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Whether the present dispute is maintainable under Section 91 of the MCS Act?

12. Learned Senior Counsel Shri Shah, appearing for the respondents contended that the present appellants have not challenged the jurisdiction of the Cooperative Court, nor any issue was framed, but the issue of jurisdiction was first time raised in the writ petition, which is not permissible. We are not inclined to accept this contention. The appellants in their written statement paragraph No. 2 raised specific contention that the dispute does not fall within the ambit of Section 91(1) of the MCS Act and the dispute cannot lye before the Cooperative Court. Not only this, in paragraph No. 14 of the written statement, a specific contention has been raised that disputant No. 1 Society is having no right to file the dispute, but came to be joined as disputant only to support the cause of disputant No. 2. By this pleading, present appellants raised specific contention that the Society has no interest in the property or in the dispute and also raised a contention that dispute does not fall within the ambit of Section 91(1) of the MCS Act and same is not entertainable by the Cooperative Court. In view of this contention, issue No. 3 came to be framed as to whether the dispute is maintainable in the Cooperative Court under Section 91(1) of the MCS Act. The Cooperative Court also recorded a finding on this issue and observed that the opponents raised contention that the dispute does not fall within the ambit of Section 91 of the MCS Act. It is further observed that burden lies upon the opponent to prove the said fact. However, they have not led any evidence to that effect. On these observations, the Cooperative Court concluded that the dispute does fall under Section 91 of the MCS Act and it is maintainable before the Cooperative Court.

On perusal of finding on issue No. 3 recorded by the Cooperative Court, we are of the opinion that the Cooperative Court has not recorded any reasons and referring the provisions under Section 94 of the MCS Act, jumped to the conclusion that the dispute falls under Section 91 of the MCS Act.

13. Present appellants challenged the award passed by the Cooperative Court by preferring appeal No. 350/1994 before the Maharashtra State Cooperative Appellate Court, Mumbai. A copy of the Judgment of the appellate court is at Exhibit-E of the record. In the appeal also, on behalf the present appellants, a ground was raised that the dispute does not fall within Page 1713 the ambit of Section 91 of the MCS Act and dispute cannot lye before the Cooperative Court. The appellate court in the Judgment observed that the respondent No. 1 before it was a member of respondent No. 2 Society and the plot was allotted to the respondent No. 1. The respondent No. 1 constructed a bungalow by obtaining the loan. Respondent No. 1 refunded the loan amount. Permission from respondent No. 2 Society was not obtained when deceased Amrutlal was allowed to occupy the plot, and in view of the above referred circumstances and there being no evidence in support of the title of present appellants over the suit bungalow, the appellate court held that the appellants have no rights to continue in possession and contention that the Cooperative Court had no jurisdiction is negatived. Again it can be said that the appellate court is also found to have not recorded any reasons on the point in controversy as to whether the dispute can be said to be a dispute touching the business of the Society, nor any reasons have been recorded whether the Society is having any interest and had locus to file the dispute. Both the trial court and the appellate court appear to have come to the conclusion that the dispute is a dispute under Section 91 of the MCS Act, because the disputant No. 2 is a member of the Society and he is found to have constructed the bungalow and the present appellants who denied his title did not lead any evidence to prove their title over the property, but no reasons were found to have been recorded as to whether the dispute falls within the ambit of Section 91 of the MCS Act and such a dispute about the title can be entertained by the Cooperative Court.

14. Although the trial court and the appellate court did not record any reasons for coming to the conclusion that the dispute falls within the ambit of Section 91 of the MCS Act, the learned Single Judge of this Court while dismissing the writ petition gave reasons that the dispute squarely falls within the ambit of Section 91. Before the learned Single Judge, on behalf of these appellants, a contention was raised that the Housing Society in question is a tenant-ownership Society. The Society allotted the plot and the bungalow is constructed by the member. Hence, the Society had no existing interest in the dispute. However, in the dispute filed before the Cooperative Court, the Society joined as disputant No. 2. By mere joining the Society as a party to the dispute, dispute cannot be said to be a dispute under Section 91 of the MCS Act. However, the learned Single Judge did not accept this submission and came to the conclusion that as per the ratio laid down by the Division Bench of this High court in the matter of Kalawati Ramchand Malani v. Shankar Rao Patil and Ors. reported in 1974 Mh.L.J. 908, even in the case of ownership societies, if the dispute is raised by a Cooperative Society and a member thereof, then the dispute falls under Section 91(1) of the MCS Act. Before the learned Single Judge, reliance was also placed on the decision of the Apex Court in the case of Sabharwal Brothers and Anr. v. Smt. Guna Amrit Thadani , an argument was advanced that the decision of the Apex Court in the case of O.N. Bhatnagar v. Rukibai Narsindas Bhavnani and Ors. , is not Page 1714 applicable as the Society in O.N. Bhatnagars Society was a tenant-partnership Society. This submission is also not accepted and in paragraph No. 12 of the Judgment of learned Single Judge, it is observed that the claim by the Society together with a member for ejectment of a person who was permitted to occupy having become a nominal member thereof upon revocation of licence is a dispute falling within the purview of Section 91(1) and on these observations, the learned Single Judge came to the conclusion that even for tenant-ownership societies, if the dispute is raised by a Cooperative Society and its members against a person unauthorisedly in occupation, the dispute falls within the ambit of Section 91 and the writ petition thus came to be dismissed. This finding of the learned Single Judge is challenged. Learned advocate Shri Mantri advanced submission that the decision in the case of O.N. Bhatnagar (supra) is not applicable to the tenant-ownership society, as such a Society after allotment of plot ceases to have any interest in the subject matter and the dispute does not fall under Section 91 of the MCS Act. In view of this contention, the main point for consideration before us is as to whether the present dispute falls under Section 91(1) of the MCS Act. For recording finding on this issue, we are required to consider the following points.

[i] Whether the Society ceases to have interest in the property after allotment of plot in case of tenant-ownership societies?

[ii] Whether mere joining of such a Society as a party to the dispute is sufficient to treat the dispute as dispute under Section 91(1) of the MCS Act?

[iii] Whether a dispute about the title and claim for possession on the basis of title can be entertained in a dispute under Section 91(1) of the MCS Act?

15. The Society - disputant No. 1 is alleged to be a tenant-ownership Society and a contention is raised that in case of such Society, to seek possession from licensee by a member, the Society has no locus and the dispute does not fall under Section 91 of the MCS Act. On behalf of respondents (original disputants), submission is advanced that no such defence was taken at the trial and first time, such a contention cannot be entertained. In the writ petition before the learned Single Judge, this contention was raised and the learned Single Judge recorded finding on that point also. Even in the pleadings of the dispute, as referred to above, it is alleged that the plot is allotted to the disputant No. 2 by the Society and the disputant No. 2, the member raised construction thereon and he is the owner of the bungalow, the subject matter. Hence, even in the pleadings of the disputants themselves, they admitted the status of the Society as tenant-ownership society. We are, therefore, not inclined to accept the contention raised on behalf of the respondents that such a contention as to the tenant-ownership society was raised by the appellants for the first time.