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Smt. Vidyawati v. Xiith A.D.J. & Ors. - WRIT - C No. 10983 of 1984 [2007] RD-AH 4929 (20 March 2007)


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Judgement Reserved on 8.1.2007

Judgement Delivered on 20.3.2007


Civil Misc. Writ Petition No. 10983 of 1984

Smt. Vidyawati and others Versus XII Additional District Judge Kanpur and others.

Hon'ble S.U.Khan J

Respondent No.3 Shiv Sagar Tiwari filed O.S No. 1931 of 1980 against Vidyawati petitioner No.1, her husband Brij Bihari Shukla petitioner No.2, Karamchari Nagar Housing Society petitioner No.3 and Mohan Lal, Secretary of the Society petitioner No.4.

The allegation in the plaint was that the Cooperative Housing Society defendant No.3 had allotted plot No. 158 to the plaintiff on 8.10.1971 through registered lease deed and possession had also been delivered to him, however on 6.12.1980, he found that defendant No. 1 and 2 were making constructions over the said plot. The relief claimed was for permanent prohibitory injunction restraining the defendants from making construction or encroaching upon the property. Relief of possession was also claimed. Defendant No.1 and 2 filed written statement and pleaded that the society had allotted the plot in dispute to defendant petitioner No.1 and hence they made constructions over the plot in dispute. It was further pleaded by the defendant No.1 that lease of plaintiff was cancelled by the Society as plaintiff failed to comply with the terms and conditions thereof and plaintiff was dispossessed from the plot earlier allotted to him and thereafter it was allotted to defendant No.1. Replication was also filed by the plaintiff thereafter.  Defendant No. 1 and 2 through application dated 2.9.1983 sought amendment in the plaint for adding the plea regarding bar of section 70 of U.P. Cooperative Societies Act 1965. Issues were framed and issue No. 10 pertained to the jurisdiction of Civil Court in view of section 70 of U.P. Cooperative Societies Act. VIII Additional Munsif Kanpur through order dated 15.12.1983 held that the suit was barred. Against order dated 15.12.1983, plaintiff filed Misc. Appeal No. 9 of 1984. XII Additional District Judge, Kanpur allowed the appeal on 21.4.1984. Appellate court set aside the order of the trial court and held that the suit was not barred under section 70/ 111 of U.P. Cooperative Societies Act. The said order of appellate court has been challenged through this writ petition.

Under section 70 of the Act, it is provided that if any dispute relating to the constitution, management or the business of a Cooperative Society among members, past members and person claiming through members shall be referred to the Registrar for action in accordance with the provisions of the Act and the Rules and no court shall have jurisdiction to entertain any suit or other proceeding in respect of any such dispute. Under Section 111 (C) of the Act, it is provided that no Civil or Revenue court shall have any jurisdiction in respect of any dispute required under section 70 to be referred to the Registrar.

The appellate court held that even though it was admitted to the parties that the business of the cooperative society concerned was allotment of plots for construction of houses to its members however in the suit in question no such dispute was involved. It was also held that it was not proved that defendant No.1 was member of the society. It was also held that defendant No.2 was not even alleged to be the member of the society.

In my opinion the judgement of the appellate court is erroneous in law. To allot the land to its members  was/ is are business of the society in question. Two persons are claiming the allotment of the same plot. Both of them are also claiming to be members of the society.  The mater is squarely   covered by section 70 of the Act. The question as to whether defendant No.1 was valid member of the society or not can also incidentally be decided by the Registrar under section 70 of the Cooperative Societies Act.

Accordingly writ petition is allowed. Impugned order passed by the appellate court is set-aside. Order passed by the trial court is restored and it is held that the suit is not maintainable in view of section 70 and 111 ( c) of the U.P Cooperative Societies Act.



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