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TMI Blog1974 (3) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... alone had the jurisdiction to entertain the dispute between him and the licensor. The preliminary point as to whether the dispute fell within the requirements of Section 91 of the Maharashtra Co-operative Societies Act) was decided by the Officer on Special Duty, who is the 3rd respondent before us, by his order dated 7th September 1970, holding that the dispute was one which fell within Section 91 of the Co-operative Societies Act, and accordingly he fixed the further hearing of the matter before himself. Being aggrieved by the said decision of the 3rd respondent, the licensee has preferred this special civil application, in which rule was issued and interim stay of further proceedings granted on 16th December 1970. In order to appreciate the rival contentions, certain facts are required to be stated. 2. The 2nd respondent before us is a co-operative housing society registered under the Co-operative Societies Act, and the licensor is a member of the said co-operative housing society, having been allotted flat No.2 in a building on plot No.500 16th Road, Khar Bombay 52. A leave and licences agreement was made in respect of the said flat between the licensor and the licensee, a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the special Civil application) It was alleged that the proceedings where necessitated by a letter of the said Jhulelal. Co-operative Housing Society dated 2nd march 1970. Which called upon the licensor to have the said flat vacated immediately by his licensee and occupy the same himself failing which a threat was given a cancel the membership and allotment of the licensor in respect of the said flat. The licensee filed his statement of preliminary objections which have been indicated earlier in this judgment . and this statement of objections is also part of Exhibit B. (Collectively) to this special civil application . As stated earlier the preliminary objection was decided in favour of the licensor by the Officer on Special Duty who is the 3rd respondent before us. 3. Mr. Kripalani on behalf of the petitioner to this special civil application has submitted that the matter is concluded in favour of the petitioner by an unreported decision of a Division Bench of this Court given in Kalavati Ramchand Malani v. Shankarrao (Special Civil Appln. No. 1699 of 1969, decided by Deshpande Dudhia, JJ. on 26-4-1973 (Bom). According to Mr. Kripalani the Division Bench in Kalawati's Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J. We have been taken through the said judgment and it appears to us that all relevant judgments both reported and unreported of this Court and of the Supreme Court as had been delivered up to the date of the said decision have been noted and considered by the said Vision Bench. The Division Bench commences its discussion of the legal position with a reference to I. R. Hingorani v. Pravinchandra Kantilal Shah (1965) 67 Bom LR 306, which was a decision given by the Bombay High Court disposing of three cases by a common judgment. The aggrieved parties in tow of these three matters went higher and the decision of the Division Bench of this Court in one of the tow cases was reversed by the Supreme Court in I. R. Hingorani v. P. K. Shah, , but its decision in the third case which was also taken higher was confirmed in Deccan Merchants' Co-operative Bank v. Dalichand . According to the Division Bench the judgment reported in (1965) 67 Bom LR 306 must be deemed to be overruled and no more a good law on any point. The Division Bench however noticed that the cases decided by the High Court did not reflect a unanimity as to what precisely was the ratio of the Deccan Merchants' Bank&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch' the business ofthe society in its narrower sense unlessthe societyobjects and raises a disputewithregard thereto. It wasconcededthat such a dispute between a licensor anda licensee may 'affect' thebusiness of thesociety , butitwouldstillfallshort oftouchingits business.Itwasfurther observed that it was difficult to conceive how a society can have any valid objection as long as an occupant licensee remains in possession of the premises complying with the conditions attached to thepremises and with the requirementsanddemandsof the society in the samemannerin whicha licenosr-membercouldhave complied, unless such licensing itself is specificallyprohibited. According to the Division Bench, asocietycould notcomeinto thepicture in any disputewhich exclusively affects and concerns themembers and his licensee. Wemay statethat in all sevenpropositions havebeen deduced by the DivisionBench of which we have set out only the ones which appeared to be relevant for our purposes. 6. Before thesaid DivisionBench strong reliance was placed by the licensor memberon Stapalisingh Arora v. SantdasPrabhudas Malkani (1971) 73Bom LR 777,which was again a decisionof a DivisionBench of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pute between a licensor and a licenseetouches the businessof a Co-operativehousingsociety, itwould not fall withinthe purview of Section 91 of the Co-operativeSocieties Act unless the disputant licensor further succeeded in showingthat while entering into the leaveandlicenceagreement with anon-member his capacity as a member was involved.Whilst consideringthis aspect of the matter the DivisionBench observedas follows: The trueviewseems to be to us that aftergettingpossession of the flat the memberis freeto deal with the same subject of course to the limitationsimposed by the Act rules and bye-laws ofthe society. If there are no restrictionon creating a licence in favour of any one,the membership of the member cannoteven remotely come into the picture whilegranting licence. If granting leave andlicence is prohibited by the society suchact allthe more ceases to be the act in the capacity of a member as he obviouslyacts de hors his capacity obligations andduties to thesociety obligations andduties to the society. Asoccupant of theflat in the society a member happens todeal in varieties of transaction with reference to the flat and acts in a variety ofways while enjoying the posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewhich have been cited by the Divisionbench cannot be considered to be casualobservations in any way and it is well settled that even the obiter of the Supreme Court is entitled to the highest respect. However we must not be taken tohold that in our view what the division Bench in kalavati's case C. A. No. 1699 of 1969, D/-26-4-1973 (Bom)characterised as he ratio (of the Supreme Court decision) is not the real ratio but merely the obiter of the Supreme Court. Similarlyit was contended that the Division Benchin Kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom)wastotally in errorin understanding the Supreme Court decision in Sabharwal's caseand holding on the authority ofSabharwala's casethatSatpal singh Arora's case (1971) 73Bom LR 777 was no longer good law. Ourattentionwas drawn to the very passagesin the judgment of Sabharwal's caseto which attention of theDivision bench in Kalavati's case C. A.No. 1699 of 1969 D/- 26-4-1973 (Bom)hasdrawn . Mr. Nain's submission was thatif he was able to persuade us that theapproach or the conclusion of the Division Benchin Kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom) were improper illogi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9of1969 D/- 26-4-1973(Bom) has give itsdecision either in ignorance of the provisions of any statute or binding authorities i.e. thejudgment of the Supreme Court. It was however, contended that the Division bench in kalavati's case C. A.No. 1699 of 1969 D/- 26-4-1973 (Bom) had wrongly understoodSabhawarwal's caseand thereby erroneously came to the conclusion that the decision in Satpalsingh Arora'scase, (1971)73 Bom LR777 which was bending begin a decision of a DivisionBench of theBombayHigh Courtwas no longer goodlaw. But then, it is equally well settledthat an interpretation (and equally a misinterpretation) of a bindingdecision of theSupreme Court will itself be binding subsequently on co-ordinate courts and mustbe got corrected by a higher Court andno co-ordinateCourt on that ground may k refuse to follow an earlier decision, opining that in its view the saidearlier decisionhad wrongly understood or improperly applieda decision of a higher Court.Theproposition of law as to be foundin Halsbury;s Laws of England (third edition) volume 22, at page 800 reads asfollows. Evenif a decision of the Courtof Appeal has misinterpreted a previousdecision of the House of Lords t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and mean profits. It is in these special circumstances that the Division bench in Kalavatis case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom) observed that theconclusion of the earlier Division bench(ofDeshpande Vidya JJ.)that hiswas a dispute within the purview of Section 91of the Co-operative Societies Actwas fully justified. In the earlier case initially at the stage of granting leave andlicence specific approvalof the co-operative housing society had been sought and in the entire transaction andeven in the ultimate filing of the disputethe co-operative housing society appearsto have been effectively interested. The facts as set out in the earlier judgmentclearly fall within the categories indicatedKalavati's case C. A. No.1699 of 1969 D/- 26-4-1973 (Bom) and satisfy all thetests laid down by the later Bench which are required to be satisfied before it could be properly said that a disputearises which is one within the meaning of Section 91of the Co-operative Societies Act. 13. There is however, a still later judgment of a Division Bench of this Court, to which reference may now be made that is in Letter Petn Appeal No. 80 of 1972 (decided by Bhole Mukhi. JJ. On 31-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upation of a member thereof was liabel to be attached and sold in pursuance of a money decree. It is true that the scheme of co-operative housing societies and the basis of occupation of the flats by members of such co-operative housing societies have been fully discussed in the later judgment but those observations must be considered in their context and cannot be applied to a totally different context by the principle of logical extension. In State of Orissa v. Sudhansu Sekhar Misra , it has been observed that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It would be impermissible, therefore, in our opinion to utilise the observation in the later Division Bench judgment (in the Letters Patent Appeal No. 30 of 1972 D/- 31-10-1973 (Bom) for the purpose of applying them to a different set of facts and thereby coming to the conclusion of the Division Bench in Kalavati's case C. A. No. 1699 of 1969 D/- 26-4-1973 (Bom). We d have adverted to the later case at some length, because in a companion matter, which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to be added as a co-disputtant or for the same to be transposed from an opponent to a codisputant. In out view either of the course is permissible only if all other tests and requirements postulated by Kalavati's case C. A., No. 1699 of 1969 D/- 26-4-1973 (Bom) are otherwise satisfied but the claim or statement of dispute is liabel to be rejected by the mere technical defect of the co-operative housing society not being a co-disputent along with the licensor. If the transaction had been one arrived at between the licensor and licensee with the previous approval of the co-operative housing society and if the co-operative housing society and if the co-operative housing society is effectively interested in ensuring that possession of the premises is recovered back from the licensee-occupant, then it seems to us that an order for adding the said co-operative housing society as a co-disputant or for transposing it from an opponent to a co-disputation would be in order. On the other hand a dispute cannot be brought within the purview of Section 91 of the Co-operative Societies Act merely by the idle formality of having the cooperative housing society as a co-disputant by the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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