Nain Singh And Anr. vs Mishro Devi
2007 Latest Caselaw 1915 Del

JUDGMENT

Mukul Mudgal, J.

1. Rule DB. With the consent of the learned Counsel for the parties this writ petition is taken up for final hearing.

2. This writ petition challenges the impugned order dated 28th June, 1990 passed by the Presiding Officer, Delhi Cooperative Tribunal. The petitioners claim the title to plot No. B-76, Ramgarh, Delhi which was carved out by the respondent No. 2, Wazirabad Coop. Multi-purposes Society. The respondent No. 1, Mishro Devi's case before the Delhi Cooperative Tribunal was that her father Mani Ram was a founder member of the respondent No. 2 society and had nominated her mother Ram Kali as his nominee, and that her mother Ram Kali having died during the life time of her father Mani Ram and thereafter no other nominee having been appointed by the father of the respondent No. 1 Mani Ram, the three daughters of Mani Ram, including the respondent No. 1 and her other two sisters were entitled to the membership of the Society. Further, the respondent No. 1 averred that her two sisters had relinquished their rights in favor of the respondent No. 1 and consequently the respondent No. 1 was enrolled as a member of the respondent No. 2 society as per the provisions of Section 26 of the Delhi Cooperative Societies Act, 1972 (hereinafter referred to as the Act) read with Rule 35(6) of the Delhi Cooperative Societies Rules, 1972 (hereinafter referred as the Rules). A plot bearing No. B-76 was accordingly allotted to the respondent No. 1 by the society. The nephews of her late father, Mani Ram thereafter attempted to interfere with the possession of the respondent No. 1 and accordingly an application under Section 60 of the Cooperative Societies Act was moved by the respondent No. 1 before the Registrar Cooperative Societies for adjudication of the dispute between the parties under Section 61 of the said Act. This led to the impugned award of the Arbitrator dated 18th April, 1990 under Section 61 of the Act. The following issues were framed by the Arbitrator:

1. Whether Shrimati Mishro Devi is the rightful owner of the plot?

2. Whether the possession of the plot should be restored to the Claimant?

3. Any other relief which may be given to the parties.

3. The arbitrator noticed the plea of the petitioners that they are in adverse possession of the plot in dispute for more than 12 years and that there was an agreement dated 31st July, 1981 by which the plot was given to them by the deceased Mani Ram for services rendered by them. The Arbitrator held that these two pleas of adverse possession and their title by valid agreement were contradictory in nature. It was also held by the arbitrator that Mani Ram having died in 1987, if there was a valid agreement between Mani Ram and the petitioners herein, the petitioners ought to have made an application for allotment of the plot in question to the Society during the life time of the deceased Mani Ram or even after the death of Mani Ram, which was not done by the petitioners. Another plea raised by the petitioner before the Arbitrator as well as before this Court that the Registrar in the proceedings under Section 60 of the Act cannot decide the dispute between the parties, was also rejected by the arbitrator on the ground of the civil suit filed by the petitioners having failed on the ground of jurisdiction. The Arbitrator held that the respondent No. 1 had acquired the membership legally as per the provisions of the Act and Rules and that since the respondent No. 2 Society had itself admitted that the respondent No. 1 was entitled for restoration of possession, it was the duty of the Society to handover the possession of the plot to the respondent No. 1. The Tribunal, also noted that the respondent No. 2 Society had accepted the claim of the respondent No. 1 and supported her case before the Arbitrator and the Tribunal.

5. Before we consider the plea of the petitioners in this Court about the lack of jurisdiction of the Registrar under Section 60 of the Act, it is necessary to consider the order passed in the Civil Suit filed by the petitioners against the respondent No. 1. The relevant portion of the said order of the Civil Judge dated 28th July, 1987 reads as follows:

Both the parties claim their ownership, right in the plot in dispute from the cooperative society. The latest allotment having been made on 7.1.87. However, there is no document to show that such an allotment has ever been made by the Wazirabad Multi Purposes society.

Since in the written statement preliminary objection was taken by the defendant that an earlier bearing No. 128/87 filed by the plaintiff was withdrawn as the plaintiff felt that he will not get the relief of injunction. I ordered for summoning of that particular file. The earlier suit was dismissed as withdrawn with the permission to file fresh suit by Shri Pawan Kumar, Sub Judge, Delhi vide his order dated 13.3.87. However, the plaintiff in that case contained the facts which are almost identical in the present plaint. Without adverting to the fact as to why the earlier suit was withdrawn, I come to the merit of the present application under Order 39 Rule 1 and 2 CPC. The bare perusal of the plaint makes it abundantly clear that the plot in question was given by the management of the society known as the Wazirabad Multi Purpose Cooperative Society to Shri Mani Ram (para three of the plaint), the defendant also claimed their right to the plot in dispute on the basis of allotment made to said Shri Mani Ram. The defendant's case is that before the death of Mani Ram the plot in question was allotted to Mishro Devi wife of defendant No. 1 Smt. Mishro Devi is alleged to be the daughter of Mani Ram. Plaintiffs have based their claim on the agreement allegedly executed by Shri Mani Ram in their favor vide which they were allowed to enjoy the plot in suit in equal shares and the legal heirs of the executant (Mani Ram) were debarred from claiming any right.

Section 60 of the Delhi Cooperative Society Act 1972 makes it clear that civil court will have no jurisdiction in cases/disputes touching the constitution, management or the business of a Cooperative Society other than a dispute regarding disciplinary action taken by the society or its remedy against a paid employee of the society arises. A persual of this particular section makes it clear that the allotment of the plot in suit to Shri Mani Ram by the Cooperative Society is the basis of claim of both the parties. Defendant claims through the legal heirs and plaintiffs claim on the basis of the agreement. that being the position, Section 60 of the Act (hereinafter referred to Act) is attracted. The plaintiffs had an efficacious remedy before the Registrar Cooperative Society and the jurisdiction of the Civil Court is barred under Section 60 of the Act. It has been mentioned in Section 60(3) of the Act that if any question arise whether a dispute referred to the Registrar under this Section is or is not a dispute touching the constitution, etc. the decision therein of the Registrar shall be final and shall not be called in any court. Section 60(2) of the Act is in the form of illustration and is not exhaustive. In my view the present case falls Section 60(a) of the Act and Civil Court has no jurisdiction. Accordingly, the suit as well as the application of the plaintiff is dismissed.

6. It is not in dispute that this order of the Civil Judge which holds that the plaintiff has efficacious remedy before the Registrar of Cooperative Society and that the jurisdiction of the Civil Court is barred under Section 60 of the Act, still holds the field. Thus, there was an order the Civil Judge holding that the dispute sought to be raised by the petitioner ought to have been preferred to the Registrar. Accordingly, in our view it will not be open to the petitioners when they are bound by the order of the Civil Judge, which has not been challenged further, to contend that the dispute was not referrable to the Registrar Cooperative Societies. Whether or not the Registrar had the jurisdiction is the moot question raised by the petitioner who was the plaintiff in Civil Suit No. 123/87 and is fully bound by the aforesaid order of the Sub Judge dated 28th July, 1987. The order of the Registrar was challenged before the Tribunal who noted the fact that a civil suit filed by the petitioners was rejected as also a writ petition in the Delhi High Court and this clearly indicated that the petitioners could not have agitated the plea of lack of jurisdiction.

7. Accordingly, the plea of lack of jurisdiction in our view does not have any substance. We are informed that the reply was filed by the petitioners on 17.6.1990 and the counsel was not given opportunity of being heard. However, we have heard the learned Counsel for the petitioner at length, hence this grievance of not being heard by the Tribunal has become academic.

8. The Tribunal, as stated above, has sustained the finding of the Arbitrator regarding dismissal of the civil suit and also found that the pleas of adverse possession and getting the plot by way of agreement were contradictory and inconsistent. The learned Counsel for the petitioner states that these pleas were alternative pleas. In any event, we are satisfied that neither of the pleas, even if taken alternatively, has any substance for the reasons set out by the Arbitrator in the award, which reasons we affirm. In any case, in so far as the validity of the membership of the respondent No. 1 and the direction to the Society to restore the possession of the respondent No. 1 are concerned, we do not find any reason to interfere as we find substantial merit in the pleas raised by the learned Counsel for the respondent. In the interest of justice also the impugned order does not warrant any interference under Article 226 of the Constitution of India. The petitioners who are the nephews of the deceased Mani Ram are seeking to oust the daughter of the deceased Mani Ram, which in itself cannot be termed equitable, more so as the petitioners have their own plots bearing No. 77 and 78 in the respondent No. 2 Society. The acceptance of their plea would thus result in miscarriage of justice. Even on this ground, the impugned order does not warrant interference in the exercise of the equitable and discretionary jurisdiction of this Court under Article 226 of the Constitution of India.

9. The writ petition is accordingly dismissed and stands disposed of accordingly.

10. In the interest of justice, we direct that this order will not be executed until 20th November, 2007. Since this order was passed after the departure of the learned Counsel for the respondent, the learned Counsel for the petitioner is directed to convey this judgment to the learned Counsel for the respondent not later than a week from today.