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TMI Blog1982 (4) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... tive Housing Society Limited is constituted under the provisions of the Maharashtra Cooperative Societies Act, 1960 as a tenant co-partnership type housing society to which Regulations in Form-A apply viz. Regulations relating to tenancies to be granted by the society to members in respect of houses held by the society. It owns and manages two housing colonies known as `Shyam Niwas' and `Navik Niwas' at Warden Road, Bombay. The society continues to be governed by Regulations in Form-A ever since they were adopted by it after approval by the Registrar of Cooperative Societies in 1950. It appears that in 1954 the Directors passed a resolution for the introduction of Regulations in Form-B but it was never implemented. The respondent No. 1 Rukibai N. Bhavnani is a co-partner tenant member of flat No. 52 in building No. 5-A in the housing colony known as `Shyam Niwas' situate at Warden Road, Bombay. The respondent No. 1 inducted the appellant in flat No. 52 under an agreement of leave and licence dated November 28, 1961. The byelaws of the society provide that no member can part with his possession of the flat under an agreement of leave and licence to another except with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Registrar's nominee returned the papers, the Registrar assigned the case to a retired District Judge as an Officer on Special Duty to adjudicate upon the dispute under s. 91 of the Act, as by then the old system of such adjudication by the Registrar's nominees had been replaced by the appointment of Officers on Special Duty. Before the Officer on Special Duty the appellant made a demand for a de novo trial which was granted. Again, the evidence of both the parties was recorded and the matter reached the stage of argument but in the meanwhile, in April, 1970, the appellant brought a suit in the Court of Small Causes, Bombay for a declaration that he was a tenant of respondent No. 3 in respect of the flat in dispute and obtained a temporary injunction restraining respondent No. 1 from proceeding with her case before the Officer on Special Duty. Thus, the proceedings before the Officer on Special Duty remained stayed till April, 1972, when the suit filed by the appellant in the Court of Small Causes, Bombay was dismissed both on merits as well as on the ground that it was barred by limitation. After the dismissal of the suit brought by the appellant, the proceedings before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsuccessfully preferred a Letters Patent Appeal which was dismissed by a Division Bench on April 21, 1981. There are three questions to be determined in the appeal. They are : (1) Whether having regard to the fact that the parties stood in the relationship of landlord and tenant in respect of flat No. 52, the remedy of the respondent No. 1 lay by way of a suit for eviction before the Court of Small Causes, Bombay and not by a reference to the Registrar under s. 91(1) of the Act ? It is urged that the agreement of leave and licence was merely a colourable transaction for what in reality, was a lease and therefore the appellant was entitled to the protection from eviction under s. 13 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short `the Rent Act' which is a special law dealing with the relationship of landlord and tenant and therefore the forum for trial is the Court of Small Causes which is a court of exclusive jurisdiction over such matters. It is said that the non-obstante clause in s. 28 of that Act has an overriding effect over the non- obstante clause in s. 91(1) of the Act. (2) Whether the respondent No. 2-society had any locus standi to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 28(1), of the Rent Act insofar as material, reads : 28(1) Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction (a) in Greater Bombay, the Court of Small Causes Bombay, (aa) xx xx xx (b) xx xx xx shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply...and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and...no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question. The two enactments deal with two distinct and separate fields and therefore the non-obstante clause in s. 91(1) of the Act and that in s. 28 of the Rent Act operate on two different planes. The two legislations pertain to different topics of legislation. It will be noticed that s. 28 of the Rent Act proceeds on the basis that e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 part thereof, in his occupation. (2) XX XX XX XX XX The term licensee as defined in s. 5(4A), insofar as material, reads : 5. In this Act unless there is anything repugnant to the subject or context- (4A) licensee , in respect of any premises or any part thereof, means the person who is in occupation of the premises 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 registered under the Maharashtra Cooperative 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 etc;.....and the expressions licence, licensor and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittedly, his occupation of the flat was not as a tenant but as a licensee. That apart, the appellant brought a suit before the Court of Small Causes seeking a declaration that it was a tenant duly protected by the Rent Act and the agreement of leave and licence was only a colourable transaction. The suit was heard on merits and was dismissed by the Court of Small Causes in July 1972. Aggrieved by that decision, the appellant preferred an appeal before the Appellate Bench of the Small Causes Court but that appeal also was dismissed. The question whether or not the appellant was a licensee of the fiat or a tenant thereof was directly and substantially in issue between the parties in that suit. The finding that he was not a tenant but had only the status of a licensee operates as res judicata between the parties. The appellant having failed in his suit for declaration of his alleged status of a tenant brought in the Court of Small Causes cannot be permitted to reagitate the same question in these proceedings. Further, the licence of the appellant having been terminated by the respondent No. 1 by her notice dated March 31, 1965, the appellant was not in occupation of the flat on Februa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acating the tenement in question. The respondent No. 1 could not have let the premises to the appellant in view of para 5 of the Form-A. All that she could do if she did not require the flat for her immediate occupation was to permit the appellant or some one to occupy the same under an agreement of leave and licence. But for that purpose both the parties had to comply with the requirements of Bye-laws 66 and 68(a). The respondent No. 1 and the appellant accordingly by their application dated December 8, 1961 applied to the society for permission to let the flat on leave and licence and for the issuance of five 'B' shares of ₹ 100 each in their joint names called occupancy shares . The respondent No. 2-society by its resolution dated December 15, 1961 issued the shares applied for in their joint names and also admitted the appellant as a nominal member for the purpose of occupying the flat. After the termination of the agreement of leave and licence, the appellant had no right to remain in' occupation of the flat. The contention that the respondent No. 2-society cannot raise a dispute regarding his unauthorized occupation of the premises after the revocation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er lies by way of suit for ejectment under s. 28 of the Rent Act. The submission is that the fact that such letting was forbidden by a regulation of the society was immaterial. In reply, it is urged that the dispute undoubtedly is a dispute touching the business of the society and therefore comes within the ambit of s. 91(1) of the Act. It is further urged that the non-obstante clause in s. 91(1) of the Act had an overriding effect over s. 28 of the Rent Act, prior to the introduction of s. 15A and s. 5(4A) in that Act. There has been a long debate as to the true meaning of the words 'touching the business of the society' occurring in s. 43(1) of the Cooperative Societies Act, 1912 and there was a divergence of opinion expressed by different High Courts but it is not necessary to burden the judgment with many citations. In Deccan Merchants Cooperative Bank Ltd. v. M/s. Dalichand Jugraj Jain Ors.,(1) the Court had occasion to construe the meaning of the expression 'touching the business of a society' occurring in s. 91(1) of the Act. It was observed that the answer depends on the words used in the Act and that the non-obstante clause clearly ousts the jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e object of providing residential accommodation to its co-partner tenant members. Now, the nature of business which a society carries on has necessarily to be ascertained from the object for which the society is constituted, and it logically follows that whatever the society does in the normal course of its activities such as by initiating proceedings for removing an act of trespass by a stranger, from a flat allotted to one of its members, cannot but be part of its business. It is as much the concern of the society formed with the object of providing residential accommodation to its members, which normally is its business, to ensure that the flats are in occupation of its members, in accordance with the 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 possession of the premises for his own use after the termination of the licence. It must, therefore, follow that a claim by the society together with such member for ejectment of a person who was permitted to occupy having become a nominal member thereof, upon revocation of licence, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his being a nominal member, but in the very nature of things, his rights were inchoate. In view of these considerations, we are of the opinion that the proceedings under s. 91(1) of the Act were not barred by the provisions of s. 28 of the Rent Act. A great deal of reliance has been placed by the appellant's counsel on the decision in Sabharwal Brothers Anr. v. Smt. Guna Amrit Thandani of Bombay.(1). The importance of that case lies in the fact that it relates to the respondent No. 2 society, and the disputant there was the owner of a flat on the second floor of Bloack No. 8 Shyam Niwas . She was a member of the society and had acquired the flat in question, which was let out to the appellant Sabharwal Brothers under an agreement of leave and licence, which was renewed from time to time and when she asked the appellant to vacate as she required the flat for her personal occupation, they did not comply with the demand as a result of which the owner of the flat filed a statement of claim before the Registrar under s. 91(1) of the Act which required adjudication. There was a challenge to the jurisdiction of the nominee of the Registrar to whom it was referred, and ultima ..... X X X X Extracts X X X X X X X X Extracts X X X X
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