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PETITIONER: HINDUSTAN THOMPSON ASSOCIATES LTD.

       Vs.

RESPONDENT: MRS. MAYA INDERSON ISRANI & ORS.

DATE OF JUDGMENT19/09/1988

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SEN, A.P. (J)

CITATION:  1989 AIR   87            1988 SCR  Supl. (3)  29  1988 SCC  (4) 745        JT 1988 (3)   786  1988 SCALE  (2)820  CITATOR INFO :  D          1990 SC1563  (14,15)

ACT:     Bombay  Rents, Hotel and Lodging House  Rents  (Control) Act,  1947:  Sections  5,  15A  and  21-Cooperative  Housing Society-Possession  of  flat  obtained  through  member   of Society  who has committed breach of bye laws--Society  call seek  eviction  under  Section  91  Maharashtra  Cooperative Societies Act, 1960 Rent Act inapplicable. %     Maharashtra Cooperative Societies Act, 1960: Section 91- Cooperative  housing society-Cooperative Court/Tribunal  has jurisdiction to order eviction from flat.

HEADNOTE:     Respondent No. 2, a Co-operative Society allotted a flat to  respondent  No. l. Respondent No. 2 sought  recovery  of possession of the flat on the ground that the appellant  was inducted  into the flat without the written consent  of  the Society.  The  appellant pleaded that it was  continuing  in possession of the flat on the basis of the lease and licence agreement by payment of licence fee, and as such the dispute did not come within Section 91 of the Co-operative Societies Act  as  it had become as tenant under Section  15A  of  the Bombay Rent Act. The Cooperative Court after hearing all the parties  made an award holding that the dispute fell  within the  jurisdiction  of  the Cooperative Court  and  that  the appellant was occupying the flat in question as a trespasser after  the  licence in its favour was  terminated  and  that there  was no subsisting licence to occupy the flat  by  the appellant  on Ist February, 1973 and so Section 15A  of  the Bombay Rent Act was not applicable.     The  appellant’s appeal to the Appellate  Authority  and writ  petition to the High Court having been dismissed,  the appellant appealed by special leave to this Court.     Dismissing the Appeal,     HELD:  1.  The  appellant is an outsider  who  has  been permitted  to  possess  the suit  premises  as  licencee  of respondent No. 2 in contravention of the Rules, bye-laws and regulations  of  the  society. The  dispute  falls  squarely within the provision of section 91 of the Maharashtra

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                                                  PG NO 29                                                     PG NO 30 Cooperative Societies Act 1960 and the Cooperative Court has exclusive  jurisdiction to entertain and decide the  dispute and not the Court under the Bombay Rent Act, 1947.     M/s.  A.V.R.  &  Co. &  Ors.  v.  Fairfield  Cooperative Housing Society Ltd., [1988] Supp. 3 S.C.R.48.     2. The decree will not be executed for a period of  four months. The appellant will not transfer, assign or  encumber the  flat in any manner whatsoever, and  hand-over  peaceful possession  of  the  flat on or before  the  expiry  of  the aforesaid  period.  He  will go  on  paving  the  occupation charges equivalent to the amount he had been paying for each month 7th of succeeding month. In default of compliance  the decree shall become executable forthwith. [31E-F]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  567  of 1987.    From the Judgment and Order dated 12.1.1987 of the Bombay High Court in W . P . No. l24/ 1987.     B . R. Agarwala for the Appellant.     Dr.  L.M.  Singhvi,  P.K. Banerjee,  S.K.  Jain,  L  .A. Kriplani.  Dr.  A.M.  Singhvi and  S.  Bandopadhya  for  the Respondents.     The Judgment of the Court was delivered by     B.C.  RAY, J. The member of society Mrs.  Maya  Inderson Israni who has been allotted the flat No.62 on 6th floor  of Nibhana  Building  by the disputant No.2,  the  Nibhana  Co- operative  Housing  Society. Ltd. and the  society  filed  a dispute  before the Judge Fifth Cooperative Court at  Bombay for  recovery  of  possession  of the  said  flat  from  the opponents  who  are the appellants in this  appeal  and  for mesne  profits  in respect of the flat alleging  inter  alia that  the  appellants were inducted in th flat  without  the written consent of the Society as a licencee on the basis of a leave and licence agreement which was a renewed from  time to time till some time in 1972 and on Ist October 1972,  the member, that is, the respondent No.2 terminated the  licence and called upon the appellant to remove itself from the said flat. Thereafter an advocate s Letter dated 1st October 1972 was  sent  by  the respondent No. 2  to  the  appellant  for vacating  the  flat. The appellant having failed  to  comply with the request a dispute was filed by the     H.T ASSOCIATES v. MRS. MAYA [RAY. J.] member  as well as the Co-operative Society for eviction  of the appellants from the flat, as well as for mesne  profits. The plea of the appellants was that they were continuing  in possession  of the flat on the basis of a leave and  licence agreement  by payment of licence fee uptill now and as  such the  dispute  does  not come within section 91  of  the  Co- operative  Societies Act as they have become  tenants  under section 15 of Bombay Rent Act. The Co-operative Court  after hearing  the parties made an award holding that the  dispute fell within the jurisdicton of the Co-operative Court as the appellant  claimed  to  be h possession of  the  flat  as  a licencee  through the member of the society which is  a  Co- partnership  Housing  Society  under  the  Maharashtra   Co- operative Societies Act. It was also held that the appellant was  occupying the flats in question as a  trespasser  after the licence in favour of appellant was terminated. There was no  subsisting licence to occupy the flat by the  appellants on  1st February. 1973 and so Section 15 of the Bombay  Rent

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Act  was  not applicable to it. An appeal was filed  by  the appellant  before the appellate authority. The  said  appeal was  dismissed and the order of the Co-operative  Court  was upheld. The appellants filed a writ petition No. 1’4 of 1987 before  the  High Court of Bombay under Article 227  of  the Constitution.  The said Writ Petition was dismissed  by  the High  Court.  Hence this appeal by Special  Leave  has  been filed by the appellant.     In  view of our judgment in C.A. No. 472 of  1985,  this appeal  is  dismissed  without any order as  to  costs.  The decree will not be executed for a period of four months from the date of this order subject to the appellant s filling an usual undertaking within a period of two weeks from today to the  effect that the appellant will not transfer. assign  or encumber  the flat in question in any manner whatsoever  and on undertaking that he will hand over peaceful possession of the  flat  in question to the respondent on  or  before  the expiry of the aforesaid period and he will go on paying  the occupation  charges  equivalent to the amount  he  had  been paying  for  each month by the 7th of succeeding  month.  In default  of  compliance of any of these  terms,  the  decree shall become executable forthwith. N .V.K.                                 Appeal dismissed.