Calcutta High Court
Jenson And Nicholson (India) Ltd. vs Assha Co-Operative Housing Society ... on 14 October, 1993
Equivalent citations: (1994)1CALLT221(HC), 98CWN688
JUDGMENT Samir Kumar Mookherjee, J.
1. The present Revisional application, which is directed against Order No. 6 dated 14th of September, 1993, passed by the learned District Judge, Alipore in Misc. Appeal No. 405 of 1993, raises an important question about the scope and applicability of Section 95(1) of the West Bengal Co-operative Societies Act. The question, on more than one occation, had fallen for consdieration by the Apex Court of the country. But, notwithstanding a number of decisions rendered by the said Court on such occasions, in one of the recent decisions of that Court, it had judicially acknowledged that there was "lack of clarity in legal position." The resultant effect has been that counsel, on behalf of the contesting parties, have made full utilisation of their forensic dexterity and ingenuity to make emphatic submissions in justification of the respective contentions of their clients.
2. The relevant facts culminating with the above order may be succinctly stated as follows :-
The Revisional petitioner filed a Title Suit (Title Suit No. 43 of 1993) in the court of the learned Assistant District Judge, Alipore, inter alia, for permanent and mandatory injunctions seeking to restrain the defendant from obstructing or interfering with the plaintiff/petitioner's possession in the suit flat with all amenities and essential services and to remove any obstruction to such enjoyment of the flat. An ad-interim order of injunction initially granted by the Trial Court stood vacated on the basis of an application under Order 39 Rule 4 of the Code of Civil Procedure, preferred by the Defendants Nos. 1 to 4, along with the prayer of the plaintiff/petitioner under Section 151 of the Code of Civil Procedure for mandatory order directing the restoration of electric supply. The plaintiff/petitioner preferred Misc. Appeal No. 405 of 1993 and in the said appeal, made an application for injunction under Order 39, rules 1 and 2 of the Code of Civil Procedure. Section 151 of the said Code, on which, by Order No. 3 dated 25th of August, 1993, an order for maintenance of status quo had been issued. On 26th of August, 1993, the petitioner/appellant, preferred an application under Section 151 of the Code of Civil Procedure, for modification of the said order of status quo by directing the opposite parties to restore or reconnect electricity in the said flat. The impugned order rejected the said application for restoration or reconnection of electricity, inter alia, with a finding that the suit was barred by the provisions of Section 95 of the West Bengal Co-operative Societies Act.
3. In the background of the aforesaid facts, we have been called upon to answer the question relating to the jurisdiction of the Civil Court vis-a-vis the statutory Tribunal created by the West Bengal Co-operative Societies Act.
4. On behalf of the contesting parties, a number of decisions of the Supreme Court, of this Court and other High Courts have been cited to substantiate the respective standpoints of the contesting parties. The said decisions, excepting two, which we have been able to lay our hand on, on proper reading and analysis, appear to pronounce and formulate the following principles :-
(a) (Ratnakar Gafanan Oodambe v. Ratna Prabha Co-operative Society and Ors.) : The two judges remanded the case to the High Court for consideration afresh, if necessary, by taking fresh evidence as regards the extent of protection that would be available to him, both as regards the forum and the grounds upon which he could be evicted, after adverting to the principles and factors laid down in the case of Sanwarmal Kejriwal which could not be done due to lack of clarity of the legal position.
(b) Marine Times Public Pvt. Ltd. v. Shriram Transport and Finance Co. Ltd. . Before a dispute would be referred under Section 91(1) of the Co-operative Societies Act, it was equally essential that the parties to the dispute must belong to one of the categories specified in Clause a(cc) of sub-section (a). The main claim of the plaintiff in a suit for specific performance, was against a member and not against the society. Society's approval would be needed only after the plaintiff succeeded in his claim against the member and as such, the relief against the society was of ancillary nature.
(c) Sanwarmal Kejriwal v. Vishwa Co-operative Housing Society Ltd. . Once the status of tenant was acquired, the society could not evict him by taking recourse to Section 91(1) of the Co-opeartive Societies Act, as the tenant was entitled to the benefits of Rent Act. The mere fact that occupation of the said tenant was in violation of the bye-laws would not make any difference; if the society could evict a protected tenant on the plea of absence of privity with him, it would render the protection of the Rent Act redundant. Proceeding under Section 91 by the Society was held not maintainable. The Five decisions referred to by A.P. Sen and B.C. Roy, JJ. were held to be distinguishable on facts because in all those cases the licences stood terminated on the relevant date. The Court further laid down that even if the Co-operative Societies Act was a later Act, on the maxim "Generalia Specialibus non-derogant," the plaintiff would be protected and could not be evicted except by taking recourse to Rent Act. The Court further held that the jurisdiction of the Court must be determined on the averments in the plaint or claim application and not on the defence taken by the adversary party.
(d) Dorab Cawasji Warden v. Coomi Sorab Warden, . Grant of interlocutory mandatory injunction must be based on the following :"-
(i) A stronger prima facie case then in normal circumstances,
(ii) The resultant injury cannot be compensated in money,
(iii) Balance of convenience,
(iv) Exercise of judicial discretion on sound equitable principle.
(e) AVR & Co. v. Fair Field Co-operative Housing Society Ltd., : There was no claim of tenancy. No substantiating agreement was filed before the Court. Hence, the protection under Rent Act was found not to be available.
(f) Anjan Chowdhury v. Anandaneer Co-operative Housing Society 1990(1) CLJ 345 (SB) : The decision was delivered without considering the latest Supreme Court view at that point of time in the case of Sanwarmal Kejriwal, reported in 1990 SC 1563 and as such deserves to be reconsidered because of the inconsistency with the said Supreme Court decision.
(g) Phanibhusan Dey v. Sudhamoy Roy, 1987(2) CHN 49 : Prayer for injunction regarding supply may be directed to be discontinued in the event of success of the other side, but non-supply right result in irreparable injury.
5. In the instant case, from the materials on record as relied on and referred to by the parties, forming parts of the pleadings before this Court, it appears that the plaintiff was claiming a right of tenancy under defendant No. 5 an allottee of the disputed flat, the allotment having been made upon full payment of the purchase price to respondents 1 to 4. It further appears that the Rules and Bye-laws of the Society, which have been strongly relied upon and referred to on behalf of the respondents, prohibit handing over of possession of such flats in the co-operative housing to any body corporate and on that bais, respondents Nos. 1 to 4 had been proposing to forfeit the membership right of the respondent No. 5.
6. It is an admitted position also that from before the said flat was in occupation of one Mr. Probal Chatterjee, who was also an employee of the plaintiff, but such occupation was permitted by the Society on a representation that Mr. Chatterjee was a relation of the allottee of the flat. On behalf of the plaintiff, however, it has been argued that the real occupant of the flat was the plaintiff itself was well known to the respondents and in support of such a stand, several documents have been annexed for forming parts of the records of the case.
7. As stated above the learned District Judge dismissed the application, preferred on behalf of the plaintiff under Section 151 of the Code of Civil Procedure, inter alia, with a finding that the civil suit, as instituted by the plaintiff, was not maintainable because of application under Section 95(1) of the West Bengal Co-operative Societies Act.
8. We have been invited to adjudicate the propriety of the said reasoning of the learned District Judge.
9. We have given our anxious consideration to the respective contentions of the parties in view of the importante of the point involved as also to the different authorities cited on their behalf.
10. From the analysis of the cases cited, it appears that certain criteria were laid down by the Supreme Court in the case of Sanwarmal Kejriwal v. Vishwa Co-operative Housing Society Ltd., to the effect that once the status of a tenant was found to have been acquired by an occupant of a flat on the strength of a privity of contract with the allottee of the flat under the Co-operative society, the society was not entitled to evict him without a proceeding in Civil Court; allowing the Society to take recourse to the statutory forum created by the law of co-operation would be to deprive the said person of the benefit of the Rent Act, even the alleged violation of the Bye-law or Rules of the Society, according to the Supreme Court in that decision, did not make any difference as a protected tenant could not be evicted in a proceeding under the Co-operative Societies Act because, the Rent Act was a special type of legislation and must, therefore, be allowed predominance over and preference to the Co-operative Societies Act. The said decision further laid down that the jurisdiction of the Court was to be determined on the averments in the plaint or claim application and not on the defence taken by the adversary party. The said decision was approved and followed in remanding the case to the High Court for consideration afresh, if necessary, by taking evidence both as regards forum and the grounds upon which he could be evicted. Another decision of two Judges of the Supreme Court, in the Case of Ratnakar Gajanan Godambe v. Ratna Prabha Co-operative Society and Ors. .
11. In the earlier case, the previous five decisions of the Supreme Court, including that in the case of AVE & Co. v. Fair Field Co-operative Housing Society Ltd., , by a Bench consisting of their Lordships A.P. Sen and B.C. Ray, JJ., were held to be distinguishable on their respective facts.
12. It is pertinent to note in this juncture that the decision of the Special Bench of this Court in the case of Anjan Chowdhury v. Anandaneer Co-operative Housing Society, AIR 1990(1) CLJ 345 (SB) : 94 CWN 515 deserves to be reviewed in the said judgment, none of the two cases of the Supreme Court, referred to above, had been taken into consideration justifiably because the decision of the Supreme Court were pronounced subsequent to the Special Bench decision of this Court.
13. In the impugned order also, the two decisions of the Supreme Court and the principles laid down therein, broadening the scope for consideration by a Court of law and indicating the factors, which though not exhaustive, must be taken into consideration by such Court, had also not been taken note of, with the result that the learned District Judge cannot be said to have adverted to the said criteria as were required to be determined by the Supreme Court nor can he be said to have followed the procedure which the Supreme Court laid down in the said two decisions.
14. We are, therefore, unable to sustain the impugned order as this clearly is an instance of refusal to exercise a jurisdiction vested in the court by law.
15. The Revisional application, therefore, must be allowed setting aside the impugned order. As regards the prayer for mandatory injunction, no doubt, it is well settled that such a prayer cannot be granted in a general way, but can be granted during the pendency of the suit only in very exceptional cases.
16. In the instant case, admittedly, Society on its own had no occasion to disconnect the supply, but for the initiative taken by the allottee. It is also incontrocertible that electricity is an essential requirement and since we have not been able to sustain the order of the learned District Judge, we cannot presume that the application made on behalf of the plaintiff will be dismissed by the learned District Judge or by trial Court. We have already indicated that depending on the determination of the question of jurisdiction in the light of the guidelines laid down by the Supreme Court, there should be reconsideration of the entire matter. In that state-of-affairs, it will also, we think, not be just and proper to directly throw the plaintiff out of possession by permitting the discontinuance of supply to continue. It is already judicially recognised [vide the cases of Dorab Cawasji Warden v. Coomi Sorab Warden, and Fhanibhusan Dey v. Sudhanmoi Roy, AIR 1987 (2) CHN 49] that in case the plaintiff or the applicant becomes unsuccessful, the restored supply may again be discontinued or may be allowed to be enjoyed by the legally entitled occupant of the property.
17. We, accordingly, direct that the electricity be restored to the disputed flat by the respondents forthwith, but such restoration will be absolutely temporary in nature and will abide by the further directions including one for discontinuance that may be passed by the appropriate Court on disposal of the pending applications.
18. We further give liberty to the learned District Judge to take up and dispose of for consideration either the Misc. appeal or the applications or all of them together whichever mode and manner may commend to him.
19. The Re visional application is, therefore, allowed to the extent indicated above. There will be no order as to costs.
20. A prayer has been made on behalf of the opposite parties for stay of operation of this order, but, considering the restoration of essential supply is involved and also the existence of the decisions of the Apex Court of the country as noted above, we refuse the certificate and the prayer for stay.
Let xerox copies of this order be delivered to the learned advocates for the parties on their usual undertakings to apply for and obtain urgent certified copies.
N.N. Bhattacharjee, J.
I agree.