Bombay High Court
Parasram S/O Gangaramji Nikose vs The Collector, Nagpur And 5 Others on 31 October, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
Writ Petition No. 718/2012
Parasram S/o Gangaramji Nikose
Aged about 83 Years, Occ. Advocate,
R/o Bhaiyyalal Wadi, Sitanagar
Nagpur ..... Petitioner.
//Versus//
1] The Collector,
Civil Lines, Nagpur,
Dist. Nagpur.
2] The Chairman,
Nagpur Improvement Trust, Sadar,
Nagpur, Dist. Nagpur
3] The President, B.K. Raut,
Trisharan Housing Society, Khamla,
Nagpur, Dist. Nagpur
4] Shri Nana Sitaram Shyamkule
Ex-President of Trisharan Sahakari
Gruh Nirman Sanstha, Trisharan
Nagar, Khamla, Nagpur
R/o Ashok Colony, Plot No. 2, Khamla,
Nagpur
5] The Chairman,
Nagpur Municipal Corporation,
Civil Lines, Nagpur
6] The Deputy District Registrar,
City-1, Umrer Road, Nagpur ..... Respondents.
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Shri P.G. Nikose, Advocate for the petitioner
Shri M.V. Samarth, Advocate for the respondent no. 2
Shri S.P. Deshpande, AGP for the respondent nos. 1 and 6
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Coram: Z.A.
HAQ, J.
Date : 31
October, 2017
st
Oral Judgment:-
Rule. Rule made returnable forthwith.
2] The petitioner filed dispute under Section 91 of the
Maharashtra Co-operative Societies Act, 1960 seeking reliefs as per the
following prayers:-
"a) To declare the Resolution dated on
22/11/1998 passed by the Executive Committed of
opponent No.3 Trisharan Co-op. Hsg. Socy. illegally
allotting plot No. 46, 47, 48 to opponent No.4 Shri Nana
S. Shyamkule, in conveyance and violation of covenants of
agreement of the society opponent No.3 in respect of
allotting the plots as illegal null and void and not binding
upon this disputant in respect of allotment thereof to him.
b) To declare that whatever construction has
been made by opponent No. 4 or plot Nos. 46, 47, 48 as
illegal and unauthorized and liable to be demolished.
c) To direct that the Nagpur Improvement Trust
i.e. Opponent No.5 is entitled to take back the possession
of the plot No. 46, 47, 48 from the society and opponent
No.4 with construction thereon and demolished the whole
construction at the cost of the society and opponent No.4.
d) To direct the N.M.C. to make fresh enquiry
and withdraw the building map of plot No.46, 47, 48
sanctioned illegally to opponent No.4 which is in violation
of lease agreement in between opponent, society and
N.I.T. Nagpur.
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e) To cancelled the Resolution No. 3"A" dated
22/11/1998 being illegal, in violation of agreement of
lease between N.I.T. and the society.
f) Pending dispute restrain the society opponent
No.3 and opponent No.4 from otherwise transferring
ownership of construction on the said plot No.46, 47, 48.
g) To direct the Dy. Dist. Reg. Co-op. Socy.,
Nagpur to conduct a through enquiry into the illegality of
the resolution No.3 "A" dated 22/11/1998 and other
things and for suitable necessary action against the
society, opponent No.3 & 4 in the interest of Justice.
h) Any other relief including cost all the through
with exemplary cost as may be deemed appropriate may
kindly be granted."
3] In these proceedings, applications under section 9A of the
Code of Civil Procedure, 1908 contending that the dispute was beyond
the purview of jurisdiction of the Co-operative Court and prayed that it
be dismissed. The Co-operative Court upheld the contention of opponent
nos. 1 and 2 and dismissed the dispute. The petitioner had challenged
this order before the Co-operative Appellate Court in appeal which was
also dismissed. The further challenge before this Court in writ petition
was repelled by the learned Single Judge. The petitioner had filed
Letters Patent Appeal which was also dismissed. The petitioner had filed
Misc. Civil Application No. 457/2015 in Letters Patent Appeal No.
150/2012 and had prayed for review of the impugned order passed in
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Letters Patent Appeal. By the judgment dated 18/01/2017, the review
application is allowed and the matter is remitted to Single Judge for
considering the writ petition on merits.
4] The prayers made by the petitioner in the dispute, as
reproduced above, show that some grievances of the petitioner can be
considered by the Co-operative Court while exercising the jurisdiction
under Section 91 of the Maharashtra Co-operative Societies Act, 1960.
Only because some prayer/prayers may not be granted by the
Co-operative Court, the dispute could not have been dismissed in
entirety. The Subordinate Courts have failed to appreciate this aspect
and it has resulted in erroneous exercise of jurisdiction. Therefore, the
impugned orders are unsustainable.
Hence, the following order is passed:-
O R D E R
1] The impugned orders are set aside.
2] The matter is remitted to the Co-operative
Court, Nagpur for deciding the Dispute Case
No. 488/2010 according to law.
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3] The petitioner and the respondent nos. 1
and 2 or their representatives shall appear before the
Co-operative Court, Nagpur on 05/01/2018 at 11:00
a.m and abide by further instructions/directions in the
matter. The Co-operative Court shall issue fresh notices
to the other opponents and shall ensure early service.
4] As the dispute is of the year 2010 and the
petitioner is aged about 87 years, the Co-operative
Court is directed to dispose the dispute within six
months from the date of service on the other
respondents.
5] Rule made absolute in the above terms. In
the circumstances, the parties to bear their own costs.
JUDGE
Ansari
