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PETITIONER: SARDAR MOHAN SINGH AHLUWALIA (DEAD) BY LRS.

       Vs.

RESPONDENT: MAITRAI PARK CO. OP. HOUSING SOCIETY LTD.& ANR.

DATE OF JUDGMENT19/09/1988

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

CITATION:  1989 AIR   86            1988 SCR  Supl. (3)  32  1988 SCC  (4) 416        JT 1988 (4)    81  1988 SCALE  (2)821  CITATOR INFO :  D          1990 SC1563  (14,15)

ACT:     Maharashtra  Co-operative  Societies Act,  1960  Sec.91- Jurisdiction of co-operative Court to entertain suit--Bombay Rent Act-Sec. 15A--Protection thereof--Whether available.

HEADNOTE:     Smt.  Mohini  R.  Adwani, a member of  the  Maitrai  Co- operative  Housing Society Ltd., was allotted flat No.15  in Societies ’F’ building in Scheme No. I at Chambur Bombay-71. She inducted the appellant in the premises aforesaid without obtaining  the prior written consent of the society, on  the basis  of  a leave & licence agreement for a  period  of  11 months.  The  said  society  was divided  by  order  of  the Assistant Registrar Co-operative Housing Society Ltd. Bombay into two units i.e Maitra Park Co-operative Housing  Society Ltd.,  Chambur  (and the Maitra  BUoy  Co-operative  Housing Society Ltd., Chambur-74 Scheme No. 2) the former being  the owner of the building in Scheme No. i including building No. F’.  Thus  on division Smt. Mohini R.  Adwani  automatically became  a member of the disputed society in respect  of  the said  flat  No. 15 in ‘F’ building.The appellant  after  the expiry  of  the  period of the  licence  was  occupying  the premises  unauthorisedly & was asked to vacate the  flat  by the  member  of  the society. As he did not  accede  to  her request.  the  society had to take steps  for  evicting  the appellant  from  the said flat so that  Respondent  2  could occupy  the same for her residence. The society  accordingly served  a notice on the appellant asking him to  vacate  the flat. On his failure to vacate, the society filed a  dispute before the Co-operative Court for eviction of the  appellant who  was in unauthorised occupation of the premises and  was using the residential flat for canteen purposes in violation of  the  bye-laws  framed  by  the  Society.  The  appellant questioned  the  jurisdiction of the Co-operative  Court  to entertain  the  matter  on the ground that  the  dispute  in question  does not come within the purview of S. 91  of  the Co-operative   Societies  Act  as  he  was   continuing   in possessing  as  licencee and the member of the  Society  was receiving  licence fee from him till the date of filing  the

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dispute. He also asserted that in one of the receipts issued to  him the word "rent" has been used. He also pleaded  that as a licencee he has became a tenant u/s 15A of the amended                                                     PG NO 33 Bombay Rent Act on and from 1st February, 1973.     The  Co-operative Court found against the appellant  and made an award holding that the dispute is covered u/s 91  of the  Maharashtra  Co-operative Societies Act,  1960  as  the appellant  is  claiming to be in possession of the  flat  as licencee through a member of the Society. It also held  that there  was no subsisting agreement of licence in  favour  of the appellant on the date of the coming into force of S. 15A of  the Bombay Rent Act and as such the appellant could  not become   deemed  tenant.  Appellant’s  appeal   before   the Maharashtra State Co-operative Appellate Court having failed he  moved  the  High Court by means  of  Writ  Petition.  On dismissing  the Writ Petition by the Bombay High Court,  the appellant filed this appeal by special leave.     Following the Court’s Judgment in CA. No. 472 of 1985, M s.  A. V.R. & Co. & Ors. v. Fairfield  Co-operative  Housing Society  Ltd., [1988] Supp. 3 S.C.R. 84 Court dismissed  the appeal, but directed that the decree should not be  executed for  a period of 4 months subject to the  appellants  filing usual undertaking. The Court,     HELD:  That  the dispute in question  comes  within  the purview  of S. 91 of the Maharashtra Co-operative  Societies Act, 1960 as the appellant claims to be in possession of the flat  through  a  member  of the  Society  which  is  a  Co- partnership Housing Society and Sec. 15A of the Bombay  Rent Act  does not apply as there was no subsisting agreement  of licence on 1.2.1973. [34G-H;35A]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1 of 1986     From the Judgment and Order dated 7.2.1986 of the Bombay High Court in W. P. No. 4802 of 1984     D.R. Thadani and Shri Narain for the Appellants.     N.N. Keshwani, R.N. Keshwani and Girish Chandra for  the Respondents.     The Judgment of the Court was delivered by B.C. RAY, J.The Maitrai Park Co-operative Housing Society Ltd.  has  filed  a dispute before  the  first  Co-operative Court, Bombay stating inter alia that the opposite party No. I Smt. Mohini R. Adwani                                                     PG NO 34 who is a member of the society and was allotted flat No.  15 in Societies ’F’ building in scheme No. 1 at Chambur  Bombay 71  inducted  the  appellant opposite party  No.  2  without obtaining  the prior written consent of the society  in  May 1969,  on the basis of a leave and licence agreement  for  a period  of 11 months. The said society  Maitrai  Cooperative Housing  Society  Ltd. was divided into two  units  that  is Maitrai  Park Co-op. Housing Society Ltd., Chambur which  is the owner of the building in Scheme No. I including Building No.  F  and the Maitrai Bijoy Co-op.  Housing  Society  Ltd. Chembur-74 Scheme No. 2, by order of the Assistant Registrar Co-operative  Housing Society Ltd. Bombay. By virtue of  the division of the society the assets and liabilities so far as scheme  No.  1  were taken over  by  the  present  disputant society,  that is Maitrai Park Co-operative Housing  Society Ltd.  and  the members in respect of the  said  building  in scheme No. I automatically became members of the society  by the  Order  No.  BCM/ HSG/4633 of 1970  from  6.8.1971.  The

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respondent  opponent No. 2 automatically became a member  of the  disputed society in respect of the said flat No. 15  in ’F’ building. The opposite party appellant who was occupying the  premises unauthorisedly after the expiry of the  period of the licence was asked to vacate the flat by the member of the  society  that is the respondent No. 2. As  he  did  not accede  to the request the respondent No. 1 society  had  to take steps for evicting the appellant from the said flat  so that  the  respondent  No. 2 can occupy  the  same  for  her residence. The society served a notice on the appellant  for vacating  the  flat. But the appellant did  not  vacate  the flat.  Therespondent  No. l, the housing  society,  filed  a dispute  before  the Cooperative Court for eviction  of  the appellant who was in unauthorised occupation of the flat and who  had been using the said residential flat by  opening  a canteen  therein in violation of the bye-laws framed by  the society.  The appellant questioned jurisdiction of  the  Co- operative Court to entertain the dispute on the ground  that the  dispute does not come within purview of Section 9 l  of the Co-operative Societies Act as he has been continuing  in possession  as  licencee  till the date  of  filing  of  the dispute and the respondent No. 1, the member of the society, has  been receiving licence fees from him. It has also  been stated that in one of the receipts issued by the member. The word  rent’ has been used. The appellant also  pleaded  that continuing as a licencee he has become a tenant under s. l5A of the amended Bombay Rent Act on and from Ist of  February, 1973. The dispute is as such beyond the jurisdiction of  the Co-operative Court. The Co-operative Court after hearing the parties  made an award holding that the dispute fell  within the  purview  of  s. 9 l  of  the  Maharashtra  Co-operative Societies  Act, 1960 as the appellant is claiming to  be  in possession  of the flat as licencee through a member of  the                                                     PG NO 35 society. It also held that there was no subsisting agreement of  licence in favour of the appellant on the d ate  of  the enforcement  of  S. 15A of the Bombay Rent Act  and  so  the appellant had not become a deemed tenant.     Against  this  award  an appeal  was  filed  before  the Maharashtra  State  Co-op. Appellate Court. The  appeal  was dismissed and the award of the Co-operative Court  directing eviction  of  the  petitioner  from  the  Flat  No.  15  was affirmed.  The appellant thereafter moved the High Court  of Bombay  in  Writ Petition No. 4802 of 1984.  The  said  writ petition was dismissed with costs. The appellant  thereafter filed  the instant special leave petition. The facts of  the case  are more or less similar to the facts of C.A. No.  472 of 1985.     We have already held that the dispute in question  comes within purview of Section 91 of the Cc-operative Act as  the appellants  claim to be in possession of the flat through  a member  of  the society which is  a  Co-partnership  Housing Society  and  Section 15A of the Bombay Rent  Act  does  not apply  as  there was no subsisting agreement of  licence  on 1.2.1973. Therefore, the judgment rendered by us in C.A. No. 472  of  1975  will also govern this case.  The  appeal  is, therefore.  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 filing  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 question to the respondent on or before the  expiry of  the  aforesaid  period  and he will  go  on  paying  the

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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 these terms,the  decree  shall become executable forthwith. Y.LAL                                       Appeal dismissed