Court would have jurisdiction to entertain the suit as framed.
In The Sugauli Sugar Works (Private) Ltd. Vs. The Asstt. Registrar, Co-operative Societies, , the dispute between a society and a non-member in respect of a claim for commission for the supply of sugarcane and interest thereon, and a counter-claim by the society for compensation for short and irregular supply of sugarcane arising out of a commercial transaction, was held by their Lordships of the Supreme Court to be wholly beyond the purview of section 48 of the Bihar and Orissa Co-operative Societies Act (Act No. VI of 1935). In reaching that conclusion, their Lordships held that the addition of the word ''non-member'' by the amending Act of 1948 to the Explanation of that section, had not enlarged its scope so as to make all kinds of disputes cognizable by (he Registrar, and thus excluding the jurisdiction of the ordinary Courts. It is true that the provisions of section 64 ibid are not in pari materia with those of section 48 (1) of the Bihar and Orissa Co-operative Societies Act, 1935 with which their Lordships were concerned, inasmuch as there was no provision therein like clause (c) of section 64(1) ibid. Apart from this, their Lordships further indicated, that a dispute would not be entertainable by the Registrar on a reference, unless it was of the description referred to in section 16 (1), read with section 2 (c) of the Act, by a society against any non-member, falling within the purview of section 48 (1), along with the Explanation to that section. Nevertheless, the decision in the case of Sugauli Sugar Works (supra) is an authority for the proposition that the jurisdiction of the ordinary Court is not barred unless the Registrar has jurisdiction to determine a particular dispute. In Bihta Co-operative Development Cane Marketing Union Ltd., and Another Vs. The Bank of Bihar and Others, , their Lordships of the Supreme Court, while interpreting the same section, held that unless a dispute was covered by any of the categories (a) to (e) of section 48(1) it could be agitated before a Civil Court. In Mammu Keyi v. Thirurangadi Co-operative Rural Bank Ltd. ILR 1 Ker 88, where the dispute was between the society and the owner of a godown who happened to be a member of the society, the Kerala High Court held that section 51 of the Madras Co-operative Societies Act, 1932 was no bar to a suit for recovery of arrears'' of rent, because it certainly was not a dispute between the society and a member qua member. The importance of that decision lies in the fact that it has received the approval of their Lordships of the Supreme Court in the case of Deccan Merchants Co-operative Bank Limited (supra). Thus, as a necessary corollary, it follows that unless a dispute comes within the ambit of section 64 of the Madhya Pradesh Co-operative Societies Act, the jurisdiction of Civil Court to entertain a suit is not barred.
The result is that the revision fails and is dismissed with costs. Counsel''s fee Rs. 50 if certified.
Application dismissed.