http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 16  

PETITIONER: SANWARMAL KEJRIWAL

       Vs.

RESPONDENT: VISHWA COOPERATIVE HOUSING SOCIETY LTD. & ORS.

DATE OF JUDGMENT08/03/1990

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) SHETTY, K.J. (J)

CITATION:  1990 AIR 1563            1990 SCR  (1) 862  1990 SCC  (2) 288        JT 1990 (2)   200  1990 SCALE  (1)398  CITATOR INFO :  D          1991 SC 626  (12,13)

ACT:     Bombay Rents, Hotels & Lodging House Rates Control  Act, 1947:  Section 15A--Licensee occupying flat  in  cooperative Housing Society--Whether entitled to statutory protection of Rent Act?     Maharashtra  Cooperative  Societies  Act  1960:  Section 91(1)--Can  licensee occupying flat in a tenant  co-partner- ship society be evicted?

HEADNOTE:     The question for determination is, can a licensee  occu- pying  a flat in a tenant co-partnership society be  evicted therefrom  under subsection (1) of section 91 of  the  Maha- rashtra Cooperative Societies Act, 1960 notwithstanding  the protection  extended  by Section 15A of  the  Bombay  Rents, Hotels & Lodging House Rates Control Act, 1947 as amended by Act  XVII of 1973 or whether such proceedings would be  gov- erned by Section 28 of the Rent Act?     The  appellant licensee was in actual possession of  the fiat  on 1st February 1973 under a license without  the  ex- press  permission of the Society. He was let in, in 1957  by one D.P. Kejriwal who was looking after the flat  originally allotted to one Laxmi Devi Kejriwal in 1949. She gifted  her interest  as  allottee  member to her brother  who  in  turn transferred  his interest therein to his brother Hari  Kumar Sharma,  respondent  No. 2, in July 1967.  Even  after  this transfer  D.P. Kejriwal continued in management of the  flat till  1979 when he received a letter from Respondent  No.  2 claiming  ownership  of the flat. The  appellant  thereafter filed  an  interpleader suit. On disposal of the  said  suit Respondent No. 2 deposited a sum of Rs.5,500 with Respondent No.  1,  the  Society, towards the cost of  the  Society  to initiate proceedings for eviction of the appellant from  the flat  in question under Section 91(1) of the Societies  Act. The  appellant contended that the proceeding  under  section 91(1) was not competent as the document of leave and licence in fact created a lease. Alternatively, as he was in  actual possession under a subsisting license right from 1957 to 1st February  1973, he was a statutory tenant under section  15A

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 16  

of  Bombay Rent Act and the Cooperative Court had no  juris- diction  under  section 91(1) of the Societies Act  and  the proper court was one under section 28 of the Rent Act  which the Respondent No. 2 had in fact approached. 863     The Co-operative Court passed an ejectment order against the  appellant. The appellant filed an appeal under  section 97 of the Societies Act to the State Co-operative  Appellate Court, Bombay. The appellate court dismissed the appeal  and confirmed  the  order  of the  Co-operative  Court.  Feeling aggrieved  by the concurrent findings of the two courts  the appellant  preferred  a Writ Petition in the High  Court  of Bombay. The Writ Petition was also dismissed.     While  allowing the appeal and setting aside  the  judg- ments  of all the Courts below and directing that the  claim application  filed under section 91(1) of the Societies  Act shall stand dismissed, this Court,     HELD: The appellant was and is a protected tenant  under section 15A of the Rent Act. The proceedings initiated under section  91(1)  of the Societies Act cannot in  the  circum- stances succeed as the Society has failed to prove the  fact of  trespass which constituted the foundation for  jurisdic- tion.  if the society fails to prove that the appellant  has no  right to the occupation of the flat since he is  a  mere trespasser, the suit must obviously fall. [883B-C]     The  Societies Act, section 91(1), confers  jurisdiction on  the Cooperative Court while section 28 of the  Rent  Act confers  jurisdiction on the Court of Small Causes,  Bombay. [881B]     The Status of a tenant is conferred on him by law as the legislature desired to extend the protection of the Rent Act to  such licensees. Rights which do not flow from  contracts but are conferred by law such as the Rent Act must be deter- mined by the machinery, if any, provided by the law  confer- ring the right. [881G-H]     Notwithstanding  the  absence  of  privity  of  contract between the owner-landlord and the licensee-protected tenant the  latter cannot be evicted except in accordance with  the provisions of the Rent Act. [882B]     Chandavarkar  Sita  Ratna  Rao v. Ashalata  S.  Gum  am, [1986]  4 SCC 447 at 478; Ramesh Himmatlal Shah  v.  Harsukh Jadhavji Joshi, [1975] 2 SCC 105; Hindustan Petroleum Corpo- ration  Ltd. v. Shyam Cooperative Housing Society, [1988]  4 SCC  747=AIR 1989 SC 295; O.N. Bhatnagar v. Rukibai  Narsim- das,  AIR 1982 SC 1097; M/s. AVR & Co. & Ors.  v.  Fairfield Cooperative Housing Society & Ors., [1988] 4 SCC 408; Sardar Mohan  Singh Ahluwalia v. Maitrai Park  Cooperative  Housing Society & Anr., [1988] 4 SCC 416; Hindustan Thompson Associ- ates Ltd. v. Mrs. Maya Inderson Israni & Ors.. 864 1988] 4 SCC 745; Smt. Krishna Rajpal Bhatia v. Miss Leela H. Advani & Ors., [1989] 1 SCC 52; Deccan Merchant  Cooperative Bank  Ltd. v. Pali Chand Jugraj Jain, [1969] 1 SCR  887  and Co-operative  Central  Bank Ltd.  v.  Additional  Industrial Tribunal, Andhra Pradesh, [1970] SCR 205, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1369  of 1990.     From  the  Judgment  and Order dated  16.6.1989  of  the Bombay High Court in W.P. No. 2513 of 1989.     Anil B. Diwan, Y.R. Naik, S. Thananjayan and K.R. Choud-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 16  

hary for the Appellant.     Dr. Y.S. Chitale, Y.T. John, C.V. Francies, C.V. Rappai, 3. Prakash and V.K. Purwani for the respondents. The Judgment of the Court was delivered by AHMADI, J. Special leave granted.     Can a licensee occupying a flat in a  tenant-co-partner- ship  society be evicted therefrom under Sub-Section (1)  of Section  91 of the Maharashtra Co-operative  Societies  Act, 1960 (Act No. XXIV of 1961), hereinafter called ’the  Socie- ties  Act’, notwithstanding the protection extended by  Sec- tion  15A of the Bombay Rents, Hotels & Lodging House  Rates Control  Act,  1947  (’Act No. LVII  of  1947),  hereinafter called  ’the  Rent Act’, as amended by Act XVII of  1973  or whether such proceedings would be governed by Section 28  of the  Rent  Act? That is the question which  arises  for  our determination  in he context of the fact that the  appellant licensee  claimed to be in actual possession of the flat  on 1st  February,  1973,  under a  subsisting  licence,  albeit without  the express permission of the society.  The  actual matrix  in which this question needs to be answered  may  be briefly stated as under:     The Vishwa Co-operative Housing Society Ltd., respondent No.  1,  hereinafter called ’the  Society’,  was  registered sometime  in  1948 ruder the provisions of  the  Bombay  Co- operative Societies Act, 1925 and is deemed to be registered by virtue of Section 166(2) under the present Societies Act. On  2nd March, 1949 one Laxmi Devi Kejriwal was admitted  to the membership of the society and was allotted Flat 865 No.  25  of  the multi-storeyed building  known  as  ’Vishwa Mahal’ situate on "C" Road, Churchgate, Bombay-20. The  said Laxmi Devi gifted her interest as the allottee-member of the society to her brother Ambica Prasad Sharma of Udaipur.  One D.P.  Kejriwal who was looking after this flat inducted  the appellant  therein w.e.f. 1st June, 1957 under a  leave  and licence  agreement  on a licence fee of  Rs.400  per  month. While  the appellant was in actual occupation of  the  flat, the  allottee-member  Ambica Prasad Sharma  transferred  his interest therein to his brother Hari Kumar Sharma,  respond- ent  No. 2, sometime in July 1967. The said  respondent  was admitted  to  the membership of the society  on  15th  July, 1967. It appears that even after this transfer D.P. Kejriwal continued  in management of the flat and collected  and  re- ceived the licence fee from the appellant till the middle of 1979 when he received a letter from respondent No. 2  claim- ing  onwership  of  the flat. The appellant  then  filed  an interpleader  suit  in the Court of  Small  Causes,  Bombay, seeking  a direction to whom he should pay the rent for  the flat occupied by him. This interpleader suit was disposed of on 21st June, 1983. Immediately thereafter respondent No.  2 deposited Rs.5,500 on 28th June, 1983 with respondent No.  1 society  towards the society’s cost to initiate  proceedings for  eviction  of the appellant from the  flat  in  question under Section 91(1) of the Societies Act. Two days later the respondent No. 2 filed a suit for the eviction of the appel- lant  from  the flat in the Court of Small  Causes,  Bombay. After  respondent  No.  2 deposited  Rs.5,500,  the  society passed  a resolution on 5th July, 1983 to initiate  proceed- ings under Section 91(1) of the Societies Act for the  evic- tion  of the appellant from the flat in question.  Thereupon the society served the appellant with a notice to quit dated 11th  July, 1983 and thereafter instituted the action  under Section 91(1) of the Societies Act.     The appellant raised several defences, two of which  may be noticed. He firstly contended that the so-called document

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 16  

of leave and licence in fact created a lease and, therefore, the proceeding under Section 91(1) of the Societies Act  was not  competent.  Secondly he contended that even  if  it  is assumed that the relationship was of a licensor and a licen- see  under the deed, since he was in actual  occupation  and possession  of the flat in question under a  subsisting  li- cence right from 1957 to 1st February, 1973 he was a  statu- tory  tenant  under  Section 15A of the Rent  Act  and  was, therefore,  entitled  to  protection from  eviction  till  a competent  court granted eviction on any of the grounds  set out  in  Sections 12 or 13 of the Rent Act.  He,  therefore, contended  that  the Cooperative Court had  no  jurisdiction under  Section  91(1) of the Societies Act  and  the  proper court to approach was 866 the one under Section 28 of the Rent Act, which the respond- ent No. 2 had in fact approached.     The  Cooperative Court came to the conclusion  that  the relationship created under the document of leave and licence was  that of a licensor and a licensee. On the  question  of tenancy under Section 15A the Court concluded as under: "So far as second part of the issue regarding opponent No. 2 contending to be tenant of opponent No. 1 is concerned,  the opponent  No. 1 in his evidence has mentioned to the  effect that after his becoming a member of the society he initially accepted the opponent No. 2 as his licensee and allowed  him to occupy the suit flat temporarily on his promise to vacate when required by opponent No. 1. He has further stated  that he filed the case in the Small Causes Court for ejectment of opponent  No. 2 in his own right as advised by his  Advocate in  that case. He has also stated that he accepted  Opponent No.  2 as his tenant because after 1.2.1973 there is  change in law and so he had to accept opponent No. 2 as his tenant. In  view  of this evidence I have to give a finding  in  the affirmative in respect of part of the issue whether opponent No. 2 proves that he is a tenant of opponent No. 1". In other words the Cooperative Court came to the  conclusion that  the appellant was a tenant of respondent No.  2  under Section  15A of the Rent Act since he was in  occupation  of the flat on 1st February, 1973. After finding the  appellant to  be a tenant of respondent No. 2 under section  15A,  the Cooperative Court proceeded to observe as under: "Now regarding the effect of findings on the parts of  issue No. 2 as mentioned hereinabove, the position in law is quite clear that even though the non-member occupant could at best be  regarded  as tenant of member, he cannot  be  deemed  as tenant  of  the society because the society  does  not  fall within  the definition of the term landlord under  the  Rent Act". The  Cooperative  Court, therefore, came to  the  conclusion that  the  society could maintain an  action  under  Section 91(1) of the Societies Act notwithstanding the fact that the occupant was a tenant under Section 15A of the Rent Act  qua the member-allottee. In this view, the 867 Cooperative  Court  passed an ejectment  order  against  the appellant  and  ordered  that the  member  shall  personally occupy the flat in question within 15 days from the  receipt of possession thereof.     The  appellant feeling aggrieved by this order filed  an appeal  under Section 97 of the Societies Act to  the  Maha- rashtra  State  Cooperative Appellate Court,  Bombay,  being Appeal  No. 206 of 1988. The said appeal was dismissed  with costs on 22nd December, 1988. The appellate court also  took the view that regardless of the relations between the  occu-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 16  

pant  of the flat and the member-allottee, the  society  was entitled  to maintain an action under Section 91(1)  of  the Societies Act since there was not and there could not be any relationship of landlord and tenant between the society  and the  occupant. It accordingly confirmed the order passed  by the Cooperative Court.     Feeling aggrieved by the concurrent findings recorded by the  said two courts, the appellant preferred writ  petition No. 25 13 of 1989 in the High Court of Judicature at Bombay. The said writ petition was summarily dismissed on 16th June, 1989 but by a speaking order. The learned Singe Judge  while dismissing the writ petition observed as under: "It  has now been repeatedly held by the Supreme Court  that the protection even though available to the occupier against member of the cooperative society, such protection cannot be claimed against a housing society. A reference to the  deci- sion in O.N. Bhatnagar v. Rukibai Narsindas, reported in AIR 1982 SC 1097, is sufficient". The  decision of this Court in Hindustan Petroleum  Corpora- tion Limited v. Shyam Cooperative Housing Society, [1988]  4 SCC  747=  AIR 1989 SC 295 was distinguished as  not  laying down  any  proposition that a licensee is entitled  to  take advantage  of Section 15A of the Rent Act even  against  the society.  So  stating the learned Judge dismissed  the  writ petition. That is how the appellant is before us by  special leave.     Section  91(1) of the Societies Act insofar as  relevant for our purposes reads as under: "Notwithstanding anything contained in any other law for the time being in force any dispute touching the constitu- 868 tion,   ...........   management or business  of  a  Society shall   be   referred  by  any  of  the   parties   to   the dispute  ..........   to the Cooperative Court if  both  the parties thereto are one or other of the following: (a) a society  .......... (b)  a  member, past member or a person claiming  through  a member, past member or a deceased member of the society Sub-section (3) reads as under: "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)" Sub-section (2) of Section 93 lays down that: "Notwithstanding contained in this Act the Cooperative Court may, if it thinks fit suspend any proceedings in respect  of any  dispute,  if  the question at issue  is  one  involving complicated  questions of law and fact, until  the  question has  been tried by a regular suit instituted by one  of  the parties or by the society". Sub-section  (1) of Section 99 which begins with  a  non-ob- stante  clause  gets attracted if there arises  any  dispute touching  the business of a society. Such a dispute  can  be referred  to  a  Cooperative Court if both  parties  to  the dispute are one or other of those enumerated in clauses  (a) to  (e)  thereof.  These include a society, a  member  or  a person  claiming  through  a member or a past  member  or  a deceased member. The dispute in the present case is  between the society, its member and appellant, a person stated to be one claiming through the present member or the past  member. The crucial question which arises is whether the dispute  or controversy between the parties can be said to be one touch- ing  the  business of the society. If yes,  the  Cooperative Court alone will have jurisdiction since the jurisdiction of every other court is ousted by virtue of Sub-section (3)  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 16  

Section  91  except for the limited purpose stated  in  sub- section (2) of Section 93 of the Societies Act. 869     Under bye-law No. 2 the objects of the society are inter alia to carry on trade of building, buying, selling, hiring, letting  and  developing  land  on  cooperative  principles. Regulation 4 in Form A provides that no tenant-member  shall assign, under-let, vacate or part with the possession of the tenement or any part thereof without the previous consent in writing of the society. Bye-law 7A lays down that an outsid- er-non-member  can be allowed to take advantage of the  mem- ber’s  flat only on production of a written confirmation  of the  member before the society and on the society  thereupon admitting such member as a ’nominal’ member of the  society. Admittedly in the present case no written permission of  the society  was obtained either by the member or by the  appel- lant before the latter was put in possession of the flat  in question  nor was any request made to the society  to  admit the  appellant as a nominal-member. It was, therefore,  con- tended on behalf of the society that the entry of the appel- lant  in  the flat in question was clearly in  violation  of Regulation  4 and bye-law 7A adverted to above  and,  there- fore,  the dispute was clearly one touching the business  of the  society attracting Section 91(1) of the Societies  Act. The appellant’s challenge as pointed out earlier can be said to  be two fold, namely, (1) the dispute between the  appel- lant  and  the society cannot be said to be  in  any  manner related  to  the business of the society and (2)  since  the jural relationship between the member and the appellant  was admittedly  of landlord and tenant, the jurisdiction of  the Cooperative Court under the Societies Act was clearly barred by  virtue of Section 28 of the Rent Act which is a  special statute dealing with landlord-tenant relationship.     The  Rent Act was enacted to amend and  consolidate  the law relating to the control of rents and repairs of  certain premises,  of  rates  of hotels and lodging  houses  and  of evictions  and  also to control the charges for  licence  of premises,  etc. Section 15A which was inserted  by  amending Act 17 of 1973 provides as under: "15A(1)  Notwithstanding anything contained in this  Act  or anything  contrary  in any other law for the time  being  in force,  or in any contract, where any person is on  the  1st day of February, 1973 in occupation of any premises, or  any part thereof which is not less than a room, as a licensee he shall on that date be deemed to have become for the purposes of  this Act, the tenant of the landlord, in respect of  the premises or any part thereof, in his occupation". The expression ’licensee’ is defined in sub-section (4A)  of Section 5 as under: 870 ’5(4A)  licensee’,  in respect of any premises or  any  part thereof. means the person who is in occupation of the  prem- ises  or such part, as the case may be, under  a  subsisting agreement for licence given for a licence fee or charge; and includes  any person in such occupation of any  premises  or part  thereof  in a building vesting in or leased to  a  co- operative housing society registered or deemed to be  regis- tered  under  the Maharashtra  Co-operative  Societies  Act, 1960);  but does not include a paying guest, a member  of  a family residing together, a person in the service or employ- ment  of  the  licensor, or a person  conducting  a  running business belonging to the licensor, for a person having  any accommodation for rendering or carrying on medical or  para- medical  services or activities in or near a  nursing  home, hospital  or sanatorium, for a person having any  accommoda-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 16  

tion  in a hotel, lodging house, hostel, guest house,  club, nursing  home, hospital, sanatorium, dharmashala,  home  for widows, orphans or like premises, marriage or public hall or like  premises, or in a place of amusement or  entertainment or like institution, or in any premises belonging to or held by  an employee or his spouse who on account of the  exigen- cies of service or provision of a residence attached to  his or her post or office is temporarily not occupying the prem- ises, provided that he or she charges licence fee or  charge for  such premises of the employee or spouse  not  exceeding the standard rent and permitted increases for such premises, and  any  additional  sum for services  supplied  with  such premises,  or a person having accommodation in any  premises or part thereof for conducting a canteen, creche, dispensary or other services as amenities by any undertaking or  insti- tution; and the expressions ’licence’, ’licensor’ and  ’pre- mises given on licence’ shall be construed accordingly". The  definition of a ’landlord’ in Section 5(3) includes  in respect of a licensee deemed to be a tenant by Section  15A, the  licensor  who  has given such  licence.  Similarly  the expression  ’tenant’  as defined by Section  5(11)  includes such licensees as are deemed to be tenants by Section 15A. Section 14(2) may also be noticed which reads as under: "Where the interest of a licensor who is a tenant of any 871 premises  is  determined for any reason, the  licensee,  who by  .. Section 15A is deemed to be a tenant, shall,  subject to the provision of this Act, be deemed to become the tenant of  the landlord, on the terms and conditions of the  agree- ment consistent with the provisions of this Act". The Courts below have come to the conclusion that the appel- lant  was a tenant of respondent No. 2 by virtue of  Section 15A of the Rent Act since he was in actual occupation of the flat on 1st February, 1973. Having recorded the relationship of landlord and tenant between the member, respondent No. 2, and  the occupant-appellant, the courts below took the  view that  as  there was no such jural relationship  between  the society and the occupant, the society was entitled to  evict the occupant from the flat in question by taking recourse to Section  91(1) of the Societies Act as the  dispute  between the  society, its member and the occupant  claiming  through the member was essentially one touching the business of  the society. In other words according to the courts below  while the  member  could  not evict the  occupant  except  through proceedings  initiated under the Rent Act, the  society  was free  to  evict  the occupant,  without  dis-continuing  the membership  of the licensor, by virtue of Section  91(1)  of the Societies Act. There is, according to the courts  below, no  conflict between Section 91(1) of the Societies Act  and Section  28 of the Rent Act because in order to attract  the latter  provision  it must be shown  that  the  relationship between  the society and the occupant is that of a  landlord and a tenant or a licensor and a licensee who is entitled to the  benefit of Section 15A of the. Rent Act. Unless such  a relationship is established, the society cannot be precluded from  initiating eviction action under Section 91(1) of  the Societies Act against an occupant with whom it has no privi- ty of contract, notwithstanding the fact that he was induct- ed  in the flat by the member-allottee, albeit  contrary  to the regulations and bye-laws of the society, and by  passage of time a relationship of landlord and tenant has  developed between the two by virtue of Section 15A of the Rent Act.     What  impelled the legislature to introduce Section  15A and  the related provisions on the statute book by Act  XVII of 1973? The acute paucity of accommodation, particularly in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 16  

urban  and  metropolitan centres, is  of  common  knowledge. Section 15 of the Rent Act initially prohibited sub-letting. Despite  this prohibition sub-letting took place on a  large scale  because of non-availability of rented  premises.  The legislature  had to face this hard reality and was  required to  extend  protection to such sub-tenants  when  they  were threatened with evic- 872 tion  by enacting the Bombay Rents, Hotels & Lodging  Houses Rates  Control Act (Amendment) Ordinance,  1959.  Thereafter also  the acute shortage of accommodation continued  and  to circumvent  the  prohibition of sub-letting  in  Section  15 increasing use of inducting third parties in rented premises through  the expedient of leave and licence  agreements  was made. This becomes evident from the Objects and Reasons  for Act No. XVII of 1973, which read as under: "It is now notorious that the Bombay Rents, Hotel and  Lodg- ing  House Rates Control Act, 1947, is being avoided by  the expedient  of giving premises on leave and licence for  some months  at  a time; often renewing from time to time  at.  a higher licence fee. Licensees are thus charged excessive licence fees; in fact, several times more than the  standard rent, and have no security of tenure, since the licensee has no  interest in the property like a lessee. It is  necessary to  make provision to bring licensees within the purview  of the aforesaid Act. It is therefore provided by Clause 14  in the Bill that persons in occupation on the 1st day of Febru- ary, 1973 (being a suitable anterior date) under  subsisting licences,  shall for the purposes of the Act, be treated  as statutory  tenants, and will have all the protection that  a statutory tenant has, under the Act. It is further  provided in  Clause 8 that in the case of other licences, the  charge shall not be more than a sum equivalent to standard rent and permitted  increases, and a reasonable amount for  amenities and services. It is also provided that no person shall claim or receive anything more as licence fee or charge, than  the standard  rent and permitted increases, and if he  does  re- ceive any such amounts, they should be recoverable from  the licensor".     The legislative policy is evident from the opening words of Section 15A--Notwithstanding anything contained elsewhere in  this Act or anything contrary in any other law  for  the time being in force, or in any contract--which convey in  no uncertain  terms  that the legislature  desired  to  protect licensees  who were in actual occupation of any premises  on 1st  February, 1973 from eviction by conferring on them  the status  of  a tenant and thereby bringing  them  within  the purview  of the Rent Act regardless of the other  provisions of the said enactment or any other enactment or contract  to the contrary. A sweeping overriding effect is given over all laws  and other provisions of the Rent Act as well  as  con- tract providing to the contrary thereby placing the 873 question  of status of licensees in occupation of any  prem- ises on 1st February, 1973 beyond the pale of doubt. To make matters  clear  corresponding  changes  were  simultaneously made, in the preamble of the Rent Act and the definitions of ’landlord’ and ’tenant’ and a new definition’ of  ’licensee’ was inserted on the statute book. Not only did the  legisla- ture desire to confer the status of a tenant on such  licen- sees  but  it went a step further by  providing  in  Section 14(2)  that on the determination of the licenser’s  interest in  the premises such a statutory tenant under  Section  15A will become the tenant of the landlord, thereby establishing a jural relationship of landlord and tenant through  statute

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 16  

as distinguished from contract. It, therefore, seems crystal clear  to us that the legislative policy was to  extend  the protective umbrella of the Rent Act to licensees who were in occupation of any premises on 1st February, 1973 by fiction- ally  conferring on them the status of a tenant,  overriding all other provisions of the statute itself, all other  stat- utes  and  contracts providing to the  contrary.  Therefore, every  other provision of the Rent Act, every  provision  of any  other law and every covenant of a contract  which  runs counter to the legislative policy engrafted in Section  15A, meaning  thereby which provides to the contrary, must  yield to Section 15A read with Section 14(2) of the Rent Act. That is why this Court while overruling the decision of the  Full Bench  of the Bombay High Court in Ratanlal Chandiprasad  v. Raniram  Darkhand, writ petition No. 76 of 1980  decided  on 18th October, 1985 observed in paragraph 69 of its  judgment in  Chandavarkar  Sita  Ratna Rao v.  Ashalata  S.  Gurnatn, [1986] 4 SCC 447 at 478 as under: ".   ....   it must be held that all  licensees  created  by landlords  or by the tenant before February 1, 1973 and  who were  in actual occupation of a premises which was not  less than  a  room as licensee on February 1, 1973 would  be  the licensees of the landlord or tenant and whether there by any term in the original agreement for tenancy permitting  crea- tion  of such tenancy or licences or not they  would  become tenant and enjoy the fights granted under the Act  specially those mentioned in Section 14(2) of the Act". Therefore,  this Court held that a licensee under a  licence created by a tenant, be he a statutory tenant or a  contrac- tual tenant, whether or not his tenancy agreement  permitted the creation of such licence, was entitled to the protection of Section 15A of the Rent Act. In other words no  statutory bar  or contractual bar operated against the  conferment  of the statutory tenancy on the licensee in occupation of any 874 premises on 1st February, 1973 under Section 15A of the Rent Act.     That  takes  us to the next question whether  or  not  a member  of a co-partnership type of a  co-operative  society has  such interest in the premises allotted to him as  would entitle him to give the same on leave and licencee basis  to a non-member. In a tenant co-partnership type of society the members  are  shareholders; but the title  to  the  property vests  in the society which in turn rents the  tenements  or flats to its members. The cost of construction of  dwellings is met from deposits and loans besides the share money.  The rental is usually determined on long term basis so calculat- ed  as  to meet the cost of construction and upkeep  of  the building and to guarantee perpetuity of occupation on repay- ment of the whole value of the tenement or flat. At the  end of the period the member is credited with additional  shares equal  to  the  amount paid by him; the  interest  on  these shares  generally matches the rental payable by him  to  the society. Thus on full payment the member becomes entitled to occupy the tenement or flat free of charge as the rental  he has  to pay to the society is almost met from  the  interest received  from  shares held by him. Thus a member  has  more than a mere fight to occupy the flat.     A similar question came up for consideration before this Court  in Ramesh Himmatlal Shah v. Harsukh. Jadhavji  Joshi, [1975]  2 SCC 105 in the context of whether or not the  mem- ber’s  right in the flat was liable to attachment  and  sale under Section 60 of the Code of Civil Procedure. This  Court after analysing the various provisions of the Societies Act, the bye-laws and the regulations framed thereunder, came  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 16  

the conclusion that the member’s right or interest to occupy is a species of property. Proceeding further this Court made the  following  observations in paragraph 18 to  20  of  the Judgment: "There is no absolute prohibition in the Act or in the Rules or in the bye-laws against transfer of interest of a  member in the property belonging to the Society. The only  transfer which is void under the Act is one made in contravention off sub-section  (2) of Section 47 [See Section 47(3)]. We  have not  been able to find any other provision anywhere  to  the same effect. In the Scheme of the provisions a dichotomy  is seen  between share or interest in the capital and  interest in  property of the Society. While Section 29(2)  refers  to transfer of a member’s share or his interest in the  capital or property of any Society, Section 31 in contrast speaks of ’the share or interest of a member in the capital of a So- 875 ciety’.  The Act, therefore, makes a clear  distinction  be- tween  the  share or interest in the capital  and  share  or interest  in property of the Society. We have  also  noticed that  the Act does not recognise interest in  the  immovable property  of the society as well [See section 41(1)(b)].  We have  seen  the qualifications for membership. There  is  no reason  to suppose that if the qualification under the  bye- laws  are  fulfilled an application for  membership  may  be rejected". After pointing out that the right or interest to occupy is a species of property this Court went on to add as under: "We,  therefore, unhesitatingly come to the conclusion  that this species of property, namely, the right to occupy a flat of  this type, assumes significant importance  and  acquires under  the law a stamp of transferability in furtherance  of the  interest of commerce. We have seen no fetter under  any of  the  legal  provisions against such  a  conclusion.  The attachment  and sale of the property in this case in  execu- tion of the decree are valid under the law. XXXXXXXXXXXXXXXXXXXXXXXXX In absence of clear and unambiguous legal provisions to  the contrary, it will not be in public interest or in the inter- est  of  commerce to impose a bar on  saleability  of  these flats  by a tortuous process of reasoning. The  prohibition, if intended by the Legislature must be in express terms.  We have failed to find one". It becomes clear from this decision that the member’s  right to  occupy the flat is a species of property liable  to  at- tachment  and sale. It is more than a mere right to  occupy. It is transferable and if the transferee answers the  quali- fications  under  the  bye-laws for being  admitted  to  the membership  of the Society, the Society would  be  precluded from  unreasonably withholding such admittance.  There  can, therefore, be no doubt that a member-allottee has a right to transfer  his  interest in the flat to a  third  party  and, therefore,  the right to induct a third party on  leave  and licence basis.     It  was contended by the learned counsel for the  appel- lant that Section 15A was inserted in the Rent Act to  serve a  dual purpose namely (1) to curb exploitation of  licensee and (2) to provide security 876 of tenure. If the view taken by the Courts below in the name of  maintenance of the ’distinctive mutuality’ principle  is endorsed, the very purpose of the amendment, argued counsel, would  be  defeated.  He pointed out that in  the  State  of Maharashtra the cooperative movement had taken rapid strides and the legislature was aware that a large number of  licen-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 16  

sees  were  in occupation of flats  situate  in  Cooperative Societies. It must, therefore, be assumed that the  legisla- ture  desired  to extend the protection of the Rent  Act  to such  licensees  also by bringing them within the  scope  of Section  15A  of the Act. In support of this  contention  he placed  strong  reliance on the decision of  this  Court  in Hindustan  Petroleum Corporation Limited (supra). This  sub- mission was countered by the learned counsel for the society and the member on the plea that the Courts below had rightly concluded  that  the jurisdiction of the  Cooperative  Court under  Section  91(1) of the Societies Act  was  not  ousted because  there  was no jural relationship  of  landlord  and tenant  between the society and the appellant. According  to them if non-members could be inducted in tenements or  flats belonging  to a Cooperative Housing Society of  the  present type, the entire housing movement would become redundant and the  object  of forming such cooperative  housing  societies would be totally defeated. Therefore. submitted the  learned counsel,  even if it is assumed that the appellant  had  ac- quired  the status of a tenant by virtue of Section  15A  of the Rent Act, the protection extended by the said  provision would  extend  to the licenser-member only and  not  to  the society.  In this connection strong reliance was  placed  on the decision of this Court in O.N. Bhatnagar’s case  (supra) which has been referred to and relied on in four  subsequent decisions  namely, M/s A.V.R. And Co. & Others v.  Fairfield Cooperative  Housing  Society & Others, [1988]  4  SCC  408; Sardar  Mohan Singh Ahluwalia v. Maitrai  Park  Co-operative Housing  Society  and Another, [1988] 4 SCC  416;  Hindustan Thompson  Associates  Ltd. v. Mrs. Maya  Inderson  Israni  & Others,  [1988] 4 SCC 745 and Smt. Krishna Rajpal Bhatia  v. Miss Leela H. Advani and Others, [1989] 1 SCC 52.     Five decisions were rendered by a Division Bench of this Court  (A.P. Sen & B.C. Ray, JJ.) on a single day i.e.  19th September, 1988 on the question of applicability of  Section 91(1) of the Societies Act. In four of those cases,  namely, A.V.R. & Co. & Others; Sardar Mohan Singh Ahluwalia;  Hindu- stan  Thompson Associates Ltd. and Smt. Krishna Ralpal  Bha- tia, this Court on facts took the view that the applicabili- ty  of Section 91(1) of the Societies Act could not  be  as- sailed.  In all those four cases the Court came to the  con- clusion that the licence was terminated before 1st February, 1973 and, therefore, 877 the  occupant could not be said to be in occupation  of  the flat  under a subsisting licence on 1st February,  1973  and hence  Section  15A of the Rent Act had no  application.  In such a fact-situation this Court rightly took the view  that Section  28 of the Rent Act was not attracted and hence  the society was entitled to seek eviction under Section 91(1) of the  Societies  Act. In Bhatnagar’s case  the  occupant  was inducted  in the flat on leave and licence basis  after  the Society  had accepted him as a nominal member. But  his  li- cence was terminated by a notice dated 31st March, 1965  and thereafter  his  occupation was no more under  a  subsisting licence  to entitle him to the protection of Section 15A  of the  Act.  In the case of A.V.R. & Co. also  the  licensee’s claim for deemed tenancy was rejected on the ground that the licence  had expired long before 1st February, 1973 and  had not  been renewed since then. The Court, therefore, came  to the conclusion that the licence was not in occupation of the flat  under a subsisting licence on 1st February, 1973  and, therefore, the benefit of Section lSA could not be  extended to him. In the case of Sardar Mohan Singh Ahluwalia also the Court found that as a matter of fact there was no subsisting

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 16  

licence on 1st February, 1973 to attract the application  of Section  15A of the Rent Act. In Hindustan Thompson  Associ- ates Ltd. the facts disclosed that the licence was terminat- ed  by the member on 1st October, 1972 and the occupant  was called upon tO vacate the premises. It was, therefore,  held that  since  the subsequent occupation of the  flat  by  the occupant  was not under a subsisting licence his  occupation was in the nature of a trespasser and hence Section 15A  had no  application. The Court, therefore, concluded that  evic- tion  proceedings could be commenced against him under  Sec- tion 91(1) of the Societies Act. In the last mentioned  case of  Srnt.  Krishna Rajpal Bhatia the court  found  that  the agreement in question created the relationship of a licensor and  a licensee and the licence had in fact been  terminated by  a notice dated 21st May, 1969 and, therefore, the  occu- pant  was  a mere trespasser when the action  was  commenced under  Section 91(1) of the Societies Act and was not  enti- tled to the benefit of Section 15A of the Rent Act. It  can, therefore,  be seen that the aforesaid 5 decisions on  which considerable reliance was placed by the learned counsel  for the  Society  and its member can be distinguished  on  facts inasmuch as in all those cases the finding of fact  recorded throughout  was that the licensee was not in  occupation  of the  premises in question under a subsisting licence on  1st February,  1973 to invoke the protection of Section  15A  of the Rent Act.     However, in the case of Hindustan Petroleum  Corporation Limited  (supra) the Esso Easter Inc., a company, had  taken flat No. 35 878 in Block No. 8 in Sham Niwas on leave and licence basis  for a  period of one year in terms of a written agreement  dated November 26, 1968 from Smt. Nanki M. Malkani. On December 4, 1968  the  Society passed a resolution  admitting  one  T.J. Mansukani,  an employee of the company, as a nominal  member of the society since he was to occupy the flat. The  licence agreement  was extended from time to time under the  renewal clause incorporated in the agreement. After the company  was taken  over under the Esso (Acquisition of  Undertakings  in India) Act, 1974 Smt. Nanki M. Malkani sent a  communication affirming the terms and conditions of the licence and  again confirmed the same on 24th March, 1976. It will be seen from these facts that the licence was subsisting on 1st February, 1973.  On 11th September, 1980 the Society passed a  resolu- tion  calling upon the appellant-corporation to  vacate  the said premises and directed its member Smt. Nanki M.  Malkani to  occupy the same herself. Upon the  appellant-corporation failing  to vacate the premises the Society  commenced  pro- ceedings  under Section 91(1) of the Societies Act  on  15th September,  1980 for eviction of  the  appellant-corporation and its employee from the flat. The Cooperative Bank Bombay, after  considering  the  evidence adduced  by  the  parties, dismissed  the claim of the Society holding that the  appel- lant-corporation was entitled to the benefit of Section  15A of  the Rent Act and the said protection could not be  taken away by the Society seeking eviction under Section 91(1)  of the  Societies  Act. The Society preferred an  appeal  which came to be allowed on 17th March, 1984 whereupon the  appel- lant-corporation approached the High Court under Article 226 of the Constitution, but in vain. The  appellant-corporation obtained special leave to appeal to this Court.     This  court raised three questions for decision, two  of which  are relevant for our purpose. The first question  was whether  the appellant corporation as  successor-in-interest of  Esso  Eastern Inc., the licensee, was  entitled  to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 16  

protection  of Section 15A of the Rent Act having regard  to the  fact  that Esso Eastern Inc. was in occupation  of  the flat in dispute under a subsisting licence on 1st  February, 1973  and whether the society’s action for ejectment of  the occupant of the flat could be said to be a dispute  touching the  business of the society within the meaning  of  Section 91(1) of the Societies Act. After referring to the  relevant statutory provisions of both the Societies Act and the  Rent Act,  this Court observed that the finding of the  appellate court that the appellant-corporation was not entitled to the protection  of  Section  15A    the Rent Act  could  not  be sustained. This Court concluded in paragraph 14 at page  758 as under: 879 "In the premises, petitioner 1 Hindustan Petroleum  Corpora- tion  Ltd.,  is clearly protected under Section 15A  of  the Bombay  Rents,  Hotel and Lodging House Rates  Control  Act, 1947. In that view of the matter, we do not think it  neces- sary to deal with the contention as regard the applicability of Section 91 of the Maharashtra Co-operative Societies Act, 1960.  All aspects arising out of the submissions as to  the jurisdiction of the Registrar under Section 91(1) of the Act have already been considered by this Court in O.N. Bhatnagar case and we reiterate the principles laid down therein". This  Court did not consider it necessary to deal  with  the third  contention whether a claim for ejectment of an  occu- pant of a flat in a cooperative housing society who has been put  in possession thereof by the member under a  leave  and licence  agreement, is a ’dispute touching the  business  of the  society’  within the meaning of Section  91(1)  of  the Societies Act, because in its view it was already covered by Bhatnagar’s  case. To put it differently the Division  Bench accepted  the ratio of Bhatnagar’s case as laying  down  the correct law and did not see the need to restate the same.     While  in Bhatnagar’s case this Court on facts  came  to the conclusion that the requirements of Section 15A were not satisfied and, therefore, action under Section 91(1) of  the Societies Act was maintainable, it repelled the apprehension that  such a view would throw out all licensees of  residen- tial flats in multi-storeyed buildings belonging to Coopera- tive Housing Societies in the following words: "The  apprehension,  if we may say so, appear to  be  wholly unfounded.  The  legislature was fully aware  of  the  acute paucity of housing accommodation in the metropolitan  cities of  Greater Bombay and other urban areas in the  State,  and also the fact that lessors of ownership flats were  adopting a device of inducting tenants under the garb of an agreement of leave and licence which left the licensee with no protec- tion.  The legislature, therefore, stepped in and  by  Maha- rashtra Act 17 of 1973 the following provisions were insert- ed in the Rent Act". After referring Section 15A(1) and Section 5(4A) of the Rent Act this Court proceeded to observe as under: 880 "As a result of the introduction of Section 15A and  Section 5(4A)  of  the Rent Act by Maharashtra Act 17 of  1973,  the licensee  of any premises or any part thereof in a  building vesting in or leased to a cooperative housing society regis- tered  or deemed to be registered under the Act, who was  in occupation of such premises under a subsisting licence as on 1.2. 1973, is by a legal fiction, deemed to be a tenant  and thus  has  the protection of Rent Act. In such  a  case  the dispute between a licensor and licensee relating to  posses- sion of the premises of a fiat would attract Section 28 read with  Section 15A and 5(4A) of the Rent Act and  would  fail

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 16  

outside  the  purview  of the  Registrar’s  jurisdiction  to adjudicate upon such dispute under Section 91(1) of the Act. Once this aspect is kept in view, there need be no apprehen- sion    as   expressed   by   learned   counsel   for    the appellant  ................  ,,.  .     Indubitably the flat in question fails within the  defi- nition  of ’premises’ in Section 5(8) of the Rent  Act.  The appellant,  a  licensee  under Section 5(4A),  is  a  deemed tenant  under Section 15A and, therefore, falls  within  the definition of ’tenant’ under Clause (bb) of Section 5(11) of the Rent Act. Such a tenant is entitled to the protection of the Rent Act and cannot be evicted from the premises in  his occupation  except  as  provided by the said  Act.  To  hold otherwise would be to render the status conferred on  licen- sees  in  actual occupation on 1st February, 1973,  under  a subsisting  licence,  nugatory.  The appellant  was  put  in possession of the flat in question by the tenant-co-partner- member  of the Society and was accepted as such by the  suc- cessormembers  also.  As pointed out earlier a member  of  a tenant-copartnership type of Society is under an  obligation to  pay  a  fixed rental every month to  the  Society.  This rental is, no doubt. determined on the basis of the member’s financial  obligations  incurred on account of the  cost  of construction,  price of land or lease rent, as the case  may be, interest on borrowings, etc. The primary object of  such a  society  is to provide residential accommodation  to  its members  on easy payment basis. That is why  in  Bhatnagar’s case  this Court stated that ’it is as much the  concern  of the society formed with the object of providing  residential accommodation  to its members, which normally is  its  busi- ness,  to  ensure that the flats are in  occupation  of  its members,  in accordance with bye-laws framed by  it,  rather than of a person in an unauthorised occupation, as it is the concern  of the member, who lets it out to another under  an agreement  of leave and licence and wants to secure  posses- sion of the premises for his own use after the termination 881 of  the licence’. Therefore, this Court held that  ejectment of an occupant, whose licence is terminated and who does not have  the  protection of law, such as the Rent Act,  can  be secured under Section 91(1) of the Societies Act.     But  what  happens  when  competing  provisions  vesting jurisdiction  under different laws open with a  non-obstante clause  and  invest jurisdiction in  different  Courts?  The Societies  Act under Section 91(1) confers  jurisdiction  on the  Cooperative  Court  while Section 28 of  the  Rent  Act confers  jurisdiction on the Court of Small Causes,  Bombay. This  Court observed in Deccan Merchants  Cooperative  Bank, Limited  v.  Dali Chand Jugraj Jain, [1969] 1 SCR  887  that ’the  two  Acts can be harmonised best by  holding  that  in matters covered by the Rent Act, its provisions, rather than the  provisions  of the Act, should apply’.  This  view  was approved  in Bhatnagar’s case also. In Co-operative  Central Bank,  Ltd. v. Additional Industrial Tribunal,  Andhra  Pra- desh,  [1970]  1  SCR 205 also this Court  was  required  to harmonise the competing provisions in Section 61 of the A.P. Co-operative Societies Act, which is substantially the  same as Section 91(1) of the Societies Act, and Section  10(1)(d) of the Industrial Disputes Act. This Court applying the test laid down on Deccan Merchants Co-operative Bank’s case  held that  a  dispute  relating to the service  condition  of  an employee  of the society would properly be governed  by  the Industrial Disputes Act.     It  was, however, submitted by the learned  counsel  for the  society  that the earlier enactment i.e. the  Rent  Act

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 16  

must yield to the later Act, i.e. the Societies Act, if  the competing  provisions of the two cannot  be  reconciled--lex posterior  derogate priori. But the Rent Act is special  law extending  protection  to tenants, just  as  the  Industrial Disputes  Act which makes provision for the benefit  of  the workmen.  Ordinarily,  therefore,  a  general  provision,  a dispute touching the business of the society, would have  to give  way  to the special provision in the Rent Act  on  the maxim  generalia specialibus non derogant. That is why  this Court  harmonised  the said provisions by  holding  that  in matter covered by the Rent Act, its provisions, rather  than the  provisions of the Societies Act, should apply.  In  the present case the appellant seeks protection of the Rent  Act since  he  is a deemed tenant under Section  15A  read  with Section 5(4A) and 5(11)(bb) of the Rent Act. The status of a tenant is conferred on him by law as the legislature desired to extend the protection of the Rent Act to such  licensees. Rights which do not flow from contracts but are conferred by law  such as the Rent Act, must, we think, be determined  by the  machinery, if any, provided by the law  conferring  the right. 882     The submission that the appellant cannot seek protection against the Society as his entry into the flat was in viola- tion  of the Bye-laws would have been valid had the  statute not  intervened.  To take such a view  would  tantamount  to carving out an exception in Section 15A of the Rent Act that the  said provision would not apply to licensees in  occupa- tion of flats owned by tenant-co-partnership societies.  The language of Section 15A read with Section 5(4A) of the  Rent Act does not warrant such a construction. The mere fact that there  was  a violation of the Bye-laws would not  make  any difference  for  it  is not unknown that even  in  cases  of breach of statute, the legislature has conferred  protection on those guilty of breach if the prevailing circumstances so warrant  e.g., sub-letting was prohibited by Section 15  but when  the legislature realised the need to protect the  sub- tenants  it  did  so by an ordinance  promulgated  in  1959. Similarly  when  the legislature felt the  need  to  protect licensees in occupation on 1st February, 1973, it intervened by  enacting  Section 15A. The legislative policy  is  quite evident from Section 15A and the protection given to  licen- sees cannot be taken away on the plea that the initial entry of  the licensee in the flat was in breach of the  Bye-laws. If  the  occupant-licensee who is a protected  tenant  under Section  15A’can  be evicted by the society on the  plea  of absence  of  privity between the society and  the  protected tenant, it would render the protection of Section 15A redun- dant.  The situation is more or less similar to the case  of an owner-landlord whose tenant had contrary to the terms  of the  contract introduced a licensee who is now protected  by Section 15A of the Rent Act. In such a case  notwithstanding the  absence  of  privity  of  contract  between  the  owner landlord  and  the  licensee-protected  tenant,  the  latter cannot  be evicted except in accordance with the  provisions of the Rent Act. We, therefore, do not see any merit in  the contention  that  notwithstanding the  protection  given  by Section  15A,  the society can proceed to  evict  him  under Section  91(1)  of the Societies Act on the plea  that  such protection is not available against the society. Such a view would  defeat the legislative object of Section 15A  of  the Rent Act.     But the jurisdiction of the Court in which the action is originated must be determined on the averments in the plaint or  claim  application and not on the defence taken  by  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 16  

adversary party. For example, if the plaintiff goes to court alleging  that the defendant is a trespasser,  the  ordinary court  will have jurisdiction and its jurisdiction will  not be  taken away merely because the defendant pleads  tenancy. If, however, the defendant succeeds in proving that he is  a tenant in respect of premises, possession whereof is sought, the  court  trying the case would dismiss the  suit  on  the ground that the plaintiff had failed to prove the 883 jurisdictional  fact  that the defendant was  a  trespasser. Here also the claim was lodged by the society in the Cooper- ative Court on the ground that the appellant was in wrongful occupation of the flat in question and was a mere  trespass- er. On facts it is now found that the appellant was and is a protected  tenant  under Section 15A of the  Rent  Act.  The proceedings  initiated under Section 91(1) of the  Societies Act  cannot,  in the circumstances, succeed for  the  simple reason  that the society has failed to prove the fact  which constitutes the foundation for jurisdiction. If the  society fails to prove that the appellant has no right to the  occu- pation  of the flat since he is a mere trespasser, the  suit must obviously fail. That is why even in the case of  Hindu- stan  Petroleum Corporation Limited this Court did not  con- sider  it  necessary to deal with the  contention  based  on Section  91(1) of the Societies Act in detail and felt  con- tent by observing that the point stood covered by the  deci- sion in Bhatnagar’s case.     For  the reasons afore-stated, we are of the  view  that the  impugned  Judgment of the Bombay High Court  cannot  be allowed to stand. We allow this appeal, set aside the  Judg- ments  of  all the Courts below and direct  that  the  claim application  filed under Section 91(1) of the Societies  Act shall  stand  dismissed. However, in the facts  and  circum- stances of the case we make no order as to costs. R.N.J.                                                Appeal allowed. 884