Delhi High Court
Prakash Narain Sharma vs Burmah Shell Cooperative Housing ... on 27 April, 2001
Equivalent citations: 2001(59)DRJ237
Author: O.P. Dwivedi
Bench: O.P. Dwivedi
ORDER
Anil Dev Singh, J
1. This is a letters patent appeal against the order of learned Single Judge dated 18th August, 2000 in Civil Writ Petition No. 3009/92.
2. The appellant herein is the son of Shri S.N. Sharma, who had approached the Registrar, Co-operative Societies, under Section 60 of the Delhi Co-operative Societies Act, 1972 (for short 'the Act') with the request to resolve the disputes between him and the first respondent herein, Burmah Shell Co-operative Housing Society Ltd. It was claimed by him in Arbitration Case No. 26/H/87-88 that he was the founder member of the first respondent inasmuch as he had paid the membership fee vide Receipt No. 329 on 19th September, 1952. According to him his name was included in the list of members of the first respondent.
3. Sometime in the year 1964 land was allotted to the first respondent by the L.&.D.O. It was claimed by Shri S.N. Sharma that he had sent a draft drawn on the State Bank of India for a sum of Rs. 15,000/- to the first respondent on 26th October, 1979 towards the development charges of the land. On 4th November, 1979 the first respondent is stated to have returned the draft to Shri S.N. Sharma with the alleged understanding that the money will be taken from him at the time of allotment of a plot to him.
4. In the year 1982, the first respondent allotted plots to its members but no allotment was made in favor of Shir S.N. Sharma despite his request. Since the first respondent failed to respond to the alleged request of Shri S.N. Sharma, he moved the Registrar, Co-operative Societies, under Section 60 of the Act. The Joint Registrar (Arbitration) referred the following disputes to Shri S.C. Gupta vide his order dated 29th july, 1988 for adjudication under Section 61 of the Act:-
"(a) Whether the defendant society failed to allot a plot to the claimant as per his seniority and persons junior to him were allotted the plot;
(b) Whether the claimant has failed to deposit the amount demanded by the defendant society from time to time towards cost of land and its development;
(c) Whether the defendant society allotted the plot by draw of lots and in accordance with the instructions issued by the Registrar, Co-operative Societies in this regard; and
(d) Relief, if any, to the claimant".
5. While the proceedings were pending before the Arbitrator, Shir S.N. Sharma expired on 28th December, 1988. His legal representatives are stated to have relinquished their rights in favor of the appellant herein.
6. The first respondent not being satisfied with the appointment of the arbitrator filed a petition before the Additional District Judge, Shri R.C. Jain. The first respondent along with the petition moved an application under Order 39 Rule 2 r/w Section 151 CPC seeking stay of the arbitration proceedings. On 4th October, 1989, the Additional District from proceeding with the arbitration. While the first respondent claims that the Arbitrator was informed by communication dated 5th October, 1989 regarding the order passed by the Additional District Judge dated 4th October, 1989, the appellant claims that the arbitrator was not served with the restraint order nor he was informed about the same till 2nd November, 1989 before which date the arbitrator had concluded the proceedings and had passed an ex-parte award on 26th October, 1989. By virtue of the award, the appellant was held entitled to allotment of a plot of land by the first respondent out of the land given the L.&.D.O. to the first respondent. The first respondent aggrieved of the award passed by the arbitrator filed an appeal before the Presiding Officer, Delhi Co-operative Tribunal, on 10th December, 1991. Thereafter, the appellant moved an application under Section 71(b) of the Act for execution of the award passed by the arbitrator. Thereupon, the Additional Collector cum Dy. Registrar, Co-operative Societies, Delhi Administration, vide its order dated 20th August, 1992 attached a plot of land of the first respondent. The first respondent being dissatisfied with the order passed by the Arbitrator, and the order of the Assistant Collector cum Dy. Registrar, Co-operative Societies, filed a Writ Petition being C.W.P. No. 3009/92. The learned Single Judge vide order dated August 18, 2000 disposed of the Writ Petition by setting aside the order of the arbitrator dated 26th October, 2989 on the ground that the stay order passed by the District Judge was operating on the date when the award was rendered by the arbitrator. The learned Single Judge also directed the Registrar, Co-operative Societies, to make a fresh award. The appellant aggrieved of the order passed by the learned Single Judge has filed the instant appeal.
7. We have heard learned counsel for the parties. The learned counsel for the appellant submitted that the Additional district Judge did not have any jurisdiction to deal with the matter in as much as the Co-operative Societies Act is a complete code by itself and the jurisdiction of the civil courts is specifically barred under Sections 60 and 93 thereof. He pointed out that this position has been recognised by the Additional District Judge before whom the petition under Section 5 of the Arbitration act was moved by the first respondent. He has also referred us to the order passed by the Additional District Judge dated April 12, 1994, disposing of the petition of the first respondent wherein the learned Additional District Judge relying on Sections 60(1)(d) and 93 of the Act came to the conclusion that these provisions oust the jurisdiction of the civil courts. In coming to this conclusion the Additional District Judge also relied upon the decision of this Court in Civil Writ Petition No. 2659/91, Smt, Manju Jain and Ors. Vs. Registrar Co-operative Societies and others, decided on 16.12.91. The learned counsel for the appellant canvassed that since the jurisdiction of the civil courts is barred, the order of the Additional District Judge dated 4th October, 1989 restraining the arbitrator from proceeding with the matter is a nullity. He also submitted that in any event the restraint order was not served on the arbitrator till passing of the award on 26th October, 1989.
8. On the other hand, the learned counsel for the first respondent submitted that the arbitrator was not right in ignoring the restraint order passed by the learned Additional District Judge as on the date of passing of that order the Additional District Judge had yet to decide the question of jurisdiction. He submitted that in case the order of the civil court is violated by the parties and the Arbitrator on the ground that the civil court lacks the jurisdiction to pass such an order, it would amount to arrogating to themselves the power to decide whether or not the court has the requisite jurisdiction to pass the order. Learned counsel for the first respondent contended that if such a power is given to the parties and the arbitrators, they would violate the orders of the civil courts with impunity. He submitted that this would lead to judicial anarchy.
9. We have considered the rival submissions of the learned counsel of the parties. In order to appreciate the controversy, it may be necessary to refer to the provisions of Sections 60(1)(d) and 93 of the Act. These provisions read as follow:-
"60. Disputes which may be referred to arbitration - (1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management or the business of a co-operative society other than a dispute regarding disciplinary action taken by the society or its committee against a paid employee of the society arise -
(a) .....
(b) .....
(c) .....
(d) between the society and any other co-operative society, between a society and liquidator of another society or between the liquidator of one society and the liquidator of another society, such dispute shall be referred to the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute.
xx xx xx" "93. Bar of jurisdiction of courts-
(1) Save as provided in this Act, no civil or revenue court shall have any jurisdiction in respect of -
(a) the registration of a co-operative society or its bye-laws or of an amendment of a bye-law;
(b) the removal of a committee;
(c) any dispute required under section 60 to be referred to the Registration, and
(d) any matter concerning winding up and the dissolution of a co-operative society.
(2) While a co-operative society is being would up, no suit or other legal proceedings relating to the business of such society shall be proceeded with or instituted against, the liquidator as such or against the society or any member thereof, except by leave of the Registrar and subject to such terms he may impose.
(3) Save as provided in this Act, no order, decision or award made under this Act shall be questioned in any court on any ground whatsoever."
10. Reading of the aforesaid provisions clearly show that the jurisdiction of the civil courts to entertain any suit or any proceedings in respect of the disputes which are covered by the Act is ousted. While Section 93(1)(c) categorically declares that save as provided in the Act no civil or revenue court shall have any jurisdiction in respect of any dispute required under Section 60 to be referred to the Registrar, sub-section (3) of Section, 93 mandates that no order, decision or award made under the Act shall be questioned in any court on any ground whatsoever except as provided in the Act. Even though there is no ambiguity in the provisions of Section 93(1)(c) and Section 93(3), the legislature in order to further clarify the position has provided in Section 60(1)(d) that no court shall have jurisdiction to entertain any suit or other proceedings in respect of the disputes of the kind in question. Thus, the Additional District Judge had no jurisdiction in the matter. If it had no jurisdiction it was a coram non judice. Therefore, any order passed by it with regard to the matter covered by the provisions of Section 60(1)(d) and 93(1)(c) and 93(3) would be nullity. As a sequitur the restraint order passed by the Additional District Judge suffered from the same malady. Such an order being a nullity and of no consequence could be ignored by the parties and the arbitrator. This view finds sustenance from the decision of the Supreme Court in Amrit Bhikaji Kale and others v. Kashinath Janardhan Trade and another, , wherein it was held as follows:
".....When a Tribunal of limited jurisdiction clutches at a jurisdiction by ignoring a statutory provision and its consequences in law on the status of parties or by a decision wholly unwarranted with regard to the jurisdictional fact, its decision is a nullity and can be set up in collateral proceeding....."
11. Since the principle that an order passed by a court which has no jurisdiction is a nullity is very well settled, it is not necessary to refer to various other decision on the point. At this stage, we however, deem it necessary to strike a note of caution. Normally it is the duty of the parties to a litigation to abide by and obey the orders of the court. An injunction order passed by a court is binding on party to the litigation as long as it is not lifted, modified or altered except in a case where the order is clearly without jurisdiction. But where the statute is equivocal and not so clear and the jurisdiction of the court depends on the interpretation of such a statute, the parties need to obey the injunction and not disregard it. Since we have held that the civil court clearly did not have the jurisdiction in the matter and the restraint order dated 4th October, 1989 was nullity, it is not necessary to determine the question whether the restraint order was served on the arbitrator before passing the award.
12. Though we respectfully disagree with the reasoning of the learned Single Judge in allowing the writ petition, we feel that the learned arbitrator was not right in passing an ex-parte award. It is the case of the first respondent that the membership of Shri S.N. Sharma was cancelled in the year 1951 and his fresh application for membership in 1952 was not accepted. It is also the stand of the first respondent that after the restraint order was passed by the civil court, it stopped appearing before the arbitrator. The first respondent is quite justified in taking this stand. Any one in the position of the first respondent would have thought that the arbitrator will not proceed with the adjudication of the disputes after passing of the restraint order by the Additional District Judge. In this view of the matter the first respondent cannot be faulted for no appearing before the arbitrator after 4th October, 1989. It would be unfair and unjust to deprive the first respondent from highlighting and arguing its case before the arbitrator. We are told that the arbitrator Shir Gupta has since expired. In the circumstances, therefore, we are of the opinion that the Registrar, Co-operative Societies, should appoint a fresh arbitrator to adjudicate the disputes between the parties. We order accordingly. The parties should appear before the Registrar, Co-operative Societies, on May 7, 2001.
With the above directions and observations, the appeal is disposed of.