Full Judgment Text
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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