Telangana High Court

Raghavendranagar Coopertive ... vs Mr.Mohammed Shaji Ahmed on 4 July, 2022

Bench: G.Anupama Chakravarthy

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

          CIVIL REVISION PETITION No.2130 of 2013

ORDER :

This revision is filed against the order dated 30.10.2012 in

I.A.No.195 of 2012 in O.S.No.211 of 2009 on the file of V

Additional District Judge (FTC), Ranga Reddy District at L.B.

Nagar.

2. I.A.No.195 of 2012 was filed under Section 9 of CPC to

dismiss the suit on the ground that the dispute in question is out of

purview of the Civil Court and the Court has no jurisdiction to try

the matter as it pertains to the Co-operative Societies Act. The said

petition was dismissed by the trial Court. Hence, this revision.

3. The revision petitioner/defendant No.7 is a Co-operative

Housing Society Ltd., registered under the Co-operative Societies

Act, represented by its Secretary. The suit was filed by the

plaintiffs to declare them as absolute owners of the suit schedule

property and for grant of perpetual injunction against defendants 3

to 8, and also for cancellation of the registered sale deed dated

18.11.1978, executed by defendant No.7 in favour of

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D.Subramanya Chary, who is the father of defendants 1 to 6 by

declaring the said sale deed as null and void and to further declare

the registered gift settlement deed dated 02.01.2007 executed by

defendants 3 to 6 in favour of defendants 1 and 2 as null and void.

4. The case of the revision petitioner-Society (defendant No.7)

is that they sold a house plot in favour of one K. Kamala Devi vide

registered sale deed bearing No.1125/1972, dated 21.08.1972, but

subsequently, the Society has executed another sale deed vide

document No.1380/1978, dated 18.11.1978 in favour of one

D.Subramanya Chary, father of defendants 1 to 6, and further,

defendants 3 to 6 have executed the registered gift deed vide

document bearing No.17/2007, dated 02.01.2007. Further, Smt. K.

Kamala Devi sold the property under two different registered sale

deeds bearing Nos.2611 and 2612 of 1994, dated 30.03.1994 in

favour of plaintiffs 1 and 2 and handed over the possession.

5. It is the case of respondents 1 and 2 (plaintiffs 1 and 2) that,

at the time of purchase of the suit schedule property, they have

duly verified the title by obtaining encumbrance certificate and also

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issued paper publication about the purchase of the property. The

petitioner-Society (defendant No.7) had issued notice to the

plaintiffs stating that there is no right to Smt. K. Kamala Devi to

sell the property and therefore, directed them to appear before the

Society with records, for which, the plaintiffs were constrained to

file the present suit.

6. The trial Court, after considering the entire contentions of

both the parties, dismissed I.A.No.195 of 2012 with an observation

that the Civil Court has jurisdiction to try the matter as the dispute

is purely civil in nature.

7. Heard learned counsel for both the parties and perused the

record.

8. It is the contention of the learned counsel for the revision

petitioner that the dispute is with regard to sale of property in

favour of its members, which falls within the purview of Section

61 of the Co-operative Societies Act (Act 7 of 1964) and the Civil

Court has no jurisdiction to try the matter. It is also urged by the

learned counsel for the revision petitioner that no notice was given

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by Smt. K. Kamala Devi before selling the property in favour of

plaintiffs. It is further contended that the disposal of the Society's

property is termed as the business of the Society, and therefore, any

dispute touching the constitution, management or business of the

Society falls within the purview of Section 61 and the Civil Court

has no jurisdiction.

9. On the other hand, the learned counsel for respondents

contended that the Tribunal has no jurisdiction to try the matter as

the issue does not relate to the management or the constitution of

the Society and it purely relates to cancellation of sale deeds and

for declaring them as null and void.

10. On a perusal of the entire record, it is evident that the suit

subject matter is an immovable property. A Division Bench of the

High Court of Andhra Pradesh in M.Venkataramana & another

v. The A.P.Co-operative Tribunal, Hyderabad & others1, has

categorically held in paras 12, 33 and 34 as under:

"12. On point No.1 the first respondent-Tribunal held that the dispute is cognizable by the Arbitrator for

2010 (4) ALT 34

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adjudication under Section 62(1) (b) of the A.P.

Cooperative Societies Act 7 of 1964 (for short the Act) in view of the dismissal of OS No.37 of 2000 by the Civil Court wherein it was held that the civil Court has no jurisdiction to try the case, which finding was confirmed in the appeal also expressing the opinion that the cooperative authority alone has jurisdiction over the dispute. On points 2 and 3, the first respondent-Tribunal held that the Managing committee of the society without taking any legal steps surrendered to the encroachers and executed the sale deeds under the guise that permission was given by the Divisional Cooperative Officer, Kadapa and such an action of the society is not permissible under law. Accordingly, the finding of the Arbitrator declaring the sale deeds as null and void was confirmed by the Appellate-Tribunal. On point No.5, it was held that the Arbitrator has given sufficient opportunity to both parties and the same does not suffer from any infirmities and illegalities. All the appeals were accordingly dismissed by the first respondent confirming the award passed by the Arbitrator, wherein, it was held that the alienation in favour of the writ petitioners herein were invalid and the sale deeds in favour of the writ petitioners herein in respect of 3.2 and 3 cents respectively, are null and void and stood cancelled. Aggrieved by the said dismissal of their appeals CTA Nos.42 and 52 of 2004, the present writ petitions are filed.

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33. When such is the case, the dispute raised by the respondents cannot be termed as one touching the business of the society, within the meaning of Section 61(1) of the Act. The respondents, not only questioned the alienations made by the society in favour of the petitioners, but also sought a relief of cancellation of the sale deeds. The 2nd respondent-Arbitrator while declaring that the transactions are illegal, further held that the sale deeds are null and void and cancelled the same. The Arbitrator further directed the society to cause demolition of the building constructed by the petitioner in an extent of 3.2 cents.

34. Learned counsel for the petitioners would contend that such reliefs can be granted only by a civil Court and not by the Arbitrator, especially, when the dispute raised is not touching the business of the society and, therefore, the arbitrator has no jurisdiction to entertain the same. He would further contend that the bar of jurisdiction contemplated under Section 121 of the Act is not attracted to the present case, as the dispute is not one touching the business of the society and impugned action of the society is not in accordance with the provisions of the Act or Rules, even according to the respondents. He would, therefore, contend that the jurisdiction of the civil Court to entertain a dispute and grant reliefs of the nature prayed for is not ousted. In that connection, he relied upon a decision in Dhulabahai vs. State of M.P. (AIR 1969 SC 78(1)), wherein, the apex Court laid down the principles

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regarding the exclusion of the jurisdiction of the civil Court as follows:

(1) Where the statute gives a finality to the orders if the special tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals."

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11. There is no dispute with regard to the findings recorded by

the High Court in the aforesaid judgment that the Co-operative

Tribunal has no jurisdiction to deal with the civil disputes of the

Co-operative Societies. But, the said judgment does not apply to

the facts and circumstances of the present case, as admittedly, the

present matter is not touching the constitution, management or

business of the petitioner-Society, and as such, it does not come

under the purview of Section 61 of the Co-operative Societies Act.

Therefore, the Civil Court has jurisdiction to try the present suit,

and thus, there is no irregularity or error in the orders passed by the

trial Court in I.A.No.195 of 2012, dated 30.10.2012 so as to