Holding

The dispute is within the purview of Section 91 of the Maharashtra Co‑operative Societies Act, and Section 15A of the Bombay Rent Act does not apply as there was no subsisting licence agreement on 1‑Feb‑1973, so the appellant is not a deemed tenant.

Summary

Smt. Mohini R. Adwani, a member of Maitrai Co-operative Housing Society, allotted flat No. 15 to the appellant, M.S. Ahluwalia, under a leave‑and‑licence agreement without the society’s prior consent. After the licence expired, the appellant continued to occupy the flat, using it as a canteen, and refused to vacate when the society served notice. The society filed an eviction dispute before the Co‑operative Court. The appellant challenged the Court’s jurisdiction, arguing that he was a licencee and, under a receipt using the word “rent,” had become a tenant under Section 15A of the Bombay Rent Act. The Co‑operative Court held that the dispute fell within Section 91 of the Maharashtra Co‑operative Societies Act, 1960, and that Section 15A did not apply because no licence subsisted on 1‑Feb‑1973, so the appellant was not a deemed tenant. The appellate and High Court affirmed this view, and the Supreme Court dismissed the special leave petition, staying execution of the decree for four months subject to an undertaking.

Issues considered

Whether the eviction dispute is within the jurisdiction of the Co‑operative Court under Section 91 of the Maharashtra Co‑operative Societies Act, 1960.
Whether Section 15A of the Bombay Rent Act applies, rendering the licencee a tenant and thereby ousting the Co‑operative Court’s jurisdiction.

Legislation cited

Subjects

Co-operative societiesEvictionLicence agreementTenancySection 91Bombay Rent ActJurisdictionCo-operative Court

Judgment

SARDAR MOHAN SINGH AHLUWALIA (DEAD) BY LRS.
A
v. .'
MAITRAI PARK CO. OP. HOUSING SOCIETY LTD.
& ANR.

SEPTEMBER 19, 1988

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

Maharashtra Co-operative Societies Act, 1960--Sec. 91-Juris-
diction of co-operative Court to entertain suit-Bombay Rent Act-
Sec.15A-Protection thereof-Whether available.
c 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. 1 at Cbambur 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
I;> 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 Bijoy 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
E 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 !he 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
F for her residence. The society accordingly served a notice on the appel- I "
lant 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 appel-
lant 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
li
O Co-operative Conrt 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
Iicencee and the member of the Society was receiving licence fee from
him till the date of filing the dispute. He also asserted that in one of the
receipts issued to him the word "rent" bas been used. He also pleaded
H ·that as a Iicencee he has became a tenant u/s ISA. of the amended
32
\
M.S. AHLUWALIA v. HOUSING SOCIETY [RAY, J.] 33

Bombay Rent Acton and from Ist'Febrnary, 1973.
A
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 B
the appellant on the date of the coming into force of S. ISA 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.
c
Following the Court's Judgment in CA. No. 472 of I98S, M/s.
A. V.R. & Co. & Ors. v. Fairfield Co-operative Housing Society Ltd.,
II988) Supp . .3 S.C.R. 84 Court dismissed the appeal, but directed that
the dec~ee should not be executed for a period of 4 months subject to
the appellants filing usual undertaking. The Court, D
)
HELD: That the dispute in question comes within the purview of
S. 9I of the Maharashtra Co-operative Societies Act, I960 as the appel-
lant claims to be in possession of the flat through a member of the
Society which is a Co-partnership Housing Society and Sec. ISA of the
Bombay Rent Act does not apply as there was no subsisting agreement E
of licence on l.2.I973. [34G-H; 3SA]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1399
of 1986

From the Judgment and Order dated 7.2.1986 of the Bombay F
High Court in W.P. No. 4802of 1984

D.R. Thadani and Shri Narain for the Appellants.

N.N. Keshwani, R.N. Keshwani and Girish Chandra for the
Respondents. G

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. 1 Smt. Mohini R. Adwani H
34 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

.who is a member of the society and was allotted flat No. 15 in Societies
A 'F' building in scheme No. I at Chembur 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 Co-
operative Housing Society Ltd. was divided into two units that is
B Maitrai Park Co-op. Housing Society Ltd., Chembur which is the
owner oJthe building in Scheme No. I including Building No. F and
.,;.
the Maitrai Bijoy Co-op. Housing Society Ltd. Chembur-74 Scheme '\.1.;.

No. 2, by order of the Assistant Registrar Co-operative Housing Soci- ~
ety Ltd. Bombay. By virtue of the division of the society the assets and ~
liabilities so far as scheme No. I were taken over by the present disput-
ant society, that is Maitrai Park Co-operative Housing Society Ltd.
c 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 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
D 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. I 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 appel-
E !ant for vacating the flat. But the appellant did not vacate the !lat. The
respondent No. I, the housmg society, filed a dispute before the Co-
operative 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
F Court to entertain the dispute on the ground that the dispute does not
come Wlithin purview of Section 91 of the Co-operative Societies Act as 'i.
he has been continuing in possession as licencee till the date of filing of
"
the dispute and the respondent No. I, 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
G used. The appellant also pleaded that continuing as a licencee he has
become a tenant under s. ISA of the amended Bombay Rent Act on
and from Ist of February, 1973. The dispute is as such beyon-d 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,
H i960 as the appellant is claiming to be in possession of the !lat as
M.S. AHLUWALIA v. HOUSING SOCIETY [RAY, J.]

licencee through a member of the society. It also held that there was A
no subsisting agreement of licence in favour of the appellant on the
date 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
B
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 Jess
similar to the facts of C.A. No. 472 of 1985. c
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 D
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 dqcrec 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, E
assign or encumber the flat in question in any manne1 whatsoever and
on undertaking that he will hand over peaceful posseso.ion of the flat in
question to the respondent on or before the expiry M the aforesaid
period and he will go on paying the occupation charg'lS 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 F
shall become executi\ble forthwith.

Y. Lal Appeal dismissed.