Disputes and Differences in Co-operative Housing Society

If disputes arise in a co-operative housing society located at Kalyani, Krishnanagar, Nadia, Salt Lake, or any part of West Bengal then such disputes are to be referred to the Deputy Registrar or Assistant Registrar of Co-operative Societies in West Bengal. In accordance with Section 102 and Section 145 of the West Bengal Co-operative Societies Act, 2006 (“the Act”) no Civil Court, Revenue Court or Consumer Disputes Redressal Forum shall have jurisdiction with regard to anything done or any action taken or any order passed under the West Bengal Co-operative Societies Act, 2006. Please note that the said Act came into force in 2010 and has repealed the earlier West Bengal Co-operative Societies Act, 1973 and West Bengal Co-operative Societies Act, 1983.

In Supriyo Basu And Ors vs West Bengal Housing Board And Ors. [(2005) 6 SCC 289] it has been held by the Supreme Court of India that:

“The Society is undisputedly not a department of the State and is also not a creature of a statute but merely governed by a statute. Only if it is established that the mandatory provision of a Statute has been violated, a writ petition could be maintainable. Before a party can complain of an infringement of his fundamental right to hold property, he must establish that he has title to that property and if his title itself is in dispute and is the subject matter of adjudication in proceedings legally constituted, he cannot put forward any claim based on the title until as a result of that enquiry he is able to establish his title. It is only thereafter that the question whether the rights in or to that property have been improperly or illegally infringed could arise. The dispute as noted by the High Court essentially related to the claims of two rival groups of private individuals in relation to common car parking spaces. Learned Single Judge gave certain directions, which even touched upon the legality of the sale deeds. It was not open to be dealt with in a writ petition. As observed by this Court in U.P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey and Ors. (AIR 1999 SC 753) in relation to the question whether a writ petition would lie against a Cooperative Society the question to be considered is what is the nature of the statutory duty placed on it and the Court is to enforce such statutory public duty. The question as to entitlement of the members was to be discussed in the Annual General Body Meeting. The writ petitioners could not have questioned the decision of the Society to discuss the matter in the Annual General Body Meeting. We, therefore, find no merit in this appeal. The Society is free to convene a General Body Meeting and to discuss the rival claims regarding entitlement.”

Further, in Amal Kumar Sarkar vs. The State of West Bengal (2011) it has been further held by the Calcutta High Court that if disputes fall squarely within the statutory definition of Section 102 of the West Bengal Co-operative Societies Act, 2006, then the Writ Court will have no jurisdiction over such disputes and the Registrar will decide upon such disputes. Further, such disputes, except for money recovery suits, have to be filed before the Registrar within 3 months from the date when the cause of action arises. However, under Section 102 (3) of the Act, the limitation period can be condoned if sufficient cause is shown.

Further, although such disputes are decided upon by arbitrators, the award so passed is not an Arbitral Award and is not open to challenge under Section 34 of the Arbitration Act. This has been decided recently by Calcutta High Court in Sri Ramkrishna Banerjee vs. Calcutta Municipal Corporation (2011).

Appeals from orders or award would lie to the Tribunal under Section 146 (4) of the Act. There are provisions for appeal within 90 days and also provisions for review of order of the Tribunal within 90 days. The period of limitation of such appeal and the forum of such appeal is enumerated in the 3^rd Schedule of the Act. Further, under the Act, any prosecution or money recovery has to be instituted under the Act only after proper sanction of the Registrar, Co-operative Societies, West Bengal. The Fourth Schedule of the Act enumerates the offences and penalties that are punishable under the Act.

It has been further been held in Pralay Karmakar vs. Uttara Co-operative Housing       [(2008) 1 CALLT 251 HC] by the Calcutta High Court that: under supervisory jurisdiction when it is contended in appropriate cases and members  seeks for High Court’s interference there may not be any bar simply because the points of facts are involved, rather the power under Article 227 of the Constitution is very wide enabling the High Court to ensure that the Courts and Tribunals inferior to it discharge their duties and obligations. Such contention is supported by the ratio expressed in paragraph 25 of the decision of the Supreme Court reported in 2007(4) Supreme Court Cases page – 94 (Sriram Industrial Enterprises Ltd. v. Mahak Singh and Ors.)

Since, in the West Bengal Co-operative Societies Act 1973 there is no scope of appeal against the Judgment of the Co-operative Tribunal, therefore revisional applications may lie.

In Sadhana Lodh v. National Insurance Co., it was held that:

“The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal.” In the said decision the petition under Article 227 of the Constitution by the insurer was declared wholly misconceived. As an illustration the Supreme Court has further held “where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a state enactment has barred the remedy of filing revision under Section 115 CPC, in such a situation a writ petition under Article 227 would lie….”

In Surya Dev Rai v. Ram Chander Rai and Ors.(2003) 6 SCC 675, it has been held by the Hon’ble Supreme Court that:

“Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.” In the self-same Judgment under paragraph 38/5 it has been held by the Supreme Court “Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.”

A patent error is an error which is a self evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Thus, orders of the Co-operative Tribunal can be challenged in court if such orders do not provide for appeal or if such statutory orders are against public policy or against the basic tenets of natural justice.

For more information about Co-operative Housing Societies you can read my post here: http://advocatechenoyceil.com/2014/02/19/co-operative-housing-society-west-bengal-rules/