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Cites 7 docs - [View All]

The Delhi Rent Act, 1995
the Co-operative Societies Act, 1912
Section 14 in The Limitation Act, 1963
Section 2 in The Delhi Rent Act, 1995
J.L. Bose vs Brigadier Atindra Mohan ... on 6 June, 1989
Citedby 7 docs
- [View All]
Garh-Moyna Samabay Krishi ... vs The State Of West Bengal & Ors on 26 March, 2008
Tamralipta Co-Operative ... vs Smt. Seetadevi Jagdishprasad ... on 23 April, 2018
Jenson And Nicholson (India) Ltd. vs Assha Co-Operative Housing ... on 14 October, 1993
State Bank Of India vs Madhumita Construction (Pvt.) ... on 16 July, 2002
Housing Society Limited vs M/S. R/C Bysack And Another on 3 March, 2016

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Calcutta High Court
Anjan Choudhury vs Anandaneer Co-Operative ... on 28 March, 1990
Equivalent citations: AIR 1990 Cal 380, (1991) 2 CALLT 17 HC, 94 CWN 515
Author: A Bhattacharjee
Bench: A Bhattacharjee, K Ganguli, A K Nandi

ORDER
A.M. Bhattacharjee, J.

1. On a
reference being made by a Division Bench of this Court, the present
rule has been referred to this larger Bench for disposal as according to the
referring Bench, the same involves "a very important question" decision
whereon "may lead to far-reaching consequences."

2. Under Section 86(1) of the West Bengal Co-operative Societies Act, 1973 "any
dispute relating to the affairs of a Co-operative Society" was required to be
referred to the Registrar if the parlies thereto were as specified in clauses (a),
(b), (c) and (d) to that sub-section and under Section 132(2)(d) of the said Act,
no Civil Court would have any jurisdiction in respect of "any dispute required
under Section 86 to be referred to the Registrar". The important question,
according to the order of reference, is what were the disputes that were
required to be so referred to the Registrar under Section 86(1)(d) and were
accordingly not justiciable in a Civil Court and, the Rule in its entirety having
been referred to this Benchfordisposal, the further consequential question is
whether the dispute involved in the Civil Suit, giving rise to this revisional
application, is such a dispute.

3. When the order of reference was made in 1985, the Act of 1973 was still in
operation and the present Act of 1983, which has replaced the Act of 1973, was
yet to come into force which has thereafter come into force with effect from
1st August, 1987. Section 3 of the Act of 1983, while repealing the earlier Act of
1973, has provided in sub-section (2) that "anything done or suffered or action
taken (including ..... any suit or proceeding commenced, any dispute decided,
any right or title accrued, or any liability or obligation or penalty incurred)"
while the preceding Act was in operation, "shall be deemed to have been done
or suffered or taken under this Act, as if the provisions of this Act were in
force at all material times when such thing was done or suffered or such
action was taken". As a result, since the repeal and replacement of the Act of
1973 by the Act of 1983 in 1987, the law to be considered for the present
proceeding, including the suit that has given rise to it, is that contained in the
new Act of 1983 and we propose to dispose of this Revision with reference to
the provisions of the present Act. Be it, however, noted that the relevant
provisions material for our present purpose of the Act of 1973 and the Act of
1983 are almost in pari materia. The relevant provisions are Sections 86(1)
and S. 132(2) of the Act of 1973, now repealed, and Sections 95(1) and 134(2) of
the present Act of 1983 and the material pqrtions thereof are reproduced
hereinbelow :--

Act XXXVIII of 1973 :--

"86(1) Any dispute relating to the affairs of a Co-operative Society or of the

liquidator of a society shall be referred to the Registrar if the parties thereto
are among the following, namely :--
(a) the society, its managing committee, any past or present officer, agent or
employee or the liquidator of the society; or

(b) a member, past member or person claiming through a member, past

member or deceased member of the society; or

(c) a surety of a member, past member or deceased member of the society,

whether such surety is or is not a member of the society; or

(d) any other co-operative society or any person (including a financing bank)
having transactions with the concerned co-operative society or the liquidator
of such society."

"132(2) Save as provided in this Act, no Civil or Revenue Court shall have any
jurisdiction in respect of-

(d) any dispute required under S.86 be referred to the Registrar;"

Act XLV of 1983 :--

"95( 1) Any dispute concerning the business of a co-operative society capable

of being the subject of civil litigation or any dispute relating to the affairs of a
co-operative society (other than a dispute relating to the disciplinary action
taken by a co-operative society against the paid employees of the co-operative
society of the terms and conditions of the service of the paid employees of the
cooperative society) shall be referred in the prescribed manner to the
Registrar, if the parties thereto are among the following :

(a) a co-operative society or its board or an officer (past or present), agent,

employee or liquidator of a co-operative society; or

(b) a member or a past member or a person claiming through a member or a

past member or on behalf of a deceased member of a cooperative society or a
financing bank of a eo-operative society; or

(c) a surety of a member or past member or deceased member of a co-

operative society, whether such surety is or is not a member of the co-
operative society; or

(d) any other co-operative society or any person including any financing bank
having transaction with a co-operative society or any liquidator of a co-
operative society."

"134(2) Save as provided in this Act, no Civil Court or Revenue Court shall have
jurisdiction in regard to -

(d)any dispute required under S. 95 to be referred to the Registrar."

4. The question that has arisen for our consideration is what are the disputes
which were and are required to be referred to the Registrar under S.86(1) of
the Old and S. 95(1) of the New Act and, are, therefore, not cognizable by the
Civil Courts under S. 132(2) of the Old and S. 134(2) of the New Act. We would
have to construe the expression "dispute" and ascertain the denotation and
connotation of the term "dispute" in the context of those Sections.

5. Mr. Motilal, the learned Counsel appearing for the petitioner, accordingly
started placing before us the latest Editions of Craies on Statute Law and
Maxwell on Interpretation of Statutes and regretted very much that he could
not get handy Crawford 's Statutory Construction.

6. Learned Members of the Bar and the Bench very often forget that gone are
the days when Maxwell came out with his First Edition in 1875 and the Second
Edition in 1883 and Craies with his First Edition in 1907, when those leading
treatises on interpretation or construction of Statutes could be", and in fact
were, immensely useful. But as Chandrachud, C.J., pointed in the First Judge's
Transfer Case (Sankalchand Seth, ), the principles of interpretation, with rules
pulling in different directions, have become a murky area and just as a case-
law digest can supply an authority on alnfost any thinkable proposition, so
also these principles have collected over the years divergent formulae which
can fit in with any interpretation which one may choose to place. To quote
from Denning (Discipline of Law -- 1979 -- page 9), "if you find a maxim or rule
on your side, your opponent will find one on his side to counteract it". Let us,
therefore, put aside these treatises for the time being until we feel that our
endeavour to understand the plain mean-ing of the relevant provisions,
apparently written in plain English, will not succeed without the aid of these
treatises. Now that we have said "plain meaning of plain English", we have
reminded ourselves of the classical observations of Vivian Bose, J. In the
Supreme Court decision in Seksaria Cotton Mills, that the more learned a
person is in law, the more puzzled he would be "for it is not till one is learned
in the law that subtleties of thought and bewilderment arise at the meaning of
plain English words, which any man of average intelligence, not versed in the
law, would have no difficulty in understanding". We dare say that we, my
Lords Ganguli and Nandi, JJ., and myself, have not felt much difficulty in
understanding the relevant provisions on a plain, though careful, reading
thereof. May be, we are not that learned or versed in law to suffer from any
sort of amblyopia, which, according to the dictum of Vivian Bose, J., may result
from learning in law.

7. As we have already noted, any "dispute" required to be referred to the

Registrar under S. 86(1) of the Old or S. 95(1) of the New Act, would go out of
the jurisdiction of the Civil Courts because of S. 132(2) of the Old and S. 134(2)
of the New Act. The expression "dispute" has been defined in S. 2(20) of the
New Act as "any matter capable of being the subject of civil litigation, and
includes a claim in respect of any sum payable to or by a co-operative society".
The definition as in S. 2(q) of the Old Act was also the same, but for the
addition of the words "whether such claim be admitted or not" at the end,
which probably makes no difference and surely no difference for our present
purpose.
8. Having defined the term "dispute" as
"any matter capable of being the
subject of civil litigation", user of those very words purporting to qualify the
expression "dispute" in S. 95(1) of the New Act is obviously sheer tautology. But
enactment of good law is good enough, even if the language may lack
precision. Be that as it may, what must go to the Registrar under S. 95(1), and
would go out of bounds of the Civil Courts, is a "dispute" which is "concerning"
the "business of" or "is relating to the affairs of a cooperative society. The
expressions "concern-ing" and "relating" and the expressions "business" and
"affairs" may sound synonymous and reference to the Lexicon may also go to
support such an impression. Tautology again ? We do not think so.

9. Anything concerning the business of a co-operative society is a matter

relating to the affairs of the society. But everything relating to the affairs of the
society may not be concerning the business of that society. Lending money to
its members is obviously the business as well as the affairs of a "Cooperative
Credit Society" as defined in S. 2(p) of the Act of 1973 and S. 2(17) of the Act of
1983. Providing its members with residential accommodation is obviously the
business as well as the affairs of a "Co-operative Housing Society" as defined in
S. 2(18) of the Act of 1983. But any dispute relating to the appointment or
termination of service of any of the officers or employees of the society or any
dispute relating to the holding or not holding the statutory meetings would be
one relating to the affairs of the society, but not necessarily concerning its
business. From that point of view, even though the two expressions business
and affairs may very often be used synonymously, the expression affairs has a
wider connotation or import than the expression business. As we have already
indicated, disputes relating to the constitution of the society, or the election of
its office-bearers, or the conduct of its general meeting and the like are
obviously disputes relating to the affairs of the society, but may not be
disputes concerning concerning the business of the society, where the business
of the society, as per its Rules and By-laws, consists of, say, lending money to
its members as in the case of
Co-operative Credit Society, or providing
accommodations to its members, as in the case of a Co-operative Housing
Society.

10. Reference in this connection may be made to three decisions of the

Supreme Court in Deccan Merchants Co-operative Bank, , in Sabharwal
Brothers, and in O. N. Bhajnagar, AIR 1982 SC 1097
, in all of which the
analogous provisions of S. 91 of the Maharashtra Co-operative Societies Act.
1961, fell for consideration and the expression "touching the business." in
S.91(1) of the Act had to be construed. But the context in which the expression
business was used in S. 91(1) of the Maharashtra Act would have to be noted in
order to appreciate as to why the expression "business" was given a somewhat
narrow connotation and not equated with all "affairs" of the society. There
relevant provisions of S. 9.1(1) of the Maharashtra Act material for our
purpose, read as here-under :--
"any dispute touching the constitution, election of the office-bearers, conduct
of general meeting, management or business of a society."

Now as in common life, a man is very often known by the company he keeps, a
word also very often suffers alteration or variations in its colour, contents and
connotation in the context of the collocation in which it is used and this rule is
epitomised in the maxim Noscitur a Socois. And in the context of the
proceeding words "constitution", "election of office-bearers", "conduct of
general meetings" and "management", the succeeding word "business" in
S.91(1) was held in Deccan Merchants Co-operative Bank (supra) to have been
used in the narrower sense and to mean "the actual trading or commercial or
other activity of the society which the society is authorised to enter into under
the Act and the Rules and its by-laws". And this was followed in the later two
decisions in Sabharwal Brothers (supra) and in 0, P. Bhatnagar (supra).

11. In Decan Merchants Co-operative Bank (supra), the Supreme Court has
pointed out (at 1326, paragraphs 18, 23) that if a society, e.g., a Co-operative
Credit Society,
"owns buildings and lets out parts of buildings which it does not
require for its own purpose, it cannot be said that letting out of those parts is a
part of the business of the society". But the Supreme Court has pointed out
further (supra) that if "it is the business of a society to construct and buy
houses and let them out to its members", "in that case letting out of property
may be part of its business", in that case the society was a Co-operative Bank
and the dispute was relating to tenancy "between a tenant and a member of
the Bank in a building which has subsequently been acquired by the Bank"
and was. accordingly held not to be dispute "touching the business of the
Bank". The Supreme Court, however. added (supra, paragraph 23) that it was
"doubtful that the word 'dispute' would include a dispute between a landlord
society and a tenant, when the landlord society has hot been set up for the
purpose of constructing or buying and letting out houses", clearly, implying
thereby that where the business of the society is to construct or acquire and to
let out premises to its members, as in the case of a Co-operative Housing
Society, a dispute relating to such tenancy between the Society and the
member may come within S. 91(1) and may thus go out of the reach of the
Civil Courts, notwithstanding all that may be contained in the "various Rent
Acts which give special privileges to tenants".
12. In Sabharwal Brothers (supra), the respondent acquired the disputed flat
as a member from a Co-operative Housing Society whose business was to let
out premises to its members. The respondent, in her turn, let out the same to
the appellant for certain term and the dispute was, therefore, between a
member-tenant of a Co-operative Housing Society and a tenant under such
member-tenant. The Supreme Court has ruled (at 1895, paragraph 9) that
apart from the fact that such letting out by a member-tenant was in breach of
the relevant by-laws which could affect the member's right to membership, it
was also difficult to see as to how "letting by a member to another would touch
the business of the society", which was to provide its own members with
accomda-tion. But it was nevertheless pointed out that "the position might
have been different if the
latter (i.e. the appellant) had himself been a tenant
of the Flat under the society", implying thereby that a dispute relating to
tenancy between a member-tenant of a society and the society, whose
business is to let out premises to its members, would have come within S. 91(1)
to be governed by the Act, notwithstanding the provisions of the Rent Acts
dealing with landlords and tenants of premises.

13. The observations in Deccan Merchants Co-operative Bank (supra) and in

Sabharwal Brothers (supra), therefore, appear to be authority for the view
that if the society is one whose object is to provide accommodation to its
members and in furtherance of such object, it lets out a premises to one of its
member, disputes relating to such letting out would be disputes "touching the
business" of the society within the meaning of S. 91(1) of the Maharashtra Co-
operative Societies, Act, 1961 to go out of the jurisdiction of the ordinary Civil
Courts and to be decided by the authorities under the Act.

14. In O. P. Bhatnagar (supra) AIR 1982 SC 1097

, Deccan Merchants
Cooperative Bank (supra) was exaplained on the footing that the society in
that case was a Co-operative Bank and ordinarily a Co-operative Bank cannot
be said to be engaged in business when it lets out property owned by it" and
therefore the dispute relating to tenancy of a portion of the building belonging
to the co-operative society could not be a dispute under S. 91(1) to become
non-justiciable in a Civil Court. In respect of Sabharwal Brothers (supra), it
was held (at 1105) that the same "decided only one point, albeit a point of
great importance, namely, that the Society having sold the flat,..... the letting
out of the flat by the fist-owner was no concern of the society" as "there was
nothing to show that such letting would affect the business of the society once
it has sold the falt". But it has been pointed out further that the observation in
Sabharwat Brothers (supra) to the effect that "the position might have been
different if the latter had himself been a tenant under the society" would
"logically" and "as a necessary
corollary" lead to the conclusion that if the
society had let out the flat to the appellant, "the decision of this Court would
have been otherwise" implying thereby that the dispute in that case could not
have been taken co-ognizance of by the Civil Courts.

15. Even though this is not the precise

question which has been referred to
this Bench, we have adverted to this- aspect in some details as a rather recent
Division Bench decision of this Court in Re-Sipra Mitra, (1987) 91 Cal WN 698
has, after referring to and purporting to be governed by the aforesaid
Supreme Court decisions, laid down certain propositions with which we have
not been able to agree and we are inclined to think, and this we say with due
respect, that the said Division Bench decision goes counter to the ratio of the
decisions of the Supreme Court above referred to. The Division Bench has
observed (at 705) that "we also hold that it was not the intention of the
legislature to deprive a tenant in a building owned by a co-operative society of
the benefits given by the various provisions of the Rent Act" and for this the
Division Bench has relied strongly on Deccan Merchants Cooperative Bank
(supra). As we have already pointed out, the main ground on which the
dispute in Deccan Merchants Co-operative Bank (supra at 1326) was held to be
not a dispute under S. 91(1) was that the society being a Co-operative Bank,
whose business was not and could not be inducting tenants, "the dispute
between a tenant and a member of the Bank in a building which has
subsequently been acquired by the Bank cannot be said to be a dispute
touching the business of the Bank" to come within S.91(l) of the Maharashtra
Co-operative Societies Act, 1961. The Supreme Court also adverted to the
question of competing jurisdiction of the Civil Courts under the Rent Acts and
of the authorities under the Cooperative Societies Act relating to eviction of
tenants in respect of buildings owned by the co-operative societies and
observed that it could hardly be "the intention of the legislature to deprive
tenants in buildings owned by co-operative societies of the bene-fits given by
the Rent Act" and that "for
achieving that social objective it is necessary that a
dispute between the landlord and the tenant should be dealt with by the
Courts under the Rent Act and in accordance with the special provisions of the
Rent Act" and that "the two Acts can be harmonised best by holding that in
matters covered by the Rent Act, its provisions, rather than the provisions of
the (Co-operative Societies) Act should
apply."
16. In appreciating these observations.

however, it must be borne in mind that the Supreme Court was dealing with a
case where, as pointed out by the Supreme Court, the concerned Society being
a Co-operative Bank, letting out portion of its houses even to its members
could not be a matter touching the business of the Society. And all that the
Supreme Court intended to convey was that even though disputes touching the
business of a Co-operative Society are to be decided by the authorities under
the Act and not by the Civil Courts, a dispute between the Society, which is Co-
Operative Bank, and its member to whom a tenancy has been granted by the
society is not to be treated as "disputes" within the meaning of Section 91(I) of
the Act and it could not be expected that the legislature intended to deprive
the tenants in buildings owned by Co-operative Societies of the benefits given
by the Rent Act and the Rent Act would apply proprio vigore to disputes
relating to ejectment of tenant, even though a Co-operative Society is the
landlord and its member is the tenant. But even in Deccan Merchants Co-
operative Bank (supra, paragraphs 18. 23) and also in
Sabharwal Brothers.
(supra, paragraph 9) the Supreme Court took care to make it clear that where,
as in the case of Co-operative Housing Society, the very
. business or affair of
the Society is to provide accommodation to its members and the Society lets
out premises, acquired or construct-ed by it, to its members, a dispute relating
to ejectment between such a Society and its member-tenant would obviously
be a dispute
touching the business of the Society to be
governed by and under
the provisions of the Co-operative Societies Act.
17. In Sipra Bitra (1987-91 Cal WN 698) (supra), the claim for recovery of
possession was a made by a member of the Co-operative Housing Society to
whom a flat was allotted by the Society, against the tenant inducted by such
member. It appears that the tenant was so inducted as a result of a tripartite
agreement between the Society, the allottee-member and the tenant and under
the By-laws of the Society such letting out by a member-allottee could only be
done with the permission of the Society. If the business of a Housing Co-
operative Society is to allot premises to its members and also to permit any
such member to let out such premises to other out-sider, then it may be
difficult to understand as to why a dispute relating to eviction of such a tenant
would not be one relating to the affairs of the Society, the Rules and By-laws of
which provide and authorise such letting out. We have no doubt that the
observations of the Supreme Court in Deccan Merchants Co-operative Bank
(supra), to the effect that "it was not the intention of the Legislature to deprive
a tenant in a building owned by a Co-operative Society of the benefits given by
the various provision pf Rent Act" must be read subject to this rider that if the
business or affair's of the Co-operative Society is to let out premises to its
members, as in the case of a Co-operative Housing Society, any dispute relating
to such tenancy including recovery of possession of the tenanted premises,
shall squarely come within Section 95(1) of the Act of 1983 and would have to
be adjudicated under and in accordance with the provisions of that Act, if the
parties to the dispute are the Society and the member-tenant or such others
are specified in clauses (a), (b), (c) and (d) of that Section. This has been
indicated by the Supreme Court in Deccan Merchants Cooperative Bank
(supra) while in O. P. Bhat-nagar AIR 1982 SC 1097
(supra) the Supreme Court
has gone much further and has ruled (at 1104, paragraph 19) that if the Society
is a tenant-co-partnership type housing society formed with the object of
providing residential accommodation to its copartner tenant members", "it is
as much the concern of the Society..... to ensure that
the flats are in occupation
of its members in accordance with the bye-laws framed by it, rather than a
person in unauthorised occupation, as it is the concern of the member, who
lets it out to another under an agreement of leave and licence and wants to
secure possession for his own use after the termination of licence" and "it
must, therefore, follow that a claim by the Society together with such member
for ejectment of a person who was permitted to occupy having become a
nominal member thereof, upon revocation of licence, is a dispute falling
within the purview of Section 91(1) of the Act.".
18. We are grateful to our learned brother Ganguli, J., for letting us know in his
interesting judgment in J. L. Bose v. Brigadier Atindra Mohan Bhattacharjee,
about the hoary past of the Rent Restriction Laws from the 15th Century and
the development of the status of the tenants almost to the position semi
irremovability and it may be that days have come or are well-nigh coming to
the birth of a new legal maxim, namely, 'once a tenant, alway a tenant' and of
a new juristic approach to regard non-ejectibility of tenants to be the rule and
ejectability to be the exception. Gone is that stage of civilisation when, as
pointed out by Sir Henry Maine, the progress of the human society was
gradually from status to contract and the present move is rather on the
reverse gear, i.e. from contract to status. Gone are the days when one could
hire and fire a servant or a tenant as he pleased and the modern
jurisprudence is going all the way to invest the servants, the tenants and
others with secured and edurable status founded on the terra firma of laws,
both statutory and non-statutory. As pointed out by Ganguli, J., the West
Bengal Premises Tenancy Act of 1956, is one such measure and almost every
time the Legislature has thought it fit to amend the same, the amendments
have, by and large, demonstrated their bias in favour of the tenants and
against the landlords. Our Judicial exposition of such laws must, therefore, be
in tune with such legislative intendment and should not aim at, wherever
possible, depriving tenants of its beneficial protections.

19. But we cannot but note that the West Bengal Co-operative Societies Acts,
the preceding one of 1973 and the succeeding one of 1983, are also enacted by
the same Legislature and having assented to by the President its provisions
would, to the extent they go, outweigh the provisions of the West Bengal
Premises Tenancy Act of 1956, wherever the latter is inconsistent with the
former. And; therefore, if the business or the affairs of a Co-operative Society,
which is a Housing Society as defined in Section 2(18) of the Act of 1983, is to
grant tenancies to its members a dispute between such tenant-member and
the Society would obviously be a dispute "concerning the business" and
"relation to the affairs" of the Co-operative Society within the meaning of
Section 95 and no Civil Court would have jurisdiction to entertain the same in
view of Section 134 and the same would have to be referred to the Registrar
alone under Section 95.

20. From the Order of Reference it

appears that there are two decisions
rendered
by two learned Judges of this Court holding
that Section 86 of the Act
of 1973, cor
responding to Section 95 of the Act of 1983,
"are wide enough to
cover all disputes con
cerning the co-operative society." The Divi
sion Bench in
the order of reference has
expressed its apprehension that such a view
would
"lead to the result that all kinds of suits
in which the Co-operative Society may
be
involved, irrespective of whether they involve
complicated questions of
law or not, would be
out of bounds for the Civil Court and must be
adjudicated
by the Registrar". The Division
Bench wondered "as to whether the Legis
lature really intended to confer upon the
Registrar -- not being properly
equipped as a
Civil Court -- the entire jurisdiction of the
Civil Courts for the
purpose of adjudicating
complicated civil suits irrespective of their
nature and
character, in the event a Co
operative Society is a party to the said
dispute."

21. We are afraid that if, as noted in the order of reference, the learned single
Judges have stated that "the provisions of Section 86"

(of the Act of 1973, now replaced by Section 95 of the Act of 1983) were "wide
enough to cover all disputes concerning the Co-operative Society", they have
stated the proposition too broadly. As we have already indicated, the "dispute",
in order to come within the provisions of Section 86 of the Old Act and Section
95 of the New Act and thus to go out of the jurisdiction of the Civil Courts
under the provisions of Section 132 of the Old and Section 134 of the new Act,
must be disputes, not just concerning or involving a Co-operative Society, but
concerning the business or relating to the affairs of the Society, such business
of affairs which the Society is authorised to be concerned with or be involved
in order to carry out its objectives under the Act and as chartered by and in its
Rules and Bye-laws. A loan granted by a Society which is only a Co-operative
Housing Society and not a Co-operative Credit Society, or a tenancy granted in
respect of a portion of its property by a Society which is a Co-operative Credit
Society and not a Co-operative Housing Society, cannot thus give rise to a
dispute concerning the business or relating to the affairs of the Society. But, as
already stated, if the dispute concerns or relates to something which the
Society is legally authorised to and required by its Rules and Bye-laws to
undertake, it would squarely come within the provisions of Section 95 of the
new Act, corresponding to Section 86 of the old Act and cannot be entertained
by the Civil Court if the parties to the dispute are as specified in those Sections.
And once these conditions are satisfied, the dispute must be referred to the
Registrar and cannot be taken cognizance of by the Civil Courts, however
complicated the questions of law the dispute may involve. If that be, and we
think that to be, the law made by our Legislature and that law does not suffer
from any Constitutional infirmity, then it is simply useless to express any
anxiety, as manifested in the Order of Reference as to whether the Registrar,
not being expected to be "properly well-equipped as a Civil Court", would be
able to decide the dispute effectively. Even if a legislative measure appears to
be unwise, we must leave it at that, for neither we can review legislative
wisdom nor should
be presumptuous to think that wisdom is our sole
monopoly. Justice Holmes once said to Justice Stones that if the Legislature
enacts a measure and "I can't find anything in the Constitution expressly
forbidding them to do, I say, whether I like it or not, 'Goddamit, let them do it'".
22. This brings us to the case in hand where the promoters of a Co-operative
Housing Society, before its formation and registration as such, entered into a
written agreement to purchase some land and having failed to obtain
conveyance from the seller, instituted this suit in the Civil Court in the name
of the Society after the same was duly formed and registered. As would appear
from the plaint and the Deed of Agreement, the land was sought to be
purchased for the Cooperative Society and for the avowed purpose (vide,
Clause 2(c) of the Deed of Agreement)_ of constructing houses thereon for
allotment of apartments to the members. The dispute in this case therefore
directly concerns the business and relates to the affairs of the Society which is
patently a Co-operative Housing Society and is therefore clearly a dispute
within the meaning of Section 86(1) of the Old and Section 95(1) of the new
Act. The dispute also is one between a Co-operative Society and "any person
having transactions" with the Co-operative Society within the meaning of
Clause (d) of Section 86(1) and of Clause (d) of Section 95(1) as aforesaid. The
fact that, the Co-operative Society was not formally formed and registered
when the Agreement was entered into is immaterial for the Society has
already come into jural existence when the suit was filed and the question of
maintainability would obviously have to be depid-ed on the state of affairs
prevalent at the time when the suit was instituted. The suit, therefore, could
not be entertained by the Civil Court under the provisions of Section 132(2)(d)
of the then prevailing Act of 1973, now replaced by Section 134(2)(d) of the
present Act, 1983. The Court below was accordingly wrong in entertaining the
suit and in holding that it had jurisdiction and that the plaint was not liable to
be rejected under the provisions of Order?, Rule 11 of the Code of
Civil
Procedure and that the Court had jurisdiction to proceed with the suit.

23. One word more before we conclude. We have held that the dispute
involved in the suit, giving rise to this revision, is a dispute of which
cognizance cannot be taken by a Civil Court because of the provisions of
Section 134(2)(d) of the Co-operative Societies Act, 1983 and the same is
required to be referred to the Registrar under Section 95(1) thereof. We are
accordingly quashing the impugned order passed by the Court below holding
the same to be maintainable in Civil Court and we are directing rejection of
the plaint. But we note that such a dispute, required to be referred to the
Registrar, is to be so referred within two months from the date of the accural
of cause of action as provided in Section 95(2) of the Act and it is obvious that
such period has expired long before and it would not be possible for the
Registrar to entertain the dispute, unless the time taken in prosecuting the
suit, giving rise to the revision is excluded. Whether the provisions of Section
14 of the Limitation Act can apply ex proprio vigore to the reference of the
dispute to the Registrar is a different matter. But as pointed by a Division
Bench of this Court in Somnath Banerjee v. Vivek Salvi, , it is now settled law
that the principles enacted in Section 14 of the Limitation Act, being
embodiment of principles of justice and equity, are made applicable even to
proceedings not expressly covered by the Section, like appeals, even though
the Section specifically refers to suits and applications only. Since the Court
below held the suit to be maintainable and rejected the application for the
rejection of the plaint and it has now required a Special Bench to hold the
same to be non-justiciable in Civil Court, we entertain no doubt that the
plaintiff opposite party should be held to have prosecuted the suil bona fide
and with due diligence within the meaning of the provisions of Section 14. We
have determined the question of law referred to us; but since we must also see
that justice is done to the unsuccessful plaintiff, we would like to make it clear
that if the plaintiff opposite party now proceeds to have the
dispute referred
to the Registrar, the period from the date when the suit was filed to the date of
this judgment of ours, should be excluded by the Registrar in computing the
period prescribed under Section 95(2) of the Co-operative Societies Act, 1983.

24. We accordingly make the solute, set aside the impugned order of the Court
below holding the suit to be main-tainable and dismissing the application for
rejected of the plaint and direct that the plaint shall stand rejected. In the
circumstances, however, we propose to make no order as to costs.

Kalyamoy Ganguli, J.

25. I
agree.

Amulya Kumar Nandi, J.

26. I agree.

27. Order accordingly.