HINDUSTAN THOMPSON ASSOCIATES LTD.versusMRS. MAYA INDERSON ISRANI & ORS.

              HINDUSTAN THOMPSON ASSOCIATES LTD.
                                                                                  A
                              v.
               MRS. MAYA INDERSON ISRANI & ORS.

                             SEPTEMBER 19, 1988

                       [A.P. SEN AND B.C. RAY, JJ.]                               B

          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 commit-
     ted breach of bye laws-Society cJ:i. seek eviction under Section 91
     Maharashtra Cooperative Societies Act, 1960-Rent Act inapplicable.
                                                                                  c
            Maharashtra Cooperative Societies Act, 1960: Section 91-
     Cooperative housing society-Cooperative Court/Tribunal has jurisdic-
     tion to order eviction from flat.

           Respondent No. 2, a Co-operative Society allotted a flat to respon-    D
     dent No. I. 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 con-
     tinuing 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           E
     become as tenant under Section ISA 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 !st February,      F
     1973 and so Section ISA of the Bombay Rent Act was not applicable.

           The appellant's appeal to the Appellate Authority and writ peti-
     tion to the High Court having been dismissed, the appellant appealed by
     special leave to this Court.
                                                                                  G
           Dismissing the Appeal,

            HELD: I. The appellant is an outsider who has been permitted to
     possess the suit premises as licencee of respondent No. 2 in contraven-
     tion of the Rules, bye-laws and regulations of the society .-The dispute
     falls squarely within the provision of section 91 of the ,Maharashtra        H
                                        29
      30          SUPREME COURT REPORTS                 [1988] Supp. 3 S.C.R.

A     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.k. 84.
B
            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
C::   each month by the 7th of succeeding month. In default of compliance
      the decree shall become executable forthwith. [31E-F]

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 567
      of 1987.

Ii)        From the Judgment and Order dated 12.1.1987 of the Bombay
      High Court in W.P. No. 124/1987.

            B.R. Agarwala for the Appellant.

          Dr. L.M. Singhvi, P.K. Banerjee, S.K. Jain, L.A. Kriplani, Dr.
E     A.M. Singh vi and S. Bandopadhya for the Respondents.

            The Judgment of the Court was delivered by

            B.C. RAY, J. The member of society Mrs. Maya lnderson Israni
      who has been allotted the flat No. 62 on 6th floor of Nibhana Building
F     by the disputant No. 2, the Nibhana Co-operative Housing Society
      Ltd. and the society filed a dispute before the Judge Fifth Co-
      operative 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 the flat without the written consent of the Society as a
G     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 !st 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
H     having failed to comply with the request a dispute was filed by the
     .,.                  H.T. ASSOCIATES v. MRS. MAYA [RAY, J.]                 31

           member as well as the Co-operative Society for eviction of the appel-       A
           lants from the flat, as well as for mesne profits. The plea of the appel-
           ]ants 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
           15A of Bombay Rent Act. The Co-operative Court after hearing the            B
           parties made an award holding that the dispute fell within the juris-
           dicton of the Co-operative Court as the appellant claimed to be in
           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        c
           favour of appellant was terminated. There was no subsisting licence to
           occupy the flat by the appellants on 1st February, 1973 and so Section
           15A of the Bombay Rent 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. 124 of 1987 before the High        0
           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 ex-         E
           ecuted 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        F
     I
           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 succeed-
           ing month. In default of compliance of any of these terms, the decree
           shall become executable forthwith.

           N.V.K.                                                Appeal dismissed.     G
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