NANDKUMAR M NATEKAR Vs. SHAILA INDAR VASHISHTA

JUDGEMENT

(1.) The petitioner, in this petition under Articles 226 and 227 of the Constitution of India, is original non-disputant No. 1 in the dispute in case No. ABN/MBM/36 of 1973, raised by respondent No. 1 herein, before the District Deputy Registrar, Co-operative Societies, Bombay, under section 91 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as "the Act"). The dispute is with regard to possession of Flat No. 7 in Block B, of the building belonging to respondent No. 2-society. The society is also impleaded as non-disputant No. 2 in the above case. Respondent No. 1 claims to be the holder of the said flat as a member of the co-operative society in accordance with the Rules and regulations of the said society by virtue of being a share-holder therein. Non-disputant No. 1 claimed to be the licensee thereof. In due course of time the dispute was referred to the Officer on Special Duty and even before the non-disputant No. 1 appeared on the scene, the Officer on Special Duty, seems to have passed an order dated 17th January, 1973, indicating his satisfaction that the dispute raised before him was covered by section 91 of the Act. During the pendency of the trial before the Officer on Special Duty, an application was made by the Society, dated 14th August, 1973 to transpose it from the array of non-disputant and allow it to be impleaded as co-disputant with the disputant. It is unnecessary to refer to the averments in the said application in detail. Suffice it to note that the society also claims to have been interested in evicting the licensee as the possession of the licensee became unauthorised in terms of its bye-laws and regulations. This application was allowed by the Officer on Special Duty on 18th February, 1974. The validity of this order is challenged in this Special Civil Application by the original non-disputant No. 1.

(2.) Mr. Shastri, the learned Advocate, appearing for the petitioner, contends that the Officer on Special Duty did not apply his mind to the controversy raised in the dispute and failed to notice that, he had neither jurisdiction to entertain either the suit claim nor had he any jurisdiction to transpose non-disputant No. 2 society, as the co-disputant. The contentions raised by Mr. Shastri also were raised before us in Special Civil Application No. 1036 of 1974. By a judgment delivered by us, dated 19 January, 1976, all these contentions were overruled and it was held that it was open to the Officer on Special Duty to transpose a society impleaded as non-disputant as co-disputant if such an application was made before the Officer on Special Duty. For the reasons indicated in the said judgment of ours, the points raised by Mr. Shastri, in the present petition, are also liable to be overruled.

(3.) Mr. Shastri, however, contends that no such leave for transposition can be granted in a case like the present one, in which it is not even alleged that the licence in favour of non-disputant No. 1 was created with the sanction of the society. Reliance is placed by Mr. Shastri in support of his proposition on the judgment of the Division Bench of this Court in the case of (Pranjumal Hassomal Advani v. Harpal Singh Abanshi Singh) 76 Bom.L.R. 729. We are unable to see how anything observed or held in the judgment can be of any assistance to support the above contention of Mr. Shastri. All that is indicated in the last para of the judgment, on, which reliance was placed by Mr. Shastri, is that, "ordinarily, an occasion to grant an application for such transposition will not arise until the tests laid down in Kalavatis case are fulfilled". The learned Judges then referred to an instance where the society seeks to be transposed as co-respondent, where the licence in the flat was created with the permission of the society and such a licensee is sought to be evicted. It is clear to us that this instance is indicated merely by way of an illustration. Nothing could be faster from the minds of the learned Judges than to say that in such a case alone an application for transposition can be granted. On the question whether tests laid down in Kalavatis case can complied with or not, averments in the pleadings alone can be considered at this stage. It is enough to note that even the plaint was not amended when the impugned order was passed. We are, thus unable to see any merits in the application.