JACK ROSARIO FERNANDESversusWEST AVENUE REALTORS PVT. LTD. AND ORS

                                                                     4-WP-5549-19+final.doc



                                                                                Sayali
SAYALI
DEEPAK
UPASANI                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CIVIL APPELLATE JURISDICTION
Digitally signed by
SAYALI DEEPAK
UPASANI
Date: 2026.03.24
19:37:58 +0530
                                    WRIT PETITION NO. 5549 OF 2019

                      Jack Rosario Fernandes                   … Petitioner
                                 V/s.
                      Anthony Fernandes and Others             … Respondents

                                               WITH
                                   WRIT PETITION NO. 5076 OF 2024

                      Jack Rosario Fernandes                   … Petitioner
                                 V/s.
                       West Avenue Realtors Pvt Ltd and
                      Others                                   … Respondents

                      Mr. Harish R. Pawar, with Mr. Shivam Gawde, for
                      Petitioner in both petitions.
                      Ms. Lipika Biswas, for respondent no. 3 in both
                      petitions.
                      Ms. Supriya Petkar, for respondent no. 2 in WP
                      5549/2019.
                      Ms. Disha Jain i/b Chinmaya Acharya, for respondent
                      no. 1 in WP NO.5076/2024 and respondent no. 2 in
                      WP No. 5549/2019.
                      Mr. Rudresh Jagdale with MR. Rajdeep Singh N., for
                      respondent no. 1 in WP/5549/2019.



                                               CORAM     : AMIT BORKAR, J.

                                               DATED     : MARCH 24, 2026




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ORAL JUDGMENT:

1.    Rule. Rule is made returnable forthwith.

2.    Both the present writ petitions arise from a common
judgment and award. However, for the sake of convenience and
to avoid repetition, Writ Petition No. 5549 of 2019 is treated as
the lead matter. The parties are accordingly referred to by their
respective designations as assigned in the said writ petition.

3.    The challenge in the present proceedings is directed against
the judgment and award passed by the Appellate Court in Appeal
No. 87 of 2017. By the said judgment, the Appellate Court has
allowed the appeal preferred by respondent No. 1, thereby
setting aside the judgment and award rendered by the Co-
operative Court in Dispute No. 395 of 2007 and consequently
dismissing the dispute filed by the present petitioners.

4.    The factual background giving rise to the present petitions,
briefly stated, is as follows. The petitioner instituted a dispute
seeking declaration, possession, and injunction in respect of the
suit premises, namely Flat No. 703, admeasuring approximately
301 sq. ft. carpet area, situated on the 7th floor of A-wing of
respondent No. 3 society. It is the case of the petitioner that he
was originally a monthly tenant of the Municipal Corporation and
was in occupation and possession of one room admeasuring
about 650 sq. ft. in Chawl No. 4-A, situated at Staney Fernandes
Wadi, Final Plot No. 746, TPS IV, Mahim Division, bearing C.S.
No. 1115, D.S. Babrekar Marg, Dadar, Mumbai, which is



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hereinafter referred to as the suit premises for convenience.
Respondent No. 1 in Writ Petition No. 5549 of 2019 is the son of
the petitioner. According to the petitioner, respondent Nos. 2 and
3, namely West Avenue Realtors Pvt. Ltd., who is respondent No.
1 in Writ Petition No. 5076 of 2024, and Staney Fernandes Co-
operative Housing Society Ltd., respectively, have wrongfully
handed over possession of the suit premises to the said
respondent No. 1, though the premises were allotted to the
petitioner. Respondent No. 1 in Writ Petition No. 5076 of 2024 is
a company engaged in the business of building and development
and had undertaken redevelopment of Staney Fernandes Wadi in
accordance with the applicable rules and regulations of the
Municipal Corporation. Upon redevelopment, the developer
allotted permanent alternate accommodation in the newly
constructed building to the existing tenants and occupants in lieu
of their original premises. Respondent No. 3 is a co-operative
housing   society    registered   under   the   provisions      of    the
Maharashtra Co-operative Societies Act, formed by the tenants
and occupants of the said locality.

5.    In the year 2004, the Municipal Corporation decided to
redevelop Staney Fernandes Wadi by demolishing the existing
structures and constructing a new building. Pursuant thereto, the
tenants and occupants formed and registered a co-operative
housing society and appointed respondent No. 1 in Writ Petition
No. 5076 of 2024 as the developer for carrying out the
redevelopment       project.   The    terms     of    redevelopment



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contemplated that the existing tenants and occupants would be
provided permanent alternate accommodation on ownership
basis, free of cost, in the newly constructed building in lieu of
their respective old premises. In the course of the survey
conducted for the purpose of redevelopment, the petitioner was
declared   eligible   for   allotment   of   permanent      alternate
accommodation, free of cost on ownership basis, as reflected in
Annexure II issued by the Municipal Corporation. In pursuance
thereof, an agreement dated 17 February 2005 was executed
between respondent No. 1 in Writ Petition No. 5076 of 2024 as
promoter, respondent No. 3 society as confirming party, and the
petitioner as tenant. Under the said agreement, a flat
admeasuring 301 sq. ft. carpet area in the newly constructed
building was agreed to be allotted to the petitioner on ownership
basis without any monetary consideration. It is the petitioner’s
case that in April 2006 he came to know that the construction of
the building had been completed and that the flats were ready for
occupation. Accordingly, through his advocate, he addressed a
letter dated 18 April 2006 to the developer and the society
calling upon them to furnish particulars of the flat allotted to
him. Despite receipt of the said communication, no reply was
furnished. The petitioner thereafter learnt that possession of flats
had been handed over to several tenants and occupants, and that
one such flat had been handed over to respondent No. 1 in Writ
Petition No. 5549 of 2019. The petitioner therefore issued a
notice dated 19 June 2006 calling upon the developer and the




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society to disclose the details of the flat allotted to him and to
pay transit rent at the agreed rate of Rs. 4,500 per month till
possession was handed over.

6.    The petitioner was thereafter orally informed by the office
bearers of respondent No. 3 society that Flat No. 703 had been
allotted to him as permanent alternate accommodation. Upon
verification, the petitioner found that respondent No. 1 in Writ
Petition No. 5549 of 2019 was in actual occupation and
possession of the said flat. On further enquiry, the petitioner was
informed that possession of the said flat had been handed over to
respondent No. 1 by the developer and the society.

7.    Upon receipt of notice dated 30 August 2006, respondent
No. 3 society, by its reply dated 16 September 2006, admitted for
the first time that the suit premises stood allotted to the
petitioner and that the same was recorded in his name in the
society records. The society further assured that it would take
steps to secure recognition of the petitioner’s rights. It was also
stated that the keys and possession of the flat were with
respondent No. 1 in Writ Petition No. 5549 of 2019 and that
upon the said respondent vacating the premises, possession
would be handed over to the petitioner. However, the society did
not offer any satisfactory explanation with regard to the alleged
occupation and possession of the flat by respondent No. 1.

8.    The petitioner thereafter instituted L.C. Suit No. 2587 of
2007 before the Civil Court seeking possession and consequential



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reliefs of mandatory and permanent injunction against the
respondents and the Municipal Corporation. At the stage of ad-
interim relief, the Civil Court, by order dated 17 July 2007, prima
facie held that the petitioner was entitled to the accommodation
in question and not respondent No. 1. The parties were
accordingly directed to maintain status quo, subject to the
petitioner approaching the Co-operative Court for appropriate
relief within a reasonable time. The Civil Court further held that
the dispute fell within the ambit of Section 91 of the Maharashtra
Co-operative Societies Act and that it lacked jurisdiction to
entertain the suit. Consequently, the plaint was returned for
presentation before the appropriate forum, giving rise to the
present dispute.

9.    Respondent No. 1 in Writ Petition No. 5549 of 2019
resisted the dispute by filing a written statement raising both
preliminary and substantive objections. It was contended that the
dispute, in its present form, was not maintainable under Section
91 of the Act, as the dispute was essentially a family dispute
between the petitioner and his son and did not pertain to the
business of the society. It was further contended that he had been
in occupation and possession of the premises even prior to
redevelopment and continued to remain in settled possession
thereafter. The allegations of illegality against the developer and
the society were denied, and the petitioner was put to strict proof
of his claims. It was further contended that issues relating to
redevelopment undertaken by the Municipal Corporation and the



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developer could not be made the subject matter of adjudication
under Section 91 of the Act. According to respondent No. 1, the
dispute pertained essentially to tenancy rights, which fall outside
the scope of Section 91. It was also contended that neither the
developer nor the society could be directed to hand over
possession, particularly when respondent No. 1 himself did not
fall within the category of persons contemplated under Section
91. On these grounds, dismissal of the dispute was sought.

10.   Respondent No. 1 in Writ Petition No. 5076 of 2024,
namely the developer, also filed its written statement opposing
the dispute. It was contended that no cause of action had arisen
against it. Reliance was placed on Clause 7 of the agreement
dated 17 February 2005, under which, upon completion of
construction, possession of the building was to be handed over to
the society for allotment of flats to its members. It was submitted
that once possession of the building was handed over, the
developer had no role in the allotment of individual flats. Further
reliance was placed on Clause 16 of the agreement, which
provided that disputes between family members regarding
ownership or possession were to be resolved inter se without
recourse to the developer. The allegation that possession had
been wrongfully handed over to respondent No. 1 was
specifically denied. Respondent No. 3 society, in its written
statement dated 21 April 2008, contended that no cause of action
was disclosed against it. It was submitted that at the relevant
time, the building had not received an occupation certificate,



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which was subsequently issued on 22 November 2007. The
building was thereafter handed over to the society on 23
November 2007, whereupon the members shifted to the newly
constructed premises.    The society further contended that the
dispute entailed civil consequences involving parties who were
not members of the society, and therefore did not fall within the
jurisdiction of the Co-operative Court under Section 91. It was
also contended that the cause of action, if any, had arisen prior to
the society taking over the building. The society denied
knowledge of the particulars sought by the petitioner and denied
having handed over possession of the suit premises either to the
petitioner or to respondent No. 1. It was further stated that the
agreement dated 17 February 2005 was primarily between the
petitioner and the developer, and the society was only a
confirming party thereto. The society relied upon Resolution No.
6 passed in the Annual General Body Meeting dated 13 August
2006, wherein it was recorded that Flat No. A-703 was in the
custody of the developer and that the keys had not been handed
over to the society. It was further recorded that upon the
developer securing vacant possession, the premises would be
handed over to the petitioner. The society denied that possession
of flats had been handed over to all tenants and occupants as
alleged. It was further contended by the society that it was being
unnecessarily dragged into a dispute which was essentially
between the petitioner and his son. According to the society, the
dispute was in the nature of a family dispute and therefore did




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not fall within the ambit of Section 91 of the Act. On this basis,
dismissal of the dispute with costs was sought.

11.    The Co-operative Court, by its judgment and award dated
05 July 2017, allowed the dispute. It held that the act of the
developer and the society in handing over possession of the suit
premises to respondent No. 1 was illegal and not binding on the
petitioner. Respondent No. 1 was declared to be a trespasser
having no right, title or interest in the suit premises. The Court
further held that the petitioner was entitled to allotment of the
suit premises in lieu of his original premises and issued a
mandatory injunction directing delivery of vacant and peaceful
possession. Aggrieved thereby, the matter was carried in appeal,
wherein the Appellate Court framed points for determination on
the basis of the rival contentions.
  1.   Whether the dispute filed by the disputant is      In the
       maintainable under Section 91 of the MCS         negative
       Act and whether Cooperative Court has
       jurisdiction to try and entertain the same.
  2.   Whether the disputant proves that in lieu of     In the
       old premises, he is entitled for allotment of affirmative
       suit flat i.e. flat No.703 ad measuring 301 sq.
       ft. carpet area on 7th floor of A Wing in the
       society?
  3.   Whether disputant proves that opponent    In the
       No.1 is trespasser?                    affirmative.

  4.   Whether the Judge, Coop Court was justified        In the
       in allowing the dispute with cost?               negative



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  5.   Whether interference of this in the judgment    In the
       impugned is warranted?                       affirmative.

  6.   What order and relief?                          As per final
                                                           order.



12.    The Appellate Court has, in fact, answered Point Nos. 2 to 5
in favour of the petitioner. This means the Appellate Court
accepted that the petitioner is entitled to the flat and also
accepted that Opponent No. 1 has no lawful right over the
premises. However, despite recording such findings, the Appellate
Court proceeded to hold that the dispute itself is not
maintainable. The main reason given appears to be that the
relationship between the petitioner and Opponent No. 1 is that of
father and son. According to the Appellate Court, looking at the
pleadings, the dispute was essentially between these two
individuals. Since Opponent No. 1 is not a member of the society,
the Appellate Court concluded that the dispute does not fall
within the scope of Section 91 of the Act. It further observed that
the petitioner was not claiming through a member in respect of
Opponent No. 1, and therefore the Co-operative Court would
have no jurisdiction. This reasoning shows that the Appellate
Court treated the matter as a private family dispute and not as a
dispute connected with the business of the society.

13.    The learned Advocate appearing for the developer
submitted that the developer had already completed its part of



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the work and handed over possession of the building. According
to him, once such possession was handed over, the role and
responsibility of the developer came to an end. It was therefore
argued that no relief can now be claimed against the developer,
as its obligations stood discharged on the date of handing over
possession.

14.   For the purpose of deciding the issue involved in the
present matter, it becomes necessary to refer to and reproduce
the provisions of Section 91 of the Maharashtra Co-operative
Societies Act, 1960, which read as under.

        “91.      Disputes. (1) Notwithstanding anything
        contained] in any other law for the time being in
        force, any dispute touching the constitution,
        elections of the committee or its officers conduct of
        general meetings, management or business of a
        society shall be referred by any of the parties to the
        dispute, or by a federal society to which the society
        is affiliated or by a creditor of the society, [to the
        co-operative Court] if both the parties thereto are
        one or other of the following:-
        (a)      a society, its committee, any past
        committee, any past or present officer, any past or
        present agent, any past or present servant or
        nominee, heir or legal representative of any
        deceased officer, deceased agent or deceased
        servant of the society, or the Liquidator of the
        society [or the official Assignee of a deregistered
        society.
        (b)      a member, past member of a person



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claiming through a member, past member of a
deceased member of society, or a society which is a
member of the society [or a person who claims to
be a member of the society;
(c)      a person other than a member of the
society, with whom the society, has any transactions
in respect of which any restrictions or regulations
have been imposed, made or prescribed under
sections 43, 44 or 45, and any person claiming
through such person;
(d)      a surety of a member, past member or
deceased member, or surety of a person other than
a member with whom the society has any
transactions in respect of which restrictions have
been prescribed under section 45, whether such
surety or person is or is not a member of the
society;
(e)     any other society, or the Liquidator of such
a society [or-de-registered society or the official
Assignee of such a de-registered society.”
Provided that, an industrial dispute as defined in
clause (k) of section 2 of the Industrial Disputes
Act, 1947, or rejection of nomination paper at the
election to a committee of any society, or refusal of
admission to membership by a society to any
person qualified therefor or any proceeding for the
recovery of the amount as arrear of land revenue
on a certificate granted by the Registrar under sub-
section (1) or (2) of section 101 or sub-section (1)
of section 137 or the recovery proceeding of the
Registrar or any officer subordinate to him or an
officer of society notified by the State Government,



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who is empowered by the Registrar under sub-
section (1) of section 156, or any orders, decisions,
awards and actions of the Registrar against which
an appeal under section 152 or 152A and revision
under section 154 of the Act have been provided.
shall not be deemed to be a dispute for the
purposes of this section.
(3)       Save as otherwise provided under [sub-
section (2) to section 93], no Court shall have
jurisdiction to entertain any suit or other
proceedings in respect of any dispute referred to in
sub-section (1).
Explanation 1. -    A    dispute     between     the
Liquidator of a society or an official Assignee of a
de-registered society and the members (including
past members, or nominees, heirs or legal
representative or deceased members) of the same
society shall not be referred to the co-operative
Court] under the provisions of sub-section (1).
Explanation 2. - For the purposes of this sub-
section, a dispute shall include-
(i)     a claim by or against a society for any debt
or demand due to it from a member or due from it
to a member, past member or the nominee, heir or
legal representative of a deceased member, or
servant for employee whether such a debt or
demand be admitted or not;
(ii)     a claim by a surety for any sum or demand
due to him from the principal borrower in respect
of a loan by a society and recovered from the surety
owing to the default of the principal borrower,
whether such a sum or demand be admitted or not;



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         (iii)    a claim by a society for any loss caused to
         it by a member, past member or deceased member,
         by any officer, past officer or deceased officer, by
         any agent, past agent or deceased agent, or by any
         servant, past servant, past servant or deceased
         servant, or by its committee, past or present,
         whether such loss be admitted or not;
         (iv)     a refusal or failure by a member, past
         member or a nominee, heir or legal representative
         of a deceased member, to deliver possession to a
         society of land or any other asset resumed by it for
         breach of condition as the assignment.”
15.   Section 91 of the Maharashtra Co-operative Societies Act
lays down a special rule for deciding disputes connected with a
co-operative society. The section begins with a clear overriding
effect. It says that even if any other law says something different,
still if a dispute falls within this section, it must be decided only
in the manner provided under this Act. In other words, this
section gives exclusive power to the Co-operative Court to decide
certain types of disputes. The intention of the law is to ensure
that disputes relating to co-operative societies are decided in one
specialised forum, instead of parties going to different courts and
creating confusion. The important part of Section 91 is that the
dispute must be one which is “touching” the constitution,
elections, management, or business of the society. The word
“touching” is of wide meaning. It does not mean only direct or
immediate disputes. Even if the dispute has a close connection
with the business or working of the society, it will fall under this




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section. The business of a housing society is not limited to
accounts or meetings. Its main function is to allot premises,
manage the property, and ensure that members get possession
and enjoyment of their flats. Therefore, any dispute where a
member is claiming his right to a flat or complaining that he has
been denied possession clearly touches the business of the
society.

16.   The section further provides that such dispute must be
between certain categories of persons. These include the society,
its committee, its officers, and importantly, its members or
persons claiming through members. A member is directly covered
under clause (b). Even a person who claims through a member is
also covered. Therefore, the law is not narrow. It covers a wide
range of relationships connected with the society. The purpose is
to ensure that disputes arising out of membership or transactions
with the society are decided within the co-operative Act.

17.   At the same time, the section also mentions certain disputes
which are not to be treated under Section 91. These include
industrial disputes, election matters of a particular nature, and
certain recovery proceedings. This shows that the Legislature has
carefully excluded specific types of disputes. However, a dispute
relating to possession of a flat by a member is not excluded. On
the contrary, it is one of the most common disputes which this
section intends to cover.




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18.   Sub-section (3) of Section 91 further strengthens this
position. It clearly states that once a dispute falls within sub-
section (1), no other Court shall have jurisdiction to entertain
such dispute. This means that the jurisdiction of Civil Courts is
barred in such cases. The law wants such disputes to be decided
only by the Co-operative Court.

19.   The explanations attached to Section 91 also make the
position clearer. Explanation 2 gives examples of disputes which
are included within the section. It includes claims between a
society and its members regarding any demand, loss, or
obligation. It also includes disputes relating to possession of
property. For instance, if a member refuses to hand over
possession to the society, that dispute is covered. From this, it can
be understood that disputes relating to possession of premises are
well within the scope of Section 91.

20.   If the entire section is read as a whole, the scheme becomes
clear. First, the dispute must be connected with the working or
business of the society. Second, the parties must fall within the
categories mentioned. If both these conditions are satisfied, then
the dispute must be decided by the Co-operative Court and not
by any other Court.

21.   Applying this understanding to the present case, the
petitioner is a member of the society. His grievance is that though
he is entitled to a flat after redevelopment, possession has not
been given to him. Instead, another person is occupying the flat.



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This grievance directly relates to his rights as a member. It also
relates to the obligation of the society to allot and deliver
possession of the premises. Therefore, this dispute clearly touches
the business of the society. The fact that the person in possession
is the son of the petitioner does not change the nature of the
dispute. The Act does not say that if there is a family relationship,
the dispute automatically goes outside Section 91. What is
important is the real issue. Here, the real issue is whether the
society has fulfilled its obligation to give possession to its
member. The presence of a family member in possession is only a
factual aspect. It does not take away the jurisdiction of the Co-
operative Court.    Further, even if respondent No. 1 is not a
member of the society, the dispute still involves the society and
its member. The society cannot avoid its responsibility by saying
that a third person is in possession. The member is entitled to
look to the society for enforcement of his rights. Therefore, the
dispute continues to remain one between the member and the
society, which squarely falls within Section 91.

22.   Thus, when the provisions of Section 91 are properly
understood, it becomes clear that the present dispute is
maintainable before the Co-operative Court. The approach of
treating it as a simple family dispute overlooks the real nature of
the claim. The law requires the Court to see the substance of the
dispute and not merely the relationship between the parties. In
this view of the matter, the reasoning adopted by the Appellate
Court in holding that the dispute is not maintainable cannot be



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sustained. The dispute satisfies both the essential conditions
under Section 91. It is a dispute touching the business of the
society, and it is between a member and the society along with
connected parties. Therefore, the Co-operative Court had full
jurisdiction to entertain and decide the same.

23.   In my view, the entire approach adopted by the Appellate
Court in holding that the dispute is not maintainable is not
correct. The reasoning appears to proceed on a misunderstanding
of the legal provisions governing such disputes. The Court has
focused only on the relationship between the parties and has not
properly examined the nature of the rights claimed and the
obligations arising under law.

24.   On careful reading of the dispute, it becomes clear that the
petitioner was seeking to enforce his rights as a member of the
housing society. There is no dispute that the petitioner was a
member of respondent No. 3 society. It is also not in dispute that
during redevelopment, the petitioner handed over possession of
his old premises for the purpose of reconstruction. Such handing
over was not unconditional. It was done under an arrangement
where the developer and the society were required to reconstruct
the building and then return possession of the new premises to
the member. In such a situation, once a member gives up
possession for redevelopment, both the developer and the society
become bound to return the corresponding premises to that
member. This obligation arises from the agreement as well as




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from the nature of redevelopment itself.

25.   Further, under the scheme of co-operative housing law,
once a person is admitted as a member of a housing society, he is
entitled to occupy the premises allotted to him. A member
without possession is not a normal or acceptable situation in co-
operative law. A housing society exists for the benefit of its
members, and its main function is to provide and maintain
premises for them. If a member is kept out of possession, it
directly affects his rights as a member. This legal position has
been clearly recognized in judicial decisions, including the case of
Atomica Co-operative Housing Society Ltd. Vs. B. R. Ballal (1988)
2 Bom CR 104, where it has been held that a member is entitled
to the premises and cannot be denied possession.

26.   This principle has been further affirmed in later decisions.
In the case of Siddharth Holding Pvt. Ltd. and another Versus
Saidale Co-operative Housing Society Ltd. and others, (2003) 6
Bom CR 857, this Court has followed the same reasoning and
held that a member cannot continue only on paper without being
given actual possession of the premises. The right to membership
carries with it a corresponding right to occupy the allotted
premises. Therefore, the society cannot avoid its obligation by
merely recognizing a person as a member while denying
possession.

27.   Apart from the statutory position, in the present case, the
rights of the petitioner also arise from the agreement executed



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between the petitioner, the developer, and the society. This
agreement clearly provides for allotment and delivery of the
newly constructed premises to the petitioner. The learned
Advocate for respondent No. 1 argued that possession had been
given to respondent No. 1 even before the society was registered,
and therefore the dispute is only between the petitioner and
respondent No. 1. However, this submission does not take into
account the entire sequence of events and the legal obligations
arising thereafter.

28.   The material on record shows that the society came to be
registered in the year 2004. The agreement executed thereafter
clearly records that possession of the reconstructed premises is to
be handed over to the member. This creates a binding obligation
on the society as well as the developer. Such obligation is not
only statutory but also contractual in nature. Even if it is assumed
that respondent No. 1 was in possession at some earlier point of
time, that by itself does not defeat the rights of the petitioner.
The society cannot avoid its responsibility by stating that
possession was with someone else before it took over the
building.

29.   Both the Co-operative Court and the Appellate Court have
recorded a clear finding that respondent No. 1 has no right, title,
or interest in the suit premises. Once such a finding is recorded,
the possession of respondent No. 1 cannot be treated as lawful. It
must be treated as unauthorised possession. In simple terms, he




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is in the position of a trespasser. If a trespasser is occupying the
premises, the responsibility still lies on the society and the
developer to ensure that possession is delivered to the rightful
member. The presence of a trespasser does not change the nature
of the dispute.

30.   Therefore, when the matter is looked at properly, the real
dispute is between the petitioner, who is a member of the society,
and the society itself. The petitioner is asserting his right to
receive possession of the flat which is allotted to him. This
directly concerns the business of the society, because the primary
function of a housing society is to allot and deliver premises to its
members. The developer is also connected with this obligation
due to the agreement and redevelopment arrangement. Thus, the
dispute clearly touches the business of the society.

31.   The reasoning of the Appellate Court, therefore, does not
align with the settled legal position. The Appellate Court appears
to have viewed the matter only from the angle of possession of
respondent No. 1. It assumed that since respondent No. 1 is in
unauthorised possession and is a trespasser, the dispute does not
concern the society. This approach is not correct. The presence of
an unauthorised occupant does not take the dispute outside the
scope of co-operative jurisdiction.

32.   In my view, the core issue in the present case is whether the
petitioner, as a member of the society, is entitled to get back
possession of the premises after redevelopment. This right flows



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from the statute, the bye-laws, and the agreement executed
between the parties. The relief of possession is only a
consequence of this main right. It is well settled that for deciding
jurisdiction, the Court must look at the main relief and the real
nature of the dispute, and not merely at incidental aspects. The
Appellate Court itself has accepted that the petitioner is entitled
to the flat and that respondent No. 1 has no right to remain in
possession. Once these findings are recorded, it necessarily
follows that the dispute is maintainable.

33.    The Appellate Court has thus accepted the case of the
petitioner on merits but has still dismissed the dispute on the
ground of maintainability. This results in a clear inconsistency.
Having held that the petitioner is entitled to the flat and that
respondent No. 1 is a trespasser, the Appellate Court could not
have allowed the appeal and dismissed the dispute. Such a
conclusion does not logically follow from its own findings.

34.    Hence, for the reasons stated above, the petitions deserves
to be allowed.

35.    Hence, the Rule is made absolute in terms of prayer clause
(a).

                                            (AMIT BORKAR, J.)




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