Holding

A licensee who was in occupation on 1 Feb 1973 is a protected tenant under Section 15A of the Bombay Rent Act, and therefore the society cannot evict him under Section 91(1) of the Maharashtra Cooperative Societies Act.

Summary

The appellant, Sanwarml Kejriwal, occupied a flat in Vishwa Cooperative Housing Society under a leave‑and‑license agreement from 1957. After the member‑allottee transferred his interest, the society sought his eviction under Section 91(1) of the Maharashtra Cooperative Societies Act, arguing that the society‑member relationship, not a landlord‑tenant one, fell within its jurisdiction. Kejriwal contended that, because he was in possession on 1 Feb 1973 under a subsisting licence, Section 15A of the Bombay Rents, Hotels & Lodging House Rates Control Act deemed him a tenant, giving him protection from eviction except under the Rent Act. The Supreme Court held that Section 15A confers protected‑tenant status on such licensees, overriding the society’s claim to jurisdiction under Section 91(1). Consequently, the eviction proceeding could not succeed, and the claim under the Societies Act was dismissed. The Court set aside the judgments of the lower courts and allowed the appeal.

Issues considered

Whether a licensee occupying a flat in a tenant‑co‑partnership cooperative society on 1 Feb 1973 is deemed a tenant under Section 15A of the Bombay Rent Act.
Whether the society can evict such a protected tenant under Section 91(1) of the Maharashtra Cooperative Societies Act notwithstanding the Rent Act’s protection.
Which court has jurisdiction – the Cooperative Court under the Societies Act or the Court of Small Causes under the Rent Act?

Legislation cited

Bombay Rents, Hotels & Lodging House Rates Control Act, 1947s. 14(2), s. 15A, s. 28, s. 5(11)(bb), s. 5(4A)
Maharashtra Cooperative Societies Act, 1960s. 91(1), s. 91(3), s. 93, s. 99

Subjects

licenseeprotected tenantevictioncooperative housing societySection 15ASection 91jurisdictionrent control

Judgment

SANWARMAL KEJRIWAL
A
v.
VISHWA COOPERATIVE HOUSING SOCIETY LTD. & ORS. ·~

MARCH 8, 1990

B [K. JAGANNATHA SHETIT AND A.M. AHMADI, JJ.)

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
c licensee occupying flat in a tenant co-partnership society be evicted?

The question for determination is, can a licensee occupying a flat
in a tenant co-partnership society be evicted therefrom under sub-
section (1) of section 91 of the Maharashtra Cooperative Societies Act, >.--.
D 1960 notwithstanding the protection extended by Section ISA of the
Bombay Rents, Hotels & Lodging House Rates Control Act, 1947 as
amended .bY Act XVII of 1973 or whether such proceedings would be
governed by Section 28 of the Rent Act?
The appellant licensee was in actual possession of the flat on Isl
·~
February 1973 under a license without the express permission of the
E
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 trans- .,.
ferred his interest therein to his brother Hari Kumar Sharma, respon-
dent No. 2, in July 1967. Even after this transfer D.P. Kejriwal y
continued in management of the flat till 1979 when he received a letter
F
from Respondent No. 2 claiming ownership of the flat. The appellant
thereafter r.ted an interpleader suit. On disposal of the said suit -...;
Respondent No. 2 deposited a sum of Rs.5,500 with Respondent No. I,
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
G 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 lst February 1973, he was a statu-
tory tenant under section 15A of Bombay Rent Act and the Cooperative
Court had no jurisdiction under section 91 (I) of the Societies Act and
>-
the proper court was one under section 28 of the Rent Act which the
H
Respondent No. 2 had in fact approached.
862
S. KEJRIW AL v. HOUSING SOCIETY 863

The Co-operative Court passed au ejectment order against the A
appellant. The appellant ided 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. B

While allowing the appeal and setting aside the judgments of all
the Courts below and directing that the claim application ided under
section 91(1) of the Societies Act shall stand dismissed, this Court,

HELD: The appellant was and is a protected tenant under section
ISA of the Rent Act. The proceedings initiated under section 91(1) of C
the Societies Act cannot in the circumstances succeed as the Society has
....l_ failed to prove the fact of trespass which constituted the foundation for
jurisdiction. 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 fail. [883B-C] D

The Societies Act, section 91(1), confers jurisdiction on the Co-
operative Court while section 28 of the Rent Act confers jurisdiction on
---"" the Court of Small Causes, Bombay. [88IB]

The Status of a tenant is conferred on him by law as the legislature E
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 determined by the machinery, if any, provided by the
law conferring the right. [88IG-H]

'r owner-landlord
Notwithstanding the absence of privily of contract between the F
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. Gurnam, [1986] 4
SCC 447 at 478; Ramesh Himmatlal Shah v. Harsukh Jadhavji Joshi,
[1975] 2 SCC 105; Hindustan Petroleum Corporation Ltd. v. Shyam G
Cooperative Housing Society, [1988] 4 SCC 747=AIR !989 SC 295;
0.N. Bhatnagar v. Rukibai Narsimdas, AIR 1982 SC 1097; Mis. AVR
& Co. & Ors. v. Fairfield Cooperative Housing Society & Ors., [1988]
4 SCC 408; Sardar Mohan Singh Ahluwalia v. Maitrai Park Co-
operative Housing Society & Anr., [1988] 4 SCC 416; Hindustan
Thompson Associates Ltd. v. Mrs. Maya Inderson Israni & Ors.. H
864 SUPREME COURT REPORTS [ 1990) 1 S.C.R.

A [1988) 4 SCC 745; Smt. Krishna Rajpal Bhatia v. Miss Leela H. Advani
& Ors .• [1989] 1 SCC 52; Deccan Merchant Cooperative Bank Ltd. v. '-(
Dali Chand Jugraj Jain, [1969) l SCR 887 and Co-operative Central
Bank Ltd. v. Additional Industrial Tribunal, Andhra Pradesh, [1970)
1 SCR 205, referred to.

B CIVIL APPELLATE WRISDICTION: 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-
C hary for the Appellant.

Dr. Y.S. Chitale, Y.T. John, C.V. Francies, C.V. Rappai,
G. Prakash and V.K. Purwani for the respondents.

D The Judgment of the Court was delivered by

AHMADI, J. Special leave granted.

Can a licensee occupyng a flat in a tenant-co-partnership society
be evicted therefrom under Sub-Section (1) of Section 91 of the
E Maharashtra Co-operative Societies Act, 1960 (Act No. XXN of
1961), hereinafter called 'the Societies Act', notwithstanding the pro-
tection extended by Section 15A of the Bombay Rents, Hotels &
Lodging House Rates Control Act, 1947 (Act No. LVll 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
F Rent Act? That is the question which arises for our determination in
the 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
factual matrix in which this question needs to be answered may be
briefly stated as under:
G
The Vishwa Co-operative Housing Society Ltd., respondent No.
1, hereinafter called 'the Society', was registered sometime in 1948 , )..__
under 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
H was admitted to the membership of the society and was allotted Flat
S. KEJRIWAL v. HOUSING SOCIETY [AHMADI, J.) 865

T · No. 25 of the multi-storeyed building known as 'Vishwa Mahal' situate A
on "C" Road, Churchgate, Bombay-20. The said LaXIni 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 look-
ing 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 B
allottee-member Ambica Prasad Sharma transferred his interest the-
rein to his brother Harl Kumar Sharma, respondent 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
-C- D.P. Kejriwal continued in management of the flat and collected and
received the licence fee from the appellant till the middle of 1979 when
he received a letter from respondent No. 2 claiming onwership of the c
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 D
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 appellant
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 proceedings under Section 91(1) of the Societies Act
for the eviction of the appellant from the flat in question. Thereupon
E

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 F
noticed. He firstly contended that the so-called document 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 licensee under the deed, since he was in actual occupa-
tion and possession of the flat in question under a subsisting licence G
right from 1957 to 1st February, 1973 he was a statutory 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 Sec-
tion 91(1) of the Societies Act and the proper court to approach was H
866 SUPREME COURT REPORTS I 1990] I S.C.R.

A the one under Section 28 of the Rent Act, which the respondent No. 2
had in fact approached. · ·-r , \

The Cooperative Court came to the conclusion that the relation-
ship created under the document of leave and licence was that of a
licensor and a licensee. On the question of tenancy under Section 15A
B 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
c 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
D 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 "'-----
ofopponent No. l''.
E
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:
F
"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
G 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
H Section 15A of the Rent Act qua the member-allottee. ln this view, the
S. KEJRIWAL v. HOUSING SOCIETY !AHMADI, J.] 867

Cooperative Court passed an ejectment order against the appellant
A
and ordered that the member shall personally occupy the flat in ques-
tion 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 Maharashtra State
Cooperative Appellate Court, Bombay, being Appeal No. 206 of B
1988. The said appeal was dismissed with costs on 22nd December,
1988. T!te appellate court also took the view that regardless of the
relations between the occupant 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 occu-
pant. It accordingly confirmed the order passed by the Cooperative
c
Court.

Feeling aggrieved by the concurrent findings recorded by the
said two courts, the appellant preferred writ petition No. 2513 of 1989
in the High Court of Judicature at Bombay. The said writ petition was D
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 E
.- against member of the cooperative society, such protection
cannot be claimed against a housing society. A reference to
the decision in O.N. Bhatnagar v. Rukibai Narsindas,
reported in AIR 1982 SC 1097, is sufficient".

The decision of this Court in Hindustan Petroleum Corporation F
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. G

__.), 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- H
868 SUPREME COURT REPORTS [1990] 1 S.C.R.

A 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:

B (a) a society ......... .

(b) a member, past member or a person claiming through a -:A..
member, past member or a deceased member of the society

Sub'section (3) reads as under:
c
"Save as otherwise provided under sub-section (2) to Sec-
tion 93, no court shall have jurisdiction to entertain any suit
or other proce~dings in respect of any dispute referred to in ,.k .
sub-section (1)"
D
Sub-section (2) of Section 93 Jays 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 involv-
ing complicated questions of Jaw and fact, until the ques-
E
tion 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-obstante 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
F
parties to the dispute are one or other of those enumerated in clau_S{OS
(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
G 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 touching 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 Section 91 except for the
limited purpose stated in sub-section (2) of Section 93 of the Societies
H Act.
S. KEJRIWAL v. HOUSING SOCIETY [AHMADI, J.[ 869

Under bye-law No. 2 the objects of the society are inter alia to
A
carry on trade of building, buying, selling,' hiring, letting and develop-
ing 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
outsider-non-member can be allowed to take advantage of the B
member'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 appellant before the latter was put in posses-
sion of the flat in question nor was any request made to the society to
admit the appellant as a nominal-member. It was, therefore, conten-
ded on behalf of the society that the entry of the appellant in the flat in
question was clearly in violation of Regulation 4 and bye-law 7A
c

adverted to above and, therefore, 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 D
fold, namely, (1) the dispute between the appellant 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 Sodeties Act was clearly barred by
virtue of Section 28 of the Rent Act which is a special statute dealing E
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 !SA which was inserted by F
amending Act 17 of 1973 provides as under:

"15A(l) 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 G
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 H
under:
870 SUPREME COURT REPORTS [ 1990) I S:C.R.

"5(4A) 'licensee', in respect of any premises or any part
A
thereof. means the person who is in occupation of the pre-
mises 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
B. co-operative housing society registered or deemed to be
registered 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
employment of the licensor, or a person conducting a
running business belonging to the licensor, [or a person
having any accommodation for rendering or carrying on
c medical or para-medical services or activities in or near a
nursing home, hospital or sanatorium,) or a person having
any accommodation in a hotel, lodging house, hostel, guest
house, club, nursing home, hospital, sanatorium, dhar-
mashala, home for widows, orphans or like premises,
D 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 accout of the exigencies of service or provision of a
residence attached to his or her post or office is temporarily
not occupying the premises, provided that he or she
E 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 sµch premises, or a person
having accommodation in any premises or part thereof for
conducting a canteen, creche, dispensary or other services
F as amenities by any undertaking or institution; and the
expressions 'licence', 'licensor' and 'premises 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
G given such licence. Similarly the expression 'tenant' as defined by Sec-
tion 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:

H "Where the interest of a licensor who is a tenant of any
"' S. KEJRIWAL v. HOUSING SOCIETY [AHMADI, J.] 871

premises 1s determined for any reason, the licensee, who by -A
'r 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 agreement
consistent with the provisfons of this Act".

The Courts below have come to the conclusion that the appellant was a B
h 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 bet-
ween 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) c
of the Societies Act as the dispute between the society, its member and
_..( the occupant claiming through the member was essentially one touch-
ing the business of the society. In other words according to the courts
below while the member could not evict the occupant except through
J proceedings initiated under the Rent Act, the society was free to evict D
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 E
~
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 privily of con-
,._. tract, notwithstanding the fact that he was inducted in the flat by the
member-allottee, albeit contrary to the regulations and bye-laws of the F
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 G
paucity of accommodation, particularly in 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. Th.e
legislature had to face this hard reality and was required to extend
protection to such sub-tenants when they were threatened with evic- H
.,
87_ SUPREME COURT REPORTS I1990] 1 S.C.R.

A
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 prohibi-
-,
tion of sub-letting in Section 15 increasing use of inducting third
parties in rented premises through the expedient of leave amj licence
agreements was made. This becomes evident from the Objects and
B Reasons for Act No. XVII of 1973, which read as under:

"It is now notorious that the Bombay Rents, Hotel and
Lodging H6use 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
c 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 therfore provided by Clause 14 in the
D Bill that persons in occupation on the 1st day of February,
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
E 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 receive any such amounts, they should be
-
.,,._.
F recoverable from the licensor". ---<
The legislative policy is evident from the opening words of Sec-
tion !SA-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
G 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 enact-
ment or any other enactment or contract to the contrary. A sweeping
overriding effect is given over all laws and other provisions of the Rent
H Act as well as contract providing to the contrary thereby placing the
S. KEJRIWAL v. HOUSING SOCIETY [AHMADI, J.J 873

question of status of licensees in occupation of any premises on !st
A
r February, 1973 beyond the pale of doubt. To make matters clear cor-
responding changes were simultaneously made, in the preamble of the
Rent Act_ and the definitions of 'landlord' and 'tenant' and ~new
definition of 'licensee' was inserted on the statute book. Not only did
the legislature desire to confer the status of a tenant on such licensees
but it went a step further by providing in Section 14(2) that on the B
determination of the licensor's interest in the premises such a statutory
k tenant under Section 15A will become the tenant of the landlord,
thereby establishing a jural relationship of landlord and tenant
through statute as distinguished from contract. It, therefore, seems
crystal clear to us that the legislative policy was to ex\end the protec-
tive umbrella of the RP.nt Act to licensees who were in occupation of
any premises on !st February, 1973 by fictionally conferring on them c
the status of a tenant, overriding all other provisions of the statute
J. itself, all other statutes and contracts providing to the contrary. There-
fore, 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 D
provides to the contrary, must yield to Section 15A read wit.Ji 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 Ratan/al
~ Chandiprasad v. Raniram Darkhand, writ petition No. 76 of 1980
decided on 18th October, 1985 observed in paragraph 69 of its judg-
ment in Chandavarkar Sita Raina Rao v. Ashalata S. Gurnam, [1986] 4 E
..- l sec 447 at 478 as under:

....J " ..... it must be held that all licensees created by landlords
or by the tenant before February I, 1973 and who were in
actual occupation of a premises which was not less than a
)-· room as licensee on February I, 1973 would be the licen- F
sees 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 rights granted under the Act specially
those mentioned in Section 14(2) of the Act".
G
Therefore, this Court held that a licensee under a licence created by a
---... tenant, be he a statutory tenant or a contractual 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 confer-
ment of the statutory tenancy on the licensee in occupation of any H
874 SUPREME COURT REPORTS · [1990] 1 S.C.R.

premises on 1st February, 1973 under Section 15A of the Rent Act.
A
That takes us to the next question whether or not a member of a
co-partnership type of a co-operative s_ociety has such interest in the
premises allotted to him as would entitle him to give the same on leave
and licence basis to a non-member. In a tenant co-partnership type of
B 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 calculated as to meet the cost of construction and
upkeep of the building and to guarantee perpetuity of occupation on
repaymerrt of the whole value of the tenement or flat. At the end of the
c period the member is credited with additional shares equal to the
amount paid by him; the interest on these shares generally match~s 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
D received from shares held by him. Thus a member has more than a
mere right to occupy the flat.

A similar question came up for consideration befo~e this Court in
Ramesh Himmatlal Shah v. Harsukhladhavji Joshi, [1975] 2 SCC 105
in the context of whether or not the member's right in the flat was
E 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 the conclusion that the member's right or interest to occupy is
a species of property. Proceeding further this Court made the follow-
ing observations in paragraph 18 to 20 of the Judgment:
F
"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 of.
sub-section (2) of Section 47 [See Section 47(3)]. We have
G 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 trans-
fer of a member's share or his interest in the capital or
property of any Society, Section 31 in contrast speaks of
H 'the share or interest of a member in the capital of a So-
S. KEJRIWAL v. HOUSING SOCIETY [AHMADI. J.J 875

ciety'. The Act, therefore, makes a clear distinction bet-
A
ween the share or interest in the capital and share or in-
terest in property of the Society. We have also noticed that
the Act does not recognise interest in the immovable pro-
perty of the society as well [See section 41( l)(b)l. We h~ye
seen the qualifications for membership. There is no reason
to suppose that if the qualifications under the bye-laws are B
folfilled 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, unhe~uatingly come to the conclusion
that this species of property, namely, the right to occupy a c
flat ·of this type, assumes significant importance and
acquires under the law a stamp of transferability in furthe-
rance of the intere~t 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 D
execution of the decree are valid under the law.

xxxxxxxxxxxxxxxxxxxxxxxx·

In absence of clear and unambiguous legal provision<; to the
contrary, it will not be in public interest or in the interest of E
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 F
the flat is a species of property liable to attachment and sale. It is more
than a mere right to occupy. It is transferable and if the transferee
answers the qualifications under the bye-laws for being admitted to the
membership of the Society, the Society would be precluded from un-
reasonably withholding such admittance. There can, therefore, be no
doubt that a member-allottee has a right to transer his interest in the G
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 appellant that
Section 15A was inserted in the Rent AC! to serve a dual purpose
namely (1) to curb exploitation of licensee and (2) to pr'.'vide security H
876 SUPREME COURT REPORTS [ 1990] 1 S.C.R.

of tenure. If the view taken by the Courts below in the name of main-
A
tenance 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 move-
ment had taken rapid strides and the legislature was aware that a large
number of licensees were in occupation of flats situate in Cooperative
B Societies. It must, therefore, be assumed that the legislature desired to
extend the protection of the Rent Act to such licensees also by bring-
ing 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 submission
was countered by the learned counsel for the society and the member
on the plea that the Courts below had rightly concluded that the juris-
c diction 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
D movement would become redundant and the object of fom1ing such
cooperative housing societies would be totally defeated. Therefore.
submitted the learned counsel, even if it is assumed that the appellant
had acquired 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
licensor-member only and not to the society. In this connection strong
E reliance was placed on the decision otthis Court in O.N. Bhatnagar's
case (supra) which has been referred to and relied on in four subse-
quent decisions namely, Mis A. V.R. And Co. & Others v. Fairfield
Cooperative Housing Society & Others, [1988) 4 SCC 408; Sardar
Mohan Sin1<h Ahluwalia v. Maitrai Park Co-operative Housing Society
and Another, [1988) 4 SCC 416; Hindustan Thompson Associates Ltd.
F v. Mrs. Maya Inderson Israni & Others, [1988) 4 SCC 745 and Smt.
Krishna Rajpal Bhatia v. Miss Leela H. Advani and Others, [1989) 1
SCC52.

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
G 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; Hindustan Thompson Associates Ltd. and
Smt. Krishna Rajpal Bhatia, this Court on facts took the view that
the applicability of Section 91(1) of the Societies Act could not be
assailed. In all those four cases the Court came to the conclusion that
H the licence was terminated before 1st February, 1973 and, therefore,
S. KEJRIWAL v. HOUSING SOCIETY [AHMADI, J.] 877

ihe 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 A
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 B
nominal member. But his licence was terminated by a notice dated 31st
March, 1965 and thereafter his occupation was no more under a sub-
sisting 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
f ienancy 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 c
Occtipation of the flat under a subsisting licence on 1st February, 1973
..I. and, therefore, the benefit of Section 15A 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 licence on 1st
February, 1973 to attract the application of Section 15A of the Rent D
Act. In Hindustan Thompson Associates Ltd. the facts disclosed that
the licence was terminated 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, E
therefore, concluded that eviction proceedings could be commenced
against him under Section 91(1) of the Societies Act. In the last
mentioned case of Smt. 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 occupant was a mere trespasser
when the action was commenced under Section 91(1) of the Societies
Act and was not entitled 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 f<;>r 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 G
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 H
878 SUPREME COURT REPORTS I 1990] 1 S.C.R.

A 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 tbe Society pas-
sed a resolution admitting one T .J. Mansukani, an employee of tbe
company, as a nominal member of the society since he was to occnpy
the flat. The licence agreement was extended from time to time under
B
the renewal clause incorporated in the agreement. After the company
was taken over under the Esso (Acquisition of Undertakings in lndia)
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, 1980the Society ,
c passed a resolution 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 proceedings 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
0 Bank Bombay, after considering the evidence adduced by the parties,
dismissed the claim of the Society holding that the appellant-cor-
poration was entitled to the benefit of Section 15A of the Rent Act and
the said protection cou.ld not be taken away by the Society seeking
eviction under Section 91(1) of the Societies Act. The Society prefer-
red an appeal which came to be allowed on 17th March, 1984 where-
E upon the appellant-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-
F corporation as successor-in-interest of Esso Eastern Inc., the licensee,
was entitled to the protection of Section 15A of tbe Rent Act having
regard to the fact that Esso Eastern lnc. 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 tbe business of the society within the
G 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 lSA
of the Rent Act could not be sustained. This Court concluded in
H paragraph 14 at page 758 as under:
S. KEJRIWAL v. HOUSING SOCIETY [AHMADI, J.] 879

"In the premises, petitioner 1 Hindustan Petroleum Corpo- A
ration Ltd., is clearly protected under Section lSA of the
Bombay Rents, Hotel and Lodging House Rates Control
Act, 1947. In that view of the matter, we do not think it
necessary to deal with the contention as regard the applica-
bility of Section 91 of the Maharashtra Co-operative
Societies Act, 1960. All aspects arising out of the submis- B
sions 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 conten- ·C
tion whether a claim for ejectment of an occupant 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 toJich-
ing the business of the society' within the meaning of Section 91( 1) of
the Societies Act, becaJise in its view it was already covered by
Bhatnagar's case. To put it differently the Division Bench accepted the :0
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 conclu-
sion that the requirements of. Section lSA were not satisfied and,
therefore, action under Section'91(1) of the Societies Act was main- E
tainable, it repelled the apprehension that such a view would throw
out all licensees of residential flats in multi-storeyed buildings belong-
ing to Cooperative Ho~sing Societies in the following words:

"The apprehension, if we may say so, appear to be wholly
Jinfounded. The legislature was fully aware of the acute F
paucity of hoJising 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 protection. The legislature, therefore, stepped in and G
by Maharashtra Act 17 of 1973 the following provisions
were inserted in the Rent Act".

After referring Section lSA(l) and Section 5( 4A) of the Rent Act this
Court proceeded to observe as under:
H
880 SUPREME COURT REPORTS [1990] I S.C.R.

"As a result of the introduction of Section 15A and Section
A
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
registered or deemed to be registered under the Act, who
was in occupation of such premises under a subsisting
B 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
possession of the premises of a flat would attract Section 28
read with Section 15A and 5( 4A) of the Rent Act and
~\\lould fall outside the purview of the Registrar's jurisdic-
tion to adjudicate upon such dispute under Section 91(1) of
c the Act. Once this aspect is kept in view, there need be no
apprehension as expressed by learned counsel for the
appellant ................ ".

Indubitably the flat in question falls within the definition of 'pre-
D mises' 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
E render the status. conferred on licensees in actual occupation on 1st
February, 1973, under a subsisting licence, nugatory. The appellant ( I

\~
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 successor-
members also. As pointed out earlier a member of a tenant-cO'-
partnership type of Society is under an obligation to pay a nxed rental
F 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
G 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
H secure possession of the premises for his o.wn use after the termination
S. KEJRIWAL v. HOUSING SOCIETY [AHMADI, J.) 881

of the licence'. Therefore, this Court held that ejectment of an occup-
A
ant, whose licence is terminated and who does not have the protection
of law, such as the Rent Act, can be secured under Section 91( l) of the
Societies Act.

But what happens when cpmpeting provisions vesting jurisdic-
tion under different laws open with a non-obstante clause and invest B
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, [1969.11 SCR 887 that 'the two Acts can be
harmonised best by holding that in matters covered by the Rent Act,
its l'rovisions, rather than the provisions of the Act, should apply'.
c.
This view was approved in Bhatnagar's case also. In Co-operative
Central Bank, Ltd. v. Additional Industrial Tribunal, Andhra Pradesh,
[ 1970] 1 SCR 205 also this Court was ,required to harmonise the com-
peting provisions in Section 61 of the A.P. Co-operative Societies Act,
which is substantially the same as Secticm 91(1) of the Societies Act, D
and Section 10( 1)(d) of the Industrial Disputes Act. This Court apply-
ing the test laid down on Deccan Merchants Co-operative Bank's case
held that a dispute relating to the servJce condition of an employee of
the society would properly be governed by the Industrial Disputes
Act.
E
It was, however, submitted by the learned counsel for the society
that the earlier enactment i.e. the Rent Act must yield to the later Act,
i.e. the Societies Act, if the competing provisions of the two cannot be
reconciled-lex posterio~ derogate priori. But the Rent Act is special
law extending protection to tenants, just as the Industrial Disputes Act
which makes provisipn· for the benefit of the workmen. Ordinarily, F
therefore, a general provision, a dispute touching the business of the
society, would hav,e. fo 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 G
p;-otection 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
donot flow from contracts but are conferred by law such as the Rent
Act, must, we think, be determined by the machinery, if any, provided H
by the law conferring the right: .
882 SUPREME COURT REPORTS I 1990] 1 S.C.R.
A The submission that the appellant cannot seek protection against
tlie Society as his entry into the flat was in violation 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
occupation of flats. owned by tenant-co-partnership societies. The
B 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 viola-
tion 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 br~ach 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
c did so by an ordinance promulgated in 1959. Similarly when the legis-
lature 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.licensees
cannot be taken away on the plea that the initial entry of the licensee
D 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 privily between the society and the protected
tenant, it would render the protection of Section 15A redundant. 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
E who is now protected by Section 15A of the Rent Act. In such a case
notwithstanding the absence of privily of contract between the owner-
landlord and the licensee-protected tenant, the latter cannot be 'I
evicted except in accordance with the provisions of the Rent Act. We, \.,
therefore, donot see any merit in the contention that notwithstanding
the protection given by Section 15A, the society can proceed to evict
F 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
G and not on the defence taken by the 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
H dismiss the suit on the ground that the plaintiff had failed to prove the
S. KEJRIWAL v. HOUSING SOCIETY [AHMADI, J.J 883

jurisdictional fact that the defendant was a trespasser. Here also the A
claim was lodged by the society in the Cooperative Court on the
ground that the appellant was in wrongful occupation of the flat in
question and was a mere trespasser. 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
B
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 occupation of the flat since he is a mere trespasser, the suit must
obviously fail. That is why even in the case of Hindustan Petroleum
Corporation Limited this Court did not consider it necessary to deal
with the contention based on Section 91(1) of the Societies Act in c
detail and felt content by observing that the point stood covered by the
decision 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 Judgments of all the Courts D
below and direct that the claim aj)plication filed under Section 91( 1) of
the Societies Act shall stand dismissed. However, in the facts and
circumstances of the case we make no order as to costs.

R.N.J. Appeal allowed.

,
E