21 April 1982
Supreme Court
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O. N. BHATNAGAR Vs SMT. RUKIBAI NARSINDAS & ORS.

Bench: SEN,A.P. (J)
Case number: Appeal Civil 1843 of 1981


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PETITIONER: O. N. BHATNAGAR

       Vs.

RESPONDENT: SMT. RUKIBAI NARSINDAS & ORS.

DATE OF JUDGMENT21/04/1982

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) FAZALALI, SYED MURTAZA VENKATARAMIAH, E.S. (J)

CITATION:  1982 AIR 1097            1982 SCR  (3) 681  1982 SCC  (2) 244        1982 SCALE  (1)377  CITATOR INFO :  F          1989 SC  81  (7,8)  F          1989 SC 122  (6,7,9,14)  F          1989 SC 295  (4,13)  E&R        1990 SC1563  (15)  D          1991 SC 626  (12,13)

ACT:      Maharashtra Cooperative  Societies  Act,  1960  Section 91(1)-"Dispute touching the business of the Society"-Whether a claim for ejectment by a Housing Cooperative Society of an occupant of  a flat  who had been let into possession of the premises under  an agreement  of leave  and licence executed between him  and a  member of  the Society  is  a  "dispute" referable to section 91(1) of the Act read with byelaws 66 & 68(a).      Bombay Rents,  Hotel and  Lodging House  Rates  Control Act, 1947  Sections 5(4A),  13, 15A and 28, Scope of-Whether the "non-obstante"  clause in Section 28 of the Rent Act has an overriding effect over the non-obstante clause in Section 91(1) of  Societies Act. Applicability of Section 15A of the Rent Act  Resjudicata -Section  11 of  the  Civil  Procedure Code.

HEADNOTE:      Shyam   Cooperative    Housing   Society   Limited   is constituted  under   the  provisions   of  the   Maharashtra Cooperative Societies  Act, 1960  as a  tenant copartnership type housing  society. Respondent  No.  1  Smt.  Rukibai  N. Bhavnani who  is a copartner tenant member of flat No. 52 in building 5A  in the  housing colony  known as  "Shyam Niwas" situate at  Warden Road,  Bombay, inducted  the appellant in the said  flat under an Agreement of Leave and Licence dated November 28,  1961 after  the appellant  was accepted by the Society as  a "nominal  member". The  agreement was  renewed from time  to time  and the  period of  the  last  agreement expired on  February 28, 1965. By her notice dated March 31, 1965, respondent  No. 1  called upon the appellant to vacate the premises  as his  occupation of  the premises had become unlawful after  termination of  the licence.  The  appellant failed to  comply with  the demand and therefore, respondent No.  1   preferred  the  claim  for  possession  before  the

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cooperative court which by its judgment dated April 28, 1978 made an  Award against  the appellant  for possession of the flat in  dispute and  for arrears  of rent and mesne profits amounting to  Rs. 30,000  against the  award  the  appellant filed an  appeal before  the cooperative Appellate Court but it was  dismissed in  January 1979. Thereafter the appellant filed a Writ Petition in the High Court in February 1979 and it was  dismissed in  March 1981.  The Letters patent Appeal preferred by  the appellant  was also  rejected.  Hence  the appeal by special leave.      Dismissing the appeal, the Court, ^      HELD :  (1) The claim by the society together with such member for ejectment of a person who was permitted to occupy having become a nominal member 682 thereof, upon  revocation of licence, is a "dispute" falling within  the   purview  of   Sec.  (1)   of  the  Maharashtra Cooperative Societies Act, 1960. [696 D-E]      Deccan  Merchant’s   Cooperative  Bank   Ltd.  v.  M/s. Dalichand  Jugraj   Jain  &   Ors.   [1969]   1   SCR   887, distinguished.      2:1  The   proceedings  under   section  91(1)  of  the Maharashtra Cooperative  Societies Act, 1960 were not barred by the  provisions of  Section 28 of the Bombay Rents, Hotel and Lodging  House Rates Control Act, 1947. The two Acts can be best harmonised by holding that in matters covered by the Rent Act,  its provisions, rather than the provisions of the Act should  apply. But,  where the parties admittedly do not stand in  the jural  relationship of landlord and tenant, as here the  dispute would  be governed by Section 91(1) of the Societies Act.  The appellant  by  virtue  of  his  being  a nominal member,  acquired a  right to  occupy the  flat as a licensee, but his rights were inchoate. [697 B-D]      Sabharwal Brothers  and  Another  v.  Smt.  Guna  Amrit Thandani  of   Bombay,  [1973]   1  SCR   53  discussed  and distinguished.      2:2 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 in 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  exclusive jurisdiction is  conferred on  certain courts  to decide all questions or  claims under  that Act  as to  parties between whom there  is or was a relationship of landlord and tenant. It does  not invest those courts with exclusive power to try questions of title, such as between the rightful owner and a trespasser or  a licensee,  for such  questions do not arise under the  Act. The  appellant having  raised a  plea in the nature of  demurrer, the  question of jurisdiction had to be determined with  advertence to  the allegations contained in the statement of claim made by the respondent No. 1 under s. 91(1) of  the Act  and those allegations must be taken to be true. The  respondent No.  1 unequivocally  asserts that the parties stood  in the  relation of licensor and licensee and that fact is clearly borne out by the terms of the agreement of leave  and licence as between the parties. The burden was on the  appellant to  establish that  he had the status of a "tenant" within  the meaning of s. 5(11) of the Rent Act, as it then  stood, and  that burden he has failed to discharge. If, therefore,  plaintiff in  the plaint  does not  admit  a relationship which  would attract  any of  the provisions of the Act  on which  the exclusive jurisdiction given in s. 28 depends,  the   defendant  cannot  by  his  plea  force  the

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plaintiff to go to a forum where on averments the claim does not lie. [689 A-E]      3:1 Upon  the terms  of Sections  5(4A) and  15A of the Rent Act,  it is clear that the appellant is not entitled to the protection  of Section  15A. The  sine qua  non for  the applicability of  s. 15A  of the Rent Act is that a licensee must be  in occupation  as on Feb. 1, ’73 under a subsisting licence. It  is not  disputed that  the appellant  does  not answer that  description since  the agreement  of leave  and licence in  his favour  admittedly stood  terminated by  the notice of  the respondent  No. 1  dated March 31, 1965. That being so, the appellant is nothing but a rank trespasser and is not  entitled to the protection of s. 15A of the Rent Act and cannot therefore plead the bar of s. 28(1) thereof. [690 F-H] 683      3:2 As  a result  of the  introduction of s. 15A and s. 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  cooperating  housing  society registered or deemed to be registered under the Act, who was in occupation of such premises under a subsisting licence as on Feb.  1, 1973,  is by  a legal  fiction, deemed  to be  a tenant and  thus has the protection of the Rent Act. In such a case,  the dispute  between  a  licensor  and  a  licensee relating to  possession of  the premises  of  a  flat  would attract s.  28 read  with ss.  15A and 5(4A) of the Rent Act and fall outside the purview of the Registrar’s jurisdiction to adjudicate  upon such  dispute  under  s.  91(1)  of  the Societies Act.  In the  instant case  the question  does not arise. [691 A-C]      3:3 A  bare reading  of  the  agreement  of  leave  and licence is clearly indicative of the fact that the appellant was a  licensee. Admittedly  his occupation  of the flat was not as  a tenant  but as a licensee. The question whether or not the  appellant was  a licensee  of the  flat or a tenant thereof was  directly and substantially in issue between the parties in  the suit.  The finding that he was not a tenant, but  had   only  the   status  of  a  licensee  operates  as resjudicata 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 and  (iii) the  licence of  the appellant having been terminated  by respondent  No. 1,  by her  notice dated March 31,  1965, the  appellant was not in occupation of the flat  on  Feb.  1,  1973  under  a  subsisting  licence  and therefore did  not acquire  the status  of  a  tenant  under section 15A  and is,  not protected  under section 13 of the Rent Act. [691 E-H; 692 A]      4. The  respondent No.  2-Society being a copartnership type  housing  society,  having  let  flat  no.  52  to  the respondent no.  1 as  a copartner tenant-member, was vitally interested in  ensuring that  no stranger is in unauthorised occupation of  the flat  after the expiry of the term of the licence. It  was  therefore  rightly  transposed  as  a  co- disputant in  the proceedings  under section  91(1)  of  the Societies Act,  and could  raise  a  dispute  regarding  the unauthorised occupation  of the  premises by  the  appellant after the revocation of the licence. [693 D-G]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1843 of

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1981.      Appeal by  special leave  from the  judgment and  order dated the  21st April,  1981 of  the Bombay  High  Court  in Appeal No. 168 of 1981.      H.H. Advani,  P.R. Ramasesh  and Manu  Iyanger for  the Appellant.      S.N. Kackar,  V.K. Panwani  and Girish  Chandra for the Respondents.      The Judgment of the Court was delivered by 684      SEN, J.  This appeal  by special leave directed against the judgment  of the  Bombay High Court dated April 21, 1981 raises a  question  of  some  importance.  The  question  is whether a  claim for  ejectment  by  a  housing  cooperative society, of  an occupant  of a  flat who  had been  let into possession of  the premises  under an agreement of leave and licence executed between him and a member of the society, by virtue of  his being a nominal member thereof, is a ‘dispute touching the  business of the society’ within the meaning of sub-s. (1) of s. 91 of the Maharashtra Cooperative Societies Act, 1960 (for short ‘the Act’).      The material  facts giving  rise to  this appeal are as follows. The  respondent No.  2  herein,  Shyam  Cooperative 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 the approval of the society and unless  such licensee  becomes a nominal member thereof. The respondent  No. 1  and the appellant accordingly applied to the  society  on  December  8,  1961  for  accepting  the appellant to  be a  nominal member.  The  respondent  No.  2 society passed  a resolution  No. 90  on December  15,  1961 accepting the  appellant as  a nominal member. The leave and licence agreement  executed by  the  respondent  No.  1  was renewed from  time  to  time  and  the  last  agreement  was executed on  January 10,  1965, the  term of  which  was  to expire on  February 28,  1965. By her notice dated March 31, 1965 the  respondent No.  1 called  upon  the  appellant  to vacate the premises as his occupation 685 of the premises had become unlawful after termination of the licence. The  appellant failed to comply with the demand and has remained  in unauthorised occupation of the flat for all these years.      After termination  of the  agreement, in  May 1965, the respondent No.  1 Smt.  Rukibai N. Bhavnani claiming to be a co-partner tenant  member of  the society and as such holder of flat  No. 52,  brought proceedings  against the appellant

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before the  District Deputy  Registrar Cooperative Societies Bombay under  s. 91(1)  of the  Act for his eviction and for recovery of  arrears  of  compensation  and  mesne  profits, impleading the  society as Opponent No. 3. On receipt of the claim under  s. 91(1)  the Assistant  Registrar, Cooperative Societies issued  notice to the appellant for the purpose of satisfying  himself   that  a  dispute  under  that  section existed. The  appellant however  did not  appear before  the Assistant Registrar  who was  seized  with  the  matter  but instead filed  an application  before  the  Court  of  Small Causes, Bombay  for fixing  standard rent  of  the  flat  in dispute. These  proceedings were stayed pending adjudication of the  dispute by  the Assistant  Registrar. The  Assistant Registrar in  the meanwhile  proceeded with  the inquiry and after holding that such a dispute exist he referred the case to the  Registrar’s nominee  for adjudication. The appellant did not challenge the decision of the Assistant Registrar.      Before the  Registrar’s nominee the appellant filed his written statement and thereafter evidence of the parties was recorded. It  appears that  when the  proceedings before the nominee were  about to  end he  returned the  papers to  the Registrar as  he did  not want  to proceed  further  in  the matter. When  the 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 686 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  the Officer  on  Special Duty were  revived in  1972. Meanwhile,  the case  had  been assigned to  another Officer  on  Special  Duty,  a  retired Presidency Magistrate,  for  adjudication.  Before  him  the appellant again  demanded a  de novo trial which was granted and therefore evidence had to be recorded afresh. During the stage of  of evidence,  respondent No.  2  applied  for  and obtained leave  to be  transposed as  a "disputant"  as  the Bombay High  Court took the view that unless the society was a disputant  the Registrar  would have  no  jurisdiction  to proceed under  s. 91(1)  of the  Act. The Officer on Special Duty by  his  order  dated  August  27,  1973  rejected  the application for  transposition made  by  respondent  No.  2. Thereupon, respondent  No. 2 preferred a revision before the Maharashtra Cooperative  Societies  Tribunal  which  by  its order dated  February 8,  1974 allowed  its application  for transposition as  a co-disputant.  The  appellant  tried  to assail the  order of  the Tribunal  by a writ petition but a Division Bench  of the  High Court  by  its  judgment  dated January 9,  1976 declined  to interfere.  By this  time  the system of  Officers on  Special Duty was again replaced, now

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by the setting up of Cooperative Courts. After the dismissal of  the   writ  petition,   the  proceedings   initiated  by respondent No. 1 were assigned to a Judge of the Cooperative Court, Maharashtra.  Before  him  the  original  plaint  was amended making  necessary averments with respondent No. 2 as a co-disputant.  Again the  appellant asked  for a  de  novo trial, but  in view  of the  provisions of  s.  91-A(4)  his application  was  rejected  Respondent  No.  1  was  however resummoned for  further cross examination and thereafter the appellant’s evidence was recorded. In August, 1977 there was a change  of the  Judge of  the Cooperative  Court  and  the appellant repeated  his prayer  for a de novo trial but this application of  his also  rejected. The learned Judge of the Cooperative Court by his judgment dated April 18, 1978, made an award against the appellant for possession of the flat is dispute and  for arrears of rent and mesne profits amounting to Rs.  30,000. Against  the award  the appellant  filed  an appeal before  the Cooperative  Appellate Court  but it  was dismissed in January, 1979. Thereafter the appellant filed a writ petition in the High Court in February, 1979 and it was dismissed in  March, 1981  by a  learned single  Judge.  The appellant unsuccessfully 687 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  make an application  for   transposition,  even  assuming  that  the appellant was not a tenant but a licensee : It is urged that the appellant  was entitled  to question  the  legality  and propriety of  the order of transposition made in revision by the Maharashtra  State Cooperative  Tribunal permitting  the society to be impleaded as a co-disputant so as to bring the dispute within  the purview  of s.  91(1) of  the Act. It is said  that   the  respondent  No.  2-society  without  first terminating the  nominal membership  of the  appellant could not make  a claim for his eviction from the flat in question (3) Whether  a claim  for ejectment of an occupant of a flat by a  housing  cooperative  society  having  been  let  into possession of  the premises  under an agreement of leave and licence executed between him and a member of the society, by virtue of  his being a nominal member thereof, is a ‘dispute touching the  business of the society’ within the meaning of s. 91(1)  of the  Act  ?  We  proceed  to  deal  with  these questions in turn.      The statutory  provisions bearing  upon these questions are set  out below.  The relevant provision of sub-s. (1) of s. 91 of the Act, prior to its amendment, provides :

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         "91(1)Notwithstanding anything  contained  in  any      other law  for the  time being  in force,  any  dispute      touching  the......business  of  a  society,  shall  be      referred by any of 688      the parties  to the  dispute....... to the Registrar if      both the  parties thereto  are  one  or  other  of  the      following :      (a)  a society...............      (b)  a member, past member or a person claiming through           a member................" Section 91(2)  of the  Act lays  down that when any question arises whether  for the  purpose of  sub-s. (1)  any  matter referred to  for decision  is a dispute or not, the question shall be considered by the Registrar whose decision shall be final. The  Registrar is, therefore, required to decide as a preliminary issue the question whether the dispute is of the kind as  between the  parties in sub-s. (1). Unless he finds that the  dispute falls  within s.  91(1) of the Act he will have no jurisdiction to decide it. It also attaches finality to the  decision of  the Registrar on the preliminary issue. Section 91(3)  states that  save as otherwise provided under s. 91 (3) of the Act, no civil court shall have jurisdiction to entertain  any suit or other proceeding in respect of any dispute referred to in sub-s. (1).      Section 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." 689      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 exclusive jurisdiction is conferred  on certain  courts to  decide all questions or claims under that Act as to parties between whom there is or was a  relationship of  landlord and  tenant.  It  does  not invest those courts with exclusive power to try questions of title, such  as between  the rightful owner and a trespasser or a  licensee, for  such questions  do not  arise under the Act. The  appellant having  raised a  plea in  the nature of demurrer, the  question of jurisdiction had to be determined with  advertence   to  the   allegations  contained  in  the statement of  claim made  by the  respondent No.  1 under s. 91(1) of  the Act  and those allegations must be taken to be true. The  respondent No.  1 unequivocally  asserts that the

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parties stood  in the  relation of licensor and licensee and that fact is clearly borne out by the terms of the agreement of leave  and licence as between the parties. The burden was on the  appellant to  establish that  he had the status of a "tenant" within  the meaning of s. 5(11) of the Rent Act, as it then  stood, and  that burden he has failed to discharge. If, therefore,  plaintiff in  the plaint  does not  admit  a relationship which  would attract  any of  the provisions of the Act  on which  the exclusive jurisdiction given in s. 28 depends,  the   defendant  cannot  by  his  plea  force  the plaintiff to go to a forum where on averments the claim does not lie.      In our opinion, there is a felt need at the very outset to displace the appellant’s apprehensions that the effect of upholding the  judgment of  the High Court would be to throw all  licensees   of  residential   flats  in  multi-storeyed buildings belonging to cooperative housing societies without any protection.  The apprehensions, if we may say so, appear to be  wholly unfounded.  The Legislature was fully aware of the  acute   paucity  of   housing  accommodation   in   the metropolitan city 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 by  Maharashtra Act  17 of 1973 the following provisions were inserted  in the  Rent Act. Sub-s. (1) of s. 15A of the Rent Act, as introduced now, provides :           "15A(1)   Notwithstanding    anything    contained      elsewhere in this Act or anything contrary in any other      law for the 690      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 "premises  given on  licence"      shall be construed accordingly." It is  clear upon  the terms  of  these  sections  that  the appellant is not entitled to the protection of s. 15A of the Rent Act.  The Legislature in its wisdom has drawn a line at February 1, 1973 and laid down the condition that a licensee in occupation  under a  subsisting licence  as on  that date shall be  deemed to  be a  tenant. The  sine qua non for the applicability of  s. 15A  of the Rent Act is that a licensee

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must be  in occupation  as  on  February  1,  1973  under  a subsisting licence.  It is  not disputed  that the appellant does not  answer that  description since  the  agreement  of leave and  licence in his favour admittedly stood terminated by the  notice of the respondent No. 1 dated March 31, 1965. That  being   so,  the  appellant  is  nothing  but  a  rank trespasser and  is not  entitled to the protection of s. 15A of the  Rent Act  and cannot  therefore plead  the bar of s. 28(1) thereof. 691      As a  result of the introduction of s. 15A and s. 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 licence as on February 1, 1973,  is by  a legal  fiction, deemed to be a tenant and thus has the protection of the Rent Act. In such a case, the dispute between  a  licensor  and  a  licensee  relating  to possession of  the premises  of a  flat would  attract s. 28 read with ss. 15A and 5(4A) of the Rent Act and fall outside the purview  of the  Registrar’s jurisdiction  to adjudicate upon such  dispute under  s. 91(1)  of the  Act.  Once  this aspect is  kept in  view, there  need be  no apprehension as expressed by  learned counsel  for the  appellant  that  the effect of  upholding the judgment of the High Court would be to throw  all  licensees  of  residential  flats  in  multi- storeyed  buildings   belonging   to   cooperative   housing societies without any protection.      It would  be convenient  to deal  with  the  first  two questions together.  The submission  that the  appellant was inducted as  a tenant  under  the  agreement  of  leave  and licence is  wholly misconceived.  The distinction  between a lease and  a licence  is well-known.  A bare  reading of the agreement of  leave and licence is clearly indicative of the fact that  the appellant  was a  licensee.  Admittedly,  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 February 1, 1973 under a subsisting tenancy 692 and did  not acquire the status of a tenant under s. 15A and is therefore not protected under s. 13 of the Rent Act.      As  hereinbefore  adumbrated,  the  respondent  No.  2- society is  governed by  the Regulations  in Form-A.  It  is registered as a copartnership type housing society. The bye- laws of  the society  provide, inter-alia, by Bye-law 2 that one of  the objects  of the society would be to carry on the

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trade of  buying, selling,  hiring, letting  and  developing land  in   accordance  with   cooperative  principles.   The respondent No.  1 is  a co-partner  tenant member  and holds flat No.  52 in  Form-A.  The  flat  in  question  therefore belongs to the society and she is a co-partner tenant member thereof. Paragraph 5 of Form-A reads:           "5. No  tenant shall  assign, underlet,  vacate or      part with  the possession  of the  tenement or any part      thereof without the consent in writing of the society." The two  bye-laws relevant  for our purposes are Bye-laws 66 and 68(a) which provide as follows:           "66. Whenever  a member to whom a tenement, a shop      or a  godown has  been allotted by the Society does not      require the  same for  his own use temporarily or for a      specific period,  he may  offer the same to any person,      as a  licensee for temporary occupation for a specified      period, provided that he shall-(a) sign and undertaking      as required  by the  Society; (b)  get  such  temporary      occupant enrolled  as a  nominal member of the society;      (c) shall  not permit  such occupation before receiving      permission from  the  Society’s  Committee  to  do  so,      provided  such  permission  shall  not  be  considered,      unless the  member has  paid all his due to the Society      uptodate, and  authorizes the  Society to  recover from      the  nominal   member,  out  of  compensation  or  rent      receivable by  him from  the nominal  member any amount      due from  the member  to the  Society by  way of taxes,      general charges or any other dues."           "68(a) No person shall be a sub-tenant or licensee      or lessee  etc. of  the Society  or of a member, unless      the Committee first enrols him as Nominal Member of the      Society and  he pays  Rs. 500  as a security deposit to      the Society.  For this  purpose, he  has to  apply in a      form prescribed by 693      the Society. The Security Deposit will bear no interest      and will be issued in the joint names of the Society or      the member (as the case may be) and the occupant and it      will be  refunded on the occupant vacating 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 Rs. 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  of  the  licence  is devoid of  substance. The  respondent No.  2-society being a co-partnership type  housing society, having let flat No. 52 to the  respondent No.  1 as a co-partner tenant member, was vitally interested  in  ensuring  that  no  stranger  is  in unauthorized occupation  of the flat after the expiry of the

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term of  the licence as it would tend to cause annoyance and inconvenience to  the other co-partner tenant members of the society.      There was  a determined effort to question the legality and propriety  of the  order passed by the Maharashtra State Cooperative   Tribunal    allowing   the   application   for transposition made  by respondent  No. 2-society  but we did not permit  the appellant  to do so for obvious reasons. The appellant had  challenged the impugned order of the Tribunal by a  writ petition in the High Court and eventually failed. The appellant not having questioned the judgment of the High Court, the  order of  the Tribunal allowing transposition of the respondent  No. 2-society as a co-disputant has attained a finality  which  cannot  now  be  upset.  The  proceedings initiated by 694 the respondent  No. 1 under s. 91(1) of the Act could not go on after  the High Court had taken the view in certain cases that unless  the cooperative housing society is a disputant, the claim by a member thereof for possession of the premises of a  flat against a licensee would not be a dispute falling within the  ambit of  s. 91(1)  of the  Act. That  being so, quite apart from technicalities, we are inclined to the view that the  High Court  was fully justified in not interfering with  the   impugned  order   of   the   Tribunal   allowing transposition. The  Tribunal adopted a course which was both eminent and  just  and  was  necessary  for  doing  complete justice between  the parties.  The appellant  who is  a rank trespasser has  no equity in his favour. The contention that the respondent  No. 2-society  could not  be transposed as a co-disputant in  the proceedings  under s.  91(1) of the Act must therefore fail.      The third  question is the much vexed question on which the decision  of the  appeal must turn. It is submitted that the dispute  between the  licensor and  the licensee was not one falling within the purview of s. 91(1) of the Act. It is said that a dispute between a flat-owner and the occupant as regards  tenancy  cannot  be  taken  cognizance  of  by  the Registrar under  s. 91(1)  of the Act, but the remedy of the flat-owner 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 695 clause clearly ousts the jurisdiction of civil courts if the dispute falls   squarely within the ambit of s. 91(1) of the Act. The  Court then  went on  to enumerate  five  kinds  of

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disputes mentioned in s. 91(1): first, disputes touching the constitution  of  a  society;  secondly,  disputes  touching election  of  the  office-bearers  of  a  society;  thirdly, disputes touching  the conduct  of  general  meetings  of  a society; fourthly,  disputes touching  the management  of  a society and  fifthly, disputes  touching the  business of  a society. In the context, it was said:           "It is  clear that  the word  ’business’  in  this      context does  not mean  affairs of  a  society  because      election of office bearers, conduct of general meetings      and management of a society would be treated as affairs      of a  society. In  this sub-section the word ’business’      has been  used in  a narrower  sense and  it means  the      actual trading  or commercial or other similar business      activity of the society which the society is authorised      to enter  into under  the Act and the Rules and it bye-      laws." In regard  to the  question whether  a dispute  touching the assets of  a society  would be dispute touching the business of the society, it was observed:           "Ordinarily, if  a society owns buildings and lets      out parts  of buildings  which it  does not require for      its own  purpose it  cannot be said that letting out of      those parts  is a  part of the business of the society.      But it  may be  that it is the business of a society to      construct and  buy houses  and  let  them  out  to  its      members. In  that case letting out property may be part      of its business."      Thus, the  Court adopted  the narrower meaning given to the word  ’business’ as  expressed by the Madras, Bombay and Kerala High  Courts in preference to the wider meaning given by the  Madhya Pradesh  and Nagpur High Courts. According to the view  taken in  Deccan Merchant Cooperative Bank’s case, supra, the word ’business’ in the context means "any trading or commercial  or other  similar business  activity  of  the society". It  was held  that the word ’business’ in s. 91(1) of the  Act has  been used  in a  narrower sense and that it means  the  actual  trading,  commercial  or  other  similar business activity  of  the  society  which  the  society  is authorised to enter into under the Act and the rules and its bye-laws. 696      In the  present case,  the  society  is  a  tenant  co- partnership type  housing society  formed with the 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, is a  dispute falling  within the purview of s. 91(1) of the

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Act. The  decision in  Deccan Merchants  Cooperative  Bank’s case, supra, is clearly distinguishable on facts. There, the Court was  dealing with  a society  which was  a cooperative bank and  ordinarily a cooperative bank cannot be said to be engaged in  business when  it lets out property owned by it. In that  case, the  dispute was  not  a  dispute  between  a society and  a member or a person claiming through a member. Further when  the original  owner executed the lease, he was not acting  as a member but as a mortgagor in possession and therefore the  cooperative bank’s claim for ejectment of the lessee did not fall within s. 91(1) (b) of the Act.      It  is   true  that   the  Court  in  Deccan  Merchants Cooperative Bank’s  case, supra,  dealt  with  the  question whether on  the facts  and circumstances  of that  case, the Rent Act  applied and  accordingly the  jurisdiction of  the Registrar under  s. 91(1)  of the  Act was ousted and it was only the  Court of  Small Causes  which had  jurisdiction to evict the  tenant. The  Court referred  to the  twin  social objectives with  which the  two enactments were designed and observed that  while s.  91(1) of  the Act  was intended and meant, in  the main, to shorten litigation, lessen its costs and to  provide a summary procedure for the determination of the disputes  relating to  the internal  management  of  the societies, the Rent Act was intended to achieve 697 a different social objective i.e. to prevent the eviction of tenants and  enhancements of  rent, and  then went on to say that it  was necessary  that a  dispute between the landlord and tenant  should be  dealt with by the Courts set up under the Rent  Act and  in accordance with the special provisions of that  Act. It  then dealt with the inter-relation between the non-obstante  clause in s. 91(1) of the Act and s. 28 of the Rent  Act and observed that this special objective under the Act  does not  impinge on  the objective  underlying the Rent Act.  It seems  to us  that the  two Acts  can be  best harmonised by  holding that  in matters  covered by the Rent Act, its  provisions, rather than the provisions of the Act, should apply.  But where the parties admittedly do not stand in the  jural relationship  of landlord and tenant, as here, the dispute  would be  governed by  s. 91(1)  of the Act. No doubt, the  appellant acquired a right to occupy the flat as a licensee,  by virtue 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 ultimately he made an award that the appellant Sabharwal Brothers  had  occupied  the  flat  on  leave  and licence basis  and was  therefore liable  to be  evicted. In

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revision, the  Bench of the Small Causes Court held that the Registrar’s nominee did have jurisdiction and the High Court upheld the  order of  the Bench.  Allowing the  appeal, this Court observed: 698           "With all  respect to  the High Court, it seems to      us that  there was  a fundamental  error in  the  above      approach. No  doubt it  was the business of the society      to let  out premises  and a  member had  no unqualified      right to  let out  his flat  or tenement  to another by      virtue of  the bye-laws  and a  breach of  the bye-laws      could  affect   the  defaulting   member’s   right   to      membership. But we are not able to see how letting by a      member to  another member  would touch  the business of      the society  which included  inter alia  the  trade  of      buying, selling,  hiring and letting land in accordance      with cooperative  principles. The  letting of  flat  by      respondent No.  1 was  a transaction of the same nature      as the  society itself  was empowered to enter into but      and letting  by itself  did not concern the business of      the society  in the  matter of  its letting  out flats.      Nothing was  brought to  our notice to show that such a      letting would  affect the  business of the society once      it had  sold the  flat to  the respondent  No.  1.  The      position might  have been  different if  the latter had      himself been  a tenant  of the  flat under the society.      "To touch"  means "to come in contact with" and it does      not appear  that there  is a point of contact between a      letting by  the respondent  No. and the business of the      society when the society was not itself the landlord of      the flat." It is  we think,  important to  remember that this authority decided only  one point  albeit a  point of great importance namely, that  the society  having sold  the flat,  like  any other vendor  of immovable  property, the letting out of the flat by  the flat-owner was no concern of the society. There was nothing  to show  that such  letting  would  affect  the business of  the society  once it  has sold  the flat.  With respect, we  entirely agree with all that was said. But then the Court went on to say:           "The position  might have  been different  if  the      latter had  himself been a tenant of the flat under the      society." It logically  follows, as a necessary corollary, that if the transaction between  the society  and the holder of the flat were governed  by Regulations in Form-A, as here, that is to say, if  the society  had let  out  the  flat  to  her,  the decision of the Court would have been otherwise.      The decision  in Sabharwal  Brothers’ case,  supra,  is distinguishable  for   two  reasons.  First,  there  was  an outright sale of the flat by 699 the society  and not  that it  had been let out to her under Regulations in Form-A; and secondly, the society having sold the flat,  the letting of the flat by the flat-owner did not in any  way affect the business of the society in the matter of its  letting out  the flat.  The observation made by this Court that  the fact  that such  letting was  forbidden by a regulation of  the society  was immaterial  did not fall for decision in that case and was a mere obiter.      In the  result, the  appeal must  fail and is dismissed with costs. S.R.                                       Appeal dismissed. 700

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